Cantrell v. State Board of Registration for the Healing Arts

HAROLD L. LOWENSTEIN, Judge,

dissenting.

I respectfully dissent. The majority contends the State Board of Registration for the Healing Arts “exercised unautho *829 rized discretion in staying its revocation of Cantrell’s license.” In support of this argument, the majority relies upon statutory language that the license be “automatically revoked” and contends, “we interpret ‘automatically’ to mean that the General Assembly was restricting the board’s discretion.” Therefore, “the board’s only determination was whether Cantrell was convicted of a felony that reasonably related to the qualifications, functions or duties of a physician.” 1 There appears to be no definitive law regarding whether or not the Board has the authority to stay a revocation. The Board here did what the statute required; it revoked Dr. Cantrell’s license. Whether or not the Board could go beyond that revocation has not been determined. Consequently, due to the lack of authority on the subject, I would decide this case on its merits.

It is Dr. Cantrell’s first assertion that the Board utilized improper procedure in the disciplinary proceeding regarding his medical license by violating Missouri’s Sunshine Law, Chapter 610 (also referred to as the “Open Meeting Law”). § 610.011.1 reads:

It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.

Dr. Cantrell asserts the Board held their disciplinary deliberations in a closed meeting, thereby violating the Sunshine Law’s prescription that all public meetings of public governmental bodies be open to the public. 2

Each of the parties cite to Christiansen v. Missouri State Bd. of Accountancy, 764 S.W.2d 943 (Mo.App.1988), in which the State Board of Accountancy held a closed disciplinary meeting regarding the appellant accountant. In its holding, the court discussed the applicability of the Sunshine Law to disciplinary proceedings in general. The court wrote:

A study of Chapter 610 leads to the conclusion that it neither intends nor prescribes application to disciplinary proceedings of any licensee...To be sure, respondent or any like licensing agency can conduct closed meetings when such meetings pertain to disciplinary matters. Such meetings are not within the prescription of Chapter 610...Chapter 610 is held not to apply to any disciplinary proceedings involving any licensee brought before the Administrative Hearing Commission or otherwise conducted by any licensing agency.

Id. at 951 . The Christiansen court held the Sunshine Law not to apply to situations such as the one presently before the court. 3 That is, the court specifically held that Chapter 610 does not apply to disci *830 plinary proceedings before licensing boards.

Before examining the parties’ arguments regarding Christiansen , I find it necessary to acknowledge another opinion of this court, Remington v. City of Boonville, 701 S.W.2d 804 (Mo.App.1985), which was cited to by neither party. In that case applicant appealed the denial of a building permit to the local board of adjustment. After conducting a hearing and receiving evidence, the board closed the meeting for deliberations. Applicant appealed, asserting the foregoing as error. The board contended it was exempt from the Sunshine Law because “they were acting in a quasi-judicial capacity when they went into executive session to deliberate and vote on the matter.” Id. at 805 . In rejecting the board’s argument, the court wrote:

Administrative bodies, even when acting in a quasi-judicial capacity, cannot circumvent compliance with the “open meetings” requirements...by riding on the “coattails” of legislative exclusion of the judiciary. Both the letter and spirit of [the Sunshine Law]...bespeak of a legislative intent to subject all meetings of Boards of Adjustment, including deliberations while acting in a quasi-judicial capacity, to the “open meeting” requirements of Missouri’s “Sunshine Law”.

Id. at 807 . The court’s holding in Remington was specifically limited in applicability to “Boards of Adjustment” and did not involve a disciplinary proceeding before a licensing board. This court finds Chris-tiansen, an opinion of this court later in time than Remington and more directly on point, to be applicable in the case at bar.

Regarding Christiansen , Dr. Cantrell argues its holding is here inapplicable. These assertions are unpersuasive. Chris-tiansen is the latest, on point opinion of this court. Though the reasoning used by the court in Christiansen is somewhat vague, its holding continues to be good law. This court in Christiansen clearly held that Chapter 610 does not apply to “disciplinary proceedings of any licensee.” Christiansen, 764 S.W.2d at 951 . Due to this court’s holding in Christiansen , the Board did not violate Missouri’s Sunshine Law in closing the deliberative portion of the disciplinary proceeding regarding Dr. Cantrell’s medical license.

Dr. Cantrell’s second point is that the Board acted arbitrarily by imposing a more severe sentence upon him in the second disciplinary proceeding of his license. This point has no merit. The charges against Dr. Cantrell at each proceeding were not the same. Dr. Cantrell was found to be subject to discipline on multiple basis at the second proceeding. By contrast, he was only subject to discipline on one basis at the first proceeding. Due to the additional violations Dr. Cantrell was found to have committed, it was not unreasonable or arbitrary for the Board to impose a harsher punishment at the second proceeding. This point should be denied.

The judgment of the trial court should be affirmed.

.The majority pronounces that the Board’s discretion is limited and that § 334.103.1 "mandale[s] only one option, revocation.” But see Francois v. State Board of Registration for the Healing Arts, 880 S.W.2d 601 (Mo.App.1994) in which the Board revoked doctor’s license and then "determined Dr. Francois would be ineligible for reinstatement for at least two years.” Id. at 602 . Was this action also beyond the Board’s discretion? By the majority's analysis, the Board had only one option, revocation, and one determination, whether or not the doctor was convicted of a felony reasonably related to the qualifications, functions or duties of a physician. It would appear improper, under the majority's analysis, for the Board in Francois to have gone further than the one option and determination it was authorized to make and place a qualification upon reinstatement. Though the issue was not decided by the Court of Appeals in Francois , and presumably was not raised by either party, the court did not, as here, sua sponte determine this to be a void act and outside the Board’s jurisdiction.

. Dr. Cantrell only claims error with regard to the closing of the deliberative portion of the disciplinary proceeding, not with the closing of an entire proceeding.

. Accordingly, the Christiansen opinion provides the catalyst by which § 610.011.1 is circumvented. In other words, it is "otherwise provided by law,” within Christiansen , that the deliberation portion of disciplinary proceedings may be closed to the public.