Petition — Thompson v. Medical Licensing Board

Supreme Court brief1980

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IN THE

Supreme Court of the Yrrited States

OctoBER TERM, 1979

No.

79-2068

W. TURTON THOMPSON,

Petitioner

vs.

MEDICAL LICENSING BOARD OF INDIANA anp

ERNEST R. BEAVER, JAMES N. HAMPTON, ROB-

ERT R. KOPECKY, JOHN H. MADER, WALTER J.

BENEVILLE, BRUCE C. BRINK, anp EDWARD L.

HOLLENBERG, rinpIvipuaLLy AND AS MEMBERS OF THE

Meorcau Licensine Boarp or Inp1ana,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE INDIANA COURT OF APPEALS,

SECOND DISTRICT

RonaLp E. ELBEercer

Davip R. Day

Bost McKinney & Evans

1100 First Federal Building

Indianapolis, Indiana 46204

(317) 637-5353

C. E. Pauley & Co., Inc., Indianapolis

IN THE

Suprene Court of the United States

OctoBER TERM, 1979

No.

W. TURTON THOMPSON,

Petitioner

VS.

MEDICAL LICENSING BOARD OF INDIANA anp

ERNEST R. BEAVER, JAMES N. HAMPTON,

ROBERT R. KOPECKY, JOHN H. MADER, WALTER

J. BENEVILLE, BRUCE C. BRINK, AND EDWARD

L. HOLLENBERG, rnpivipuALLy AND AS MEMBERS OF THE

Mepicau Licensine Boarp or [npiana,

Respondents

PETITION FoR Writ OF CERTIORARI TO THE INDIANA CourRT

or APPEALS, Seconp District

PETITION FOR WRIT OF CERTIORARI

TO THE INDIANA COURT OF APPEALS,

SECOND DISTRICT

W. Turton Thompson prays that a writ of certiorari

issue to review the judgment and opinion of the Indiana

Court of Appeals, Second District, entered April 25, 1979,

as amended by that court’s opinion denying the petition

for rehearing entered December 26, 1979.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Indiana Court of Appeals properly ap-

plied Indiana law, rather than federal law, to a cause of

action brought pursuant to 42 U.S. C. § 1983 to impose on

plaintiff a requirement that he exhaust Indiana adminis-

trative remedies, even though the court acknowledged that

exhaustion may not have been required if the same plain-

tiff had brought the same action in federal court?

2. Whether plaintiff is required to exhaust Indiana ad-

ministrative remedies before proceeding under 42 U.S. C.

§ 1983 if he challenges both the constitutionality of the

statute he is charged with violating and the constitution-

ality and impartiality of the procedure and hearing which

he will be required to exhaust?

TABLE OF CONTENTS

Questions Presented For Review ..............2...:.::c.cs0000seeseeee 2

Pe i II soci coieicceen ccrectsinkctaenrcsis cde adcumsonniowaans 4,5

EN ee enn OR ARCA oan 6

aN Se en PERO AR SME AARNE: 6

RMI IG ae aitiscascsotinderechaeicinksecalactaokonnbessiacanacceme 7

SI SN CI i et 7

Why the Writ Should Be Granted

1. The opinion below erroneously applies Indiana

law, rather than federal law, to an action brought

ppurememt GO GB UIE.0., © BOGS vvsvcsnccscsvccsceccsescccaccasenes 12

A plaintiff who alleges bias in the proposed ad-

ministrative proceedings is not required to ex-

haust these proceedings before bringing suit

I eH eecsaciccect evenness ctcidicss neat 16

LTTE ae ieee ee LR Ve he ENE OE a 9 20

TABLE OF AUTHORITIES

Cases

Page

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ........ 13

American Motorists Insurance Company v. Starnes,

RI ee Ee OE saccieioheedecneshesctsrnssnecasnacneimeennetacninens 6

Barry v. Barchi, 443 U.S. 55 (1979) ...................ccccsscsssseeee 14

Board of Regents of the University of the State of

New York v. Tomanio, — U.S. —, 48 U.S.L.W. 4556

I Mati SI roledicsosphasdeluszcanscaspscbssdnietinwabsecbcieaseonsernaceuanetaneonin 14

Chambers v. Local Union No. 639, 578 F.2d 375 (D.C.

I NOD ids oa ainiacc skinner NRIanisad scat teiaslecebarsiadanavsiansitdasesse 16

Chicago & Eastern Illinois Railroad Company v. Indus-

trial Commission of Illinois, 284 U.S. 296 (1932) ........ 7

Damico vy. California, 389 U.S. 416 (1967) -....00.20000... 11, 14

Dowd Box Company v. Courtney, 368 U.S. 502 (1962)..... 13

Fernandez v. Trias Monge, 586 F.2d 848 (1st Cir. 1978) 16

Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d

Ia ORIN 0c diacecansesacaspacaabecaisen 16

Gibson v. Berryhill, 411 U.S. 564 (1973) 0002... 14, 15, 16

Graves v. Olgiati, 550 F'.2d 1327 (2nd Cir. 1977) ............ 16

Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978) ........ 16

Hayes v. Board of Regents of Kentucky State Univers-

Sey, 406 F'.Od BOGS (GE Cir. TGTE) ....nnccccecsccnccceesccccnsnsesss 16

Houghton v. Shafer, 392 U.S. 639 (1968) ......0.20.... 14

Johnson v, American Credit Co. of Georgia, 581 F.2d

IR Is I atch ai sasaiecncnscncin csacsnbcanipiuiciaimnoapseciondas 16

MeNeese v. Board of Education for Community Unit

School District, 187, 373 U.S. 668 (1963)........ 11, 13, 14, 15

Monell v. Department of Social Services of the City of

New York, 436 U.S. 658 (1978) ....................ccsccecsncees 13

Moor v. County of Alameda, 411 U.S. 693 (1978)............ 14

P-M Gas & Wash Co. v. Smith, 375 N.E.2d 592 (Ind.

I ea a atemieneteelifunbeaeenuaban 10

Plano v. Baker, 504 F.2d 595 (2nd Cir. 1974) ~..0000........ 16

Robertson v. Wegman, 436 U.S. 584 (1978) .....00.000200...... 14

Secret v. Brierton, 584 F.2d 823 (7th Cir. 1978) ............ 16

Shouse v. Pierce County, 559 F.2d 1142 (9th Cir. 1977) 16

Spence vy. Latting, 512 F.2d 93 (10th Cir.), cert. denied,

ee ieee I IIE cacsarcctctnentn hatcssscntanacctacotandiinnece ogc 16

Strader v. Troy, 571 F.2d 1263 (4th Cir. 1978) 0.0... . 16

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969)...... 14

Testa v. Katt, 330 U.S. 386 (1947) 22... cece ccceceeee 13

United States of America v. Gilbert Associates, Inc.,

SUEY APE: SN PIII icinksainsetnicssnncsonrégndsnnsseaiilansonisasasadbenaiaatll 6, 14

United States Steel Corporation v. Dykes, 238 Ind. 599,

eR Gs Ek __ | PRON EU EE COEUR NU Ncr eam EnT tun AOENTIRALLIS TPS 6

Wilwording v. Sevenson, 404 U.S. 249 (1971) .0000000000.... 14

Withrow v. Larkin, 421 U.S. 35 (1975)... 19

Constitutional Provisions

U.S. Constitution, Article VI, cl. 2 2.0... eceeeeeeeee 13

Federal Statutes

a RN Tl UIE” <aicconssendust/ad bin esemnen tanoamnaabininiaccenioea aoa eT 6

SRI II “nists eiakoatinheniedopdsscaetacasdcashenssd neem 13

kf Oe. A kei 13

Oe I, Sb III set icenetteSansoceiteoneees 2,7, 10, 11, 12, 14, 16, 17, 20

RTRs: SIU sasctcscasetscssscescononnicdespacepeeneidcemanabtoiaela ee 7

Indiana Statutes

ieee meee: OD GU GD ee 9

8 8 eee IE TR TN oe eS 7, 8,9

SE MINIT... 25 rons uintnsinsaaisdastngomeianiensenneeeeeineen 7, 8,9

Per PI I IIR, csecseineesceschdvsnmoencidinceundlilssinenichanee cman anan 7

Indiana Rules of Court

Rule 11(A) of the Indiana Rules of Appellate Proce-

IIIDUIIIE\sexsacissscssnivtenidivolicceantnatesealedbichbonniniieinlcnsaesenaieledladanadl ai aeaeae 6

Rule 11(B) (4) of the Tadiana Rules of Appellate Pro-

STITT -cseaiscdicsedinsussviaonssoneivaaindhicatenasephtcedeliesiei Neca tataeeean ae 6

OPINIONS BELOW

The opinion of the Indiana Court of Appeals, entered

April 25, 1979, is reported at 389 N. KE. 2d 43 (Ind. App.

1979). The opinion of the Court of Appeals denying the

petition for rehearing, entered December 26, 1979, appears

at 398 N. E. 2d 679 (Ind. App. 1979). Copies of these

opinions are set out in the Appendix A5 and A2, respec-

tively. The notice from the Indiana Supreme Court denying

transfer is unpublished but appears in the Appendix at

Al.

JURISDICTION

The judgment of the Indiana Court of Appeals was en-

tered April 25, 1979. A petition for rehearing in that Court

was filed on May 11, 1979, within the twenty-day time limit

for such petitions under Rule 11(A) of the Indiana Rules

of Appellate Procedure. The petition for rehearing was

denied by an opinion of the Indiana Court of Appeals is-

sued December 26, 1979. Petition for transfer to the

Indiana Supreme Court was filed on January 4, 1980,

within the twenty-day time limit for such petition under

Rule 11(B)(4) of the Indiana Rules of Appellate Pro-

cedure. The Indiana Supreme Court denied transfer on

April 3, 1980, with no opinion being issued by that court.

The judgment of the Indiana Court of Appeals is a final

judgment within the meaning of 28 U. S. C. § 1257. The

denial of transfer by the Indiana Supreme Court, although

not signifying that court’s approval of the Court of Appeals

reasoning, has the legal effect of terminating the litigation

between the parties. Rule 11(B)(4) of the Indiana Rules

of Appellate Procedure; United States Steel Corporation v.

Dykes, 238 Ind. 599, 154 N. FE. 2d 111 (1958).

Cases which supports the finality of the judgment, and

the jurisdiction of this Court, are American Motorists In-

surance Company v. Starnes, 425 U. S. 637 (1976), United

States of America v. Gilbert Associates, Inc., 345 U. S. 361

(1953) and Chicago & Eastern Illinois Railroad Company

v. Industrial Commission of Illinois, 284 U. 8. 296 (1932).

This action was commenced in the Superior Court for

Marion County, Indiana, Room No. 7, pursuant to 42 U.S.

C. §1983.1 The complaint was dismissed for failure to

exhaust administrative remedies before the Indiana Medical

Licensing Board, a decision affirmed on appeal with the

Indiana Court of Appeals applying Indiana law to impose

on plaintiff a state law exhaustion requirement, even though

plaintiff was bringing suit pursuant to a federal statute.

The case, therefore, presents federal questions regarding

the propriety of applying state law to an action brought

pursuant to 42 U.S. C. § 1983 and the necessity, under the

circumstances of this case, of exhausting state administra-

tive remedies before proceeding pursuant to 42 U. S. C.

§ 1983.

STATUTES INVOLVED

The statutes involved in this case are 42 U.S.C. §§ 1983

and 1988 which are set out in the Appendix, A483.

STATEMENT OF THE CASE

This case started in October 23, 1975, when the Indiana

Medical Licensing Board (the ‘‘Board’’) instituted disci-

plinary proceedings against Dr. Turton W. Thompson

(‘‘Thompson’’), charging him with violations of IC 25-22.5-

6-2(5) and (6), which provide :*

To promote uniformity among the several states

and territories and to provide guidelines for physi-

cians and the board, the following charges will be

1. The complaint also sought declaratory and injunctive relief under

the Indiana Uniform Declaratory Judgment Act, IC 34-4-10 et seq. A

copy of the Verified Complaint appears in the Appendix, A29-43.

2. A copy of the complete charge is attached as Exhibit “A” to

Thompson’s Verified Complaint and may be found in the Appendix,

A40-41.

grounds for probation of a licensee or susupension

or revocation of a license:

(5) Except as otherwise permitted by law, to

knowingly prescribe, sell or administer any drug

classified as a narcotic, addicting or dangerous drug

to a habitue or addict;

(6) Willful or wanton misconduct or manifest in-

capacity in the practice of medicine or osteopathic

medicine.

