State Board of Registration Ex Rel. Healing Arts v. Finch

514 S.W.2d 608, 1974 Mo. App. LEXIS 1369

• Court: Missouri Court of Appeals
• Decided: September 3, 1974
• Docket: KCD 27073
• Status: Published

Opinions

WASSERSTROM, Judge.

This case arises from administrative proceedings on the application of Dr. Finch under Section 334.040 (all statutory references being to RSMo 1969, V.A.M.S., unless otherwise specified) for a license to practice medicine. After the Board denied his right to take the licensing examination, Dr. Finch filed complaint to the Administrative Hearing Commission under the provisions of § 161.302. From an order of the Commission ordering that Dr. Finch he permitted to take the examination, the Board sought judicial review under Chapter 536 and Rule 100, V.A.M.R. The Circuit Court affirmed the order of the Commission, and the Board appeals.

During the pendency of the case in the Circuit Court, the Board filed a motion to stay the Commissioner’s order. However, the trial court refused to issue a stay, Dr. Finch then proceeded to take the examination pursuant to the Commission’s order, and he has received a passing grade. The Board nevertheless refuses to issue a license, on the ground that Dr. Finch is otherwise disqualified because of certain felony convictions. The parties agree that despite Dr. Finch’s taking and passing the examination, the issues are not moot; and that if the Board’s contentions on this appeal are correct, then the Commission’s order should be reversed, but that if its contentions are incorrect, then a license should be issued.

The underlying facts are stipulated. In April, 1961, Dr. Finch was convicted in California of first degree murder of his wife and of a conspiracy to commit that murder, both charges being felonies under California law. He was sentenced to life imprisonment on each conviction, to be served concurrently. The details of the sordid background of these crimes and of the brutal killing appear in the appellate opinion affirming the convictions, People v. Finch and Tregoff, 213 Cal.App.2d 752, 29 Cal.Rptr. 420 (1963) and need not be repeated here. Based upon those convictions, Dr. Finch’s medical license in California was revoked on July 4, 1964, and has not been reinstated.

Dr. Finch entered the California penitentiary system in 1961, being confined first in maximum security at San Quentin prison. He was transferred to a medium security institution in 1965, to a minimum security institution in 1967, and to a min-min security institution in 1968. In October of 1971, he was admitted to parole. During all this period of imprisonment, he was a “model prisoner.” In addition to working the required hours at prison assignments, he spent many hours every day reading medical journals and books, kept in good physical condition by exercise, helped reorganize the Tennis Club, counseled and helped other inmates, and related well to staff and inmates alike. During his last three years in prison he assumed great responsibility as Chief of Research and Statistics and worked on projects that benefited the California Department of Corrections, other inmates and himself.

At the time Dr. Finch was released on parole, the City of El Dorado Springs, Missouri, was actively searching through a “Doctor Procurement Committee” for a doctor to serve at the County Hospital located in the city and to replace the only full-time staff doctor, who had suffered a heart attack in the summer of 1969. This committee approached Dr. Finch with an invitation to come to El Dorado Springs with the intent that he would be able to get a Missouri license and practice in their city. Dr. Finch accepted that invitation, after his release on parole he arrived in El Dorado Springs in early 1971 and since that time he had been employed as an X-ray technician at the Cedar County Memorial Hospital. At no time prior to the issuance of that invitation or the arrival of Dr. Finch in Missouri did either the committee or Dr. Finch inquire of or consult with the appellant Board as to whether he would be permitted to be examined for li-censure.

On November 30, 1972 (two years after arrival in El Dorado Springs), Dr. Finch filed the application to the Board now in question. As supporting proof of his rehabilitation and moral qualification to practice medicine despite the California convictions, Dr. Finch offered a wide-ranging array of evidence. It is stipulated that he is a member of the St. Elizabeth Church in El Dorado Springs, where he attends Mass regularly. All members of the Ministerial Association of El Dorado Springs, consisting of six clergymen, would testify that Dr. Finch “enjoys a reputation for moral character which is above reproach.”

Five California doctors who practiced with Dr. Finch prior to his conviction and who maintained personal contact with him while in prison would testify that “in their opinion he is ready for full integration into society and the practice of medicine” and they would testify without reservation “that his moral character since his conviction is the very best and in their opinion he could be of great service to any community, his patients and to society as a whole, if he were licensed to practice.” In addition, five Missouri doctors in and around El Dorado Springs would testify that they have known Dr. Finch as a friend and associated with him as an X-ray technician and they would without exception say “that his moral character is the very best.”

