Petition for Writ of Certiorari — Vakas v. Rodriquez

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No. WL 20 i984

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In the Supreme Court of the United. States . ad

October Term, 1984

JOHN L. VAKAS, M.D.,

Petitioner,

VS.

PAUL RODRIQUEZ, M.D., WILLIAM C. SWISHER,

M.D., FREDERICK J. GOOD, D.C., BETTY JO McNETT,

JOAN MARSHALL, D.C., JULIA BARBEE, D.O., HER-

MAN H. JONES, JR., M.D., F. LEE DOCTOR, D.O.,

JERRY L. JUMPER, D.O., JAMES A. McCLURE, M_.D.,

DON L. McKELVEY, D.C., GORDON E. MAXWELL,

M.D., HAROLD L. SAUDER, D.P.M., JAMES D. BRUNO,

M.D., RICHARD J. CUMMINGS, M.D., F. J. FARMER,

D.O., HELEN GILLES, M.D., DAN A. KELLY, M_D.,

RICHARD A. UHLIG, D.O., JAMES R. CROY, D.C., REX

A. WRIGHT, D.C., THE STATE OF KANSAS, and THE

KANSAS STATE BOARD OF HEALING ARTS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Gerrit H. WoRMHOUDT

(Counsel of Record )

LARRY W. WALL

JOHN E. COWLES

FLEESON, Goornc, CouLSON & KITCcH

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201

316-267-7361

Attorneys for Petitioner

E. L. MEnpENHALL, Inc., 926 Cherry Street, Kansas City, {0. 64106, (816) 421-3030

QUESTIONS PRESENTED

1. When the members of a state board of healing

arts, purporting to act in a quasi-judicial capacity, attempt

to extort a release of their personal liability for federal

civil rights claims from a physician, are board members

entitled to immunity from damages under 42 U.S.C.

§ 1983?

2. When a state agency has deprived a citizen of

rights guaranteed by the fourteenth amendment and no

statutory remedy against that entity for the deprivation

exists, may a damage remedy be implied directly from

the state-directed terms of the fourteenth amendment?

3. When actions of a state are challenged as violative

of clear standards of due process of law and no state

law question exists, may a federal court abstain from

decision in favor of a court of the Jefendant state?

TABLE OF CONTENTS

COC IE TID eccicninanisininscsiscsicbenalubantateia pliieticadcadhis 2

GRSEGY Siiinsiticscindicmdiaaaee ti acielicbhas 2

STATUTORY AND CONSTITUTIONAL PROVI-

IED EAU CRINGE nccnisincaconieereanceenteteuee, 2

STAT REEE CO RI sox hichcecisteersieanceseninicioe ees 3

REASONS FOR GRANTING THE WRIT ........00000000.... 5

I. The Decision Below Conflicts With Decisions

II.

III.

of This Court and Other Courts of Appeals As

to the Immunity of Members of a State Ad-

ministrative Board Under 42 U.S.C. § 1983 ... 5

The Decision Below Failed to Resolve the

the Significant and Often-Encountered Issue

of Direct Implication of a Fourteenth Amend-

ment Remedy for Violations of Civil Rights

by a State Entity in Accordance With Prin-

ciples Elucidated by This Court .........0.000...... 11

In Affirming Abstention, the Court Below

Acted in Conflict With Decisions of This Court

and Incorrectly Decided the Unsettled Ques-

tion of Abstention in Civil Rights Cases ........ 15

CORFU RITE accceccssnscwvssrnitsnubansessilncasieaamactaiameiimaadia 19

APPENDIX—

A. Opinion of the Court of Appeals —............0.0.... Al

BD. Camgniet ..icnsiicnnneaiedne All

C. Opinion of the Administrative Appellate

UIE aaccescsinnccnmsininansinsipisnbenincnchadaatelelgcieabaamdialieliiads A20

D. Proposed Journal Entry .....u...u.......cscceseee A22

III

TABLE OF AUTHORITIES

Cases

Ada-Cascade Watch Co., Inc. v. Cascade Resource Re-

covery, 720 F.2d 897 (6th Cir. 1984) _.000 17

Adekalu v. City of New York, 431 F. Supp. 812 (S.D.

NG SR 14

Alabama Pub. Serv. Comm’n v. Southern Ry., 341

Ne as iieicelhstiiatndhiccicnibininaectnninnnmbsenmnin’ 17

Allen v. McCurry, 449 U.S. 90 (1980) —...2000 18

Anderson v. Boyd, 714 F.2d 906 (9th Cir. 1983) ........ 8

Anti-Fascist Comm. v. McGrath, 341 U.S. 123 (1951) ... 14

Baggett v. Department of Professional Regulation, 717

SE, WERE RE, BUI) sncessomcennenntecnccorteesnrennteqnentnecons 17

Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) ~.......... 9

Bes ©. TG, Sai UG. GTS (198G) nnn nccessecee nena 14

Bever v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984) _.... 8

Bier v. Fleming, 717 F.2d 308 (6th Cir. 1983) ............ 8

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971) ..................... 12, 13, 14

Black v. Bayer, 672 F.2d 309 (3d Cir. 1982) 000200... 13

Boyd v. Adams, 513 F.2d 83 (7th Cir. 1975) ................ 6

Brooks v. Fitch, 534 F. Supp. 129 (D.N.J. 1981) ........ 9

Brown v. Board of Educ., 347 U.S. 483 (1954) —.00..... 12

Burford v. Sun Oil, 319 U.S. 315 (1943) 20... 17

Burns v. Sullivan, 619 F.2d 99 (1st Cir. 1980) -........ 8

Bush v. Lucas, 103 S.Ct. 2404 (1983) ~...0222 eee 13, 14

Butz v. Economou, 438 U.S. 478 (1978) 22... 7

Carey v. Piphus, 435 US. 247 (1978) ........................... 14

Carlson v. Green, 446 U.S. 14 (1980) —..00 13

Chappel v. Wallace, 103 S.Ct. 2362 (1983) ~.............. 13

IV

Chisholm v. Georgia, 2 Dall. 419 (1793) 0000 .. 11

Ciotti v. County of Cook, 712 F.2d 312 (7th Cir. 1983) 17

Citadel Corp. v. Puerto Rican Highway Authority,

ee Ee Ee : ee erereeeeee 12

Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973) 18

Coruzzi v. State of New Jersey, 705 F.2d 688 (3d

A SUID: assseccsnntindicohedaceletaebscihielcinhcnsbciicilp alin isipbseisieioeatitin 17

Crowder v. Lash, 687 F.2d 996 (7th Cir. 1982) -........... 8

Davis v. Passman, 442 U.S. 228 (1979) 22020022222 13

Edelman v. Jordan, 415 U.S. 651 (1974) -0002 ee. 15

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981) .....000020022..... 12

Btlin vw. Robb, 466 US. 1113 (1962) ....................-..-.--....: 17

Ex parte Virginia, 100 U.S. 339 (1880) ~..000 11,15

Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695

Sees MI UIE dincciatsccphaciccnchicccetpaiespdiiphiceahipesesninabasla 17

Faust v. South Carolina Highway Dep’t, 721 F.2d 934

CI, i: PE echesinteicsa deteniecentienieseseedanecessh ce elbbidiadahiinies 13

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) -..0.000000002.... 15

Forsyth v. Kleindienst, 729 F.2d 267 (3d Cir. 1984) .... 8

Forsyth v. Kleindienst, 551 F. Supp. 1247 (E.D. Pa.

SITET spvinciniicecetiacontenehines tdihenestiuintaedeleinacadiiabiaalon ib tesgcalinasabiies 8

Gray v. City of Galesburg, 71 Mich.App. 161, 247

ee Ce SR ie hitachaeincthiienipeianentncicicestnitaseneintjeninns 6

Green v. Maraio, 722 F.2d 1013 (2d Cir. 1983) ............ 8

Green v. White, 693 F.2d 45 (8th Cir. 1982) 20002000... 8

Guy v. Swift & Co., 612 F.2d 383 (8th Cir. 1980) ........ 13

Harlow v. Fitzgerald, 457 U.S. 800 (1982)... 7

Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982) 12

Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d

a a Me EON 13

Hutto v. Finney, 437 U.S. 678 (1978) 2.2 11

Vv

J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) ............ 18

Jagnandan v. Giles, 538 F.2d 1166 (Sth Cir. 1976) ...... 15

Kansas State Bd. of Healing Arts v. Acker, 228 Kan.

Sy See Be ee ID ner cccchcntnesaiccesbecismtbocanecndeainasies 16

Kansas State Bd. of Healing Arts v. Vakas, No.

80-C-233 (Montgomery County 1981) ~....00000002202..... 4

Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969) ........ 10

Kusper v. Pontikes, 414 U.S. 51 (1973) -200 2... 18

KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d

ae DUR: Rat: TAIN sie cnisnseceteisdcbisiadiananalag 17

Lindsey v. Normet, 405 U.S. 56 (1972) 00. 17

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) 6

Louisiana Power & Light v. City of Thibodaux, 360

Se ee ED bcd rieiieninin cidade 17

MacDonald v. Musick, 425 F.2d 373 (9th Cir.) cert.

ama, TOO UE. GR COTO) scien sectcscsctrenincctines 6

Marbury v. Madison, 1 Cranch 137 (1803) .....00.02.2...... 11

McNeese v. Board of Educ., 373 U.S. 668 (1963) ........ 17, 18

Middlesex County Ethics Comm’n v. Garden State

Bar Assn, Wi VB. G8 (ISSR) 6 16, 17

Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) ........ 6

Mitchum v. Foster, 407 U.S. 225 (1972) 000. 18

Molina v. Richardson, 578 F.2d 846 (9th Cir. 1978) ...... 13

Monroe v. Pape, 365 U.S. 167 (1961) ~......00. 18

Moore v. Sims, 442 U.S. 415 (1979) 0... ee teeeee 17

Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S.

