Opinion
No. WD 61687
March 11, 2003
Original Writ In Prohibition.
Edward Francis Walsh IV, Kansas City, for Appellant.
Gregory C. Mitchell, Jefferson City, for Respondent.
The State Board of Registration for the Healing Arts challenges the jurisdiction of The Honorable Thomas J. Brown, III, Judge of the 19th Judicial Circuit, to issue an order for the board to make findings of fact in a license discipline case. Judge Brown ordered the board to make findings of fact concerning the similarity or dissimilarity of discipline that it imposed on Mark M. Tendai, M.D., as compared to that imposed on other licensees disciplined in substantially similar cases. We conclude that Judge Brown exceeded his jurisdiction in issuing his order. We, therefore, make absolute our preliminary writ issued on September 9, 2002.
This dispute arose during Judge Brown's consideration of Tendai's petition for review of the board's discipline. The board disciplined Tendai's license to practice as a physician after making petition to the Administrative Hearing Commission and obtaining its decision that Tendai was subject to discipline for violating § 334.100.2, RSMo 2000, of the practice act.
During the subsequent disciplinary hearing before the board, Tendai presented evidence concerning the discipline that the board had meted to similarly situated physicians. The board issued its findings of fact and conclusions of law publicly reprimanding Tendai's license, suspending it for 60 days, restricting it after the term of suspension was complete, and requiring Tendai to complete training concerning documentation and the keeping of medical records. The board, however, made no findings of fact as to the evidence presented by Tendai concerning how his discipline compared with how the board had disciplined other physicians who had committed similar violations of the practice act.
Tendai petitioned the circuit court for judicial review as provided by §§ 536.100- 536.140, RSMo 2000. In his petition for review, he alleged that the board had imposed discipline that violated his right to equal protection of the law. After the parties briefed and presented oral arguments, Judge Brown reversed the discipline imposed by the board and remanded the case to the board. His order and judgment said:
[Tendai's] Petition for Review alleges that the Board's Disciplinary Order imposes discipline which violates [Tendai's] Equal Protection rights, in that other physicians in substantially similar cases prior to [Tendai's] disciplinary hearing had received substantially lesser disciplinary action imposed by the Board. The Board made no findings of fact as to the similarity or dissimilarity of [Tendai's] case to the prior cases cited by [Tendai] at the time of his disciplinary hearing. The Court finds that the Board failed to make findings of fact on this issue, which failure prevents this Court from conducting a review of [Tendai's] claim. The Board's failure to make the required findings of fact on a material issue constitutes error to the substantial prejudice of [Tendai].
Tendai appealed to the Supreme Court on multiple grounds, including the equal protection claim on which the circuit court reversed and remanded the case to the board. The Supreme Court, however, dismissed the appeal because of the possibility that the board would rule in Tendai's favor and thereby render the appeal moot. Tendai v. Missouri State Board of Registration for the Healing Arts, 77 S.W.3d 1, 2 (Mo.banc 2002). The board, having lost the opportunity to argue that it had not denied Tendai his equal protection guarantee, sought a writ of prohibition in this court. The board believes, not only that Tendai's rights were not violated, but also that Judge Brown exceeded his jurisdiction in remanding the case for what amounts to a proportionality review. The Supreme Court has not ruled on either issue.
On September 9, 2002, we issued our preliminary order in prohibition directing Judge Brown not to enforce, in any respect, his order remanding the case to the board for further findings of fact. We now determine whether our preliminary writ is to be quashed or made absolute.
A writ of prohibition is a proper remedy to prevent (1) a usurpation of judicial power by a tribunal lacking either personal or subject matter jurisdiction, (2) a tribunal's exceeding its jurisdiction, or (3) irreparable harm to a party, such as cases in which a material question of law is decided erroneously and would otherwise escape review or cause an aggrieved party considerable hardship and expense. State ex rel. Riverside Joint Venture v. Missouri Gaming Commission, 969 S.W.2d 218, 221 (Mo.banc 1998); State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo.banc 1994); State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862 (Mo.banc 1986). In addition, the Supreme Court has ruled that a writ is also appropriate to prevent unnecessary, inconvenient, and expensive litigation. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo.banc 2001) (citing State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo.banc 1994)).
The board urges us to make our writ absolute based on the grounds that Judge Brown exceeded his jurisdiction when he ordered the board to make findings of fact concerning the similarity of discipline imposed in Tendai's case with that imposed in previous disciplinary cases. Thus, the issue presented by the board is whether Judge Brown had the jurisdiction — or power — to remand a case for what would be, in effect, findings of fact concerning the proportionality of the discipline that it imposed on Tendai.
The board correctly contends that the circuit court's power to remand for reconsideration in light of additional evidence not presented at the hearing extends only to those situations in which the evidence could not have been produced in the exercise of reasonable diligence, or was improperly excluded. Section 536.140.4, RSMo 2000; Consumer Contact Company v. Department of Revenue, 592 S.W.2d 782, 787 (Mo.banc 1980). This rule set out in § 536.140.4, however, is not applicable to this case because it is not a case in which the circuit court was ordering reconsideration of a decision based on evidence not before the board. Rather, Judge Brown ordered that the board make additional findings of fact based on evidence already before the board.