Still further, Dr. Finch submitted himself to psychiatric examination at the Menninger Clinic where he was examined by Dr. Karl Menninger and Dr. Tobias Brocher, both psychiatrists, and Dr. R. E. Schulman, a psychologist and attorney. The result of that examination appears in a Consultation Report which states in part that Dr. Finch “is not a danger to anyone now and was a danger in the past in an unique and unrepeatable situation * * * he has learned to contain his desires through internal controls * * * Dr. Finch is able to more than adequately handle the responsibilities of medical practice. If we believe in rehabilitation, then Dr. Finch must be given this last important key necessary for total and complete return to carrying out his responsibilities and duties as a citizen and trained physician * * * There is no indication that he is unstable, dangerous, or in any way harmful. The man's intellect is keen and it would be in the best interest of those he would serve as well as in his best interest if he could again practice medicine and surgery.”

Still further, 18 business and professional people in the El Dorado Springs area, all of them being civic leaders and governmental officials, were prepared to testify that Dr. Finch “is a respected citizen in the community and enjoys an undisputed reputation for good moral character.” This group of leading citizens included among others the president of the Chamber of Commerce, the president of the local bank, the Chief of Police, the Sheriff, the presidents of the Rotary and Lions Clubs, the Commander of the local American Legion, the president of the local chapter of the American Legion, the president of the local chapter of the American Association of University Women and the president of the local chapter of the Missouri Federated Women’s Clubs.'

Finally, on this subject of rehabilitation, Dr. Finch’s parole officer would testify that he is a conscientious worker, cooperates fully with the department, and enjoys a reputation in the community of good moral character.

The appellant Board, at Dr. Finch’s request, did grant him an informal hearing with respect to his application on May 5, 1973, at which time Dr. Finch offered evidence as outlined above. The very next day the Board denied Dr. Finch’s application, the letter of denial stating in part:

“The Board is sympathetic to the concept of rehabilitation. However, it does not believe that it is suitable or appropriate to the best interests of the people of the State of Missouri to paradoxically permit an individual who has brutally murdered his wife to reenter the practice of medicine — a profession which peculiarly and uniquely is dedicated to the prolongation of human life. On the basis of this determination alone the Board would deny your request.

“The Board recognizes that it has the discretion to grant you the right to be examined for licensure to practice in this state; but, after thorough and complete evaluation of all the facts before it, the Board hereby denies your request.”

After the filing of complaint by Dr. Finch before the Commission, the Hearing Commissioner examined Dr. Finch in person, as well as receiving the stipulation from the parties. The Commissioner then made detailed findings of fact and conclusions of law, reaching the decision that Dr. Finch satisfied the requirements of § 334.-031 and was entitled to be examined by the Board pursuant to § 334.040. The Commissioner’s conclusions included the following (of which the first sentence more accurately should be considered as the ultimate finding of fact):

“The overwhelming evidence before this Commission supports a finding that Petitioner is rehabilitated, presently has good moral character, and if licensed, would be an asset to the medical profession. Petitioner has satisfied the requirement of good moral character in Section 334.031, RSMo 1969 and is qualified to take Respondent’s written examination for licensure. Respondent’s determination not to examine Petitioner is therefore under the law unreasonable, arbitrary, and constitutes an abuse of discretion.”

On this appeal, the Board’s points of error are as follows: 1) that the Commission’s decision is an unauthorized invasion of a discretion granted by statute to the Board; and 2) that the Commissioner’s decision is not based upon substantial evidence.

I.

The Board’s principal argument in this case is that the evaluation of Dr. Finch’s past conduct and of his present moral character was a matter to be decided in the discretion of the Board, subject only to judicial review by a court under the Administrative Procedure and Review Act, Chapter 536. The statutes of this state did provide originally for just what the Board contends.. The provisions of § 334.100, as initially enacted, admits of no other possible interpretation. That section provides that the Board “may refuse to license individuals of bad moral character, or persons guilty of unprofessional or dishonorable conduct” and unquestionably was intended originally to give the Board the primary responsibility for determining those matters.' However, this is only the background for and not the end of our inquiry.

A.