Thompson is alleged to have violated this statute by pro-

viding prescription drugs to female patients in return for

sexual favors. The Board’s charge against Thompson al-

leged he had violated IC 25-22.5-6-2(5) and (6) by:

1. Illegally and knowingly issuing prescriptions

for Schedule II Controlled Substances, desoxyn and

quaalude, and Schedule IV Controlled Substance,

dalmane, to female patients for non-therapeutic pur-

poses in exchange for sexual acts with these patients

performed at his office, pursuant to Section 2(5),

Chapter 6 of Acts 1975, Public Law 271. [IC 25-

22.5-6-2-(5).]

2. Committing willful and wanton misconduct in

the practice of medicine by illegally and knowingly

issuing prescriptions for Schedule II Controlled

Substances, desoxyn and quaalude, and Schedule IV

Controlled Substance, dalmane, to female patients

for non-therapeutic purposes in exchange for sexual

acts with these patients performed at his office, pur-

suant to Section 2(6), Chapter 6 of Acts 1975, Public

Law 271. [IC 25-22.5-6-2(6) ]

Thompson believed the charge against him was consti-

tutionally defective because the Board had not promulgated

or adopted any rules defining or identifying those drugs

classified as ‘‘narcotic’’, ‘‘addicting’’ or ‘‘dangerous’’,

thereby bringing within the definition of said terms, as

contained in IC 25-22.5-6-2(5), drugs of every type and

description, nor had the Board promulgated or adopted

any rules or regulations which define ‘‘habitue’’ or ‘‘ad-

dict’’ as those terms are used in IC 25-22.5-5-6-2(5). Ad-

ditionally, the Board had not charged Dr. Thompson with

prescribing any drug classified as a narcotic, addicting or

dangerous drug to a ‘‘habitue or addict.’’ Finally, the

Board had not promulgated or adopted any rules or regu-

lations which define or specify the elements of ‘‘wilfull

or wanton misconduct’’ as these terms are used in IC 25-

22.5-6-2(6), thereby bringing within the scope and ambit of

this statutory provision every type of action and activity.’

The Board chose to proceed against Thompson by sched-

uling an administrative disciplinary hearing for Thursday,

February 12, 1976, commencing at 9:00 a.m. This hearing

would be before the Board which includes as its members

five (5) physicians, one (1) osteopathic physician, and one

(1) chiropractor. Thompson believed that this hearing

would be constitutionally defective because one of Board

members who would judge Thompson, Dr. Kopecky, was

the party who signed the charge against Thompson. Based

on this fact, and other information Thompson believed had

been shown to the Board, Thompson did not think the

Board would provide a fair and impartial hearing. In

addition, the members of the Board are not attorneys, and

Thompson feared that the Board was not capable or com-

petent to make judicial determinations on the basis of legal

arguments which he intended to raise before the Board.

Convinced that both the statute he was charged with vio-

lating and the hearing procedures of the Board were con-

3. Pursuant to IC 25-22.5-2-7(a) and (c), the Board is required to

promulgate rules and regulations to enforce the provisions of IC 25-22.5-

6-2 and 25-22.5-6-3. The Board, however, has chosen to incorporate by

reference other separate statutory provisions which arguably describe

“nareotie”, “addicting”, and “dangerous” drugs. In his state court com-

plaint, Thompson alleged the statutes were vague and overbroad and that

the incorporation of other statutes is an improper and unlawful incorpo-

ration and a wrongful delegation of authority by the Board.

stitutionally defective, and fearful of the damage to his

professional reputation which could result from the contin-

uation of the Board procedures, Thompson brought suit to

restrain the Board.

The case was commenced in the Marion Superior Court,

Room Seven, on February 11, 1976 seeking injunctive and

declaratory relief against the Board pursuant to 42 U.S. C.

§ 1983 and certain Indiana statutes. Thompson sought to

restrain the Board from initiating the administrative pro-

ceedings against him.

On June 14, 1976, Judge Zore of Marion Superior Court,

Room Seven, granted the Board’s motion to dismiss the

complaint on the grounds that Thompson, by failing to

proceed with the Board disciplinary hearing, had failed to

exhaust state administrative remedies.* The relevant por-

tion of Judge Zore’s order provided:

ORDERED that defendants’ motion to dismiss be,

and is hereby, GRANTED upon the ground that the

plaintiff has failed to exhaust his administrative

remedies before the Medical Licensing Board of

Indiana. Accordingly, it is the judgment of this

Court that plaintiff’s verified complaint be, and is

hereby, DISMISSED, each party to bear its own

costs in the action.

Thompson perfected an appeal from this decision and the

trial court, pursuant to Thompson’s motion, granted an

injunction and stay of any Board action pending appeal.

Thompson preserved his federal question to the require-

ment of exhausting administrative remedies before pro-

ceeding under 42 U.S. C. § 1983, in his ‘‘ Motion to Correct

Errors filed July 26, 1976.°

4. Judge Zore’s order is in the Appendix, A27-8.

5. The motion to correct errors is the procedural device required by

Rule 59 of the Indiana Rules of Trial Procedure to preserve errors for

appellate review. P-M Gas & Wash. Co., Inc. v. Smith, 375 N. E. 2d 592

(Ind. 1978). Thompson’s motion to correct errors is set out in the Ap-

pendix, A22-A26.

On April 25, 1979, the Indiana Court of Appeals, Second

District, affirmed the dismissal of the complaint in an

opinion reported at 389 N. E. 2d 43 (A5). This opinion

held that judicial review of administrative decisions under

the Indiana Administrative Adjudication Act, IC 4-22-1,

provided the exclusive means to obtain judicial relief from

the Indiana administrative process and that exhaustion of

any administrative proceedings was required prior to seek-

ing judicial relief. The opinion, however, did not address

the issue, raised by Thompson in his brief, that exhaustion

of state administrative remedies was not required in a suit

brought pursuant to 42 U.S. C. § 1983.

On May 11, 1979, Thompson petitioned the Court of Ap-

peals for rehearing, raising as the basis for this petition

the failure of the Court of Appeals to address the issue

of exhaustion under 42 U.S. C. § 1983. The Court of Ap-

peals denied this petition, in an opinion dated December

26, 1979, and reported at 398 N. E. 2d 679, (A2), holding,

in relevant part, as follows (emphasis in original) :

Thompson points to the general rule that exhaus-

tion of state administrative remedies is not a pre-

requisite to bringing a § 1983 action in a federal

court. Damico v. California (1967), 389 U. S. 416,

88 S. Ct. 526, 19 L. Ed. 2d 647; McNeese v. Board of

Education (1963), 373 U. S. 668, 83 S. Ct. 1433, 10

L. Kd. 2d 622; Snyder v. Altman (D. C. Cal. 1978),

444 F. Supp. 1269; Kahn v. Shainswit (D. C. N. Y.

1976), 414 I’. Supp. 1064. Thompson then concludes,

‘‘Applying the federal decisions in § 1983 actions,

it is clear that exhaustion of administrative remedies

is not required in the case at bar.”’

The fatal flaw in this argument is that these fed-

eral decisions are not applicable.

The procedural rule set out by the courts above

addresses only actions brought in federal court. No

case cited by Thompson, nor any which we have been

able to locate, demands that a state court abandon

its own requirements of exhaustion merely because

the claim before it is based upon § 1983.

Language in the federal decisions so indicates. In

Snyder v. Altman, supra, the court stated:

The general rule is that there is no need to

exhaust possible state remedies before pursu-

ing a civil rights action in federal court. (em-

phasis supplied)

444 I. Supp. at 1270.

Likewise, the court in Kahn v. Shainswit, supra,

remarked :

{Our decision] does not violate the general

rule that a federal litigant need not exhaust

state remedies in a § 1983 action. (emphasis

supplied).

414 F. Supp. at 1068.

Thus we repeat, a state court does not undergo a

metamorphosis into a federal court merely because

it must decide a §1983 suit. No matter what the

nature of the action before an Indiana state court,

it remains a state court. As Gertrude Stein observed,

a ‘‘rose is a rose is a rose is a rose.’’ Our rules of

trial procedure and evidence still apply. So does our

requirement of exhaustion.

If Thompson desired the benefit of federal pro-

cedures, he should have brought his suit in federal

court.

Thompson sought transfer of his case to the Indiana

Supreme Court by petition dated January 4, 1980. This

petition was denied on April 3, 1980, terminating the liti-

gation between the parties in the Indiana courts.

WHY THE WRIT SHOULD BE GRANTED

1. The opinion below erroneously applies Indiana law,

rather than federal law, to an action brought pursuant

to 42 U.S. C. § 1983.

In 1871, Congress passed §1 of the Ku Klux Klan Act

of 1871, 42 U. S. C. § 1983, creating a federal statutory

cause of action to enforce the guarantees of the United

States Constitution. The legislative history and purpose

of this act has been extensively discussed in previous deci-

sions of this Court and will not be repeated here. See, e.g.,

Monnell v. Department of Social Services of the City of

New York, 486 U. S. 658 (1978); Adickes v. 8S. H. Kress

and Co., 398 U. S. 144 (1970) (all opinions) ; and McNeese

v. Board of Education for Community Unit School District

187, 373 U.S. 668 (1963) (hereinafter ‘‘ McNeese’’).

Although Congress vested the federal courts with juris-

diction to hear claims arising under § 1983,° this grant of

jurisdiction was not exclusive and did not deprive state

courts of jurisdiction over these actions. Consequently,

state and federal courts have concurrent jurisdiction over

lawsuits alleging § 1983 violations. Dowd Box Company v.

Courtney, 368 U.S. 502, 508 (1962). In fact, the state courts

are required by the Supremacy Clause of the United States

Constitution (art. VI, cl. 2) to exercise jurisdiction over

§ 1983 claims and to enforce the rights arising from that

statute. Testa v. Katt, 330 U.S. 386 (1947).

The Indiana Court of Appeals recognized its concurrent

jurisdiction over § 1983 claims. 398 N. EH. 2d at 680, A2.

It erroneously chose, however, to apply Indiana case law

requiring exhaustion of administrative remedies to the

_ $1983 claim. Although the court acknowledged that ex-

haustion of administrative remedies was not normally a

requirement if a §1983 action were brought in federal

court, it refused to follow that rule because, according to

the court, it was a state court, not a federal court.

The Indiana Court of Appeals’ decision to look solely to

Indiana law to determine whether Thompson was required

to exhaust administrative remedies before proceeding under

§ 1983 was simply wrong. The meaning and application of

6. 28 U.S.C. §§ 1331 and 1343.

a federal statute is for this Court to decide and that deci-

sion binds the state courts. United States of America v.

Gilbert Associates, Inc., 345 U. S. 361 (1953).

Starting with the McNeese decision in 1963, this Court

has on at least six occasions rejected attempts to require

plaintiffs suing under § 1983 to exhaust state administrative

remedies.’ In fact, as explained infra, pp. 16-18, this Court’s

decision in Gibson v. Berryhill, 411 U. S. 564 (1973) refused

to apply the exhaustion requirement in a case virtually

identical to the case at bar. This Court has, therefore, held

that exhaustion is not required under the facts of this case,

a holding which the court below did not consider, let alone

follow. This Court’s interpretation of § 1983, however,

cannot be ignored and binds state courts faced with a

§ 1983 claim. United States of America v. Gilbert Asso-

ciates, supra.

This does not mean that state law plays no role in cases

arising under § 1983, 42 U. 8. C. § 1988 specifically directs

state law be used to ‘‘fill the interstices of federal law.’’

Moor v. County of Alameda, 411 U. S. 693, 701 (1973). Two

recent decisions of this Court have emphasized the vitality

of § 1988 and state law in a § 1983 action. Board of Regents

of the University of the State of New York v. Tomanio,

— U.S. —, 48 U. S. L. W. 4556 (May 19, 1980) and

Robertson v. Wegmann, 436 U. S. 584 (1978).

Yet neither §1988 nor Tomanio or Robertson turns a

§ 1983 action into a diversity case where only state law

applies. The rule of law applied in a § 1983 case, ‘‘ whether

drawn from federal or state sources, is a federal rule

responsive to the need whenever a federal right is im-

paired.’’ Sullivan v. Little Hunting Park, 396 U. S. 229,

7. In addition to McNeese, this Court has considered exhaustion of

state administrative remedies in the context of a § 1983 suit in Barry v.

Barchi, 443 U.S. 55 (1979); Gibson v. Berryhill, 411 U.S. 564 (1973);

Wilwording v. Sevenson, 404 U.S. 249 (1971); Houghton v. Shafer, 392

U.S. 639 (1968); and Damico v. California, 389 U.S. 416 (1967).