This is usually permissible. We have held that an administrative agency's findings of fact must be sufficiently specific to enable the judiciary's intelligent review of the agency's decision. Heinen v. Police Personnel Board of Jefferson City, 976 S.W.2d 534, 539 (Mo.App. 1998); Holt v. Clarke, 965 S.W.2d 241, 244 (Mo.App. 1998). When an administrative agency's findings of fact have not met this standard, we have remanded cases to the circuit court with instructions that it remand to the agency so it can make proper findings of fact and conclusions of law. Heinen, 976 S.W.2d at 542; Conlon Group, Inc. v. City of St. Louis, 944 S.W.2d 954, 959 (Mo.App. 1997).
Nevertheless, the circuit court's power to remand for additional fact-finding is not unfettered. Section 536.140.5, RSMo 2000, says, "The court . . . may order the agency to take such further action as it may be proper to require[.]" An obvious corollary is that the circuit court has no power to remand under § 536.140.5 for action that is not proper for it to require. This is because a circuit court, although a court of general jurisdiction, exercises special statutory powers when it undertakes judicial review of a contested case under §§ 536.100 to 536.140, RSMo 2000. Deffenbaugh Industries, Inc. v. Potts, 802 S.W.2d 520, 522 (Mo.App. 1990). In these cases, the circuit court's jurisdiction is limited to the power granted to it by statute. Id. (citing Randles v. Schaffner, 485 S.W.2d 1, 3 (Mo. 1972)).
Judge Brown's remand of Tendai's disciplinary case to the board with orders that it make findings of fact "as to the similarity or dissimilarity of [Tendai's] case to the prior cases cited by [Tendai] at the time of his disciplinary hearing" was not a proper order. This is because Judge Brown entered the order on the ground that the board's findings were necessary for his determination of whether Tendai's equal protection rights had been violated. So long as the board's discipline of Tendai's license was a lawful exercise of discretion accorded to it by statute, it could not implicate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Whether or not the board's discipline of Tendai's license was proportional to previous discipline imposed was of no consequence in a determination of whether the board violated the Fourteenth Amendment's guarantee of equal protection in disciplining Tendai's license.
As Tendai presented the matter, the board's exercise of its lawful discretion in disciplining a license simply did not implicate the equal protection guarantee. Lawful exercise of discretion is not a denial of equal protection so long as it is not based on an improper classification. Oyler v. Boles, 368 U.S. 448, 456 (1962). Government's disciplining one person more harshly than another does not, of itself, give rise to an equal protection violation. See Williams v. Illinois, 399 U.S. 235, 243 (1970) (considering disparity in criminal sentencing). Indeed, when a tribunal, including a quasi-judicial tribunal such as the board, is accorded discretion in meting out discipline, the constitution permits qualitative differences. Id.
Tendai's discipline fell within the statutory range of discipline that the board had been given discretion to impose. Section 334.100, RSMo 2000. That the discipline he received from the board may have been more severe than that which other physicians received could not, standing alone, constitute a deprivation of equal protection. The Supreme Court of Missouri has noted that in the absence of an impermissible classification and Tendai does not contend that the board reserved the discipline it imposed on him for any particular class of licensees — inequality arising from permissible discretion in the administration of the law does not result in a violation of equal protection. State v. Greer, 605 S.W.2d 93, 97 (Mo. 1980), vacated on other grounds, 451 U.S. 1013 (1981).
Further evidencing that a classification is a requisite to implicating "equal protection rights" under the Fourteenth Amendment is the analysis governing equal protections claims. Courts often say that the first step in analyzing equal protection claims is to determine whether a classification burdens a suspect class or impinges on a fundamental right such that strict scrutiny review applies or whether the classification does not touch upon a suspect class or fundamental right such that rational basis review applies. See, e.g., Riche , 987 S.W.2d at 336; Missourians for Tax Justice Educ. Project v. Holden , 959 S.W.2d 100, 103 (Mo.banc 1997), cert. denied , 524 U.S. 916 (1998); Casualty Reciprocal Exch. v. Missouri Employers Mut. Ins. Co. , 956 S.W.2d 249, 256 (Mo.banc 1997); Powell v. American Motors Corp. , 834 S.W.2d 184, 190 (Mo.banc 1992); State Bd. of Registration for the Healing Arts v. Giffen , 651 S.W.2d 475, 479 (Mo.banc 1983). Regardless of the standard applied — strict scrutiny or mere rationality — it is apparent that governmental legislation or action must first dispense rights or obligations according to classes of persons, such as race or gender or age, before "equal protection rights" are implicated.
