# State ex rel. State Board of Medical Examiners v. Naifeh

> Supreme Court of Oklahoma · July 10, 1979 · 598 P.2d 225

URL: https://www.frixlaw.com/law-library/cases/5155023

## Case

- **Full name:** STATE of Oklahoma, ex rel. STATE BOARD OF MEDICAL EXAMINERS v. The Honorable Raymond NAIFEH, Judge of the District Court of Oklahoma County
- **Court:** Supreme Court of Oklahoma
- **Decided:** July 10, 1979
- **Citations:** 598 P.2d 225; 1979 OK 105; 1979 Okla. LEXIS 271
- **Precedential status:** Published
- **Opinion:** Dissent by Opala
- **Judges:** Doolin, Opala, Lavender, Irwin, Williams, Hodges, Barnes, Hargrave, Simms, Ala
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

OPALA, Justice,
dissenting:
The first-impression issue before us is whether the provisions of 59 O.S.1971 § 513 afford a constitutionally permissible barrier to a medical practitioner’s [physician’s] district court appeal for review, on the record, of an order by the Board of Medical Examiners [Board] which placed him on a two-year probation for “indiscriminate and excessive” prescribing of controlled dangerous substances. My resolution of this issue must be by a negative answer. Section 513, insofar as it appears to vest in this court, to the exclusion of the district court, reviewing power over the Board’s decisions, clearly deprives a physician of due process under Art. 2, § 7, Okl.Con.
The history of § 513 parallels, if not mirrors, this century’s growth of our administrative process. Before its last amendment in 1935 1 , the section provided for a district *226 court appeal by trial de novo 2 — a procedure which unmistakably coincides with the early post-statehood notion of federal due process. It was then thought that under the minimum standards of federal due process an opportunity for complete retrial of issues, in a judicial forum, must be afforded to one who sought review in court of an administrative decision. 3 It might be hence more than mere coincidence that the 1935 amendment to § 513, which abrogated appeal by trial de novo and shaped the section into its present-day form, became effective a little less than five months after this court had held that a full-blown in-court rehearing of an administrative proceeding was not necessary to meet due process req uirements, 4 Most other provisions for de novo review of administrative decisions fell at once with the enactment, in 1963, of our Adm.Proc.Act. 5 That act introduced into our law the now prevailing concept of initial district court review on the record with an appeal right to this court. 6
Since 1935 persons licensed in medicine as physicians or surgeons have been the only group of health-related practitioners whose disciplinary proceedings are appealable directly to the Supreme Court.
Our due process clause in Art. 2, § 7 has a definitional range that is coextensive with its federal counterpart. 7 The latter [and hence our own] contains a built-in anti-discrimination component which affords protection against unreasonable or unreasoned classifications serving no “important governmental objectives”. 8
The capriciousness of the statutory barrier here in question is thrown sharply into focus by the fact that full benefit of two appeals [first to the district court and thence here], as provided by the Adm.Proc. Act, 9 is available to all persons licensed as healing arts practitioners, and to all those in various health-related public service fields, but under the restrictive provisions of § 513, must be withheld from a single profession. 10
Policy considerations which led the legislature onto the course of allowing a direct Supreme Court appeal for medical and surgical practitioners are now somewhat obscured by the fog of antiquity. However legal and valid they may have been in 1935, I cannot today isolate a single important governmental objective the discriminatory provisions under consideration before us might legitimately serve, which, when tested by the current standards of due process, would enable § 513 to pass constitutional muster.
I would hold that the regime of judicial review provided by the Adm.Proc. Act is constitutionally available and applicable to practitioners in medicine and surgery.
I am authorized to state that Simms, J., concurs in these views.
*227 APPENDIX
*228
. O.S.L. 1935, Ch. 24, Art. 7, pgs. 56-57.
. Freeman v. State Board of Medical Examiners, 54 Okl. 531 , 154 P. 56, 57 [1916]; Oliver v. State, 122 Okl. 66 , 251 P. 31 [1926]; Davis v. State Board of Medical Examiners, 181 Okl. 385 , 74 P.2d 610, 613 [1937].
. In re Initiative Petition No. 23, State Question 38, 35 Okl. 49 , 127 P. 862, 863-864 [1912].
. This holding is contained in McKeever Drilling Co. v. Egbert, 170 Okl. 259 , 40 P.2d 32, 36 [1935]. The 1935 amendment became effective May 13, 1935, O.S.L., Ch. 24, Art. 7, pgs. 56-57.
. 75 O.S.1971 § 301 et seq.
. 75 O.S.1971 §§ 318(2), 321, 323; Abel v. Okla. Real Estate Commission, Okl., 453 P.2d 1007 [1969]; Robbins v. Okla. Alcoholic Beverage Con. Bd., Okl., 461 P.2d 610 [1969]; Trask v. Johnson, Okl., 452 P.2d 575 [1969]; Frank v. Okla. Real Estate Commission, Okl., 512 P.2d 190 [1973]; Baggett v. Webb, Okl., 557 P.2d 433 [1976].
. McKeever Drilling Co. v. Egbert, supra note 4, at p. 35.
. Davis v. Passman, - U.S. -, 99 S.Ct. 2264 , 60 L.Ed.2d 846 [1979]; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693 , 98 L.Ed. 884 [1954].
. APA, 75 O.S.1971 § 301 et seq.
. See Appendix to this opinion for appellate procedure in various health-related and healing arts licensing acts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5155023. Public record. Not legal advice.