240 (1969). This ‘‘federal rule,’’ however developed, gov-

erns § 1983 actions whether brought in a federal or a

state court. McNeese and its progeny are the source of

the federal rule which governs this case and it was not

necessary or proper for the Indiana Court of Appeals to

apply Indiana law to Thompson’s claim.®

The Indiana Court of Appeals, however, never con-

sidered whether federal or state law applied to Thompson’s

complaint nor did it meaningfully weigh the decisions

of this Court regarding the exhaustion requirement under

§ 1983. Instead, the Indiana court blindly applied Indiana

law to Thompson’s claim, disregarding federal precedent

because it found ‘‘these federal decisions are not applica-

ble.’’® (emphasis in original).

This Court’s decisions under a federal statute may not

be so easily brushed aside. When this Court speaks to

matters of federal law and federal statutes, its commands

must be observed by both federal and state courts. As

demonstrated below, this Court has relieved § 1983 plain-

tiffs of the exhaustion requirement in cases similar to this.

This disregard of Gibson v. Berryhill, 411 U.S. 564 (1973),

and other decisions of this Court by the Indiana Court of

Appeals is clear error which should be corrected before it

spawns precedent in other state courts which will eventually

displace those courts as effective forums for the vindication

of the rights secured under § 1983.'° The decision of the

8. 42 U.S. C. $1988 requires resort to state law only when the laws of

the United States are “deficient.” Therefore, the decisions of this Court

regarding the necessity of exhausting administrative remedies in a § 1983

action must be applied by both federal and state courts. These decisions

obviate any need to resort to state law.

9. Among the federal decisions which the Indiana Court of Appeals

found inapplicable were this Court’s decisions in Damico v. California,

389 U.S. 416 (1967) and McNeese. 398 N. E. 2d at 680, A3.

10. Unless state courts are recognized and maintained as effective

forums for § 1983 litigation, cases under this section will continue to flood

the federal courts. Although Thompson has been unable to determine how

many § 1983 cases have been filed in federal courts, it is interesting to

Indiana Court of Appeals to apply state law to Thompson’s

claim is clear error and the writ should issue to correct

that error.

2. A Plaintiff Who Alleges Bias in the Proposed Ad-

ministrative Proceedings Is Not Required to Exhaust

Those Proceedings Before Bringing Suit Under § 1983.

This Court has never required a plaintiff to exhaust

administrative remedies before proceeding under 42 U.S. C.

§ 1983 and, in fact, two members of this Court have stated

exhaustion is never required before instituting suit under

§ 1983. Gibson v. Berryhill, 411 U. S. 564, 581 (1973)

(Marshall, J. and Brennan, J., concurring).’’ Resolution

of this case, however, does not require this Court to decide

whether a § 1983 plaintiff may ever be forced to exhaust

state administrative remedies prior to court action. Rather,

dis; “sition of this case is governed, and reversal of the

Indiana Court of Appeals is required, by Gibson v. Berry-

hill, supra.

In Gibson, plaintiffs were licensed optometrists who were

threatened with license revocation proceedings by the

note that the 1974-79 Supplement to Shepherd’s United States Citations—

Statute Edition contains nearly five times as many citations to § 1983 as

are contained in the 1968 Edition of that same volume even though the

1968 Edition covers 1,252 volumes of case reporters while the Supplement

covers only 241 volumes.

11. The First, Second and Seventh Circuits recognize an exhaustion re-

quirement in § 1983 cases under certain circumstances, Fernandez v. Trias

Monge, 586 F. 2d 848 (1st Cir. 1978); Plano v. Baker, 504 F. 2d 595

(2d Cir. 1974) but see, Graves v. Olgiati; 550 F. 2d 1327 (2d Cir. 1977) ;

Secret v. Brierton, 584 F. 2d 823 (7th Cir. 1978). The other circuits

hold that exhaustion is never required before proceeding under § 1983.

Fitzgerald v. Mountain Laurel Racing, Inc., 607 F. 2d 589 (3d Cir. 1979) ;

Strader v. Troy, 571 F. 2d 1263 (4th Cir. 1978); Johnson v. American

Credit Co. of Georgia, 581 F. 2d 526 (5th Cir. 1978); Hayes v. Board

of Regents of Kentucky State University, 495 F. 2d 1326 (6th Cir. 1974) ;

Green v. Ten Eyck, 572 F. 2d 1233 (8th Cir. 1978); Shouse v. Pierce

County, 559 F. 2d 1142 (9th Cir. 1977) ; Spence v. Latting, 512 F. 2d 93

(10th Cir.), cert. denied, 423 U. 8. 896 (1975); Chambers v. Local Union

No. 639, 578 F. 2d 375 (D.C. Cir. 1978).

Alabama Board of Optometry. They brought suit in a

federal district court under § 1983 alleging that the admin-

istrative board which would hear their case was biased and

would not provide a full and impartial hearing. The dis-

trict court refused to require plaintiffs to exhaust their

administrative remedies by forcing their participation in

the Optometry Board hearing, a refusal affirmed by this

Court which stated:

In the instant case the matter of exhaustion of

administrative remedies need not detain us long.

Normally when a State has instituted administrative

proceedings against an individual who then seeks

an injunction in federal court, the exhaustion doc-

trine would require the court to delay action until

the administrative phase of the state proceedings

is terminated, at least where coverage or liability is

contested and administrative expertise, discretion,

or factfinding is involved. But this Court has ex-

pressly held in recent years that state administra-

tive remedies need not be exhausted where the

federal court plaintiff states an otherwise good cause

of action under 42 U. S. C. §1983 [42 U. S. C. S.

§ 1983] Whether this is invariably the case even

where, as here, a license revocation proceeding has

been brought by the State and is pending before

one of its own agencies and where the individual

charged is to be deprived of nothing until the com-

pletion of that proceeding, is a question we need

not now decide; for the clear purport of appellees’

complaint was that the State Board of Optometry

was unconstitutionally constituted and so did not

provide them with an adequate administrative rem-

edy requiring exhaustion. Thus, the question of the

adequacy of the administrative remedy, an issue

which under federal law the District Court was

required to decide, was for all practical purposes

identical with the merits of appellees’ lawsuit.

411 U.S. at 574-5.

(citations and footnotes omitted)

Thompson was threatened with license revocation pro-

ceedings before the Indiana Medical Licensing Board.

He has filed suit under § 1983 alleging that these proceed-

ings are unconstitutional because, inter alia, the Board is

unconstitutionally constituted and biased.” Berryhill was

an optometrist in Alabama; Thompson is a medical doctor

in Indiana. Other than that trivial difference, the only

distinction between Berryhill and Thompson is Berryhill

chose to proceed in federal court while Thompson filed

suit in state court. Yet the result reached thus far in

these two suits is completely contradictory because Thomp-

son, but not Berryhill, has been required to first exhaust

state administrative remedies. Unless this Court reverses

the decision of the Indiana Court of Appeals, litigants

enforcing federal rights in state courts will be subjected

to differing results solely because they chose the state

rather than the federal forum. The implications of this

difference are readily apparent and will result in further

work for the federal courts by allowing state courts, using

state law rules, to skirt their obligations to hear § 1983

claims over which they have concurrent jurisdiction.

The Indiana Court of Appeals frankly conceded the

forum-oriented aspects of its decision, and the effect of

that decision on future § 1983 litigants, when it said:

If Thompson desired the benefit of federal pro-

cedures, he should have brought his suit in federal

court.

The enforcement of the federal right secured by the United

States Constitution, and enforced through § 1983, cannot

be made to turn on whether the action is brought in state

or federal court. Both state and federal courtrooms must

12. Verified Complaint, ] 21, A37.

13. Although offering Thompson a different result in federal court, the

Indiana Court of Appeals then suggested that a federal court may not

hear Thompson’s case due to abstention or comity. 398 N. E. 2d at 680,

n. 1, A4. The “Catch-22” aspects of this reasoning are readily apparent.

remain open to § 1983 claimants on equal grounds. The

Supremacy Clause and the decisions of this Court require

no less.

In Robinson, supra, and Tomanio, supra, this Court,

construing 42 U. 8S. C. § 1988, rejected attempts to develop

a ‘‘federal common law’’ to be applied solely to claims

arising under §1983. By rejecting these attempts, this

Court eliminated the possibility that a plaintiff’s success

would depend on whether he could state a claim under

§ 1983 or would be left with his state law remedies. The

plea for uniformity among the federal courts in § 1983

actions, made and rejected in both Robinson and Tomanio,

was not allowed to create the possibility of inconsistent

decisions between state and federal courts in the same

jurisdiction.

The opinion below injects such inconsistencies into § 1983

litigation by sanctioning differing applications of the ex-

haustion requirement depending on whether the case is

tried before a state or a federal judge. Reversal of the

decision below is necessary to prevent the very result feared

in Robinson and Tomanio.

This Court’s decision in Withrow v. Larkin, 421 U.S. 35

(1975) does not affect the decision here. Withrow upheld

the constitutionality of a medical licensing board procedure

which combined the investigative and adjudicative func-

tions. This combination forms but one of the bases on

which Thompson challenges the impartiality of the Indiana

Medical Licensing Board. Withrow does not preclude a

court’s examination of Thompson’s bias charge for in

Withrow this Court said, 421 U. S. at 58:

That the combination of investigative and adjudi-

eative functions does not, without more, constitute

a due process violation, does not, of course, preclude

a court from determining from the special facts

and circumstances present in the case before it that

the risk of unfairness is intolerably high. Findings

of that kind made by judges with special insights

into local realities are entitled to respect, but in-

junctions resting on such factors should be accom-

panied by at least the minimum findings required

by Rules 52(a) and 65(d).

Here the Indiana courts have not considered the ‘‘special

facts and cireumstances’’ alleged in Thompson’s complaint

to ascertain the risk of unfairness, Instead, the Indiana

courts have refused to examine the fairness of the Medical

Licensing Board’s procedures because Thompson has re-

fused to submit to those procedures. Thompson is entitled

to have his claim of unfairness determined on its merits.

CONCLUSION

The decision below erroneously applied Indiana law to

a cause of action arising under 42 U. S. C. § 1983. This

error resulted in the court below ignoring the clear dic-

tates of this Court’s decision in Gibson v. Berryhill, 411

U. S. 546 (1973). The writ should issue to reaffirm that

federal law, as decided by this Court, governs the conduct

of actions brought pursuant to 42 U. S. C. § 1983 and to

correct the conflict between the decision below and Gibson.

Respectfully submitted,

Ronatp KE. Evsercer

Daviv R. Day

Bose McKinney & Evans

1100 First Federal Building

Indianapolis, Indiana 46204

(317) 687-5353

Attorneys for Petitioner

APPENDIX

OPINIONS BELOW

In THE SuprReEME Court or INDIANA

No, 2-1076-A-395

W. Turton Thompson v. Medical Licensing Board of Ind.

et al.

You are hereby notified that the Supreme Court has on

this day: Appellants Petition to Transfer is hereby Denied.

Givan, C.J. All Justices Concur in Denial excepting only

Prentice, J. who is not participating.

Please acknowledge receipt of this notice in order that our

records may show that you have been notified of this action.

WITNESS my name and the seal of said Court, this 3rd

day of April, 1980.

Marjorie H. O’Laughlin

Clerk Supreme Court and Court of Appeals

In tHE Court or APPEALS OF INDIANA

Second District

No. 2-1076-A-395

W. Turton Tompson,

Appellant (Plaintiff Below),

vs,

Mepicau Licensina Boarp or InpIaANA AND Ernest R. Braver,

James N, Hampton, Rosert R. Koprecxy, Joun H. Maner,

Wauter J. Benevitie, Bruce C. Brink, anp Epwarp L.

HOoLLENBERG, INDIVIDUALLY AND 43 MEMBERS OF THE MeEprI-

oAL Licensine Boarp or INDIANA,

Appellees (Defendants Below)

APPEAL FROM THE Marion Supertor Court, Room Seven

The Honorable Grravp Zore, Judge

Bucuanay, C.J.

ON PETITION FOR REHEARING

Dr. W. Turton Thompson’s petition for rehearing chal-

lenges our opinion of April 25, 1979, for failing to address

an issue raised on appeal; specifically whether a plaintiff

who files an action in state court under 42 USC § 1983 must

exhaust his administrative remedies. Although this issue

was implicitly decided in our earlier opinion, we now

explicitly state our holding, and deny rehearing.

Thompson seeks shelter from the requirement of ex-

haustion of administrative remedies in § 1983. Not so.