BI COED sictiescinisinisenseinrnstesteeinsninisemeitanbishelaaeaaeadieseapmobaticn 12

Owen v. City of Independence, 445 U.S. 622 (1980) ...... 14

Patsy v. Board of Regents, 457 U.S. 496 (1982) ............ 18

Piper v. Supreme Court of New Hampshire, 723 F.2d

RID CR GE: SI: scceinnecencaisdicsddoeseicb shadmen enamine 17

VI

Poller v. Columbia Broadcasting System, Inc., 368 U.S.

WBE CIBER) oncecsinerecesernsssiensicisasaneineseinsatnininneninsnisnnnnasstaidiaaiahia 10

Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) 17

Robb v. Connolly, 111 U.S. 624 (1884) —....00 18

Sanders v. Saint Louis County, 724 F.2d 665 (8th

Cae, TR) caeseinnessnetrtessantanecnstennennevesnitisitsitinspaniiaininanenstatateniinian 6

Scheuer v. Rhodes, 416 U.S. 232 (1974) -.....20222......- 7

Silberkleit v. Kantrowitz, 713 F.2d 433 (9th Cir. 1983) 17

Stump v. Sparkman, 435 U.S. 349 (1978) .................... 7,9

Supreme Court of Virginia v. Consumers Union, 446

ETB, FED COR) eeccesseeestesecetnnssinieseissmessslhisialinidiianithinesabiiiin 7

Tower v. Glover, 52 U.S.L.W. 4866 (June 25, 1984) .... 10

Tumey v. Ohio, 273 U.S. 510 (1927) «20.22... eee eeee eee eeeee 9-10

United States v. Lee, 106 U.S. 196 (1882) —..00 2... 7

Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982)

; sniusintiinntaauinnintaininiiieipeiiinestdeniiidiacidaiscaiiadmsaaupeainnie 8,13

Williams v. Treen, 671 F.2d 892 (5th Cir. 1982) ........ 8

Winterland Concessions Co. v. Trela, ........ wa

(Pan Sie. BEI Diy. MIB: ccccenecesisicestnincstssnitsiiinniieinisiteias 12

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ........ 17

Wood v. Strickland, 420 U.S. 308 (1975) 0.000020... 8

Zwickler v. Koota, 389 U.S. 241 (1967) -....002220.. 18

Statutes

BD Cle RGR receceneiternnestionitnnennnniiiaminiteinonaiil 2,14

Be Se BI eerctencentenesicespcinsstntctintaiecanion 2

BD TEER. © TIGR) ceeccecesscetcsvscsxeniaccnsstrsntiteclasesittionanipisiaaili 2

GE TIRE BD Se cerned 2, 5, 10, 11, 13, 18

Kan. Stat. Ann. §§ 65-2801-90 (1980 & Supp. 1984) ....9, 16

Kan. Stat. Ann. § 65-2848 (1980 & Supp. 1984) ........ 17

VII

Other Authorities

Cong. Globe, 42d Cong., Ist Sess. 460 (1871)

Cong. Globe, 42d Cong., Ist Sess. 653 (1871)

Cong. Globe, 42d Cong., Ist Sess. 791 (1871)

No.

In the Supreme Court of the United States

October Term, 1984

JOHN L. VAKAS, M.D.,

Petitioner,

vs.

PAUL RODRIQUEZ, M.D., et al.,’

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioner, John L. Vakas, M.D., respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Cov~t of Appeals for

the Tenth Circuit entered in this proceeding on April 24,

1984.

1. William C. Swisher, M.D., Frederick J. Good, D.C., Betty

Jo McNett, Joan Marshall, D.C., Julia Barbee, D.O., Herman H.

Jones, Jr., M.D., F. Lee Doctor, D.O., Jerry L. Jumper, D.O.,

James A. McClure, M.D., Don L. McKelvey, D.C., Gordon E.

Maxwell, M.D., Harold L. Sauder, D.P.M., James D. Bruno, M.D.,

Richard J. Cummings, M.D., F. J. Farmer, D.O., Helen Gilles,

M.D., Dan A. Kelly, M.D., Richard A. Uhlig, D.O., James R.

Croy, D.C., Rex A. Wright, D.C., individually and as members

of the respondent Board, The State Of Kansas, and The Kansas

State Board Of Healing Arts.

OPINIONS BELOW

The opinion of the Court of Appeals, reported at 728

F.2d 1293, appears in the appendix hereto. No written

opinion was rendered by the District Court for the Dis-

trict of Kansas. A final state-court review of administra-

tive proceedings appears in the appendix.

JURISDICTION

The judgment of the Court of Appeals for the Tenth

Circuit was entered on April 23, 1984, affirming the Dis-

trict Court’s order of dismissal of August 27, 1982. The

Court of Appeals denied a timely petition for rehearing

on April 16, 1984, and this petition for certiorari was

filed within ninety days of the subsequent judgment en-

tered on the rehearing. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, Amendment XIV:

No state shall . . . deprive any person of life, liberty,

or property, without due process of law... .

42 U.S.C. § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any citizen of

the United States .. . 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

atlaw....

STATEMENT OF THE CASE

Jurisdiction of the district court was invoked under

the fourteenth amendment and 42 U.S.C. § 1983, and

under 28 U.S.C. §§ 1331 and 1343. Petitioner sougst

damages in the United States District Court for the Dis-

trict of Kansas for respondents’ use of state law to compel

him to relinquish rights and claims against respondents,

thus depriving him of his right to petition the courts

for a redress of grievances. Petitioner alleged that:

1. In the board’s proceeding against him, the respon-

dent intentionally violated basic tenets of due process

of law.

2. Individual respondents threatened to institute

further proceedings against him after admitting that the

state board had no interest in doing so, merely to coerce

petitioner into abandoning his federal civil rights suit.

3. The renewed proceedings against petitioner, insti-

tuted solely to extort a release of federal civil rights claims,

were unfair and rendered a nullity by the intentional

wrongdoing of individual respondents.

See Complaint (app., p. All). The federal district court

dismissed petitioner’s complaint in its entirety; the Tenth

Circuit affirmed the dismissal. The Petitioner now seeks

relief in damages for the respondents’ attempts to forestall

his constitutional claims against them. The facts leading

up to this petition follow.

Petitioner John L. Vakas is a physician practicing

in Coffeyville, Kansas. Respondents are members of the

Kansas State Board of Healing Arts, the Board itself, and

the state. At the conclusion of a hearing on June 20,

1980, a panel of the Board found that petitioner had been

negligent in prescription practices. At the panel’s recom-

4

mendation, the Board ordered that Dr. Vakas surrender

his privilege to dispense controlled substances for one year;

if Dr. Vakas were not to surrender this privilege, the

Board would revoke his license to practice medicine. Dr.

Vakas appealed to the state district court, which vacated

the Board’s order of revocation.

In vacating the Board’s order, the state district court

found numerous violations of petitioner’s constitutional

rights in the Board’s actions, including denial of a full

and fair hearing, refusal to allow petitioner to present

witnesses in his own behalf, refusal to allow closing argu-

ment, failure to state charges with reasonable definiteness,

refusal to allow a continuance for just cause, and refusal

to allow petitioner to contest findings of the Board’s hear-

ing panel before the Board’s final decision. Kansas State

Board of Healing Arts v. Vakas, No. 80-C-233 (Montgomery

County 1981) (app., p. A20). The district court remanded

to the Board for further proceedings consistent with its

findings.

The Board accepted the district court’s decision as

a final adjudication, and, in its Journal Entry, stated that

it did not desire to instigate further administrative proceed-

ings against Dr. Vakas. See Journal Entry, paragraph

(3) (app., p. A22). The Board, however, conditioned its

decision not to instigate further proceedings against peti-

tioner by requiring him to waive “all issues existing be-

tween the parties [as] being hereby satisfactorily re-

solved.” Id. at paragraph (4). When petitioner resisted

signing such a release of all claims, the Board threatened

to initiate new proceedings against petitioner to coerce

him into abandoning his civil remedies against the board.

When petitioner did not agree to the release of claims,

new proceedings against petitioner were commenced on

June 18, 1982. In early 1983, charges against petitioner

5

were dismissed by a stipulation that was not to effect

petitioner’s civil rights case; this agreement was violated,

as respondents raised the new stipulation before the Tenth

Circuit. The stipulation was entered into after petitioner

commenced his action in the United States District Court

for the District of Kansas on July 16, 1982, seeking redress

for the uncontested violations of his right to due process

before the state licensing board and the attempted extor-

tion of a release of his civil rights claims against the

respondents.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OTHER

COURTS OF APPEALS AS TO THE IMMUNITY

OF MEMBERS OF A STATE ADMINISTRATIVE

BOARD UNDER 42 U.S.C. § 1983.

The court below held that the extortion of a release

of claims, by and for the benefit of individual members

of a state agency who had violated petitioner’s rights to

due process of law, was quasi-judicial conduct. The Tenth

Circuit then found that the individual respondents were

entitled to complete immunity from damages under 42

U.S.C. § 1983. In so holding, the court below wholly

misapplied decisions of this Court, and acted in clear con-

flict with decisions of other Courts of Appeals. Its

holding is, in reality, a finding that members of quasi-

judicial entities are free to extort releases from liability

for their federal civil rights violations with impunity.

