# Opposition Brief — Vakas v. Rodriquez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 981

## Text

¢

No. 84-116~—
IN THE SUPREME COURT OF TH

October Term,

JOHN L. VAKAS,
Petitioner

Vv. —

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 £. MAXWELL, M.D.,
HAROLD L. SAUDER, D.P.M., JAMES D.
BRUNO, M.D., RICHARD J. CUMMINGS, M.D.,
FP.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

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI TC THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ROBERT T. STEPHAN

Attorney General of Kansas
BRUCE £. MILLER

Deputy Attorney General of Ka
Kansas Judicial Center

Second Floor

Topeka, Kansas 66612
913/296-2215

Attorneys for Respondents

~

No. 84-116

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1984

JOHN L. VAKAS, M.D.
Petitioner

Vv.

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.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

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS —
FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

October 12, 1984

QUESTIONS PRESENTED
FOR REVIEW

1. What Is The Standard Of Review
Of A Federal District Court Judge's
Decision To Invoke The Doctrine Of
Comity, Federalism, And Abstention?

2. Did The Federal District Court
Judge Properly Invoke The Doctrine Of
Comity, Federalism, And Abstention?

36 Did The Federal District Court
Judge Properly Dismiss This Action
Against The State Of Kansas And The Kansas
State Board Of Healing Arts Because Of The
Eleventh Amendment Jurisdictional Bar?

4. Did The Federal District Court
Judge Properly Dismiss This Action
Against The Individual Members Of The
Kansas State Board Of Healing Arts On The
Basis Of Judicial Immunity?

-- Is There Any Basis Whatsoever
To Petitioner's Repeated "Extortion"

Claim?

= = SS SFE Be SBF SE eek & a

6. Can Actions Be’ Brought In
Federal District Court, A Court of
Limited Jurisdiction, Directly Under The
United States Constitution Without
Statutory Authorization?

7. Does Section 2 Of Article III
Of The United States Constitution
Prohibit The Bringing Of An Action In
Federal District Court When A State Is A
Party Because Such An Action May Only Be

Brought As An Original Action In The

United States Supreme Court?

ma_ Ee ZB FE Be Bea Seeiegsikk & gf
'
-
-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW
{Rules 21.1l(a), 22]

TABLE OF CONTENTS
[Rules 21.1l(c), 22]

TABLE OF AUTHORITIES
[Rules 21.1(c), 22]

OPINIONS BELOW
[Rules 21.1(d), 22]

STATEMENT OF CASE
[Rules 21.1(9), 22]

REASONS FOR DENYING THE WRIT
iRusee LF. 226s 22)

I. The United States
District Court For Kansas Did
Not Have Subject Matter
Jurisdiction In The First
Instance In This Case

II. The Lower Court's Rulings
On The Eleventh Amendment
Jurisdictional Bar Are Not

In Conflict With Other

Courts' Decisions

III. The Lower Court's Rulings
On Judicial Immunity Are Not In

Conflict With Other Courts'
Decisions

iii

iii

14

14

17

24

Page
IV. The Fourteenth Amendment
Argument Of Petitioner Is A
Non-Issue 32
V. The Doctrines Of Comity,
Federalism, And Abstention Were
Properly Invoked By The
District Court In This Action 33
VI. Petitioner Vakas Has Not
Presented An Issue Of National
Importance, Nor Has He Presented
An Important Federal Question 39
CONCLUSION 42
[Rule 22]
PROOF OF SERVICE 44

[Rules 22, 28.2, 28.3, 28.5]

APPENDICES A, B, C, D, E,
PF, G, 8, I
[Rule 22.2]

i cal ae al a. i | a aa Pe] we. . Boe 9 ee a
Ped .

TABLE OF CASES AND
OTHER AUTHORITIES CITED

Page
Alabama v. Pugh, 438 U.S. 781
(1978) 20,22
Butz v. Economou, 438 U.S.
478, 57 L.Ed.2d 895,
98 S.Ct. 3894 (1977) 24,25,21,34
Chisolm v. Georgia, 2 U.S.
(2 Dall.) 418 (1793) 19
Clark v. State of Washington,
366 F.2d 678 (9th Cir. 1966) 15
Coogan v. Cincinnati Bar
Association, 431 F.2d 1209
(6th Cir. 1970) 16
Cory v. White, 457 U.S. 85,
Lee BeGte 2aen (1962) 20
Dennis v. Sparks, 449 U.S. 24,
66 L.Ed.2d 185 (1980) 31
Diehl v. United States, 438
F.20 705 (5th Cir. 1971) cert.
denied, 404 U.S. 830 (1971) 16
Doe v. Pringle, 550 F.2d
596 (10th Cir. 1976) 15,17
Edelman v. Jordan, 415 U.S.
651 (1974) 19,20,21
Ex parte Young, 209 U.S.
123 (1908) 20,21
Feldman v. State Board of Law
Examiners, 438 F.2d 699 (8th
Cir. 1971) 15

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

Gately v. Sutton, 310 F.2d
107 (10th Cir. 1962)

Getty v. Reed and
Collis v. Reed, cons'd, 547
F.2d 971 (6th Cir. 1977)

Ginger v. Circuit Court for
County of Wayne, 372 F.2d 621
(6th Cir. 1967) cert. denied,
387 U.S. 935 (1967)