We do not dispute Thompson’s statement that state and

federal courts have concurrent jurisdiction over § 1983

actions. Young v. Board of Education of Fremont County

School District (D. Col. 1976) 416 F. Supp 1139; Luker v.

Nelson (N. D. Ill. 1972) 341 F. Supp. 111. But the mere

existence of concurrent jurisdiction does not convert an

Indiana state court into a federal court.

Thompson points to the general rule that exhaustion of

state administrative remedies is not a prerequisite to

bringing a § 1983 action in a federal court. Damico v. Cali-

fornia (1967), 389 U. 8S. 416, 88 S. Ct. 526; McNeese v.

Board of Education (1963), 373 U. S. 668, 83 S. Ct. 14383;

Snyder v. Altman (1978), 444 F. Supp. 1269; Kahn v.

Shainswit (1976), 414 I. Supp. 1064. Thompson then con-

cludes, ‘‘ Applying the federal decisions in § 1983 actions,

it is clear that exhaustion of administrative remedies is

not required in the case at bar.’’

The fatal flaw in this argument is that these federal

decisions are not applicable.

The procedural rule set out by the courts above addresses

only actions brought in federal court. No case cited by

Thompson, nor any which we have been able to locate,

demands that a state court abandon its own requirements

of exhaustion merely because the claim before it is based

upon § 1983.

Language in the federal decisions so indicates. In Snyder

v. Altman, supra, the court stated:

The general rule is that there is no need to exhaust

possible state remedies before pursuing a civil rights

action in federal court. (emphasis supplied)

444 Ff’. Supp. at 1270.

Likewise, the court in Kahn v. Shainswit, supra, re-

marked:

[Our decision] does not violate the general rule that

a federal litigant need not exhaust state remedy in

a § 1983 action. (emphasis supplied)

414 F’. Supp. at 1068.

Thus we repeat, a state court does not undergo a meta-

morphosis into a federal court merely because it must

decide a §1983 suit. No matter what the nature of the

action before an Indiana state court, it remains a state

court. As Gertrude Stein observed, a ‘‘rose is a rose is

a rose is a rose.’’ Our rules of trial procedure and evi-

dence still apply. So does our requirement of exhaustion.

If Thompson desired the benefit of federal procedures,

he should have brought his suit in federal court.'

Rehearing denied.

SHIELDS, J. CONCURS.

SULLIVAN, J. CONCURS.

1. Even if Thompson had brought suit in federal court, he may still

have been refused a hearing on his claim based either on the doctrine

of abstention, see Snyder v. Altman, supra, or comity, see Kahn v.

Shainswit, supra.

In tHe Court or Appra.s or INDIANA

Second District

No, 2-1076-A-395

W. Turton THompson,

Appellant (Plaintiff Below),

vs.

Meprcau Licenstne Boarp or InprAna AND Ernest R. Braver,

James N, Hampton, Rosert R. Korecxy, Joun H. Maper,

Wavrer J. Benrvitite, Bruce C. Brink, anp Epwarp L.,

HOoLLENBERG, INDIVIDUALLY AND AS MEMBERS OF THE MeptI-

oaL Licenstne Boarp or Inpiana,

Appellees (Defendants Below).

APPEAL FROM THE Marion Superior Court, Room Seven

The Honorable Grrap Zorg, Judge

Buconanay, C.J.

CASE SUMMARY

Dr. W. Turton Thompson (Dr. Thompson) appeals from

dismissal of his complaint for an injunction and a declara-

tory judgment against the Medical Licensing Board of

Indiana (Board) which sought to have his medical license

revoked, claiming the trial court erred in dismissing his

complaint because of failure to exhaust administrative

remedies, constitutional infirmities in the medical licens-

ing statutes, and denial of due process for refusal of

discovery.

We affirm.

Facts

On October 23, 1975, Dr. Robert R. Kopecky, Secretary

of the Board, filed a complaint against Dr. Thompson

seeking to revoke or suspend his medical license or that

he be placed on probation for violating sections 5 and

6 of inp. cope 25-22.5-6-2. It specifically charged that Dr.

Thompson:

(1) illegally and knowingly issued prescriptions

for Schedule II Controlled Substances, desoxyn and

quaalude, and Schedule IV Controlled Substance,

dalmane, to female patients for non-therapeutic

purposes in exchange for sexual acts with these

patients performed at his office ;

(2) committed willful and wanton misconduct in

the practice of medicine by illegally and knowingly

issuing prescriptions for Schedule II Controlled

Substances, desoxyn and quaalude, and Schedule IV

Controlled Substance, dalmane, to female patients

for non-therapeutic purposes in exchange for sexual

acts with these patients performed at his office.

The Board set a hearing for November of 1975, to re-

solve these changes, but the hearing was twice continued

by Dr. Thompson. Shortly before the new hearing date of

February 12, 1976, Thompson retained new counsel and

again sought a continuance which was denied. On Febru-

ary 11, 1976, he filed a complaint in Marion Superior Court

seeking an injunction to delay the hearing and a declaratory

judgment that the scheduled hearing would violate several

constitutional guarantees. The violations he specifically

alleged included the following:

a.) Thompson would be judged by Kopecky who is the

complaining party ;

b.) The complaint unlawfully incorporated by reference

the provisions of other statutory provisions ;

c.) It was unconstitutional to be tried before administra-

tors who were not attorneys ;

d.) He was prevented from deposing Board members in

an attempt to find bias;

e.) Deputy attorney generals served the dual functions

of prosecutor at the hearing and advisor to the Board on

legal questions ;

f.) The statute was unconstitutionally vague.

In order to support his suit seeking extraordinary relief

Thompson asserted that allowing the Board to proceed with

the hearing ‘‘could result in an improvident adjudication

of guilt, the effects of which could not be vindicated after

the proceeding took place.’’ Concluding that he did not

have adequate post-administrative hearing remedies re-

gard these constitutional issues he raised, he asserted that

the trial court should intervene to protect him from suffer-

ing an irreparable harm.’

The State filed a Motion to Dismiss the suit claiming that

Dr. Thompson should be required to exhaust the adequate

administrative remedies available to him and that he should

not be allowed to interfere with the administrative process.

During the course of the court proceedings Dr. Thompson

claimed ‘‘bias and prejudice’’ on the part of the members

and sought to depose them individually, a move which was

thwarted by a protective order entered by the trial court

on May 28.

On June 4, 1976, the trial court entered the following

judgment on the State’s motion:

... itis ... ORDERED that defendant’s [Board’s]

motion to dismiss be, and is hereby, GRANTED up-

on the ground that the plaintiff has failed to ex-

haust his administrative remedies before the Medi-

cal Licensing Board of Indiana. Accordingly, it is

the judgment of this Court that plaintiffs’ verified

complaint be, and is hereby, DISMISSED, each

party to bear its own costs in the action....

Dr. Thompson sought and received an Injunction and

Stay Pending Appeal, and appealed the trial court’s deci-

sion to this Court.

1. Dr. Thompson does not specify precisely what irreparable harm

he would suffer other than, presumably, a harm to his reputation caused

by an “improvident adjudication of guilt.”

Issues

Because our holding is that the trial court properly dis-

missed Dr. Thompson’s complaint for failing to exhaust

his administrative remedy, we need only decide the follow-

ing issue:

Did the trial court properly dismiss Dr. Thompson’s

action for an injunction and a declaratory judgment

on the ground that he failed to exhaust his adminis-

trative remedies before filing suit?

PARTIES’ CONTENTIONS — Dr. Thompson contends

that although the principle of exhaustion of administrative

remedies is a general rule, he should be allowed to bypass

the normal review procedure because he has raised pure

‘*questions of law’’ concerning constitutional issues. Unless

he is permitted preliminary review of these questions, his

professional reputation might suffer irreparable harm.

The State replies that Dr. Thompson has an adequate

procedure for consideration of these issues under the Ad-

ministrative Adjudication Act (inp. copg 4-22-1-1 et seq).

As he has failed to demonstrate how he might be irrepar-

ably harmed by resorting to review under the AAA, the

trial court correctly denied his extraordinary relief.

Decision

CONCLUSION—The trial court properly dismissed this

action because Dr. Thompson failed to follow the adminis-

trative review procedure of the Administrative Adjudica-

tion Act.

A. EXCLUSIVITY OF THE STATUTORY

ADMINISTRATIVE REMEDY

By enacting the Administrative Adjudication Act (the

Act) in 1947, the Indiana Jegislature recognized the basic

need for unfettered action by administrative agencies oper-

ating within the sphere of their authority. Uhlir v. Ritz

(1970), 255 Ind. 342, 264 N. E. 2d 312; Indiana Alcoholic

Beverage Com’n v. McShane (1976), — Ind. App. —, 354

N. E. 2d 259.

The unmistakable aim of a uniform system of orderly re-

view of administrative adjudications in Indiana is declared

in the first section of the Act:

It is the intent to establish a uniform method of

administrative adjudication by all agencies of the

state of Indiana, to provide for due notice and an

opportunity to be heard and present evidence before

such agency and to establish a uniform method of

court review of all such administrative adjudication,

(emphasis supplied)

IND. CODE 4-22-1-1.

That such court review of administrative action affecting

legal relationships is intended to be exclusive, if more is

needed, is emphasized by the explicit language of Section 3

of the Act:

In every administrative adjudication in whch the

rights, duties, obligations, privileges or other legal

relations of any person are required or authorized

by statute to be determined by any agency the same

shall be made in accordance with this act and not

otherwise. (emphasis supplied)

IND. CODE 4-22-1-3.

Also indicative of this same intent is Section 30 invalidat-

ing any conflicting legislation:

The provisions of this act shall supersede or con-

trol the provisions of any general or special act in

conflict herewith, passed by this general assembly,

regardless of whether such act or acts were passed

before or after the effective date (March 14, 1977)

of this act.

Particularly the grounds for review of administrative

action is Section 14, which, after setting forth five grounds

for review, significantly then terminates all rights of re-

A10

course to the courts unless the review procedure is followed.

In pertinent part Section 14 says:

Any party or person aggrieved by any order or

determination made by any such agency shall be

entitled to a judicial review thereof in accordance

with the provisions of this act [4-22-1-1—4-22-1-30].

Such review may be had by filing with the circuit or

superior court of the county in which such person

resides, or in any county in which such order or

determination is to be carried out or enforced, a

verified petition setting out such order, decision or

determination so made by said agency, and alleging

specifically wherein said order, decision or determi-

nation is:

(1) Arbitrary, capricious, an abuse of discretion

or otherwise not in accordance with law; or

(2) Contrary to constitutional right, power, priv-

ilege or immunity ; or

(3) In excess of statutory jurisdiction, authority

or limitations, or short of statutory rights; or

(4) Without observance of procedure required by

law; or

(5) Unsupported by substantial evidence.

Said petition for review shall be filed within fif-

teen [15] days after receipt of notice that such order,

decision or determination is made by any such agen-

cy. Notice shall be given in the manner prescribed

by section 6 [4-22-1-6] of this act. Unless a proceed-

ing for review is commenced by so filing such peti-

tion within fifteen [15] days any and all rights of

judicial review and all rights of recourse to the

courts shall terminate. (emphasis supplied)

So the Act restricts access to the courts even though the

administrative agency takes action affecting ‘‘rights, duties,

obligations, privileges or other legal relations’’ (Section 3).

An this broad statement includes constitutional rights, du-

ties, and privileges inasmuch as the second stated ground

for review of an order, decision, or determination is that

All

the action taken is ‘‘contrary to constitutional right, power,

privilege ...’’.

The thrust of the Act is that the exclusive path to the

courts is by review. The administrative process is not to be

disrupted and delayed.’

The exclusivity of the review procedure contemplated by

the Act is founded on the common-law principle of exhaus-

tion of administrative review procedures before resorting

to judicial action. State ex rel. Paynter v. Marion County

Superior Court, Room No, 5 (1976), — Ind. —, 344 N.E.2d

846; City of East Chicago v. Sinclair Refining Co. (1953),

232 Ind. 295, 111 N. E. 2d 459; State ex rel. Evansville City

Coach Lines, Inc. v. Rawlings (1951), 229 Ind. 552, 99

N. E. 2d 597.

A forceful statement of this concept is found in Public

Service Commission of Indiana et al. v. City of Indianapolis

(1956), 235 Ind. 70, 83, 131 N.E.2d 308, 313:

However, where the statute provides for a procedure

for such review or for a judicial remedy, it excludes

any common law or equitable procedure to the extent

such statutory provisions are adequate in protecting

and preserving such substantive rights guaranteed

by the constitution, the states or general principles

of law. Such statutory procedure must be followed

at least to the extent of the remedy available before

resort is made to any common law or equitable rem-

edy. (emphasis supplied)

Also see Ballman v. Duffecy (1952), 230 Ind. 220, 102 N. E.