The holding below immunizes conduct that is plainly

unconstitutional. It is axiomatic that an individual state

officer cannot use the power of his office to extort re-

leases and forestall aggrieved plaintiffs’ civil rights actions.

“What he cannot do is condition a voluntary dismissal

of a charge upon a stipulation by the defendant that is

designed to forestall the latter’s civil case.” MacDonald

v. Musick, 425 F.2d 373, 375 (9th Cir.) cert. denied, 400

U.S. 852 (1970). Such releases are “void as against public

policy” and “basically odious.” Boyd v. Adams, 513 F.2d

83, 88 (7th Cir. 1975). The individual respondents’ ac-

tions impinge on petitioner’s first amendment right of ac-

cess to the courts, which must be “freely exercisable with-

out hindrance or fear of retaliation.” Milhouse v. Carlson,

652 F.2d 371, 374 (3d Cir. 1981); see also Sanders v. St.

Louis County, 724 F.2d 665, 666 (8th Cir. 1983). That

right of access must be a paramount interest:

The contract for release, if viewed in this light, be-

comes a trade-off of a public interest for a private

interest .. . if the officers’ conduct was tortious, the

public has no interest in denying their victims redress.

If, on the other hand, the officers acted legally, they

are afforded the full protection of the law and need

not resort to the release for vindication.

Gray v. City of Galesburg, 71 Mich.App. 161, 247 N.W.2d

338, 340 (1976). The decision below allows an administra-

tive agency to unilaterally foreclose access to courts for

redress of grievances, even though this Court has unam-

biguously condemned state actions that impede court ac-

cess. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S.

422, 429 (1982) (“The Court traditionally has held that

the Due Process Clauses protect civil litigants who seek

recourse in the courts, either as defendants hoping to pro-

tect their property or as plaintiffs attempting to redress

grievances”). In holding such conduct to be immune from

7

damage liability, the Tenth Circuit disregarded long-stand-

ing mandates of this Court and created an aberration from

other circuits’ opinions.

In failing to apply the correct test of immunity, the

Tenth Circuit ignored the clear dictates of this Court.

The Tenth Circuit mistakenly relied on Stump v. Spark-

man, 435 U.S. 349 (1978), to erroneously determine that

the individual Board members were acting in a quasi-

judicial capacity. Opinion below (app., p. A7). The Court

ignored, however, clear guidance from this Court on clas-

sification of immunities for members of a board such as

respondents. Under Supreme Court of Virginia v. Con-

sumers Union, 446 U.S. 719 (1980), a court must match

the appropriate grant of immunity to the function under

which the board operates at the time of the act. Id.

at 734-36. The immunity established in Sparkman is avail-

able only to acts of a judicial character. In acting in

an enforcement capacity, however, these individual respon-

dents were entitled to only a qualified immunity. Butz

v. Economou, 438 U.S. 478, 506 (1978); United States v.

Lee, 106 U.S. 196, 220 (1882) (“No officer of the law

may set that law at defiance with impunity”). The quali-

fied immunity is lost when the official acts in an enforce-

ment capacity to deprive one of a clearly established right

of constitutional dimensions of which the official had rea-

son to know. Scheuer v. Rhodes, 416 U.S. 232, 247-

48 (1974), Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

This test deters unconstitutional conduct such as that prac-

ticed by the individual respondents; failure to apply the

Scheuer standard worked an impermissible injustice

against petitioner.

Completely absent from the decision below is any

application of the appropriate test, which is applied in

all other circuits.? Every circuit except the Tenth applies

the good-faith test in situations similar to that before this

Court, in recognition that its objective standard implies

a presumptive knowledge of, and respect for, “basic, un-

questioned constitutional rights.” Wood v. Strickland, 420

U.S. 308, 322 (1975). Accordingly, the Third Circuit re-

cently found absolute immunity inappropriate to “an attor-

ney general engaged in a quasi-judicial function.” Forsyth

v. Kleindienst, 729 F.2d 267, 272 (3d Cir. 1984). Quali-

fied immunity was also denied; the Court of Appeals

affirmed the district court’s findings that the defendant

did not meet the two-part test of (1) having reasonably

believed his actions were not against the law without

reason to know they were unlawful and (2) not having

taken the action with the intention of depriving plaintiff

of a federal right. Forsyth v. Kleindienst, 551 F. Supp.

1247, 1259 (E.D. Pa. 1983).* The dismissal of Dr. Vakas’

claims on the basis of immunity represents a departure

from the accepted view in each other circuit, and creates

2. See, e.g., Burns v. Sullivan, 619 F.2d 99, 108 (1st Cir.

1980) (applying qualified, good-faith test to city councilor) ;

Green v. Maraio, 722 F.2d 1013 (2d Cir. 1983) (applying test to

court reporter); Forsyth v. Kleindienst, 729 F.2d 267, 272 (3d

Cir. 1984); Bever v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984)

(approving test for State Department of Highways officials) ;

Williams v. Treen, 671 F.2d 892, 896 (5th Cir. 1982) (applying

test to state prison officials); Bier v. Fleming, 717 F.2d 308 (6th

Cir. 1983) (applying test to State Racing Commissioner); Crowder

v. Lash, 687 F.2d 996, 1006-07 (7th Cir. 1982) (applying the

test to state prison officials) ; Green v. White, 693 F.2d 45, 47-48

= Cir. 1982) (applying test to State Training Center for Men);

Anderson v. Boyd, 714 F.2d 906, 908-09 (9th Cir. 1983) (apply-

ing test to state parole board members) : Williams v. Bennett,

689 F.2d 1370, 1385 (11th Cir. 1982) (applying test to state

board-of-corrections members).

3. The Forsyth court found its holding to be appropriate

to the quasi-judicial nature of the defendant’s acts: “In sit-

uations of abuse of office, an action for damages may offer the

only realistic avenue for vindication of constitutional guarantees.”

Forsyth, 551 F. Supp. at 1253, quoting Harlow, 457 U.S. at 814.

9

a conflict of both decision and principle that should be

corrected.

This conclusion is made imperative by an application

ef either test of immunity to the facts of this case. Un-

der the accepted standard of qualified immunity, the ac-

tions of the individual respondents are entitled to no

immunity whatsoever. The threat to institute further pro-

ceedings in order to extort a release of civil rights claims

could only be motivated by a purely personal attempt

at self-protection. Acts performed to further a private

purpose cannot be the basis of an immunity. Beard

v. Udall, 648 F.2d 1264, 1271 (9th Cir. 1981), Brooks

v. Fitch, 534 F. Supp. 129 (D.N.J. 1981). Indeed, this

exercise of state-supported power for the personal benefit

of individual respondents takes the action of respon-

dents outside of even the immunity applied by the court

below—a purely personal action is, by its nature, one in

“clear absence of all jurisdiction.” Stump v. Sparkman,

435 U.S. 349, 357 (1978). The use of state power and

process by individual board members for a wholly illegiti-

mate purpose unauthorized by any act of the State of

Kansas cannot be the basis for an immunity.* Further,

“it certainly violates the fourteenth amendment” to force

a citizen to subject his liberty and property to the judg-

ment of a body composed of members with “a direct,

personal, substantial pecuniary interest in reaching a con-

clusion against him in his case.” Tumey v. Ohio, 273

4. Even the most cursory examination of the Board’s stat-

utory grant of authority repudiates any assertion that the in-

dividual respondents’ conduct was within their jurisdiction. See

Kan. Stat. Ann. §§ 65-2801-90 (1980 and Supp. 1984). It is

beyond the pale of jurisprudential experience to even suggest

that individual board members may protect their personal ex-

posure to liability by using the power of their office to extort

a release of federal civil-rights claims from a licensee whose

livelihood is under their control.

10

- US. 510, 523 (1927). The intentional misconduct of the

individual respondents, entitled to be taken as true on

a motion to dismiss petitioner’s complaint,’ Poller v.

Columbia Broadcasting System, Inc., 368 U.S. 464, 473

(1962), does not deserve the protection of any common-

law grant of immunity. See Tower v. Glover, 52 U.S.L.W.

4866 (June 25, 1984) (intentional misconduct not im-

mune).® The individual respondents’ intentional miscon-

duct in extorting a release of claims and concurrently

acting as a state-empowered body to protect the pecuniary

interest respondents had in obtaining such a release is en-

titled to no immunity whatsoever.

The conflict engendered by the Tenth Circuit’s misap-

plication of the decisions of this Court justifies the grant

of certiorari to review the judgment below.

5. As a practical matter, any decision with respect to the

immunity of the individual state officials is premature where

a factual record has not been developed by the trial court.

A plea of official immunity cannot be sustained until a court

has knowledge of the exact nature of the defendants’ actions

and the precise scope of their official duties. The court can

then address the legal question of whether the government’s

interest in the forthright performance of these duties re-

quires that the officials be held immune from any liability

based on their actions.

* * *

Since we do not have an adequate record to decide the im-

munity question this aspect of the suit must wait resolu-

tion by the district court after hearing.

Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969). The trial court

here failed to develop a record upon which any decision con-

cerning immunity could be based.

