IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT BLAKE H. DONALDSON, D.O., ) Appellant, ) ) v. ) WD83217 ) MISSOURI STATE BOARD OF ) FILED: July 7, 2020 REGISTRATION FOR THE ) HEALING ARTS, ) Respondent. ) Appeal from the Circuit Court of Cole County The Honorable Patricia S. Joyce, Judge Before Division Two: Mark D. Pfeiffer, P.J., and Alok Ahuja and Edward R. Ardini, Jr., JJ. Dr. Blake Donaldson filed a petition in the Circuit Court of Cole County,
seeking judicial review of a decision rendered by the Administrative Hearing
Commission (the “AHC” or “Commission”) and by the State Board of Registration
for the Healing Arts (the “Board”) in a license-discipline proceeding. The
administrative proceeding resulted in the emergency suspension, and ultimately the
revocation, of Dr. Donaldson’s medical license. The circuit court upheld the
administrative agencies’ decision. On appeal, Dr. Donaldson challenges the
agencies’ disciplinary decision on multiple procedural and substantive grounds.
Among other things, he challenges the constitutionality of § 334.102,1 which
1 Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated through the 2019 Cumulative Supplement. provides for the emergency suspension of licensees without a hearing, and for
expedited proceedings thereafter to determine if cause for discipline exists.
We conclude that Dr. Donaldson’s challenges to the constitutional validity of
§ 334.102 invoke the exclusive appellate jurisdiction of the Missouri Supreme Court
pursuant to Article V, § 3 of the Missouri Constitution. We accordingly lack
jurisdiction over Dr. Donaldson’s appeal, and order the case transferred to the
Missouri Supreme Court pursuant to Article V, § 11 of the Missouri Constitution.
Background From 1995 to December 2017, Dr. Donaldson was licensed by the State as a
physician and surgeon. During part of this time, he owned and operated Primary
Care North Kansas City, LLC, in Parkville.
On November 27, 2017, the State Board of Registration for the Healing Arts
filed with the Administrative Hearing Commission a complaint and motion for
emergency suspension of Dr. Donaldson’s medical license. The Board alleged that
from May 2012 through February 2016, Dr. Donaldson engaged in various sexual
acts with one of his patients, both in his medical office, and at his home. The Board
alleged that the patient at issue was a minor when some of the sexual acts occurred.
Dr. Donaldson was served with the Board’s complaint and motion for emergency
suspension on the same day it was filed.
On December 5, 2017, acting pursuant to § 334.102 and without conducting a
hearing, the AHC issued an order finding probable cause that Dr. Donaldson
engaged in sexual conduct with a patient and engaged in sexual misconduct with a
minor, and that such conduct was harmful to the mental and physical health of the
patient. As a result, the Commission immediately suspended Dr. Donaldson’s
medical license pending the final outcome of the disciplinary proceedings.
Dr. Donaldson filed a Petition in the Circuit Court of Cole County on December 12, 2017, seeking injunctive and writ relief to prevent the Board and
2 Commission from enforcing the emergency suspension of his license (No. 17AC-
CC00617). The circuit court dismissed the action. It held that Dr. Donaldson had
failed to exhaust his administrative remedies, and that his claims could be
addressed in a judicial review proceeding brought under § 536.100 of the Missouri
Administrative Procedure Act, after issuance of a final administrative decision.
The Administrative Hearing Commission held a hearing on February 22-23,
2018, in which Dr. Donaldson and his counsel participated. Dr. Donaldson had
requested a stay of proceedings, and a continuance of the hearing date, to permit
him to conduct further discovery, and had agreed to remain subject to the
emergency suspension order in the interim. The AHC denied the requested
continuance on the basis that it “d[id] not have the authority to extend the
emergency suspension beyond the time frame under § 334.102.” Dr. Donaldson
asserts that a continuance would have permitted him to obtain records from third
parties (including records concerning the activation and de-activation of his office’s
alarm system, and his work schedule at a local hospital) which would have
disproven some of the sex abuse allegations. Dr. Donaldson later obtained some of
the third-party records, but the Commission, the Board, and the circuit court
refused to consider them. On March 15, 2018, the AHC entered its decision finding cause for discipline
of Dr. Donaldson’s license under § 334.100.2. The Commission found that Dr.