The original situation described changed radically with the enactment in 1965 of the Administrative Hearing Commission Act, § 161.252 et seq. This new statute provides in § 161.302, that when any of certain specified licensing agencies, among which is included the appellant Board, refuses to permit an applicant to be examined upon his qualifications for licensure, that applicant may file a complaint before the Administrative Hearing Commission and have a hearing of the issues by the Commission. Section 161.322 provides that the procedure before the Commission shall be governed by Chapter 536, and § 161.332 provides for judicial review under Chapter 536. The purpose and intent of this new Administrative Hearing Commission Act was explicated by this court in State ex rel. American Institute of Marketing Systems, Inc. v. Missouri Real Estate Commission, 461 S.W.2d 902 (Mo.App.1970), in which Judge Howard pointed out at l.c. 908 that by the new statute, “the legislature intended sweeping changes in the hearing procedures theretofore provided by law for the 15 licensing bodies * * * Judge Howard further emphasized that the vice sought to be corrected was that these licensing agencies had previously “acted as investigator, prosecutor, judge, jury and executioner, all rolled into one.” Judge Howard then summarized the purpose and intent of this legislation, as follows:

“In such a situation, even the best intentioned individuals could not function with actual and complete fairness and in-partiality. Prejudgment of a case was inevitable. It was to remedy this situation that the Administrative Hearing Commission Act was passed, setting up an imparital tribunal to hold evidentiary hearings and make findings of fact and conclusions of law upon the evidence presented by the licensing board on one side, and by the licensee (or. the applicant for a license) on the other side.”

See also the excellent special project study by Sandberg, Edgar and Rohrer, “Fair Treatment for the Licensed Professional : The Missouri Administrative Hearing Commission,” 37 Mo.L.Rev. 410 (1972).

In line with this legislative purpose to create a completely new hearing procedure for the granting and revocation of licenses, the General Assembly included as part of this statute, S.C.S.S.B. 284, a Section 11, Laws 1965, pages 277, 280, which provides: “Any provisions of existing statutes pertaining to the administrative agencies listed in section 3 which are in conflict with this act are repealed.” This Section 11 has been omitted by the Revisor of Statutes from and no reference thereto appears in the Missouri Revised Statutes 1969. Nevertheless, the original enactment “is the best evidence of the Legislature’s purpose and intent” and “[sjubsequent revisions purporting, without enactment, to change the substantive law, may not be utilized to defeat this intent and purpose.” Protection Mutual Insurance Co. v. Kansas City, Mo., 504 S.W.2d 127, l.c. 130-131 (Mo.1974).

In the case of the Board here, as was held with respect to the Missouri Real Estate Commission in American Institute of Marketing Systems, the licensing agency has lost all statutory authority to conduct evidentiary hearings into the qualifications of applicants for licensure. As held in American Institute of Marketing Systems at l.c 906: “Now, under the Administrative Hearing Commission Act, if the board determines to deny the application, the hearing on qualification is to be held by the administrative hearing commission, on complaint of the applicant.”

B.

The Board contends however that nothing of the foregoing has any effect in the present situation. In support of its position, the Board seeks to distinguish between questions of fact and what it claims to be its right to exercise discretion with respect to matters of good moral character and professional or dishonorable conduct by applicants. The thrust of the Board’s argument is that only questions of fact have been entrusted by the legislature to the Administrative Hearing Commission; that the only question of fact in this case is whether Dr. Finch committed a felony; and that since that fact is stipulated and admitted, and since the statute specifies that commission of a felony shall be deemed “dishonorable conduct”, there is nothing really for decision by the Commission at all, other than to dismiss the Finch complaint.

That argument by the Board is faulty on several counts. First and foremost, the distinction sought to be drawn between findings of fact and the exercise of discretion lacks logic. Whether or not the discretion shall be exercised in favor of admitting Dr. Finch to licensure depends upon many factual elements. For example, the Board itself recognizes iñ its letter of denial that the precise nature of the felony makes a difference. So, also, different re-suits may ensue depending upon the amount of time spent in prison, the period of time which has expired since release from prison, the exact nature of the conduct and attitudes evidenced by the applicant since the conviction, the applicant’s present reputation in the community, and perhaps many other elements. In any event, the discretion as to whether the applicant is to be admitted cannot be exercised wisely or even reasonably except as a natural consequence of a consideration and determination of the entire factual congeries.