6. A vague and unsupportable policy of protecting state

licensing officers from personal liability cannot be the basis of

an immunity:

We do not have a license to establish immunities from § 1983

actions in the interests of what we judge to be sound social

policy. It is for Congress to determine whether § 1983 liti-

gation has become too burdensome to state or federal] insti-

tutions, and if so, what remedial action is appropriate.

Tower v. Glover, 52 U.S.L.W. 4866, 4868 (June 25, 1984).

11

Il. THE DECISION BELOW FAILED TO RESOLVE

THE SIGNIFICANT AND OFTEN-ENCOUN-

TERED ISSUE OF DIRECT IMPLICATION OF

A FOURTEENTH AMENDMENT REMEDY

FOR VIOLATIONS OF CIVIL RIGHTS BY A

STATE ENTITY IN ACCORDANCE WITH

PRINCIPLES ELUCIDATED BY THIS COURT.

The holding of the Tenth Circuit perpetuates the para-

doxical result of a “state” being insulated from suit under

the fourteenth amendment, even though the terms of that

amendment “are directed to the states ... they have

reference to actions of the political body denominated a

state, by whatever instruments or in whatever modes that

action may be taken.” Ex parte Virginia, 100 U.S. 339,

346-47 (1880). A fundamental tenet of American constitu-

tional law holds that the “very essence of civil liberty

certainly consists in the right of every individual to claim

the protection of the laws, whenever he receives an injury.”

Marbury v. Madison, 1 Cranch 137, 163 (1803). For citi-

zens whose rights have been deprived by a state agency,’

however, no remedy exists under the decision below.®

7. The state is not considered a person for purposes of 42

U.S.C, § 1983. Hutto v. Finney, 437 U.S. 678 (1978).

8. This interpretation of the fourteenth amendment twists

its meaning to a polar opposite of its intended place in con-

stitutional adjudication. Under the unassailable logic of one of

the signers of both the constitution and the Declaration of

Independence, the state should be responsible for the consequences

of its improper acts:

The perverted use of genus and species in logic, and of

impressions and ideas in metaphysics, have never done mis-

chief so extensive or so practically pernicious, as has been

done by states and sovereigns, in politics and jurisprudence;

in the politics and jurisprudence even of those, who wished

and meant to be free. ... Upon general principles of right

shall the [state] when summoned to answer the fair demands

of a creditor, permitted, proteus-like, to assume a new

appearance, and to insult him and justice, by declaring,

I am a sovereign sta? Surely not.

Chisholm v. Georgia, 2 Dall. 419, 454, 456 (1793) (Wilson, J.).

12

Several circuits allow direct remedies; several do not.

The continuing confusion among the circuits and the great

importance of the question to constitutional jurisprudence

and the citizenry of this nation provide compelling justifi-

cation for this Court to finally resolve the question of

whether a direct right of action exists under the fourteenth

amendment. The importance of the issue was recognized

by this Court, but reserved for future decision, in Mount

Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278

(1977) (‘it is an extremely important question and one

which should not be decided on this record”).® The rec-

ord in the case now before the Court is, in contrast, a

compelling one for a dispositive determination of whether

a direct cause of action exists under the fourteenth amend-

ment.

Determination of this issue is imperative in view of

the dispositions of the case below, and in view of the

contrary decisions across the circuits.!° The Tenth Cir-

cuit was not only in conflict with several circuits; its

decision conflicted in principle with clear guidelines from

this Court. Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), provided

9. A direct remedy for damages under the fourteenth amend-

ment need not be fashioned from whole cloth; this Court has

allowed a direct remedy for equitable relief under the fourteenth

amendment. See Brown v. Board of Educ., 347 U.S. 483 (1954).

By any measure of sovereign inviolability, the compulsion of a

mandatory injunction is surely a deeper inroad upon the state

than exposure to a mere claim for monetary relief.

10. The division of the circuits is geometrical in its di-

visiveness. The First, Second, Sixth, Seventh and Eighth Cir-

cuits have held that a cause of action exists directly under the

fourteenth amendment for a claim against a state agency. See

Citadel Corp. v. Puerto Rican Highway Authority, 695 F.2d 31

(ist Cir. 1983); Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981); Hays

v. Jefferson County, 668 F.2d 869 (6th Cir. 1982); Winterland

Concessions Co. v. Trela, ...... F.2d _.... (7th Cir. May 17, 1984);

(Continued on following page)

| |

13

guidelines for direct implication of constitutional remedies;

these principles were further developed in Davis v. Pass-

man, 442 U.S. 228 (1979), Carlson v. Green, 446 U.S. 14

(1980), Chappel v. Wallace, 103 S.Ct. 2362 (1983) and

Bush v. Lucas, 103 S.Ct. 2404 (1983). The tests developed

over this line of cases were ignored by the court below,

which held that this Court “strictly limited” the availabil-

ity of a private right of action. The court below, however,

did not apply the appropriate tests to the case. Opinion

below (app., p. A6).

Had it followed the criteria established by this Court,

the court below would have been compelled to find that

this case is a proper one for a direct remedy under

the fourteenth amendment. This Court has held that the

first issue to be addressed is whether the wrong is one

for which there is no remedy. Bivens, 403 U.S. at 626.

Because a state agency may not be sued under 42 U.S.C.

§ 1983, no remedy exists for Dr. Vakas. Further, it cannot

be said that Congress has intended that state law provide

the “equally effective” remedy for the redress of violations

of federally guararteed civil rights, cf. Bivens, 403 US.

at 626, as such a remedy would depend upon the vagaries

of various state constitutions and the efficacies of various

state forums. The second issue to be addressed is consid-

eration of any possible factors “counseling hesitation.”

Footnote continued—

Guy v. Swift and Co., 612 F.2d 383 (8th Cir. 1980). The Third,

Fourth, Fifth, Ninth and Eleventh, however, have refused to allow

such a remedy. See Black v. Bayer, 672 F.2d 309 (3d Cir. 1982);

Faust v. South Carolina Highway Dep’t, 721 F.2d 934 (4th Cir.

1983); Hearth, Inc. v. Department of Pub. Welfare, 617 F.2d 381

(5th Cir. 1980); Molina v. Richardson, 578 F.2d 846 (9th Cir.

1978); Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982). With

the addition of the Tenth Circuit, the scale tips against citizens

aggrieved by state agency action. It is apparent that a plaintiff

with a due-process claim against a state agency has more need

for a Ouija board than for a set of Federal Reporters.

14

Id. at 626. In the case before this Court, all factors coun-

sel swift correction rather than hesitation. It is recognized

that section five of the fourteenth amendment does not

imply a positive bar by its dormancy. Adekalu v. City

of New York, 431 F. Supp. 812 (S.D.N.Y. 1977). Further,

sound public policy requires that losses from constitutional

wrongs at the hands of public officials be allocated among

inevitable costs of government borne by all taxpayers,

rather than requiring that the entirety of such losses rest

on the shoulders of the innocent victim of such action.

See Owen v. City of Independence, 445 U.S. 622 (1980).

Imposition of damage liability for acts of extortion such

as that suffered by petitioner would inhibit only miscon-

duct by officials.

As both tests are met by petitioner, it is clear that

this case is of the type that this Court has reaffirmed

its power to correct:

This jurisdictional grant (28 U.S.C. § 1331) provides

not only the authority to decide whether a cause of

action is stated by a plaintiff’s claim that he has been

injured by a violation of the Constitution, Bell v. Hood,

327 U.S. 678, 684 (1946), but also the authority to

choose among available judicial remedies in order to

vindicate constitutional rights.

Bush, 103 S.Ct. at 2409. Rather than allow petitioner

to bear his injury without a remedy,” this Court should

11. Damage from the respondents’ act of extortion is clearly

actionable under the fourteenth amendment and Carey v. Piphus

435 U.S. 247, 262 (1978); the due-process clause guarantees the

“feeling of just treatment” by the government. Anti-Fascist

Comm. v. McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J.,

concurring).

When a remedy is implied directly under the terms of the

fourteenth amendment, the eleventh amendment is no bar to

(Continued on following page)

15

review the opinion below to correct the Tenth Circuit’s

error. The enormous circuit confusion on this significant

and often-confronted issue provides full justification for

this Court’s review of the decision below.

Ill. IN AFFIRMING ABSTENTION, THE COURT

BELOW ACTED IN CONFLICT WITH DECI-

SIONS OF THIS COURT AND INCORRECTLY

DECIDED THE UNSETTLED QUESTION OF

ABSTENTION IN CIVIL RIGHTS CASES.

The court below dodged the full weight of the immu-

nity issue by affirming abstention in favor of a state deter-

mination of respondents’ jurisdiction:

The issue of defining the constitutional limits of the

jurisdiction of the Kansas Board of Healing Arts

is initially a matter for the State’s determination. The

Footnote continued—

recovery of damages. The fourteenth amendment is recognized

as “a constitutional Amendment whose other sections by their

own terms embody limitations on state authority.” Fitzpatrick

v. Bitzer, 427 U.S. 445, 456 (1976). The ratification of the

fourteenth amendment (1868) after the eleventh amendment

(1798) could not be a clearer manifestation of Kansas’ intent to

surrender eleventh-amendment immunity for actions brought di-

rectly under the fourteenth amendment. “Such enforcement is

no invasion of State sovereignty. No law can be, which the people

of the States have, by the Constitution of the United States,

empowered Congress to enact.” Ex parte Virginia, 100 U.S. 339,

346 (1880). The state should be liable for its civil-rights trans-

gressions: “I hold that this duty of protection, if it rests any-

where, rests on the state, and that if there is to be any liability

visited upon anybody for failure to perform that duty, such li-

ability should be brought home to the state.” Cong. Globe,

42d Cong., lst Sess. 791 (1871) (remarks of Representative

Willard). The question is clearly an open one. Edelman v.