Donaldson engaged in sexual conduct with a patient, knowing that the individual
was his patient and was sixteen years of age. The Commission also found that Dr.
Donaldson engaged in additional sexual acts with the same patient when the
patient was seventeen and eighteen years old.
The Board held a hearing to determine the appropriate discipline on August
3, 2018. Dr. Donaldson appeared with counsel. On September 25, 2018, the Board
3 issued its decision and disciplinary order revoking Dr. Donaldson’s medical license,
with leave to apply for reinstatement after seven years.
On October 25, 2018, Dr. Donaldson filed a petition for judicial review in the
Circuit Court of Cole County. (Pursuant to § 621.145, the AHC’s finding of cause for
discipline, and the Board’s decision imposing discipline, are treated as a single
decision for purposes of judicial review.) The circuit court rejected Dr. Donaldson’s
challenges and upheld the administrative decision. Dr. Donaldson appeals.
Discussion Before reaching the merits of Dr. Donaldson’s claims, we must first
determine whether we have jurisdiction over his appeal. Dieser v. St. Anthony’s
Med. Ctr., 498 S.W.3d 419, 427 (Mo. 2016).
Dr. Donaldson asserts nine Points on appeal. In Points III and IV, he
contends that § 334.102 “on its face violate due process.” In Point III, he argues
that § 334.102’s emergency suspension provisions violate due process because the
statute does not require a pre-suspension hearing, and does not authorize judicial
review of an emergency suspension order until all proceedings before the AHC and
the Board are concluded. In Point IV, Dr. Donaldson argues that the provisions of
§ 334.102.4(1), which require that a final hearing concerning cause for discipline be
conducted on an expedited basis following entry of an emergency suspension, are
unconstitutional because they afford a licensee an insufficient opportunity to
investigate and conduct discovery to respond to the Board’s allegations of
misconduct. The parties agree that Dr. Donaldson properly preserved his
constitutional claims in the circuit court.
Article V, § 3 of the Missouri Constitution provides that the Missouri
Supreme Court has “exclusive appellate jurisdiction in all cases involving the
validity of a . . . statute . . . of this state.” The Supreme Court’s “exclusive appellate jurisdiction is invoked when a party asserts that a state statute directly violates the
4 constitution either facially or as applied.” Dieser, 498 S.W.3d at 427. “‘If any point
on appeal involves such [a] question, the entire case must be transferred to the
Supreme Court.’” Accident Fund Ins. Co. v. Casey, 536 S.W.3d 360, 364 (Mo. App.
W.D. 2017) (citation omitted).
The Supreme Court’s “exclusive appellate jurisdiction is not invoked,”
however, “simply because a case involves a constitutional issue.” McNeal v.
McNeal-Sydnor, 472 S.W.3d 194, 195 (Mo. 2015). “To invoke the [Supreme] Court’s
exclusive jurisdiction, the constitutional issue must be real and substantial, not
merely colorable.” Matter of Care and Treatment of Bradley v. State, 554 S.W.3d
440, 448-49 (Mo. App. W.D. 2018) (citations and internal quotation marks omitted);
accord, Boeving v. Kander, 496 S.W.3d 498, 503 (Mo. 2016); Mayes v. Saint Luke’s
Hosp. of Kansas City, 430 S.W.3d 260, 270 (Mo. 2014).
In determining whether a constitutional claim is real and substantial, we make a preliminary inquiry as to whether it presents a contested matter of right that involves fair doubt and reasonable room for disagreement. If the initial inquiry discloses the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable. McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387, 404 (Mo. App. W.D. 2004)
(citations omitted). “‘In the context of the ‘not merely colorable’ test, the word ‘colorable’ means feigned, fictitious or counterfeit, rather than plausible.’” Dieser,
498 S.W.3d at 429 (quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 52
(Mo. 1999)); Snodgrass v. Martin & Bayley, Inc., No. ED87304, 2006 WL 1735246,
at *3 (Mo. App. E.D. June 27, 2006) (same).