The Board’s atteriipt to confine the area of factual determination here to the single question of whether Dr. Finch committed a felony would carry persuasion if the statute made disqualification mandatory on proof of a felony conviction. However, that is not so. The legislature did not intend, and the Board does not argue, that an applicant should be invariably and automatically disqualified because of a prior commission of a felony. It was for that reason that § 334.100, as originally enacted, provided that the Board “may” refuse to license for that reason. The use of the term “may” necessarily implies that the denial is not mandatory, and that the conferee of the power has the discretion in exercising it. Smith v. State Board of Medical Examiners, 46 Ga.App. 456, 167 S.E. 769 (1933). And since there is a discretion to be exercised, it follows that there are factual considerations to be taken into account, the determination of which must be reasonable and is subject to judicial review. Kehr v. Garrett, 512 S.W.2d 186, decided by the Missouri Court of Appeals, St. Louis District, July 9, 1974. See also Barsky v. Board of Regents, 347 U.S. 442, 451, 74 S.Ct. 650, 655, 98 L.Ed. 829 (1954), holding that a State may delegate discretionary power to a board to refuse a medical license because of criminal convictions, where there is a determination, after opportunity for a fair hearing, “whether the convictions, if any, were of such a date and nature as to justify denial of admission to practice in the light of all material . circumstances before the board.” (emphasis added)

It is inconceivable that the legislature intended any separation of the exercise of discretion from the determination of facts which are necessarily preliminary to and decisive of how that discretion is to be exercised. Furthermore, a conclusion that such a separation was intended, as argued for by the Board, would conflict with the ruling in American Institute of Marketing Systems, l.c. 906, which holds that the Administrative Hearing Commission Act “was obviously designed to, and we believe it does, cover all contingencies wherein the Missouri Real Estate Commission, and the other licensing boards listed in this section, were theretofore authorized to hold hearings.” (emphasis added)

Still another reason for rejecting the statutory construction argued for by the Board is that to do otherwise would raise serious constitutional problems. One such problem would be that of procedural due process. If the Board were correct, it would have the right to exercise a discretion concerning the licensure of applicants without holding any hearing whatsoever. This is the necessary result of the Board’s position, since under American Institute of Marketing Systems, it no longer has any power to hold hearings or make findings of fact. The discretionary denial of a license under those circumstances might very well be vulnerable under the due process requirement that such a licensing discretion can be exercised only “after fair investigation, with such a notice, hearing and opportunity to answer for the .applicant as would constitute due process.” Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 123, 46 S.Ct. 215, 217, 70 L.Ed. 408 (1926), quoted with approval in Willner v. Committee on Character and Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).

Another constitutional question which would be raised by accepting the Board’s statutory interpretation is that of equal protection of law. Any discretion exercised in a manner unrelated to factual findings could be vulnerable to serious charges that this constituted arbitrary action. See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Richardson v. Ramirez, - U.S. -, 94 S.Ct. 2655, 41 L.Ed.2d 551, decided June 24, 1974.

C.

The Board vainly seeks support for its position by attempting to draw an analogy to the revocation of an existing license. The Board points out that under § 161.292, the revocation procedure is for the Board to file a complaint before the Commission, and the Commission holds a hearing and makes findings of fact and conclusions of law as to whether the licensee has given cause for revocation. If the Commission does find such cause, then it must refer the case to the licensing agency with recommendations as to disciplinary action. Notwithstanding those recommendations, the licensing agency is the one which determines what disciplinary measure should be applied. The Board argues from this that the legislature did intend a separation between fact finding functions and exercise of discretion, and that by analogy the Board in the present case should be deemed to have the discretion to evaluate Dr. Finch’s conduct and what is appropriate action with respect to granting him a license.

The analogy is completely false. Aside from any other distinctions, the dominating difference in the two situations is that the legislature in the case of revocation proceedings under 161.292 has specifically provided that a fact finding hearing be held by the Commission in advance of the stage where the Board is called upon to exercise a discretion. This results in the Board having the. full benefit of the Commission’s factual determination at the time it is called upon to determine appropriate disciplinary action. In our situation, to the contrary, the Board tries to argue for a situation in which it would undertake to exercise a purported discretion without any hearing powers of its own and in advance of any hearing held by the Administrative Hearing Commission. The vast difference between these two situations is patently obvious.

Additionally, it should be pointed out that in the case of license revocations, the legislature purposefully and distinctly set forth a precise division of functions, leaving no room for doubt or speculation as to the legislative intention. No similar division of functions has been specified with respect to original licensure covered by § 161.302.

D.

Summarizing: the Administrative Hearing Commission Act vested authority in the Commission to find the facts with respect to the seriousness of Dr. Finch’s original felonious conduct, the extent to which he has repented and rehabilitated himself and all other factors bearing on whether he should be eligible for licensing. The Act further authorized the Commission to make conclusions of law (based on the facts found) as to whether Dr. Finch should be considered an eligible candidate. These powers conferred upon the Commission are inconsistent with the retention of a controlling discretion in the latter regard by the Board, and the original primacy granted to the Board in this regard must therefore be held to have been repealed by Section 11 of the Administrative Hearing Commission Act.