2d 646; Joseph E. Seagram & Sons v. Board of Com’rs

(1943), 220 Ind. 604, 45 N. E. 2d 491; State ex rel. White v.

Hilgemann, Judge (1941), 218 Ind. 572, 34 N. E. 2d 129;

Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26

N. E. 2d 399.

2. Errors made by the administrative agency may be discovered and

cured in the course of its action. McShane, supra.

Al2

It is often stated that if the administrative remedy has

not been exhausted, a court does not have jurisdiction to

take action. State ex rel. Indianapolis Water Co. v. Boone

Circuit Court (1974), 261 Ind. 583, 307 N. EK. 2d 870; Indian-

apolis Power & Light Co. v. Highland Realty Co. (1970),

253 Ind. 637, 256 N. E. 2d 394; State ex rel. Public Service

Com’n v. Marion Circuit Court (1961), 242 Ind. 145, 177

N. E. 2d 397; Amburgey v. Miller (1977), — Ind. App. —,

362 N. E. 2d 869; Decatur County R. E. M. C. v. Public

Service Co. of Indiana (1971), 150 Ind. App. 193, 175 N. E.

2d 857. See also Indiana Bell Telephone Co. v. Friedland

(1978), — Ind. App. —, 373 N. E. 2d 344.

The so-called ‘‘exclusive remedy’’ doctrine was recently

challenged in Paynter, supra, a case in which the Supreme

Court considered and rejected an attempt, similar to the

one before us, to by-pass the administrative review ma-

chinery of the Act.

The operator of a health care facility was notified to

appear before the Indiana Health Facilities Council to de-

termine if she was operating without a license. Prior to

the scheduled hearing she sought and obtained a Writ of

Prohibition in a trial court restraining action by the agency,

claiming violation of her constitutional rights under th

Fifth? and Fourteenth Amendments‘ of the United States

Constitution.

In ruling that the trial court wrongfully interfered with

the administrative process the court emphatically embraced

the necessity of exhaustion of administrative remedy :°

3. Relator claimed that violation of Moore’s Fifth Amendment right

to remain silent constituted an irreparable harm sufficient to invoke

equitable relief.

4. Like Dr. Thompson, relator claimed that it was prejudicial for the

Attorney General to serve in a prosecutorial and advisory role, a claim

the court specifically rejected. Paynter, supra, at 850.

5. Justice Hunter in his concurring opinion in Paynter stated:

. , even if the outcome (of the administrative hearing) is not

A183

A determination by an administrative board that has

authority to act in a given case may be subjected

to judicial review under the Administrative Adjudi-

cation Act, as may findings of fact. Ixp. Copp 4-22-

1-14 (§14). The respondents have not shown this

remedy at law is inadequate. No Fifth Amendment

rights are jeopardized. No savings in the cost or

time of litigation have been demonstrated.

The statute here affords an adequate administrative

procedure and review. It is fundamental that no one

is entitled to judicial relief until the prescribed ad-

ministrative remedies have been exhausted. (empha-

sis supplied)

344 N. E. 2d at 851.

Thus, the explicit terms of the Act and the last word of

the Supreme Court in Paynter, leads us inevitably to the

conclusion that unless Dr. Thompson can demonstrate he

is entitled to equitable or extraordinary relief, he is limited

by the Act to the prescribed procedure for judicial review

under Section 14.

Our conclusion is not altered by the Supreme Court’s

decision, Wilson v. Review Board of Indiana Employment

Security Division, — Ind. —, 385 N. E. 2d 438 (Cause No.

279828, Handdown Date 2-8-79), a case arising under the

Indiana Employment Security Act, rnp. copE 22-4-1-1 et

seq. and not under the AAA.

The provision relating to appeals under the Indiana Em-

ployment Security Act is rnp. cop 22-4-17-12 which, unlike

in her favor, she will have developed a factual record to support

her claim that the Health Facilities Council, under the statutory

arrangement assigning preliminary investigative functions to it, is

not sufficiently impartial to satisfy the Due Process Clause.

For the reasons stated above, I concur with the majority that the

claim presented here is properly reviewable through the machinery of

the Administrative Adjudication Act and not by way of this original

action. (emphasis supplied)

344 N.E.2d at 852.

A14

the AAA fails to contain even a hint that the procedure

provided is exclusive:

Any decision of the review board shall be conclu-

sive and binding as to all questions of fact. Hither

party to the dispute, the board or the director may,

within thirty [80] days after notice of intention to

appeal as herein provided, appeal the decision to the

Appellate Court (Court of Appeals) for errors of

law under the same terms and conditions as govern

appeals in ordinary civil actions. (Emphasis sup-

plied

Also, in Wilson the controversy involved a legal question

only, all factual issues having been resolved through the

completion of the administrative hearing process so that

the courts could resolve the entire controversy between the

litigants.

The Supreme Court in Wilson made no reference to

Paynter, which prompts an inference that they, like us,

believe Wilson to be distinguishable from cases arising

under the AAA.

B. INJUNCTIVE RELIEF

(1) Adequate Remedy At Law.

In order to qualify for equitable relief Dr. Thompson

must show great and irreparable injury or damage and

that he has no adequate remedy at law. City of Gary, Lake

County v. Ayers (1968), 251 Ind. 193, 238 N. KE. 2d 17;

Southside Motor Coach Corporation v. McFarland, et al.

(1934), 207 Ind. 301, 191 N. E. 2d 147. See also Owens v.

Downs (1951), 121 Ind. App. 294, 98 N. E. 2d 914.

That Section 14 (the review procedure) does provide an

adequate legal remedy to consider the constitutional issues

raised by Dr. Thompson has already been decided by

Paynter ...‘*The Respondents have not shown that this

remedy at law is inadequate.’’ Dr. Thompson can assert

Ald

by way of judicial review that the Board’s action is ‘‘con-

trary to constitutional right, power, privilege, or immu-

nity;’’ (Section 14).

(2) Irreparable Harm

But has he been irreparably harmed. His claim is that

his professional reputation would be irreparably harmed if

he is forced to litigate the constitutional issues at the con-

clusion of the administrative process.

In Downing v. Board of Zoning Appeals of Whitley

County (1971), 149 Ind. App. 687, 274 N. HE. 2d 542, this

Court expressed serious reservations as to whether one

could ever suffer irreparable injury prior to a final action

by an agency:

Generally, judicial review is denied for lack of

finality if an action by an administrative agency is

only anticipated.

149 Ind. App. at 690, 274 N. KE. 2d at 544.

To the same effect is Indiana Alcoholic Beverage Com’n

v. McShane (1976), — Ind. App. —, 354 N. I. 2d 259.

Final or not, the overwhelming majority rule is that harm

to professional reputation is not the kind of irreparable

injury that forms the basis for equitable relief. Bad pub-

licity generated by revocation of a license is not deemed to

be the type of irreparable injury contemplated, and injune-

tions have been almost uniformly denied to professionals

seeking to stop license revocation hearings because of

damage to their reputation. See Beckanstin v. Bradbury

(1958), 214 Ga, 27, 102 S. EK. 2d 486 (architect’s license) ;

Baugher v. Walker (1977), 47 Ill. App. 3d 573, 362 N. EB. 2d

410 (pharmacists); Allen v. Louisiana Board of Alcoholic

Beverage Control (1962), (La.), 146 So. 2d 662 (liquor

license) ; Feinblum v. Louisiana State Board of Optometric

Examiners (1957), (La.), 97 So. 2d 657 (optometrist) ; State

v. Ingham County Circuit Judge (1972), 41 Mich. App. 700,

A16

200 N. W. 2d 774 (car dealer); Bridges v. State Board of

Registration for Healing Arts (1967), (Mo.), 419 S. W. 2d

278 (physician); Texas State Board of Examiners in Op-

tometry v. Carp. (1951), 162 Texas 1, 348 S. W. 2d 242

(optometrist).

Typical is Pye v. Commonwealth (1977), (Pa.), 372 A.

2d 33:

Prospective parties to administrative agency actions

may not bypass that process and challenge the pros-

pective action directly in the courts. The alleged

irreparable harm—that of adverse publicity—is a

risk encountered by all parties to legal proceedings

and is not alone sufficient to invoke the remedy of

injunction.

Dr. Thompson has not demonstrated entitlement to extra-

ordinary equitable relief. As the trial court properly found,

he is limited to the judicial procedure of Section 14. His

position is unlike the Plaintiff in Indiana Education Em-

ployment Relations Board v. Benton Community School

Corp. (1977), — Ind. —, 365 N. E. 2d 752, who had no ju-

dicial review available because of the terms of the collec-

tive bargaining statute under which it was proceeding.

C, DECLARATORY JUDGMENT

Again seeking a forum other than the administrative

process to hear constitutional issues Dr. Thompson has

sought refuge under the ramparts of the Indiana Declara-

tory Judgment Act, rnp. cope 34-4-10-2, which provides

in relevant part:

Any person ... whose rights, status or other legal

relations are affected by a statute ... may have

determined any question of construction or validity

arising under the... statute,...and obtain a decla-

ration of rights, status or other legal relations there-

under.

A17

The guide for application of the Act is inp. cong 34-4-

10-12:

This act is declared to be remedial; its purpose is to

settle and to afford relief from uncertainty and in-

security with respect to rights, status, and other

legal relations; and is to be liberally construed and

administered.

However, liberal construction does not mean ‘‘carte

blanche.’’ A declaratory judgment is said to be proper if

another legal remedy exists, only ‘‘where it is appropri-

ate’’. Ind. Rules of Procedure, TR. 57.

As a general rule, an action for a declaratory judgment

will be dismissed if there is pending another action or pro-

ceeding with some of the same parties which may adjudi-

cate some of the identical issues involved in the declaratory

action. Fegaro v. South Central Bell (1971), 287 Ala. 407,

252 So. 2d 66; Mid-State Construction Co. v. Means (1968),

(Ark.) 434 S. W. 2d 292; Transamerica Insurance Co. v.

Whitney National Bank of New Orleans (1968), (La.) 206

So. 2d 500; Watson v. Dorsey (1972), 265 Md. 509, 290

A. 2d 530; Berigan Bros. v. Growers Cattle Credit Corp.

of Omaha (1976), 182 Neb. 656, 156 N.W. 2d 794; Nelson v.

Knight (1968), 254 Ore. 370, 460 P. 2d 355; Hisenhauer v.

Williams (Tex., 1976), 587 S. W. 2d 336.

The propriety of declaratory relief must always be judged

with reference to whether the issue in question is more

properly resolved in another forum, Hanes Corp. v. Millard

(D.C. Cir., 1976), 531 F’. 2d 585. Declaratory relief has been

denied if the declaratory judgment would not fully resolve

all the issues between the parties, e.g., Sears Roebuck and

Company v. Zurich Insurance Company (1969, N. D. IIl.),

295 F’. Supp. 518; or ‘‘... when the final judgment in the

accrued action may in fact make the question raised in the

declaratory judgment action moot.’’ Allstate Insurance

Co. v. Mahan (1969), 223 Tenn. 496, 448 S. W. 2d 392, 393.

A18

The courts have been reluctant to grant declaratory re-

lief if the result is to bypass administrative procedure.

Verbecke v. Verbecke (1958), 352 Mich. 468, 90 N. W. 2d

487; Adams v. Atlantic City (1948), 26 N. J. Mise. 259, 59

A. 2d 825; Cha-T'oine Hotel Apartment Bldg. Corp. v.

Shogren (1958, 7th Cir.), 204 F, 2d 256. In City of Chey-

enne v. Sims (1974), 521 P. 2d 1347, 1850, the Wyoming

Supreme Court, in affirming a dismissal of a declaratory

judgment action to determine certain property tax-exempt

prior to assessment, held: ‘‘ Declaratory relief should not

be used to usurp or replace specific administrative relief,

particularly when the initial decision is committed to an

administrative body.’’