“‘One clear indication that a constitutional challenge is real and substantial
and made in good faith is that the challenge is one of first impression with th[e]
[Supreme] Court.’” Dieser, 498 S.W.3d at 429 (quoting Rodriguez, 996 S.W.2d at
52); accord Mayes, 430 S.W.3d at 270 (“Because this Court has not addressed these
5 issues in the context of the current version of section 538.225, the plaintiffs present
real and substantial constitutional questions.”).
Dr. Donaldson’s constitutional claims are “real and substantial,” and not
“merely colorable.” He argues that § 334.102’s emergency suspension provision
violates due process because it denies a licensee an opportunity to be heard in a
meaningful time and manner concerning an emergency suspension ordered by the
AHC. He also argues that the statute denies licensees due process because it
requires that, following an emergency suspension order, a final Commission hearing
on cause for discipline must be heard on an expedited schedule, thereby denying
licensees an adequate opportunity for investigation and discovery.
Dr. Donaldson’s arguments raise substantial challenges to the validity of
§ 334.102. Under the statute, the Board may apply to the AHC for emergency
suspension of a licensee for certain enumerated causes. § 334.102.1. The Board’s
complaint must “alleg[e] the facts in support of the board’s request for an
emergency suspension” and such facts must be supported by affidavits and “existing
certified court records.” § 334.102.2. Within one business day of the filing of the
complaint, the AHC must return a “service packet” to the Board (consisting of the
Board’s complaint and any affidavits or records filed with the AHC), which the Board must serve on the licensee within twenty-four hours. Id. The licensee may
file counter-affidavits or documents with the Commission. Id.
Within five days of the Board’s filing of the complaint, the AHC must
determine if probable cause exists that the licensee has committed any of the acts
which would justify an emergency suspension. § 334.102.3. “If the administrative
hearing commission finds that there is probable cause, the administrative hearing
commission shall enter the order requested by the board,” which becomes effective
when it is served on the licensee. Id.
6 When an emergency suspension order is issued, the AHC “shall hold a
hearing . . . to determine if cause for discipline exists” within forty-five days of the
Board’s filing of the complaint, unless continuances are requested and granted, in
which event the hearing must be held no later than 120 days after the Board’s
initial filing. § 334.102.4(1). If the AHC finds cause for discipline it must issue
findings of fact and conclusions of law and order that the emergency suspension
remain in place pending the Board’s disciplinary hearing. § 334.102.4(3). “The
board shall hold a hearing following the certification of the record by the
administrative hearing commission and may impose any discipline otherwise
authorized by law.” Id.
The United States and Missouri Constitutions “prohibit the taking of life,
liberty, or property without due process of law.” Coyler v. State Bd. of Registration
for Healing Arts, 257 S.W.3d 139, 144 (Mo. App. W.D. 2008) (citing U.S. Const.
Amend. XIV, § I; Mo. Const. Art. I, § 10). A license to practice medicine is
“protected by both procedural and substantive due process.” Id. (citation omitted);
see Stone v. Mo. Dep’t of Health and Senior Servs., 350 S.W.3d 14, 27 (Mo. 2011) (“A
person has a property right in a license that requires sufficient procedural due
process before the license can be ‘impaired, suspended, or revoked.’” (citation omitted)).
“Under both the federal and state constitutions, ‘[t]he fundamental
requirement of due process is the opportunity to be heard “at a meaningful time and
in a meaningful manner.”’” Jamison v. State Dep’t of Social Servs., 218 S.W.3d 399,
408 (Mo. 2007) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (other
citations omitted)). “The Due Process Clauses require that in order to deprive a
person of a property interest, [they] must receive notice and an opportunity for a
hearing appropriate to the nature of a case.” Moore v. Bd. of Educ. of Fulton Pub. Sch. No. 58, 836 S.W.2d 943, 947 (Mo. 1992)).