Jordan, 415 U.S. 651, 694 n.2 (1974) (Marshall, J., dissenting).

If § 5 legislation should limit immunity, Fitzpatrick, 427 U.S.

at 456, certainly the substantive provision on which that en-

forcement power is.based may provide a concurrent limitation

on the eleventh amendment. See Jagnandan v. Giles, 538 F.2d

1166, 1188 (5th Cir. 1976) (Goldberg, J., concurring).

as

16

principles of comity and federalism dictate that federal

courts abstain fromm premature entry into state judicial

construction of administrative disciplinary procedures

(app., pp. A7-8).

This holding ignores the proper purposes of abstention,

and incorrectly resolves the difficult and unsettled ques-

tion of forfeiting federal factfinding in civil rights cases

in which the state is a defendant.

The court below erroneously relied on Middlesex

County Ethics Comm’n v. Garden State Bar Ass’n, 457

U.S. 423 (1982), to determine that it should not interfere

in ongoing state administrative procedures by ascertaining

the constitutional limits of the respondents’ authority. The

court below did not, however, recognize that Middlesex

could not conceivably apply to petitioner’s damage action,

which was not a part of any ongoing state administra-

tive procedure; indeed, a damage action such as that

brought by petitioner is conspicuously absent from the

jurisdictional authority of the Board. See Kan. Stat. Ann.

§$ 65-2801-90 (1980 & Supp. 1984). These sections have

clearly defined the jurisdictional limits of the Board’s au-

thority. See also Kansas State Board of Healing Arts

v. Acker, 228 Kan. 145, 149-52, 612 P.2d 610, 617 (1980).

In no circumstance is the behavior of respondents in ex-

torting a release included within the statutory grant of

jurisdiction of the Board; nor is an action for damages

a part of the administrative review procedure. The action

for damages contained in petitioner’s complaint cannot be

part of any “ongoing” administrative procedure; Middlesex

is, on its face, inapplicable.”

12. In fact, the “pending” nature of the administrative

procedure required by Middlesex was emphasized by Justices

White and Brennan in dissenting from the denial of certiorari

(Continued on following page)

17

Equally inapplicable are all other branches of the ab-

stention doctrine. Because the state has determined the

limits of respondents’ jurisdiction, the constitutionality of

the exercise of that jurisdiction cannot turn on a con-

struction of state law. Cf. Railroad Comm’n v. Pullman

Co., 312 U.S. 496 (1941) (abstention proper only when

a state construction of an unclear question of state law

could avoid constitutional adjudication); Louisiana Power

& Light v. City of Thibodaux, 360 U.S. 25 (1959) (absten-

tion proper only when state law is in a confused condi-

tion).* If there is no unclear underlying issue of state

law, there can be no abstention. McNeese v. Board of

Educ., 373 U.S. 668, 671-73 (1963); Lindsey v. Normet,

405 U.S. 56, 62 n.5 (1972). Abstention can never be ordered

merely to force vindication of a federal claim in state

court, Wisconsin v. Constantineau, 400 U.S. 433 (1971);

Footnote continued—

in Etlin v. Robb, 458 U.S. 1112, 1114 (1982). Further, each

circuit to consider application of Middlesex abstention has em-

phasized that the administrative procedure must be “ongoing”

or “pending.” See, e.g., Piper v. Supreme Court of New Hamp-

shire, 723 F.2d 110, 120 (lst Cir, 1983); Coruzzi v. State of New

Jersey, 705 F.2d 688, 690 (3d Cir. 1983); KVUE, Inc. v. Austin

Broadcasting Corp., 709 F.2d 922, 928 n.15 (5th Cir. 1983); Ada-

Cascade Watch Co., Inc. v. Cascade Resource Recovery, 720

F.2d 897, 902 (6th Cir. 1984); Ciotti v. County of Cook, 712 F.2d

312, 313 (7th Cir. 1983); Silberkleit v. Kantrowitz, 713 F.2d 433,

435. (9th Cir. 1983); Baggett v. Department of Professional Regu-

lation, 717 F.2d 521, 524 (llth Cir. 1983); Family Div. Trial

Lawyers v. Moultrie, 725 F.2d 695, 701 (D.C. Cir. 1984). Only

the Tenth Circuit has held otherwise. The bare fact that a

state is a party to a proceeding is not sufficient to make ab-

stention appropriate. Moore v. Sims, 442 U.S. 415, 423 n.8 (1979).

In holding that it was, the court below conflicted with other cir-

cuits, as well as with the controlling decisions of this Court.

13. Neither is this a case in which statutory appeal from an

agency determination is an integral part of a regulatory scheme.

Cf. Alabama Pub. Serv. Comm’n v. Southe:2 Ry., 341 U.S. 341

(1951); Burford v. Sun Oil, 319 U.S. 315 (1943). The limited

power of a state district court in reviewing the board’s actions

does not include any action for damages. See Kan. Stat. Ann.

§ 65-2848.

18

to do so “would amount to shirking the solemn responsi-

bility of the federal courts to ‘guard, enforce and protect

every right granted or secured by the Constitution of the

United States.’” Kusper v. Pontikes, 414 U.S. 51, 55 (1973),

quoting Robb v. Connolly, 111 U.S. 624, 637 (1884).

This principle applies with even greater force in ac-

tions under 42 U.S.C. § 1983, which was meant to impose

the federal courts between the state and its citizens as

a guardian of federally secured rights. Mitchum v. Foster,

407 U.S. 225 (1972). The Civil Rights Act mandates fed-

eral factfinding; when facts are in dispute, a federal court

must not abstain. Conover v. Montemuro, 477 F.2d 1073

(3d Cir., 1973) J.P. v. DeSanti, 653 F.2d 1080 (6th Cir.

1981). A preference for federal factfinding over state

factfinding is a recurring theme in the legislative history

of § 1983;* hence, there is unequivocally no requirement

that a litigant exhaust state remedies before filing in fed-

14. “The question now is, what and where is the remedy?

I believe the true remedy lies chiefly in the United States dis-

trict and circuit courts.” Cong. Globe, 42d Cong., Ist Sess. 653

(1871) (remarks of Senator Osborne). The reason behind this

reliance is clear:

The United States courts are further above mere local in-

fluence than the county courts; their judges can act with

more independence, cannot be put under terror, as local

judges can; their sympathies are not so nearly identified

with those of the vicinage. ... We believe that we can

trust our United States courts, and we propose to do so.

Cong. Globe, 42d Cong., Ist Sess. 460 (1871) (remarks of Rep.

Coburn). Section 1983, in fact, was enacted to provide just

such a federal forum. “It is abundantly clear that one reason

the legislation was passed was to afford a federal right in federal

courts... .” Monroe v. Pape, 365 U.S. 167, 180 (1961). “As-

sessing the state of affairs as a whole, Congress specifically made

a determination that federal oversight of constitutional deter-

minations through the federal courts was necessary to ensure

the effective enforcement of constitutional rights.” Allen v.

McCurry, 449 U.S. 90, 109-10 (1980) (Blackmun, J., dissenting)

(federal courts are “primary and final arbiters of constitutional

rights”). See also McNeese v. Board of Educ., 373 U.S. 668

(1963); Zwickler v. Koota, 389 U.S. 241 (1967).

19

eral court. Patsy v. Board of Regents, 457 U.S. 496 (1982).

Requiring a civil rights plaintiff, such as Dr. Vakas, to

litigate a federal constitutional claim solely in state court

imposes just such an impermissible requirement, and can-

not be countenanced in any system of civil rights juris-

prudence.

The Tenth Circuit’s departure from accepted views

of other Circuits and rejection of clear mandates from

this Court, as well as the recurrent importance of the

issue of abstention in civil rights cases, justifies the grant

of certiorari to review the judgment below.

CONCLUSION

For all the foregoing reasons, a writ of certiorari

should issue to review the judgment and opinion of the

Tenth Circuit Court of Appeals.

Respectfully submitted,

Gerrit H. WoRMHOUDT

(Counsel of Record)

Larry W. WALL

JOHN E. COWLES

FLEEson, Goornc, Coutson & Kitcu

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201

316-267-7361

Attorneys for Petitioner

Al

APPENDIX ITEM #1

(Filed March 7, 1984)

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 82-2195

82-2476

JOHN L. VAKAS, M.D.,

Plaintiff/Appellant; Plaintiff/Cross-Appellee,

vs.

PAUL RODRIQUEZ, M.D., WILLIAM C. SWISHER, M.D.,

FREDERICK J. GOOD, D.C., BETTY JO McNETT, JOAN

MARSHALL, D.C., JULIA BARBEE, D.O., HERMAN H.

JONES, JR., M.D., F. LEE DOCTOR, D.O., JERRY L.

JUMPER, D.O., JAMES A. McCLURE, M.D., DON L.

McKELVEY, D.C.. GORDON E. MAXWELL, M_D.,

HAROLD L. SAUDER, D.P.M., JAMES D. BRUNO, M.D.,

RICHARD J. CUMMINGS, M.LD., F.J. FARMER, D.O.,

HELEN GILLES, M.D., DAN A. KELLY, M.D., RICHARD

A. UHLIG, D.O., JAMES R. CROY, D.C., REX A. WRIGHT,

D.C., THE STATE OF KANSAS, and THE KANSAS

STATE BOARD OF HEALING ARTS,

Defendants/Appellees; Defendants/Cross-Appellants.