However, the actual determination of whether the pres-

ence of another form of relief should justify a refusal to

grant declaratory relief is within the trial court’s discre-

tion. All-State Ins. Co. v. Fisher (1973), 107 Cal. Rptr. 251,

31 C. A. 3d 391; Textron, Inc. v. Wood (1974), 167 Conn.

334, 355 A. 2d 307; Hampson v. State ex rel. Buckson (1967)

(Del.), 233 A. 2d 155; Harris v. State Bank & Trust Co. of

Wellston (1972), (Mo.) 484 8S. W. 2d 177; Slosburg v. City

of Omaha, supra; Equitable Leasing, Inc. v. Maguire

(1971), 321 N. Y. S. 2d 410, 86 A. D. 2d 1020; C. H. Pitt

Corp. v. Insurance Co. of N. America (1969), 435 Pa. 381,

257 A. 2d 857. Absent an abuse of that discretion the trial

court’s decision will be upheld. Allstate Ins. Co., supra;

Girard v, Miller (1963), 29 Cal. Rptr. 359,

While Indiana courts have never considered the exact

circumstances under which it might be an abuse of discre-

tion for a trial court to deny declaratory judgment relief

when an administrative remedy has not been exhausted,

several relevant factors in making such a decision emerge

from the cases, here and elsewhere:

a.) Use of the remedy which most completely re-

solves all the issues between the parties ; Hanes

Corp., supra;

Ald

b.) Whether the administrative remedy is ade-

quate; See Ind. Ed. Employment Relations Bad.

v. Benton Community Schools (1977), — Ind.

—, 365 N. BE. 2d 752;

c.) Whether declaratory relief is necessary to pre-

vent irreparable harm; Beckanstin, supra;

d.) Damage to the administrative process by allow-

ing a declaratory judgment; Downing, supra;

e.) The extent of unnecessary delay resulting from

allowing declaratory judgment.

We have already determined that Dr. Thompson would

not be irreparably harmed by being confined to the pre-

scribed administrative procedure and that such a remedy

is adequate. Also, it is obvious that the declaratory judg-

ment action can only resolve one aspect of the dispute be-

tween Dr, Thompson and the Board, his constitutional ob-

jections, leaving unresolved the misconduct charges against

him.

This case exemplifies the potential for delay if resort is

allowed to the courts for a declaratory judgment and an

appeal taken to the appellate courts. It has been over three

years since the complaint was filed against Dr. Thompson.

Allowing the Declaratory Judgment Act to be used as a

vehicle to bypass the administrative process created by

statute can seriously weaken the effectiveness of that proc-

ess. Obviously years can be added to the administrative

process before an administrative determination is made.

Review of the process becomes piecemeal, an undesirable

state of affairs resulting in unnecessary delay and duplica-

tion in a court system already burdened with demands ex-

ceeding its capacity to respond. The evils of piecemeal

appeals are apparent. See First Equity Security Life Ins.

Co. v. Keith (1975), — Ind. App. —, 329 N. E. 2d 45.

Thus by the criteria we have relied on, the conclusion is

inevitable that under these circumstances the remedy of

declaratory judgment was properly denied.

A20

Indiana Education Employment Relations Board v. Ben-

ton Community School Corp., supra, is in no respect con-

trary to our conclusion. It allowed declaratory relief be-

cause there was no other remedy (i.e., no administrative

review) available to the Benton Community School Corp.

The discussion there of the exception made actually serves

to revitalize the principle that the judicial review mecha-

nism of the Act must be followed. Also see Warren v. Indi-

ana Telephone Co., supra.

The trial court properly dismissed Dr. Thompson’s action

seeking declaratory and injunctive relief.

Affirmed.

Shields, J. concurs; Sullivan, J. concurs with separate

opinion.

Sutuivan, J., Concurring:

I express a degree of doubt that the provision of I. C.

4-22-1-14 which authorizes judicial review of an administra-

tive ‘‘order, decision or determination”’ if ‘‘[c]ontrary to

constitutional right, power, privilege or immunity’’, was

intended to embrace a constitutional attack upon the statu-

tory authority for the administrative agency to act at all,

as opposed to an attack upon certain decisions which are

1afected by unconstitutional procedures or acts which occur

during the exercise of otherwise valid authority or power.

A challenge to the underlying authority of the agency itself

is quite different in nature and scope from a challenge to

the manner in which valid authority is exercised.

In the case before us the majority observes thai ‘‘the

declaratory judgment action can only resolve one aspect

of the dispute between Dr. Thompson and the Board, his

constitutional objections, leaving unresolved the misconduct

charges against him.’’ (Slip Opinion p. 15). If the sole

issue involved unconstitutionality of I. C. 25-22.5-6-2 on its

face, I would hold the declaratory judgment action to be an

A21

appropriate remedy without resort to further proceedings

within the administrative review process. See State ea rel.

City of South Bend v. St. Joseph Superior Court (1958)

238 Ind. 88, 148 N. E. 2d 558; State ex rel. City of South

Bend v. Marckle (1939) 215 Ind. 74, 18 N. E. 2d 764.

A22

MOTION TO CORRECT ERRORS

In Tue Marion County Supertor Court Room No. 7

CAUSE NO. 8776-155

(Filed Marion Superior Court Room No, 7—July 26, 1976)

W. Turton THompson,

Plaintiff,

vs.

Mepicau Licensine Boarp or INDIANA AND Ernest R. Braver,

James N, Hampton, Rosert R. Kopecky, Joun H. Maver,

Water J. BeneviILLE, Bruce C. Brink, anp Epwarp L.

HoLLENBERG, INDIVIDUALLY AND AS MEMBERS OF THE MepI-

caL Licenstne Boarp or [npIana,

Defendants.

MOTION TO CORRECT ERRORS

Plaintiff, W. Turton Thompson, pursuant to Trial Rule

59(A)(5), (8) and (9), by counsel, C. Robert Knight and

Ronald EK. Elberger, moves this court to correct the errors

herein designated by correcting the judgment of the court

to a finding for the plaintiff in all respects on the February

11, 1976, verified complaint filed in the above-captioned

cause of action for each of the following reasons:

1. This court’s order and judgment of June 14, 1976,

dismissing plaintiff’s verified complaint for failure to ex-

haust administrative remedies is contrary to law in that:

a. Plaintiff’s exhaustion of administrative rem-

edies before the Medical Licensing Board of Indiana

is not a prerequisite to this court’s exercise of

jurisdiction over this action; and in that

b. The Medical Licensing Board of Indiana is

not a competent tribunal to adjudicate the consti-

tutional issues raised in plaintiff’s February 11,

1976 verified complaint, involving the constitution-

ality of the statutes and procedures employed by

the Medical Licensing Board of Indiana including

(1) plaintiff’s challenge to I. C. 25-22.5-6-2(5) as

being unconstitutional in that said section is vague

A23

and overbroad and fails to give adequate notice of

proscribed conduct and fails to specify or otherwise

identify drugs classified as ‘‘nareotie’’, ‘‘addicting”’

or ‘‘dangerous’’ absent the Medical Licensing Board

engaging in an unlawful incorporation by reference

of another separate and distinct statutory scheme

which plaintiff maintains would constitute an un-

lawful delegation of legislative authority; and (2)

plaintiff’s challenge that I. C, 25-22.5-6-2(6) is un-

constitutionally vague and overbroad in that the

terms ‘‘willful or wanton misconduct’’ are insuffi-

cient to apprise one of conduct which is prohibited ;

and (3) plaintiff’s allegation that the compulsion of

defending one’s self before non-attorney ‘‘judges’’

of the Board constitutes a denial of due process

in contravention and violation of the Fourteenth

Amendment to the United States Constitution and

of Article 1, §12 of the Constitution of the State

of Indiana;

2. This court’s order and judgment of June 14, 1976,

which dismissed plaintiff’s verified complaint and thereby

denied plaintiff preliminary and permanent injunctive re-

lief is contrary to law and erroneous in that the plaintiff

is compelled to subject himself to an administrative disci-

plinary hearing, which could result in the revocation or

suspension of his license to practice medicine, before non-

attorney members of the Medical Licensing Board of

Indiana who are untrained and unfamiliar with principles

of law and arguments of counsel in violation and contra-

vention of plaintiff’s right to due process of law as guar-

anteed by the Fourteenth Amendment to the United States

Constitution and by Article 1, §12 of the Constitution

of Indiana.

3. This court’s order and judgment of June 14, 1976,

which dismissed plaintiff’s verified complaint and thereby

denied plaintiff preliminary and permanent injunctive re-

lief is contrary to law and erroneous in that the statutory

provisions with whose violation plaintiff is charged in

A24

administrative disciplinary proceedings before the Medical

Licensing Board of Indiana are unlawful and unconstitu-

tional in the following particulars :

a, I, C, 25-22.5-6-2(5) is vague and overbroad in

that it fails to describe or identify those drugs

classified as ‘‘narcotic’’, ‘‘addicting’’ or ‘‘danger-

ous’’ and brings within its ambit drugs of numerous

descriptions, compositions and identities which are

not, or may not be, ‘‘narcotic’’ or ‘‘addicting’’ or

‘*dangerous’’; and

b. The Medical Licensing Board of Indiana has

failed and neglected to identify, designate or sp2cify

those drugs which are either ‘‘narcotic’’ or ‘‘addict-

ing’’ or ‘‘dangerous’’, absent an unlawful incorpo-

ration by reference of other separate and distinct

statutory provisions, thereby failing to give notice

of such drug classifications in violation and con-

travention of plaintiff’s right to due process and

notice of the charges against him; and

ce. The Medical Licensing Board of Indiana has

wrongfully and unlawfully incorporated by refer-

ence other statutory provisions unrelated to and

distinct from I. C. 25-22.5-6-2(5) to define ‘‘nar-

cotic’’, ‘‘addicting’’ and ‘‘dangerous’’ drugs; and

d. I. C. 25-22.5-6-2(6) is vague and overbroad in

that the terms ‘‘willful or wanton misconduct’’ are

insufficient to apprise a respondent in administrative

disciplinary proceedings of that conduct which is

prohibited in direct and unmistakable terms with

clearness and certainty, and brings within their

ambit conduct which is permissible or otherwise

constitutionally protected, thereby failing to give

notice of the particular conduct which is prohibited

in violation and contravention of such respondent’s

right to due process and notice of the charges against

him.

4. This court’s order and judgment of June 14, 1976,

which dismissed plaintiff’s verified complaint and thereby

denied plaintiff preliminary and permanent injunctive

relief, and this court’s order of May 28, 1976 which granted

A25

defendants’ motion for protective order and thereby pre-

cluded the taking of depositions upon oral examination

of the members and staff of the Medical Licensing Board

of Indiana are contrary to law and erroneous in that the

plaintiff—a respondent in administrative disciplinary pro-

ceedings before the Medical Licensing Board of Indiana—

is precluded from engaging in discovery to ascertain

evidence of the bias and prejudice of the administrative

Board members who are to judge him, one of those mem-

bers, Robert R. Kopecky, is the complaining and charging

party, thereby constituting a denial of plaintiff’s right to

due process as guaranteed by Article 1, §12 of the Con-

stitutional of Indiana and by the due process clause of the

Fourteenth Amendment to the United States Constitution.

5. This court’s order and judgment of June 14, 1976,

which dismissed plaintiff’s verified complaint and thereby

denied plaintiff preliminary and permanent injunctive re-

lief, and this court’s order of May 28, 1976 which granted

defendants’ motion for protective order and thereby pre-

cluded the taking of depositions upon oral examination

of the members and staff of the Medical Licensing Board of

Indiana are contrary to law and erroneous in that the

plaintiff—a respondent in administrative disciplinary pro-

ceedings before the Medical Licensing Board of Indiana—is

to be judged by a person, Robert R. Kopecky, who is the

complaining and charging party, and/or other persons

unduly influenced by said Board member, in violation and

contravention to plaintiff’s right to due process of law

and a fair trial having the appearance of fairness as

secured by the due process clause of the Fourteenth Amend-

ment to the United States Constitution and by Article 1,

§ 12 of the Constitution of Indiana.

6. This court’s order and judgment of June 14, 1976,

which dismissed plaintiff’s verified complaint and thereby

denied plaintiff preliminary and permanent injunctive re-

lief, and this court’s order of May 28, 1976, which granted

A26

defendants’ motion for protective order and thereby pre-

cluded the taking of depositions upon oral examination of

the members and staff of the Medical Licensing Board

of Indiana are contrary to law and erroneous in that the

plaintiff is being prosecuted before the Medical Licensing

Board by deputy attorneys general who are also the ad-

visors to the Medical Licensing Board, such dual role

resulting in the violation of plaintiff’s right to a fair trial

in a fair tribunal having the appearance of fairness.

WHEREFORE, plaintiff, W. Turton Thompson, by coun-

sel, prays that this court correct the errors hereinbefore

set forth.