7 The Missouri Supreme Court has recognized “the well-settled principle that if
the State feasibly can provide a hearing before deprivation of a protected interest, it
generally must do so in order to minimize ‘substantively unfair or mistaken
deprivations.’” Jamison, 218 S.W.3d at 408 (quoting Zinermon v. Burch, 494 U.S.
113, 132 (1990) (other citations omitted)). Although due process principles
frequently require a hearing before a person may be deprived of their property, the
Missouri Supreme Court has recognized that a pre-deprivation hearing is not
required in all instances, because “[d]ue process is a flexible concept.” State ex rel.
Williams v. Marsh, 626 S.W.2d 223, 230 (Mo. 1982) (citations omitted); accord, City
of Kansas City v. Jordan, 174 S.W.3d 25, 43 (Mo. App. W.D. 2005) (quoting Fuentes
v. Shevin, 407 U.S. 67, 82 (1972)).
Besides affording affected persons a right to a hearing at a meaningful time,
due process principles also require that interested parties have a fair opportunity to
protect their interests in such a hearing. “In an administrative proceeding, due
process is provided by affording parties the opportunity to be heard in a meaningful
manner. The parties must have knowledge of the claims of his or her opponent,
have a full opportunity to be heard, and to defend, enforce and protect his or her
rights.” Wunderlich v. Jensen, 496 S.W.3d 522, 528-29 (Mo. App. W.D. 2016) (quoting Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 271-72 (Mo. App. S.D. 2010)).
In this case, an emergency suspension of Dr. Donaldson’s license to practice
medicine was entered without any pre-suspension hearing, based on a finding that
there was probable cause to believe that he had committed serious acts of
misconduct. While the statute permits licensees to file affidavits and evidence in
response to the Board’s request for an emergency suspension, the statute
apparently does not require the AHC to delay its decision on the Board’s request to
permit a licensee to submit such opposing evidence. A hearing before the Commission was required to be held no later than 120 days after the Board’s initial
8 filing, to determine whether cause for discipline existed. Dr. Donaldson argues that
this expedited timetable for the final hearing on cause for discipline denied him a
meaningful opportunity to conduct discovery and investigation to enable him to
defend against the Board’s allegations, even though the Board had an unlimited
amount of time to develop its own case before filing its complaint. Dr. Donaldson
also complains that, after the Commission found cause for discipline, further
proceedings were required in front of the Board (to determine what discipline would
be imposed) before the administrative procedure concluded. It does not appear that
the Board was subject to any specific deadline within which it was required to issue
its final disciplinary decision. All the while, the emergency suspension order
remained in effect, and Dr. Donaldson was denied any opportunity to obtain judicial
review (because the administrative proceedings had not yet concluded).
Neither the Missouri Supreme Court nor this Court has addressed the
validity of § 334.102’s procedures for emergency license suspensions, and for
imposing final discipline following an emergency suspension, under due process
principles.2 Nor does it appear that any Missouri appellate court has addressed
similar issues with respect to any analogous statutory framework.3 Other
2 Citing Farm Bureau Town & Country Ins. Co. v. Angoff, 909 S.W.2d 348 (Mo. 1995), the agencies contend that the Missouri Supreme Court has held that it is generally appropriate to require a regulated party to exhaust administrative remedies before asserting a constitutional challenge to a statute. But in Farm Bureau – unlike here – the administrative agency had not taken any interim, emergency action which significantly affected the regulated party’s interests during the pendency of the administrative proceedings. Thus in Farm Bureau, the regulated party’s interests had not yet been affected by the ongoing administrative proceeding, and that proceeding might ultimately have concluded in the regulated entity’s favor. In those circumstances, the Supreme Court held that – until the administrative proceeding concluded – “it is impossible to know if a subsisting justiciable controversy exists between the agency and the party seeking declaratory relief.” 909 S.W.2d at 353. In this case, by contrast, the AHC denied Dr. Donaldson his right to practice medicine on an emergency basis, while administrative proceedings continued. There was nothing “hypothetical or speculative” concerning his challenge to the emergency suspension. Id. at 352. 3 Section 335.066 provides a nearly identical procedure for the emergency suspension of a nursing license pending disciplinary proceedings. Neither the Missouri
9 jurisdictions in analogous circumstances have recognized that “emergency
suspension [of a professional license] pending a full hearing did not, in and of itself,
violate [a licensee]’s due process rights.” Gershenfeld v. Justices of the Supreme
Court of Pa., 641 F. Supp. 1419, 1424 (E.D. Pa. 1986). “The guarantee of a prompt
dispositional postdeprivation hearing, however, is a critical factor in determining
the constitutional validity of the previously invoked interim or temporary
deprivation processes.” Id. (collecting cases).