APPEAL FROM THE UNrrep States District Court

For THE District OF KANSAS

(D.C. Crvir Action No. 82-1589)

Larry W. Wall (Gerrit H. Wormhoudt with him on the

brief), Fleeson, Gooing, Coulson & Kitch, Wichita,

Kansas, for John L. Vakas, M.D.

A2

Leslie A. Kulick, Assistant Attorney General (Robert T.

Stephan, Attorney General, Bruce E. Miller, Deputy

Attorney General, Topeka, Kansas, for The State of

Kansas, and Wallace M. Buck, Jr., Topeka, Kansas, for

Kansas State Board of Healing Arts and Individual

Members of Kansas State Board of Healing Arts, with

her on the brief).

Before BARRETT and LOGAN, Circuit Judges, and BO-

HANON, Senior District Judge*

BOHANON, District Judge

Responding to a letter of complaint from six Coffey-

ville, Kansas, pharmacists, the Kansas Board of Healing

Arts conducted a hearing on February 23, 1980, into

certain prescription practices of Dr. John L. Vakas. At

the conclusion of the hearing, a stipulation was offered

to Dr. Vakas in which he would relinquish his Drug

Enforcement Administration (D.E.A.) registration for one

year. Dr. Vakas chose not to sign the stipulation.

The Kansas Board of Healing Arts then convened a

disciplinary panel of six members which conducted a

disciplinary hearing on June 20 and 21, 1981. The dis-

ciplinary panel found that Dr. Vakas used poor judgment

in the over-prescribing of controlled substances. As a

corrective measure the panel recommended that Dr.

Vakas’ license to practice medicine be revoked but that

the revocation be stayed should he relinquish his D.E.A.

registration for a period of one year.

Dr. Vakas appealed this decision of the Board of

Healing Arts to the District Court of Montgomery County,

*Honorable Luther Bohanon, Northern, Eastern and Western

Districts of Oklahoma, sitting by designation.

ee eer)

A3

Kansas. The state court ordered a new hearing to be

conducted based upon a findings of procedural due pro-

cess violations.

Shortly after the state court determination, the Kan-

sas Board of Healing Arts offered to settle and dismiss

the remanded action and submitted the following language

in a proposed journal entry.

“That the parties hereto mutually agree that any

and all differences having existed between the par-

ties are now resolved to the satisfaction of both par-

ties. Any and all issues existing between the parties

be hereby satisfactorily resolved.”

The proposed journal entry sparked numerous exchanges

of letters between the legal counsel for the parties. In

sum, the plaintiff rejected the proposed settlement as

an attempt by the Kansas Board of Healing Arts to escape

liability for unspecified civil causes of action. This con-

clusion was formed by Dr. Vakas despite repeated assur-

ances by the Board that all that was intended was a

resolution of the proceedings before the Board of Healing

Arts.

Due to the failure to amicably resolve the parties’

differences, the Board scheduled a disciplinary proceed-

ings rehearing date of August 21, 1982.

To prevent the scheduled rehearing, Dr. Vakas insti-

tuted this federal action seeking an injunction of the

proceedings. He additionally sought damages for alleged

constitutional breaches by the Board and its individual

members. In response to the federal action the Board

voluntarily stayed the scheduled disciplinary rehearing

and filed a motion to dismiss.

On August 27, 1982, the United States District Court

conducted a hearing on the Board’s motion. After oral

A4

argument the court granted the motion to dismiss in its

entirety. The court foundationed its decision on the legal

principles of abstentionism and immunity. Relying heav-

ily on Middlesex County Ethics Committee v. Garden

State Bar Assoc., 457 U.S. 423 (1982), the court recognized

the general reluctance of the federal courts to intervene

in state disciplinary proceedings under the guise of con-

stitutional review.

Dr. Vakas now appeals the district court’s dismissal

and alleges as a matter of law that the trial court erro-

neously resolved two legal issues. He alleges that there

exists a private cause of action arising directly under

the auspices of the Fourteenth Amendment separate from

formal congressional action. Secondly, he alleges that

the Board and its members acted beyond the scope of

their authority in violating his constitutional rights by

committing procedural errors in his original disciplinary

hearing and hence cannot claim immunity.

Appellant Vakas also attempts to raise the issue of

improper action on the part of the Board and its mem-

bers in their offer to settle the dispute through the lan-

guage of the proposed journal entry. However, this issue

is not properly raised in a federal proceeding. As the

trial court correctly recognized, this issue is but an at-

tempt to seek federal intervention in the state dis-

ciplinary process. See Middlesex County Ethics Com-

mittee v. Garden State Bar Assoc., supra. There is

simply no justification for this court to intervene in

this manner. This is especially true upon review of the

history of this litigation. It is apparent from the actions

of the Kansas District Court that the safeguards of the

United States Constitution were meticulously afforded

Dr. Vakas in his earlier appeal of the Board’s disciplinary

hearing.

A5

Additional issues that the appellant attempts to raise

on appeal deal with the denial of injunctive relief. While

these issues are also likely foreclosed by the Middlesex

abstentionism doctrine, they need not be considered by

this court. In early 1983 the parties entered into a

stipulation and dismissal of the pending disciplinary ac-

tion. The stipulation was substantially identical to the

earlier offer of settlement by the Board. By virtue of

this settlement and dismissal no case or controversy now

exists on which to base legal objections to the trial court’s

refusal to enjoin future disciplinazy action. These issues

are mooted by the agreed stipulation and dismissal, and

appellate review is unwarranted. See Hall v. Beals,

396 U.S. 45 (1969).

An additional issue now on appeal is raised through

a cross-appeal by the State of Kansas, the Board of Heal-

ing Arts, and the Board members in their individual ca-

pacities. The cross-appellants claim that the trial court

abused its discretion in denying them attorney fees after

a favorable resolution of their motion to dismiss.

I. Private Right of Action

Appellant concedes that his claim pursuant to 42 U.S.C.

§1983 against the State of Kansas is barred by the Eleventh

Amendment to the United States Constitution. See Ala-

bama v. Pugh, 438 U.S. 781 (1978); Hutto v. Finney, 437

U.S. 678 (1978); Mt. Healthy City School Bd. of Ed. v.

Doyle, 429 U.S. 274 (1977). However, appellant seeks to

have the court fashion a remedy solely from the guarantees

of the Fourteenth Amendment. He cites the case of

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971) as providing the guid-

ance for the fashioning of such a remedy.

A6

The concept of a private right of action has been

strictly limited by the United States Supreme Court in

the cases of Bush v. Lucas, ........ a inna , 103 S.Ct. 2404

(1983); and Chappell v. Wallace, ........ US. ........, 103 §.Ct.

2362 (1983). In both Bush and Chappell the Court re-

fused to form a private right of action for federal em-

ployees and cautioned against judicial action in expand-

ing available remedies absent congressional mandate.

An additional compelling justification for court re-

fusal to fashion a private remedy under the Fourteenth

Amendment in cases against states and their agencies are

the provisions of the Eleventh Amendment. Express

waiver of the Eleventh Amendment by congressional ac-

tion is required under the enforcement mechanism of the

Fourteenth Amendment. Quern v. Jordan, 440 U.S. 332

(1979); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Where,

as here, the Congress has chosen not to enact an enforce-

ment scheme directly addressing the appellant’s situation,

the state retains its sovereign immunity.

This appeal is similar to that contained in Paul v.

Davis, 424 U.S. 693 (1976). As in Paul, Dr. Vakas “ap-

parently believes that the Fourteenth Amendment’s Due

Process Clause should ex proprio vigore extend to him a

right to be free of injury wherever the State may be [al-

legedly] characterized as a tortfeasor.” 424 U.S. at 701.

As the Supreme Court explained in Paul, there is simply

no legal basis to support such an all pervasive view of the

Fourteenth Amendment.

II. Immunity of the Board

In addition to a private cause of action against the

State of Kansas, appellant seeks to maintain an action

against the Board and its individual members for alleged

breaches of his constitutional rights. The gravamen of

AT

this complaint is the state district court’s finding of pro-

cedural due process violations during the original disci-

plinary hearing. However, it is well established that mem-

bers of administrative boards who perform judicial func-

tions are immune from damages in a 42 U.S.C. §1983 action

when acting in their judicial capacities. Butz v. Econo-

mou, 438 U.S. 478 (1978). Here, the Board of Healing

Arts is specifically delegated such a quasi-judicial role

by statute. K.S.A. 65-2801, et seq. Therefore, the issue

before the trial court and on appeal is whether, as a mat-

ter of law, the Board was acting in their quasi-judicial

capacity.

A facial review of the applicable statutes indicates that

investigations and decisions whether to commence disci-

plinary proceedings are within the quasi-judicial jurisdic-

tion of the Board. Therefore, at least facially, the Board’s

actions comport with their jurisdictional authority.

The standard to apply in determining whether error

committed by quasi-judicial officers in the course of their

duties is immune from civil action is found in Stump uv.

Sparkman, 435 U.S. 349 (1978). The general standard is

strict and holds that immunity is absolute unless there

is a “clear absence of all jurisdiction.” 435 U.S. at 357.

There is no evidence that the hearings conducted by the

Board were beyond their jurisdiction. The trial court

properly applied the legal doctrine of immunity in this

situation.