Respectfully submitted,

C. Robert Knight

1951 South Main Street

Zionsville, Indiana 46077

(317) 873-5488

Ronald KE. Elberger

ELBERGER STANTON BOYLE

HYATT & REUBEN

1444 Consolidated Building

Indianapolis, Indiana 46204

(317) 634-2200

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing ‘‘ Motion

to Correct Errors’’ has been served upon:

Peter Drum, Esquire

Deputy Attorney General

219 State House

Indianapolis, IN 46204

by mailing a copy hereof by first class United States mail,

postage prepaid to him this 29th day of July, 1976

Ronald E. Elberger

A27

In THE Marion County Superior Court Room No. 7

CAUSE NO. 8775-155

(Filed Marion Superior Court Room No. 7—June 14, 1976)

W. Turton THompson,

Plaintiff,

Vs.

Mepicau Licenstne Boarp or InpIANA AND Ernest R. Braver,

James N. Hampton, Rospert R. Kopecky, Joun H. Maper,

Wauter J. Benevitite, Bruce C. Brink, anp Epwarp L.

HoLLENBERG, INDIVIDUALLY AND AS MEMBERS OF THE Mept-

caL LicensinG Boarp or Inp1ana,

Defendants.

ORDER AND JUDGMENT

Upon consideration of plaintiff’s motion for reconsidera-

tion of May 28, 1976 Order, and the Court having reviewed

and considered the pleadings, memoranda of law, and prior

oral arguments of counsel regarding defendants’ motion to

dismiss, and being duly advised in the premises, it is

ORDERED that plaintiff’s motion for reconsideration

of May 28, 1976, be, and is hereby GRANTED, and, upon

reconsideration of this Court’s order and ruling of May

28, 1976, it is further

ORDERED that defendants’ motion to dismiss be, and is

hereby, GRANTED upon the ground that the plaintiff has

failed to exhaust his administrative remedies before the

Medical Licensing Board of Indiana. Accordingly, it is

the judgment of this Court that plaintiff’s verified com-

plaint be, and is hereby, DISMISSED, each party to bear

its own costs in the action; and it is further

ORDERED that the bond previously posted in this Court

upon which W. Turton Thompson is the principal and Hart-

A28

ford Accident and Indemnity Co. is the surety be, and is

hereby, discharged and released.

Dated this 14th day of June, 1976.

GERALD 8. ZORE, JUDGE

SUPERIOR COURT OF MARION COUNTY, ROOM 7

A29

VERIFIED COMPLAINT

In THE Marion County Superior Court Room No. 7

(Filed Marion Superior Court Room No. 7—

February 11, 1976)

W. Turton THompson,

Plaintiff,

vs.

Mepricau Licenstne Boarp or InpIANA AND Ernest R. BEAver,

James N. Hampton, Rosert R. Kopecky, Jonn H. Maper,

Wauter J. BeNnEVILLE, Bruce C. Brink, anp Epwarp L.

HoLLENBERG, INDIVIDUALLY AND AS MEMBERS OF THE MeEpI-

cAL LicensincG Boarp or Inp1ana,

Defendants.

VERIFIED COMPLAINT

Plaintiff, W. Turton Thompson, by counsel, for his causes

of action against the defendants, Medical Licensing Board

of Indiana and Ernest R. Beaver, James N. Hampton,

Robert R. Kopecky, James H. Mader, Walter J. Beneville,

Bruce C. Brink and Edward L. Hollenberg, individually and

as members of the Medical Licensing Board of Indiana, for

injunctive relief pursuant to I. C. 34-1-10-1 et seq. and 42

U.S. C. § 1983, and for a declaratory judgment pursuant to

I. C. 34-4-10-1 et seq. States that:

COUNT I

1. Plaintiff, W. Turton Thompson (hereinafter referred

to as ‘‘Thompson’’), is a physician, duly licensed by the

Medical Licensing Board of Indiana to practice medicine,

surgery and obstetrics in the State of Indiana, with his

offices and residence located in Jeffersonville, Indiana.

2. Defendant, Medical Licensing Board of Indiana (here-

inafter referred to as ‘‘Board’’), is an agency of the State

A30

of Indiana whose powers and duties are set forth in I. C.

25-22.5-2-7. The Board is also authorized to conduct pro-

ceedings and hearings regarding the probation of a licensee

and for the suspension of revocation of a license to practice

medicine issued by said Board. The Board’s offices are

located in the State Board of Health Annex, 1375 West 16th

Street, Indianapolis, Indiana.

3. Defendants, Ernest R. Beaver, James N. Hampton,

Robert R. Kopecky, John H. Mader, Walter J. Beneville,

Bruce C. Brink and Edward L. Hollenberg, are the duly

appointed members of the Medical Licensing Board of

Indiana upon whom are conferred those powers and duties

enumerated in I. C. 25-22.5-2-7, who conduct proceedings

and hearings regarding the probation of a licensee, or the

suspension or revocation of a license to practice medicine

issued by said Board pursuant to I. C. 25-22-5-6-3(a). At all

times relevant hereto said defendants have acted under

color of state law in their official public positions as Board

members.

FACTS

4, On or about May 6, 1957, Thompson filed with the

Board his application for a license to practice medicine,

which license was duly issued to him by the Board on Sep-

tember 11, 1958, and is still in force and effect.

5. The Board is authorized to conduct disciplinary pro-

that:

(a) Proceedings for the probation of a licensee or a

permit holder or the revocation or suspension of any

license or permit to practice medicine or osteopathic

medicine in Indiana must be commenced by the filing

of written verified charges with the secretary of the

board. These charges may be filed by any resident

of Indiana, or by the secretary or any member of

the board upon information from whatever source

in his possession, which causes the member to have

A31

reasonable cause to believe that the matter should

be filed and placed before the board for its deter-

mination. Proceedings for probation of a licensee

or permit holder or revocation or suspension of any

license or permit to practice medicine or osteopathic

medicine in Indiana must be conducted according to

the Administrative Adjudication Act of Indiana,

I. C. 1971, 4-22--1 [4-22-1-1—4-22-1-30].

6. The grounds for probation of a licensee or for sus-

pension or revocation of a license are specified in I. C.

25-22.5-6-2 which provides that:

To promote uniformity among the several states

and territories and to provide guidelines for physi-

cians and the board, the following charges will be

grounds for probation of a licensee or suspension or

revocation of a license:

(1) the use of any false, fraudulent or forged

statement or document, or the use of any fraudulent,

deceitful, dishonest or immoral practice in con-

nection with any of the licensing or permit re-

quirements ;

(2) the acts from which a felony conviction re-

sulted, if the acts have a direct bearing on whether

or not the person should be entrusted to serve the

public as a licensed physician;

(3) currently using or consuming a drug or in-

toxicant so as to render the licensee unsafe or unfit

to practice medicine or osteopathic medicine ;

(4) suffering from a mental or physical disability

so as to render the licensee unsafe or unfit to prac-

tice medicine or osteopathic medicine ;

(5) except as otherwise permitted by law, to

knowingly prescribe, sell or administer any drug

classified as a narcotic, addicting or dangerous drug

to a habitue or addict ;

(6) wilful or wanton misconduct or manifest in-

capacity in the practice of medicine or osteopathic

medicine ;

(7) the practice of medicine or osteopathic medi-

cine under a false or assumed name; or

A32

(8) the wilful performance of an act likely to

deceive or harm the public. [I. C. 1971, 25-22.5-6-2,

as added by Acts 1975, P. L. 271, §1, p. —]

7. On or about October 23, 1975, disciplinary proceed-

ings were instituted by the Board against Thompson on the

basis of a complaint, a copy of which is attached hereto as

Exhibit ‘‘A’’ and is incorporated herein by reference, which

charged Thompson with violations of I. C. 25-22.5-6-2(5)

and (6), in that he is alleged to have:

1. Illegally and knowingly issuing prescriptions for

Schedule II Controlled Substances, desoxyn and

quaalude, and Schedule IV Controlled Substance,

dalmane, to female patients for non-therapeutic

purposes in exchange for sexual acts with these

patients performed at his office, pursuant to

Section 2 (5), Chapter 6 of Acts 1975, Public

Law 271.

2. Willful and wanton misconduct in the practice of

medicine by illegally and knowingly issuing pre-

scriptions for Schedule II Controlled Substances,

desoxyn and quaalude, and Schedule IV Con-

trolled Substance, dalmane, to female patients

for non-therapeutic purposes in exchange for

sexual acts with these patients performed at his

office, pursuant to Section 2 (6), Chapter 6 of

Acts 1975, Public Law 271.

8. At no time has the Board promulgated or adopted any

rules or regulations which define, identify or specify those

drugs classified as ‘‘narcotic’’, ‘‘addicting’’ or ‘‘danger-

ous’’, thereby bringing within the definition of said terms,

as contained in I. C. 25-22.5-6-2(5), drugs of every type,

description, composition and form, nor has the Board prom-

ulgated or adopted any rules or regulations which define

specify or identify the meaning of ‘‘habitue’’ or ‘‘addict’’

as those terms are used in I. C. 25-22.5-6-2(5).

9. Ato time has the Board charged Thompson with pre-

scribing any drug classified as a narcotic, addicting or dan-

gerous drug to a ‘‘habitue or addict.’’

A33

10. At no time has the Board promulgated or adopted

any rules or regulations which define or specify the ele-

ments or basis of ‘‘willful or wanton misconduct”’’ as those

terms are used in I, C, 25-22.5-6-2(6), thereby bringing

within the scope and ambit of said statutory provision ac-

tion, activity, conduct and words of every type and form.

11. Pursuant to I. C. 25-22.5-2-7(a) and (c), the Board

is required and mandated to promulgate rules and regula-

tions to enforce the provisions of I, C. 25-22.5-6-2 and 25-

22.5-6-3.

12. The provisions of I. C. 25-22.5-6-2(5) and (6) are

unconstitutional in that:

a. I. C. 25-22.5-6-2(5) is vague and overbroad in

that it fails to describe or identify those drugs

classified as ‘‘narcotic’’, ‘‘addicting’’ or ‘‘danger-

ous’’ and brings within its ambit drugs of numerous

descriptions, compositions and identities which are

not, or may not be, ‘‘narcotic’’ or ‘‘addicting’’ or

‘‘dangerous’’; and

b. The Medical Licensing Board of Indiana has

failed and neglected to identify, designate or specify

those drugs which are either ‘‘narcotie’’ or ‘‘addict-

ing’’ or ‘‘dangerous’’, thereby failing to give notice

of such drug classifications in violation and con-

travention of respondent’s right to due process and

notice of the charges against him; and

e. I. C. 25-22.5-6-2(6) is vague and overbroad in

that the terms ‘‘willful or wanton misconduct’’ are

insufficient to apprise a respondent of that conduct

which is prohibited in direct and unmistakable terms

with clearness and certainty, and brings within their

ambit conduct which is permissible or otherwise

constitutionally protected, thereby failing to give

notice of the particular conduct which is prohibited

in violation and contravention of respondent’s right

to due process and notice of the charges against

him.

A34

13. A hearing is scheduled to be held before the Board,

whose members include five (5) physicians, one (1) osteo-

pathic physician, and one (1) chiropractor, on Thursday,

February 12, 1976, commencing at 9:00 am. None of the

members of said Board, upon information and belief, are

attorneys or are otherwise capable of making judicial

determinations on the basis of legal arguments made by

counsel, despite Thompson’s constitutional rights to a com-

petent judge and to due process of law.

14. Thompson sceks a declaratory judgment in that a

controversy has arisen between said plaintiff and the de-

fendants herein as relates to Thompson’s constitutional

rights to due process, notice of charges, and a competent

judge.

15. Thompson seeks a determination and declaration of

his rights, status and legal obligations to the effect that:

a. I. C. 25-22.5-6-2(5) is unconstitutional as being

vague and overbroad and in that it fails to give

adequate notice of proscribed conduct and fails to

specify or identify drugs classified as ‘‘narcotic”’ or

‘*addicting’’ or ‘‘dangerous’’; and that

b. I. C. 25-22.5-6-2 (6) is unconstitutional as be-

ing vague and overbroad; and that

ce. A hearing before non-attorney members of the

Board, untrained and unfamiliar with arguments

of counsel, constitutes a denial of due process in con-

travention and violation of the Fourteenth Amend-

ment to the United States Constitution and of Article

1, § 12 of the Constitution of Indiana.

16. This action is prosecuted, and the declaration and

determination of rights of the parties relating to the con-

stitutionality of I. C. 25-22.5-6-2(5) and (6) is sought pursu-

ant to the Uniform Declaratory Judgments Acts, I. C.