The fact that Dr. Donaldson raises issues of first impression in Missouri
indicates that he has raised “real and substantial” constitutional claims. Mayes,
430 S.W.3d at 270; see also In re Care and Treatment of Edwards, No. ED 78858,
2002 WL 171307 (Mo. App. E.D. Feb. 5, 2002) (transferring appeal to Missouri
Supreme Court where appellant argued that sexually violent predator civil
commitment statute violated his due process rights, and “the constitutional
challenge to Missouri’s sexually violent predator statute . . . raised by Edwards has
not been addressed by the Missouri courts”). The resolution of due process
challenges depends on the particular interests at stake, and the particular
procedures afforded, under a specific statute; it is significant that the Missouri
Supreme Court has not addressed due process challenges to this or an analogous statutory scheme. Dr. Donaldson’s claims, as presented, involve fair doubt and
reasonable room for disagreement, and they do not appear so legally or factually
insubstantial that we can say they are merely colorable.
We recognize that Dr. Donaldson’s constitutional challenge to the emergency
suspension order (Point III) is arguably moot, because the emergency suspension
order was effectively superseded by the final disciplinary order entered by the
Commission and Board after hearings before both agencies. It appears, however,
Supreme Court nor this Court has addressed a due process challenge to the nursing provisions, either.
10 that the entry of an emergency suspension was a prerequisite to the Commission
and Board using the expedited procedures specified in § 334.102.4 to finally resolve
the disciplinary proceedings. Section 334.102.4 plainly contemplates that an
emergency suspension has previously been entered, since it refers to the AHC either
terminating the emergency suspension, or continuing the emergency suspension “in
full force and effect,” depending on whether the Commission finds cause for
discipline after hearing. See § 334.102.4(2), (3). Therefore, it appears that the final
disciplinary order entered by the agencies was dependent on the existence of the
prior emergency suspension.
Even if Point III is moot, that would not affect the separate constitutional
argument Dr. Donaldson makes in Point IV. In addition, given that Dr. Donaldson
was denied any opportunity to obtain judicial review of the emergency suspension
order pending conclusion of the administrative proceedings, it is at least arguable
that the Supreme Court would consider the merits of his challenge to the emergency
suspension order under the public-interest exception to the mootness doctrine.
Under that exception, the Supreme Court may exercise its discretion to decide the
merits of a case, despite its mootness, “‘whenever a case presents an issue that (1) is
of general public interest and importance, (2) will recur, and (3) will evade appellate review in future live controversies.’” State ex rel. Mo. Pub. Defender Comm’n v.
Waters, 370 S.W.3d 592, 603 (Mo. 2012) (quoting Gurley v. Mo. Bd. of Private
Investigator Exam’rs, 361 S.W.3d 406 (Mo. 2012)). This exception allows the Court
to “decide an issue even though it may appear to be moot if there is some legal
principle at stake not previously ruled as to which a judicial declaration can and
should be made for future guidance.” Id. (citations and internal quotation marks
omitted). If Dr. Donaldson is prohibited from challenging the emergency
suspension order entered against him, it is unclear how any future litigant would be better situated to raise such a challenge in a live controversy.
11 Conclusion Dr. Donaldson’s constitutional claims invoke the Missouri Supreme Court’s
exclusive appellate jurisdiction under Article V, § 3 of the Missouri Constitution.
This appeal is accordingly ordered to be transferred to the Supreme Court pursuant
to Article V, § 11 of the Missouri Constitution.
____________________________________ Alok Ahuja, Judge All concur.