Arkansas State Medical Board v. Leipzig

David Newbern, Justice, dissenting. Dr. Leipzig’s complaint, seeking declaratory and injunctive relief, was first filed in the Pulaski County Chancery Court. The defendants, who are the Arkansas State Medical Board and its members, moved to dismiss on the ground that Dr. Leipzig had not exhausted his administrative remedies, that interference by a court would violate the separation of powers doctrine, and that the suit was precluded by Ark. Const, art. V, § 20, which provides that the state may not be made a defendant in its courts.

Dr. Leipzig responded to the dismissal motion by noting that his action was brought pursuant to 42 U.S.C. § 1983 , and that the federal law would not permit the state to immunize its conduct alleged to have deprived him of due process of law. He contended that exhaustion of remedies was not required. He was correct. Felder v. Casey, 487 U.S. 131 (1988).

Without ruling on the motion to dismiss, the chancellor, on his own motion, entered an order transferring the case to the circuit court. The only reason given in the order was that “the issues presented . . . are legal issues more properly submitted to the Circuit Court.”

The case should not have been transferred. In his complaint, Dr. Leipzig sought a mandatory injunction requiring the board to return to him records of peer review proceedings. He also sought injunctive relief to compel the board to permit him to take depositions of the board’s expert witnesses prior to any hearing.

In Monette Road Improvement Dist. v. Dudley, 144 Ark. 169 , 222 S.W. 59 (1920), Circuit Judge R.H. Dudley issued a writ of certiorari and a temporary stay of the proceedings of a road improvement district assessment program. The question presented on appeal was whether the circuit court had jurisdiction to issue an injunction. We noted that if a circuit court has jurisdiction of the underlying dispute, it may issue a temporary stay of proceedings incident to the exercise of its jurisdiction. It was found that the court lacked jurisdiction of the underlying claim raised by the statement of facts. We then turned to the question whether, absent the power to decide the underlying dispute, the circuit court had the power to issue an injunction. We wrote:

Injunctive relief is purely a matter of equitable jurisdiction, which, under the Constitution of the State, falls within the jurisdiction of separate chancery courts as now established. Article 7, section 15, of the Constitution provides that “until the General Assembly shall deem it expedient to establish courts of chancery the circuit courts shall have jurisdiction in matters of equity.” We are of the opinion that the power of the Legislature in establishing separate chancery courts therefore swept away the jurisdiction of the circuit court in matters exclusively cognizable in equity. [ 144 Ark. at 182-183 , 222 S.W. at 63 ]

Had the complaint in this case sought only a temporary restraining order to stay proceedings of the board until the circuit court could hear the matter, there would be no problem. That was not the case, however, and it is probable that the circuit court would have no authority to step in and issue orders to the board as to how it should proceed to assure that fundamental rights were not deprived in the process of adjudicating the licensure of Dr. Leipzig. Dr. Leipzig alleged that the proceedings of the board were depriving him of due process of law. He pointed out to the chancellor that, although the circuit court is empowered under the Administrative Procedure Act to review actions of state agencies, the review is not a de novo review, and his reputation as a physician could be ruined if he were not able to assure due process in the proceedings against him. The power to review a decision by the board is very different from the power to step in and keep the board from acting arbitrarily, capriciously, or in a way that deprives one of constitutional rights.

Jurisdiction to prevent a state agency from acting ultra vires, in bad faith, or arbitrarily lies in the chancery court. Cammack v. Chalmers, 284 Ark. 161 , 680 S.W.2d 689 (1984). See also Toan v. Falbo, 268 Ark. 337 , 595 S.W.2d 936 (1980). Dr. Leipzig alleges the board has failed to give him sufficient notice of the charges against him in addition to depriving him of discovery to which due process entitles him.

In 1941 we reversed the granting of an injunction which would have required the board’s predecessor to have stated the charges against a doctor so as to give him stronger notice of the alleged offenses. Eclectic State Medical Board v. Beatty, 203 Ark. 294 , 156 S.W.2d 246 (1941). We opined that the practice of medicine was a privilege rather than a right, and a doctor was not entitled to the niceties of process in an administrative proceeding against him. That is not the law today because the distinction between rights and privileges in this context has been completely rejected by the United States Supreme Court. See Board of Regents of State College v. Roth, 408 U.S. 564, 571 (1972).

The question of the content of the notice constitutionally required is not easily answered because the United States Supreme Court has adopted a flexible approach dependent on the character of the proceedings and the interests at stake. 1 C. Koch, Administrative Law and Practice, § 7.24 B (Supp. 1987). The point here is that it is a constitutionally recognized right subject to enforcement in a state court under 42 U.S.C. § 1983 .

Although a party chooses to assert a right guaranteed by the United States Constitution by bringing an action pursuant to § 1983 in a state court, obviously the decisions of the Supreme Court must be applied. They must, however, be applied in the small procedural quagmire created by the retention, in this jurisdiction as in few others, of the distinction between law and equity courts. If the remedy sought pursuant to the federal law in an Arkansas court is a traditionally equitable remedy, it must be sought in the only court having jurisdiction to grant it.

While it may be time to change to courts of general jurisdiction by the adoption of a new judicial article, we should not attempt to accomplish that through judicial fiat. We apply the law and equity distinction vigorously sometimes. Savers Federal Savings & Loan Association v. First Federal Savings & Loan Assoc., 298 Ark. 472 , 768 S.W.2d 536 (1989). Inconsistency will only perpetuate confusion and probably delay consideration of moving toward an amendment of the Arkansas Constitution creating courts of general jurisdiction.

I would reverse and remand for transfer to the chancery court.

Dudley, J., joins in this opinion.