34-4-10-1 et seq., and the plaintiff states that the plaintiff

and defendants, respectively, have an interest in obtaining

and securing a declaration by this court of the rights, status

A35

and legal obligations of said parties; and plaintiff further

states that, upon information and belief, no other person

has any interest in these proceedings.

WHEREFORE, plaintiff, by counsel, respectfully prays

that this court:

A. Enter a declaratory judgment, declaring the re-

spective rights, status and legal obligations of the plaintiff

and defendants, to the effect that:

i. I. C, 25-22.5-6-2(5) is unconstitutional as being

vague and overbroad and in that it fails to give ade-

quate notice of proscribed conduct and fails to

specify or identify drugs classified as ‘‘narcotic’’ or

‘‘addicting’’ or ‘‘dangerous’’; and that

ii. I. C. 25-22.5-6-2(6) is unconstitutional as being

vague and overbroad; and that

iii. A hearing before non-attorney members of the

Board, untrained and unfamiliar with arguments of

counsel, constitutes a denial of due process in con-

travention and violation of the Fourteenth Amend-

ment to the United States Constitution and of Ar-

ticle 1, § 12 of the Constitution of Indiana.

B. Award plaintiff costs of these proceedings.

C. Order a speedy hearing, advancing this cause on the

court calendar pursuant to Trial Rule 57, Indiana Rules of

Trial Procedure.

D. Grant plaintiff such further relief as this Court deems

just and proper.

Respectfully submitted,

C. ROBERT KNIGHT

195% South Main Street

Zionsville, Indiana 46077

(317) 873-5488

RONALD E, ELBERGER

1444 Consolidated Building

Indianapolis, Indiana 46204

(317) 634-2200

ATTORNEYS FOR PLAINTIFF

A36

Of Counsel:

ELBERGER STANTON BOYLE HYATT & REUBEN

144 Consolidated Building

Indianapolis, Indiana 46204

(317) 634-2200

COUNT II

17. Plaintiff incorporates by reference herein the allega-

tions set forth in paragraphs one through sixteen inclusive

of Count I of this verified complaint.

18. After terminating the employment of prior counsel,

Thompson retained the services of C. Robert Knight, an

attorney duly licensed and admitted to practice law in

the State of Indiana, who, by letter dated February 4, 1976,

entered his appearance before the Board on behalf of

Thompson and requested a continuance to investigate the

facts, conduct necessary legal research, initiate and com-

plete discovery, review applicable files, and determine

whether the Board members were competent to hear the

case or precluded from hearing the case due to bias or

prejudice. On February 6, 1976, C. Robert Knight was

orally informed by the Board that no continuance would be

granted.

19. Thereafter, on February 9, 1976, Ronald E. Elberger,

an attorney duly licensed and admitted to practice law in

the State of Indiana, and C. Robert Knight filed a formal

appearance in pleading form before the Board and, on

February 10, 1976, filed the following pleadings with the

Board:

a. Motion to Dismiss.

b. Memorandum of Law In Support of Respond-

ent’s Motion To Dismiss.

ce. Motion To Disqualify Medical Licensing Board

Members.

d. Memorandum of Law in Support of Motion To

Disqualify Medical Licensing Board members.

e. Motion For Continuance of Hearing.

A37

20. By letter dated February 6, 1976, a copy of which is

attached hereto as Exhibit ‘‘B’’ and is incorporated herein

by reference, and which was received by counsel on Febru-

ary 10, 1976, the Board informed Thompson’s counsel that

no continuance or postponement of the hearing scheduled

for February 12, 1976, would be granted under any cir-

cumstances,

21. Counsel for Thompson have reasonable cause to be-

lieve that some or all of the defendant Board members have

been provided with, or otherwise furnished with, investiga-

tive materials and information which has caused said de-

fendant Board members to be biased and prejudiced in their

judgment in the administrative proceedings against Thomp-

son in violation and contravention of Thompson’s right to

process and a fair trial in a fair tribunal. In view of the

imminent date of the administrative Board hearing, Thomp-

son’s counsel are precluded from completing any discovery

or conducting any investigation regarding the bias or

prejudice of the individual defendant Board members,

thereby denying Thompson due process of law, a fair trial,

and effective assistance of counsel.

22. Thompson has been, and is being, wrongfully and un-

constitutionally subject to disciplinary proceedings before

the Board under unconstitutional provisions of I. C, 25-22.5-

6-2(5) and (6), and is, therefore, being wrongfully subjected

to imminent loss, damage and harm of protected interests.

23. The denial to counsel by the Board and its members

of the opportunity to conduct discovery and investigation

regarding the factual basis of the administrative Board

charges, and regarding the bias and prejudice of the admin-

istrative Board members in administrative proceedings

constitutes a denial of Thompson’s right to due process as

guaranteed by Article 1, § 12 of the Constitution of Indiana

and by the due process clause of the Fourteenth Amend-

ment to the United States Constitution.

A38

24. Unless this Court enjoins the defendants from pro-

ceeding with the administrative Board disciplinary pro-

ceedings scheduled for February 12, 1976, Thompson will

suffer irreparable harm, injury and damage in that:

a. Thompson will be denied due process of law

and effective assistance of counsel by reason of ap-

pearing before an administrative Board whose mem-

bers are non-attorneys, unfamiliar with, and un-

trained to, understand arguments of counsel; and

in that

b. Thompson will be denied due process of law

by reason of the imminent hearing date which pre-

cludes counsel from developing, acquiring or obtain-

ing, through discovery, evidence of bias and preju-

dice of the Board members before whom Thompson

must appear; and in that

ce. Thompson will be denied due process of law

by reason of the unconstitutionality of the statutory

provisions set forth in I. C. 25-22.5-6-2(5) and (6)

with whose violation he is charged, which provisions

failed to give notice of proscribed conduct and are

so vague and overbroad as to be invalid; and in that

d. Thompson will be denied due process of law

by reason of the Board’s failure to inform Thomp-

son of the essential facts which constitute the bases

of the charges against him; and in that

e. Counsel for Thompson is precluded from con-

ducting discovery relating to the charges against

Thompson, the background of persons who are sched-

uled to appear as witnesses before the Board, or

any matter of defense due to the imminent hearing

date, thereby denying Thompson due process of law

and effective assistance of counsel.

WHEREFORE, plaintiff, W. Turton Thompson, by coun-

sel, respectfully prays that this Court:

A. Issue a temporary restraining order enjoining, pro-

hibiting and restraining the defendants, Indiana Medical

Licensing Board, and Ernest R. Beaver, James N. Hamp-

A39

ton, Robert R. Kopecky, John H. Mader, Walter J. Bene:

ville, Bruce C. Brink and Edward L. Hollenberg, individu-

ally and as members of the Medica) Licensing Board of

Indiana, their agents, servants, employees, successors in

office, and all persons in active concert and participation

with them from:

i, Proceeding with the administrative disciplinary

proceeding regarding W. Turton Thompson sched-

uled for February 12, 1976, at 9:00 a.m. until further

order of this Court; and from

ii. Precluding counsel for W. Turton Thompson

from initiating, conducting and completing discovery

regarding permissible subjects of discovery prior

to any administrative Board hearing in which W.

Turton Thompson is the respondent.

B. Issue a preliminary and permanent injunction en-

joining, prohibiting and restraining the defendants, Indiana

Medical Licensing Board, and Ernest R. Beaver, James N.

Hampton, Robert R. Kopecky, John H. Mader, Walter J.

Beneville, Bruce C. Brink and Edward L. Hollenberg, in-

dividually and as members of the Medical Licensing Board

of Indiana, their agents, servants, employees, successors

in office, and all persons in active concert and participa-

tion with them from:

i. Enforcing the provisions of I. C. 25-22.5-6-2(5)

and (6); and, from, or in the alternative, from

ii. Proceeding with the conduct of any adminis-

trative hearing before the Medical Licensing Board

of Indiana in which W. Turton Thompson is a re-

spondent prior to (a) the completion of reasonable

discovery by counsel for said respondent in said

administrative proceedings, and (b) a determina-

tion of the issues of bias and prejudice presented to

said Board after hearing thereupon, and (c) con-

sideration and determination of all preliminary

motions filed by said respondent.

A40

D. Grant plaintiff an immediate hearing upon his ap-

plication for temporary restraining order, and schedule

a prompt hearing upon plaintiff’s prayer and application

for preliminary injunction.

K. Grant plaintiff such further relief as this Court deems

just and proper.

Respectfully submitted,

C. ROBERT KNIGHT

19514 South Main Street

Zionsville, Indiana 46077

(317) 873-5488

RONALD E. ELBERGER

1444 Consolidated Building

Indianapolis, Indiana 46204

(317) 634-2200

ATTORNEYS FOR PLAINTIFF

Of Counsel :

ELBERGER STANTON BOYLE HYATT & REUBEN

1444 Consolidated Building

Indianapolis, Indiana 46204

(317) 634-2200

STATE OF INDIANA, County of Marion

EXHIBIT ‘‘A’”’

BEFORE THE MEDICAL LICENSING BOARD

OF INDIANA

IN RE: Revocation of License of Walter Turton Thomp-

son, M.D. to practice medicine, surgery and obstetrics being

License No. 18462.

Robert R. Kopecky, M.D., affiant being duly sworn upon

his oath says:

That he is a resident of Marion County, in the State of

Indiana. That heretofore, to-wit, upon the 6th day of May,

A41

1957 one Walter Turton Thompson, M.D., then of Clark

County, in the State of Indiana, filed with the Medical

Licensing Board of Indiana, his application for a license

to practice medicine, and subsequently, upon the 11th

day of September, 1958, a license to practice medicine in

the State of Indiana was duly issued to him by said Board,

being License No. i€ 462.

That the said Walter Turton Thompson, M.D. is now a

resident of Clark County, and said license by said Board is

still in force and effect.

That said Walter Turton Thompson, M.D. has been guilty

of violations of Acts 1975, Public Law 271, to wit:

1. Illegally and knowingly issuing prescriptions for

Schedule II Controlled Substances, desoxyn and

quaalude, and Schedule IV Controlled Substance, dal-

mane, to female patients for non-therapeutic purposes

in exchange for sexual acts with these patients per-

formed at his office, pursuant to Section 2 (5), Chapter

6 of Acts 1975, Public Law 271.

2. Willful and wanton misconduct in the practice of

medicine by illegally and knowingly issuing prescrip-

tions for Schedule II Controlled Substances, desoxyn

and quaalude, and Schedule IV Controlled Substance,

dalmane, to femal patients for non-therapeutic pur-

poses in exchange for sexual acts with these patients

performed at his office, pursuant to Section 2 (6),

Chapter 6 of Acts 1975, Public Law 271.

WHEREFORE, affiant prays that the license of said

Walter Turton Thompson, M.D. to practice medicine in

said State be revoked, suspended or placed on probation.

Robert R. Kopecky, M.D.

Subscribed and sworn to before me this 23rd day of October,

1975.

Joseph D. O’Brian, Adm.

My Commission expires April 14, 1977.

A42

Exhibit ‘‘B’’

Received 2-10-76

CERT. MAIL #149062 February 6, 1976

Walter T. Thompson, M.D.

1403 Youngstown Drive

Jeffersonville, Indiana 47130

Dear Dr. Thompson:

Please be advised that the Medical Licensing Board of

Indiana will proceed to hear the case of Medical Licensing

Board of Indiana VS Walter T. Thompson, M.D., on Feb-

ruary 12, 1976 at 9:00 A.M. in Room 25 of the State Board

of Health Annex at 1375 W. 16th Street, Indianapolis,

Indiana as previously agreed to by your former counsel,

Mr. Ronald Fifer, and this Board.

Due to your having been granted two previous continu-

ances, this Board must deny your new counsel’s request

for another continuance and proceed with the hearing on

February 12, 1976.

Sincerely,

MEDICAL LICENSING BOARD OF INDIANA

Robert R. Kopecky, M.D., Secretary

RRK/db

ec: Robert Knight

Eric Wyndham

A43

FEDERAL STATUTES

42 U.S. C. § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S. C. § 1988

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this chapter and

Title 18, for the protection of all persons in the United

States in their civil rights, and for their vindication, shall

be exercised and enforced in conformity with the laws of

the United States, so far as such laws are suitable to carry

the same into effect; but in all cases where they are not

adapted to the object, or are deficient in the provisions

necessary to furnish suitable remedies and punish offenses

against law, the common law, as modified and changed

by the constitution and statutes of the State wherein the

court having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the Con-

stitution and laws of the United States, shall be extended

to and govern the said courts in the trial and disposition

of the cause, and, if it is of a criminal nature, in the in-

fliction of punishment on the party found guilty.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.