As stated before, the appellant’s allegations of actions

allegedly undertaken by the Board outside their role as

quasi-judicial officers are not matters properly before

this court. The issue of defining the constitutional limits

of the jurisdiction of the Kansas Board of Healing Arts

is initially a matter for the State’s determination. The

A8

principles of comity and federalism dictate that federal

courts abstain from premature entry into state judicial

construction of administrative disciplinary procedures.

Middlesex, supra.

III. Attorney Fees

In their cross-appeal, the State defendants contend

the district court erred in refusing to award attorney fees

pursuant to 42 U.S.C. §1988. They recognize that as a

prevailing defendant they may be awarded attorney fees

only if appellant’s underlying claim was “frivolous, un-

reasonable, or groundless.” Roadway Express Inc. v.

Piper, 447 U.S. 752 (1980); Prochaska v. Marcoux, 632 F.2d

848 (10th Cir. 1980). However, they contend such a find-

ing was made by the court by implication. Although the

trial court never made the explicit finding that the plain-

tiff’s action was frivolous, the court made the following

comment during the hearing on the motion to dismiss:

“I can only say that when I came out on the bench,

certainly without any preconceived thoughts as to

what I would do, but because I thought I understood

the state of the law at that time, I did remind the

plaintiff that I had read Middlesex. I would say to

you... that as of that point in time I’m not so sure

the plaintiffs have read Middlesex as it relates to

what I then said. But Middlesex simply says that

the policies underlying Younger v. Harris are such

that I should abstain.”

Citing this statement by the court and recognizing the

duty of a plaintiff to make a reasonable investigation of

the legal basis of an action in order to prevent the filing

of frivolous claims, see Nelson v. Miller, 227 Kan. 271, 607

P.2d 438 (1980), the cross-appellants argue that any find-

errr

A9

ing other than that the plaintiff’s case was ‘frivolous, un-

reasonable, or groundless” is error.

However, upon a full review of the record in this ac-

tion, this court cannot make the observation that the

plaintiff's case was necessarily frivolous or unfounded.

Although the plaintiff was confronted with substantial

opposing authority, the areas of constitutional law which

he sought to explore were not without some slight legal

support. While this court might personally make a dif-

ferent finding given the history of the case, we cannot

conclude that the trial court abused its discretion.

Accordingly, the trial court’s findings were proper in

every respect and they are hereby

AFFIRMED.

Al0

(Filed April 24, 1984)

MARCH TERM - April 16, 1984

Before Honorable James E. Barrett, Honorable James K.

Logan, Circuit Judges, and Honorable Luther Bohanon,

District Judge’.

Nos. 82-2195

82-2476

JOHN L. VAKAS, M_D.,

Plaintiff-Appellant,

Cross-Appellee,

vs.

PAUL RODRIQUEZ, M.D., et al.,

Defendants-Appellees,

Cross-Appellants.

This matter comes on for consideration of the petition

for rehearing filed by plaintiff-appellant, cross-appellee,

John L. Vakas, M.D.

Upon consideration whereof, the petition for rehearing

is denied.

/s/ Howard K. Phillips

Howard K. Phillips

Clerk

All

APPENDIX ITEM #2

(Filed July 16, 1982)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Civil Action No. ........

JOHN L. VAKAS, M.D.

Plaintiff,

vs.

PAUL RODRIQUEZ, M.D., WILLIAM C. SWISHER, M_D.,

FREDERICK J. GOOD, D.C., BETTY JO McNETT, JOAN

MARSHALL, D.C., JULIA BARBEE, D.O., HERMAN H.

JONES, JR., M.D., F. LEE DOCTOR, D.O., JERRY L.

JUMPER, D.O., JAMES A. McCLURE, M.D., DON L.

McKELVEY, D.C. GORDON E. MAXWELL, MD.,

HAROLD J. SAUDER, D.P.M., JAMES D. BRUNO, M_D.,

RICHARD J. CUMMINGS, M.D., F. J. FARMER, D.O.,

HELEN GILLES, M.D., DAN A. KELLY, M.D., RICHARD

A. UHLIG, D.O., AMES R. CROY, D.C., REX A. WRIGHT,

D.C., THE STATE OF KANSAS, and THE KANSAS

STATE BOARD OF HEALING ARTS,

Defendants.

COMPLAINT

COMES NOW John L. Vakas, M.D., plaintiff, and

alleges as follows:

1. Plaintiff is an individual licensed to practice

medicine in the State of Kansas.

Al2

2. At all times pertinent to the facts and events here-

inafter alleged, the individual defendants were members

of the defendant Kansas State Board of Healing Arts.

3. At all times pertinent to the facts and events here-

inafter alleged, the defendant Kansas State Board of Heal-

ing Arts was an agency and instrumentality of the de-

fendant State of Kansas.

4. At all times pertinent to the facts and events here-

inafter alleged, the defendants were acting under color

of K.S.A. 65-2801, et seq., and other laws, customs and

usages of the State of Kansas, to deprive plaintiff of the

rights, privileges and immunities secured to him by the

Constitution and Laws of the United States, all as more

particularly stated herein.

5. This action arises under 42 USCS 1983 and the

Fourteenth Amendment to the Constitution of the United

States, and this Court has jurisdiction of the action under

28 USCS §1331, and 1343.

FIRST CLAIM FOR RELIEF

6. On or about May 5, 1980, the defendant Kansas

State Board of Healing Arts filed a Petition for Revocation

Suspension, or Limitation of License against plaintiff.

7. Beginning shortly after May 5, 1980, and con-

tinuing until the present, the defendants continuously and

repeatedly took actions which deprived plaintiff of his

right not to be deprived of property without due process

of law, and his right to equal protection of law, including

his right to a full and fair hearing as guaranteed by the

Fourteenth Amendment to the Constitution of the United

States.

Al3

8. In particular, defendants violated the rights of

plaintiff by failing to state the charges against him with

reasonable definiteness, by refusing to make even a good

faith attempt to cooperate with plaintiff's attempts to as-

certain the factual basis for the charges against him, by

refusing plaintiff a full opportunity to present arguments,

by refusing to grant plaintiff adequate time to prepare a

defense to the charges, by refusing to permit plaintiff to

cross-examine certain witnesses and explore matters bear-

ing directly upon the issues of the proceedings, and by

refusing plaintiff’s request for specific findings of fact.

9. In performing the acts described above, the de-

fendants were conspirators engaged in a scheme and con-

spiracy designed and intended to deny and deprive plaintiff

of rights guaranteed to him under the Constitution and

laws of the United States and particularly those here-

inabove enumerated.

10. The above-described acts of defendants were out-

rageous, arbitrary, capricious, abusive, oppressive, unrea-

sonable, and intentional.

11. As a direct consequence and result of the above-

described conduct of defendants, plaintiff has suffered and

continues to suffer serious and debilitating anxiety and

emotional distress, and has suffered damages in an amount

in excess of $10,000.00.

12. Defendants, by virtue of their repeated, con-

tinuous and reckless disregard of plaintiff’s rights, have

demonstrated a malicious desire and intentions to injure

plaintiff, and on account of such malicious behavior, plain-

tiff is entitled to punitive damages in an amount in excess

of $10,000.00.

WHEREFORE, plaintiff prays for judgment against

the defendants, jointly and severally in an amount in excess

Al4

of Ten Thousand Dollars ($10,000.00); for punitive dam-

ages in an amount in excess of Ten Thousand Dollars

($10,000.00); and for costs and attorneys’ fees herein.

SECOND CLAIM FOR RELIEF

13. On or about August 10, 1980, plaintiff appealed

a decision of the Board of Healing Arts revoking his

license to practice medicine in the State of Kansas for

one year to the Fourteenth Judicial Court, Montgomery

County, Kansas.

14. After considering the arguments and briefs of the

parties, on October 21, 1981, Judge Floyd V. Palmer va-

cated the decision of the Board and found that plaintiff’s

rights had been violated in the following respects:

1. Dr. Vakas was denied a full and fair hearing in

accordance with minimal due process of law as guar-

anteed by the 5th and 14th Amendments to the U.S.

Constitution and similar provisions of the Constitution

of the State of Kansas.

2. The charges were not stated with reasonable def-

initeness. K.S.A. 65-2841, Morgan v. United States,

304 U.S. 1, 82 L.Ed. 1129; Simmons v. United States,

348 U.S. 397, 405, 99 L.Ed. 453; Adams v. Marshall,

212 Kan. 595; Rydd v. State Board of Health, 202

Kan. 721.

3. The denial of Licensee’s request for a continuance

on and before June 20, 1980 for good cause shown

was a prejudicial abuse of discretion contributing to

the denial of Licensee’s due process rights.

4. The Board further deprived the Licensee of due

process of law by denying him the right to produce

‘witnesses in his own behalf and by refusing to allow

Al5

his attorney to present closing argument. Adams v.

Marshall, 212 Kan. 595; Winkelman v. Allen, 214 Kan.

22.

5. As brought out in oral argument, the Hearing

Panel did not submit a copy of its findings and rec-

ommendations to the Licensee prior to the meeting

of the Board to reach its decision in reliance thereon

and the Licensee was not given the chance to appear

before the Board and contest those findings and rec-

ommendations prior to the final decision of the Board,

all contrary to mandatory procedure and therefore

the order cannot stand.

15. The decision of Judge Palmer is now a final and

binding judgment which has not been appealed by the

defendants.