II.

The Board’s second point of error is the claim that the Commission’s decision is not based on substantial and competent evidence. In connection with this argument the Board lays heavy emphasis upon the viciousness and depravity of Dr. Finch’s crimes committed in 1959, and it argues in its brief that “the evidence relating to the convictions so eclipses any good inferences to be drawn from respondent’s post-conviction conduct as to make the decision of the Commission contrary to the overwhelming weight of the evidence.”

The standard for review as to the sufficiency of the evidence in this case is prescribed by § 161.332 which in turn adopts by reference the rule contained in § 536.140. The latter section provides that the judicial inquiry “may extend to a determination of whether the action of the agency * * * [i]s unsupported by competent and substantial evidence upon the whole record * * * The decisions interpreting this standard of review hold that the reviewing court is not to weigh the evidence for itself, but rather is required to view the evidence in the light most favorable to the decision of the tribunal, giving to the administrative decision the benefit of all reasonable inferences to be derived from the evidence produced. Tom Boy, Inc. v. Quinn, 431 S.W.2d 221, 225 (Mo. banc 1968); Marshfield Community Bank v. State Banking Board, 496 S. W.2d 17, 27 (Mo.App.1973).

Applying that standard of review here, the evidence is amply sufficient to support the findings of the Commission. Dr. Finch’s crimes, which the Board would emphasize to the exclusion of everything else, occurred 15 years ago and his conviction was 13 years ago. Since that time, he has conducted himself in an exemplary manner and according to all of the evidence he appears to have sincerely repented and has accomplished a solid rehabilitation. The Commission would have been seriously remiss if it had followed the course apparently advocated by the Board of refusing to give any weight to the impressive evidence of rehabilitation contained in the record.

The loftiest goal of penology is rehabilitation of the fallen member of society, and the courts have been highly sympathetic to that goal and have been strongly inclined to give effect to sincere rehabilitation when it occurs. An extreme example occurred in Board of Governors of Registered Dentists of Oklahoma v. Brown, 182 Okl. 1243, 76 P.2d 1074 (1937) where the Oklahoma Supreme Court held that a dentist convicted of second-degree murder had rehabilitated himself during the year and a half after his conviction and the court reversed the administrative body which had suspended him because of the conviction from the practice of dentistry. See also Tanner v. De Sapio, 2 Misc.2d 130, 150 N.Y.S.2d 640, 644 (1956), holding:

“However, this Court refuses to subscribe to any philosophy that assumes that a person once dishonest may not by future conduct acquire good moral character. If such be the case, the State should alter its programs now in force in correctional institutions whereby reformation of convicts is undertaken. The duty of respondent in the instant case was to determine whether or not the applicant was of good moral character at the time she applied for the licenses. It would of course be proper to consider a former conviction, but that would not necessarily prevent the issuance of a license.”

It is hard to conceive of stronger proof of rehabilitation than that which has been presented on behalf of Dr. Finch in the present case. If evidence is ever to be sufficient to justify a finding of good moral character, this case must be deemed to qualify. By no stretch of the imagination can it be said that the Commission’s findings concerning rehabilitation are not supported by substantial evidence.

As a secondary attack upon the evidence, the Board complains of the receiving into evidence and consideration by the Commission of the “Consensus Report” prepared by Dr. Schulman, over the objection by the Board that this report was hearsay. Even if the Board’s objections to this piece of evidence were sound, that could not be decisive of the sufficiency of the evidence as a whole, since this consensus report was only one piece of evidence out of much other. However, the Board’s hearsay-objection is not sound. Dr. Schulman actually participated in the examination of Dr. Finch and in the consultations with his two colleagues at Menninger Clinic, and it has been stipulated that he would testify to those facts and to the fact that he prepared the consultation report which was received into evidence as Exhibit B. That foundation is sufficient to permit admission of this report within the business record exception to the hearsay rule. Ellis v. State Department of Public Health and Welfare, 285 S.W.2d 634 (Mo.1956).

The judgment is modified, under the authority of § 536.140(5) and Rule 84.-14, to direct the Board to issue a license for the practice of medicine to Dr. Finch. As so modified, the judgment is affirmed.

DIXON, C. J., and SHANGLER, J., concur.

PRITCHARD, J., concurs in separate opinion, in which SWOFFORD, J., joins.

SOMERVILE, J., dissents in separate opinion.