We have not been able to find, nor are the parties able to direct us to, any classification made by the board in disciplining Tendai's license. His case did not involve, for example, the board's imposing one level of discipline on a certain race or other definable class to the exclusion of others. While equal protection claims may be asserted in situations involving no more than a class of one, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), a classification must still exist before there can be a class, regardless of size. "Dr. Tendai" is, of course, not a classification. To be singled out for differing treatment may create a due process claim, but it does not implicate "equal protection rights" unless the "singling out" involved a classification. See R. Rotunda and J. Nowak, Treatise on Constitutional Law: Substance and Procedure §§ 18.1 and 18.2 (3d ed. 1999).
Professors Rotunda and Nowak explained, "The difference in the method of analysis under the due process and equal protection guarantees relates only to whether or not the governmental act classifies persons. . . . If the law does not classify individuals, it will be subjected to the due process guarantee. However, if the means the law employs to achieve its end is the classification of persons for differing benefits or burdens, it will be tested under the equal protection guarantee. . . . The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government's ability to classify persons or `draw lines' in the creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. If the government classification relates to a proper governmental purpose, then the classification will be upheld. . . . The equal protection guarantee has nothing to do with the determination of whether a specific individual is properly placed within a classification. Equal protection tests whether the classification is properly drawn. It is the guarantee of procedural due process that determines what process is necessary to find that an individual falls within or outside of a specific classification. Equal protection deals with legislative line drawing; procedural due process deals with the adjudication of individual claims." Id. at §§ 18.1 and 18.2 (emphasis added).
Given the absence of any classification in this case, Judge Brown erred in concluding that he needed the board's findings of fact to determine whether its discipline violated Tendai's equal protection guarantee. This means that Judge Brown's requiring the board to make findings as to the similarity or dissimilarity of discipline imposed for the purposes of determining whether Tendai's equal protection guarantee was violated constituted a useless act. Requiring a useless act cannot be deemed as "such further action as it may be proper to require." The law does not, after all, require useless acts. Branson Hills Associates, L.P. v. Millington, 907 S.W.2d 231, 235 (Mo.App. 1995).
A writ of prohibition is also proper in cases involving an important question of law that has been decided erroneously and could conceivably otherwise escape our review and lead to the potential of considerable hardship and expense on the board. Courts sometime refer to this as a situation in which there is no adequate remedy by appeal. State ex rel. Director of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo.banc 2001). The Supreme Court has instructed:
[W]here there is an issue which might otherwise escape this Court's attention for some time and which in the meantime is being decided by administrative bodies or trial courts whose opinions may [by] reason of inertia or other cause become [precedent]; and, the issue is being decided wrongly and is not a mere misapplication of law; and, where the aggrieved party may suffer considerable hardship and expense as a consequence of such action, we may entertain the writ for purposes of judicial economy[.]
Noranda, 706 S.W.2d at 862-63.
As the Supreme Court noted in its review of Tendai's case, upon remand, the board may well make findings of fact as to the similarity or dissimilarity of discipline and issue its order favoring Tendai. Tendai, 77 S.W.3d at 2. Tendai, then, having prevailed in his position would have no basis for seeking judicial review. Because the findings of fact would be the board's findings, it would not have any sound basis for seeking judicial review to challenge the requirement that it engage in a proportionality review before imposing discipline. Sections 536.140.6 and 512.020, RSMo 2000; Jackson County Board of Election Commissioners v. Paluka, 13 S.W.3d 684, 687 (Mo.App. 2000) ("A party who has not been aggrieved by a judgment has no right or standing to appeal.") Thus, we are concerned that Judge Brown's ruling has the potential for becoming precedent by which the board and all other licensing boards will feel compelled to make findings of fact concerning the similarity of the discipline it imposes any time a licensee raises a purported equal protection claim without regard for the validity of the claim. Requiring the board to review any number of previous disciplinary orders to make findings of fact as to their similarities would cause considerable hardship and expense to the board.
Judge Brown argues that prohibition is not appropriate because his judgment has been rendered, leaving nothing to be prevented by writ. We agree that prohibition is ordinarily preventative, rather than corrective, and typically restrains commission of an act rather than ordering the undoing of one already performed, State ex rel. Taylor v. Nangle, 227 S.W.2d 655, 657 (Mo.banc 1950), cert. denied, 340 U.S. 824 (1950), but this is by no means without limitation and exception. A writ of prohibition is "properly invoked to restrain the enforcement of orders beyond or in excess of the authority of a judge and to keep a court within the compass of its jurisdiction." State ex rel. Vogel v. Campbell, 505 S.W.2d 54, 58 (Mo.banc 1974); see also State ex rel. Director of Revenue v. Mobley, 49 S.W.3d 178 (Mo. banc 2001) (making writ of prohibition absolute where circuit court acted in excess of its jurisdiction in ordering the director of revenue to restore driving privileges).
For these reasons, we make our preliminary writ absolute. Respondent's motion to dismiss or transfer to the Supreme Court was taken with the case and is hereby denied.
Edwin H. Smith, Judge, and Thomas H. Newton, Judge, concur.