16. Following the decision of Judge Palmer, the

Board informed plaintiff that it wished to have its investi-

gator talk with plaintiff and various pharmacists in the

Coffeyville area to determine if plaintiff had been pre-

scribing medication in a manner acceptable to the Board,

and further indicated that it would refrain from further

proceedings against the plaintiff if Mr. McGuire’s investi-

gation was favorable to plaintiff.

17. On or about the 22nd day of March, 1982, Mr.

McGuire presented to the Board a report in which he

stated that

After investigation and interview with Dr. Vakas, it

would appear that Dr. Vakas’s practice of writing

scripts has changed since the petition was filed and

is not of the type that the Board was concerned about

when charges were filed against Dr. Vakas at least

it appears as such at the present time.

Al6

18. On or about the 28th day of April, 1982, the

plaintiff was informed that the Board had concluded that

there was no reason to continue the proceedings against

plaintiff.

19. On or about April 28, 1982, the Board forwarded

to plaintiff a Journal Entry of Judgment which, if ex-

ecuted by plaintiff, would have released defendants from

all liability arising from their violation of the rights of

plaintiff.

20. When plaintiff refused to execute a Journal Entry

containing a release of claims, and requested that a Journal

Entry reflecting only the decision of Judge Palmer be

entered, the Board informed plaintiff that, notwithstanding

its earlier decision that further proceedings against plain-

tiff were unnecessary. if plaintiff would not execute a

Journal Entry containing a release, the Board would retry

him on the original charges.

21. Plaintiff refused to execute the Board’s Journal

Entry and, on or about July 12, 1982, plaintiff was served

with a Petition pursuant to which the Board seeks to

retry Plaintiff on the original charges.

22. By threatening to institute further proceedings

against plaintiff if he did not agree to release defendants

from civil liability for their wrongful acts, defendants

intentionally, maliciously, arbitrarily, capriciously, and

improperly utilized state law and power for illegitimate

and wholly personal purposes and in an abusive and

coercive manner designed to chill plaintiff's right and

privilege to seek the assistance of the courts to redress

obvious violations of rights secured to him.

23. On account of the foregoing abuse of state power,

plaintiff has suffered severe emotional distress and anxi-

Al7

ety, and has been damaged in an amount in excess of

$10,000.

24. Throughout the proceedings against plaintiff, and

notwithstanding the protests of plaintiff, defendants have

demonstrated a continuing pattern of reckless and mali-

cious disregard of the rights of plaintiff, and on account

of such behavior plaintiff is entitled to punitive damages

in an amount in excess of $10,000.

WHEREFORE, plaintiff prays for judgment against

the defendants, jointly, and severally, for damages in an

amount in excess of Ten Thousand Dollars ($10,000); for

punitive damages in an amount in excess of Ten Thousand

Dollars ($10,000); for his costs and attorney’s fees herein.

THIRD CLAIM FOR RELIEF

25. The new Petition filed against plaintiff by the

Board again fails to state the charges against plaintiff

with reasonable definiteness.

26. At least three years have passed since the occur-

rence of the still unspecified acts giving rise to the charges

against plaintiff, and during such period important wit-

nesses have disappeared and memories have deteriorated

to the point that plaintiff will be denied the right to a

fair hearing.

27. The lengthy and prejudicial period of time that

has transpired since the occurrence of the allegedly

wrongful acts of plaintiff is a direct result of the wrongful

behavior of the defendants.

28. By instituting further proceedings against plain-

tiff, defendants are intentionally, arbitrarily, capriciously,

maliciously, and improperly using state law and power

Al8

for illegitimate and wholly personal purposes and in an

abusive and coercive manner intentionally designed to

chill plaintiff’s right and privilege to seek the assistance

of the courts to redress obvious violations of rights secured

to him.

29. On account of the foregoing, it is and will be

impossible for plaintiff to obtain a fair and impartial

hearing from defendants, and defendants therefore should

be permanently enjoined from retrying plaintiff on the

original charges against him.

WHEREFORE, plaintiff prays for judgment tempo-

rarily and permanently enjoining defendants from con-

ducting a rehearing of the charges originally filed against

him; and for his costs and attorney’s fees herein.

FOURTH CLAIM FOR RELIEF

30. On account of wrongful behavior of defendants,

the original proceedings before the Board have been ren-

dered a nullity.

31. The new proceedings instituted by the Board to

retry plaintiff will necessarily force plaintiff to duplicate

the sizeable costs and attorney’s fees he incurred in con-

nection with the original proceedings.

32. Such duplication of costs and fees will be a direct

result of the wrongful behavior of defendants during the

prior hearing.

33. On account of the foregoing, plaintiff should be

awarded judgment in an amount in excess of $10,000 for

all costs and fees incurred by him in connection with

the original proceedings before the Board.

WHEREFORE, plaintiff prays for judgment against

defendants, jointly and severally, in an amount in excess

Al9g

of Ten Thousand Dollars ($10,000), and for his costs and

attorney’s fees herein.

Fleeson, Gooing, Coulson & Kitch

Suite 1600, 125 North Market

Wichita, Kansas 67202

316/267-7361

By Larry W. Wall

Attorneys for Plaintiff

A20

APPENDIX ITEM #3

Floyd Van Palmer

Associate District Judge

Fourteenth Judicial District

Montgomery County, Kansas

P. O. Box 768 Independence, Kansas 67301

Phone (316) 331-1261

October 20, 1981

Mr. Wallace M. Buck, Jr.

Kansas Board of Healing Arts

503 Kansas Ave., Suite 500

Topeka, Kansas 66603

Mr. Larry Wall

Fleeson, Gooing, Coulson & Kitch

P.O. Box 997

Wichita, Kansas 67201

Re: Board of Healing Arts vs John L. Vakas, M.D.

Case No. C-233 I

Gentlemen:

The Court has reached the following decision in the

captioned case:

The order of the Board of Healing Arts revoking the

license of Dr. John L. Vakas should be and hereby is

set aside and vacated. This ruling is made on the fol-

lowing grounds:

1. Dr. Vakas was denied a full and fair hearing in

accordance with minimal due process of law as guaran-

teed by the 5th and 14th Amendments to the U.S. Consti-

tution and similar provisions of the Constitution of the

State of Kansas.

A21

2. The charges were not stated with reasonable defi-

niteness. KSA 65-2841, Morgan v. United States, 304 U.S.

1, 82 L.Ed. 1129; Simmons v. United States, 348 U.S. 397,

405, 99 L. Ed. 453; Adams v. Marshall, 212 Kan. 595; Rydd

v. State Board of Health, 202 Kan. 721.

3. The denial of Licensee’s request for a continuance

on and before June 20, 1980 for good cause shown was a

prejudicial abuse of discretion contributing to the denial

of Licensee’s due process rights.

4. The Board further deprived the Licensee of due

process of law by denying him the right to produce wit-

nesses in his own behalf and by refusing to allow his at-

torney to present closing argument. Adams v. Marshall,

212 Kan. 595; Winkelman v. Allen, 214 Kan. 22.

5. As brought out in oral argument, the Hearing

Panel did not submit a copy of its findings and recom-

mendations to the Licensee prior to the meeting of the

Board to reach its decision in reliance thereon and the

Licensee was not given the chance to appear before the

Board and contest those findings and recommendations

prior to the final decision of the Board, all contrary to

mandatory procedure and therefore the order cannot stand.

Mr. Wall will prepare findings of fact and conclusions

of law consistent with the foregoing and a Journal Entry

setting aside the order of the Board entered herein.

Very truly yours,

/s/ Floyd V. Palmer

Floyd V. Palmer

Associate District Judge

FVP: eff

A22

APPENDIX ITEM #4

IN THE DISTRICT COURT OF

MONTGOMERY COUNTY, KANSAS

Case + 80 C 233

KANSAS STATE BOARD OF HEALING ARTS,

Plaintiff/Appellee

VS.

JOHN L. VAKAS, M.D.

Defendant/Appellant.

JOURNAL ENTRY

On this 28th day of April, 1982, the above matter comes

on for hearing. Plaintiff/Appellee appears by and through

its attorney Wallace M. Buck, Jr., and the Defendant/

Appellant appears by and through his attorney, Larry W.

Wall, and there are no other appearances.

The Court being advised in premises, finds:

(1) That by memorandum opinion and letter of Oc-

tober 20, 1981, the Honorable Judge Floyd Van Palmer

rendered his opinion herein; that a copy of said letter

opinion is attached hereto and made a part hereof in its

entirety by reference as though fully set out herein;

(2) That said memorandum opinion of Judge Palmer

sets out his findings of fact and conclusion of law as found

to be applicable in these proceedings;

(3) That the parties are desireous of concluding

these proceedings by accepting Judge Palmer’s decision

A23

and not requesting that either his decision be appealed or

that the matter be remanded for an additional administra-

tive hearing, the parties mutually agreeing that it is in the

best interests of both parties, for reasons as they have

discussed, to conclude these proceedings in this fashion;

(4) That the parties herein mutually agree that any

and all differences having existed between the parties are

now resolved to the satisfaction of both parties; any and

all issues existing between the parties being hereby satis-

factorily resolved;

(5) That Court costs due and owing the Clerk of

the Montgomery County District Court in the sum of $16.00

will be borne by Plaintiff/Appellee.

IT IS SO ORDERED.

Judge Floyd Van Palmer

Approved by:

/s/ Wallace M. Buck, Jr.

Wallace M. Buck, Jr.

Attorney for Plaintiff/Appellee

Attorney for Defendant/Appellant