Holt v. Wichita State
University, No. 82-1172
(D. Kan. 9/7/82)

Huffman v. Pursue, Ltd.
420 U.S. 592 (1975)

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

In Re MacNeil, 266 F.2d 167
(lst Cir. 1959)

Jones v. Hulse, 391 F.2d 198
(8th Cir. 1968) cert. denied,
393 U.S. 889 (1968)

Jordan v. Hawaii Gov't.
Employee Assn., Local 152,
472 F.Supp. 1123 (D. HA
1979)

Juidice v. Vail, 430 U.S. 327
(1977)

Kondosta v. Vermont E/ec.
Cooperative, Inc., 400
F.Supp. 358 (D.VT. 1975)

vi

Page

22

15

16

io

23
34,35
20,22

LS

15

27

34,35

27

Konigsberg v. State Bar of

California, 353 U.S. 252 (1957)

Kugler v. Helfant, 421 U.S. 117

(1975)

Lenske v. Sercombe, 266 F.Supp

609 (D.C. OR. 1967) aff'd.,
401 F.2d 520 (9th Cir. 1968)

MacKay v. Nesbett, 412 F.2d
846 (9th Cir. 1969) cert.
denied, 396 U.S. 960 (1969)

MacNeil, In Re, 266 F.2d 167
(lst Cir. 1959

Mayes v. Honn, 542 F.2d 822
10th Cir. 1976)

Middlesex County Ethics

Committee v. Garden State Bar

Assoc., 457 U.S. 423, 102 S.Ct

2515 (1982)

Miidner v. Gulotta, 405 F.Supp.

182 (£E.D. N.Y. 1975)

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

Moore v. Sims, 442 U.S. 415
(1979)

Morales v. Vega, 438 F.Supp
1075 (D. Puerto Rico 1979)

Mt. Healthy City School Dist.

Bd. Of Ed. v. Doyle, 429 U.S.
274, 280 (1974)

Niles v. Lowe, 407 F.Supp.
132 (D.C. HA 1976)

vii

Page

15

36

Lo

15
15

}

35,37,38,41
16
20
36

27

20

16

Noel v. Blues, et al.

No. 82-2184 (D. Kan.
10/4/82)

Principality of Monaco v.
State of Mississippi, 292 U.S.
313 (1934)

Polk v. State Bar of Texas,
480 F.2d 998 (5th Cir. 1973)

Quern v. Jordan, 440 U.S. 332
(1979)

Rizzo v. Goode, 423 U.S. 362,
378 (1976)

Saier v. State Bar of Michigan,
293 F.2d 756 (6th Cir. 1961)

Schware v. Board of Bar
Examinations of New Mexico,
353 U.S. 232 (1957)

Sellers v. Procunier,
641 F.2d 1295 (9th Cir.
1981)

Selling v. Radford,
243 U.S. 46 (1917)

Stump v. Sparkman, 435 U.S.
349, 32 & 86.26 331, 98 S.Ct.
1099 (1978) reh. den.,

436 U.S. 951

Tang v. Appellate Division,
487 F.2d 138 (2d Cir. 1973)
cert. denied, 416 U.S. 906
(1974)

viii

23

19

16

20,22

15

27,28

14,15

29,30,31

16

Theard v. U.S.,

354 U.S. 278 (1957)

Thompson v. Amis, 208 Kan.
658, 663 (493 P.2d 1259
(1972)

Trainor v. Hernandez, 431 U.S.

434 (1977)

Turner v. American Bar
Association, 407 F.Supp. 451
(W.D. Wisc. 1975)

Unified School District No.

v. Epperson, 583 F.2d 1118
(lOth Cir. 1978)

Young, Ex parte, 209 U.S. 123

(1908)

Younger v. Harris, 401 U.S.
3i, 21 L.Ed.20 669, 92 S.Ct.
746 (1971)

STATUTES:

K.S.A. 65-2801, et seq.

42 U.S.C. §1981, et seq.
K.S.A. 1983 Supp. 75-6116 (d)

United States Constitution,
Article III, §2

42 U.S.C. §1983

ix

15

25

36

16

19,20

20,21

35,38

18,26,38,40
22
23

23

24,29

OTHER AUTHORITIES:

Wright, Miller, Cooper and
Grossman, Federal Practice
and Procedure, Jurisdiction
§ 4004

39

OPINIONS BELOW

There are three court opinions
relevant to this case. First is the
opinion of Associate District Judge Floyd
V. Palmer issued in Case No. 80 C 233,

Kansas State Board of Healing Arts v.

Vakas, District Court of Montgomery
County, Kansas, issued October 20, 1981.
That opinion is contained on pages A20 and
A21 of the Petition for a Writ of
Certiorari, as filed by Petitioner Vakas.

The second opinion is the _ oral
opinion and order of the Honorable
Patrick F. Kelly, Judge, United States
District Court, Wichita, Kansas. His
opinion was issued in Case No. 82-1589 on
August 27, 1982. A copy of the transcript
of those proceedings is included in this
brief as Appendix Exhibit A.

The third opinion was issued by the

Tenth Circuit Court of Appeals on March 7,

1984, and is ceported as Vakas_ vy.

Rodriguez, et al., 728 F.2d 1293 (10th

Cir. 1964). A copy of that opinion is
contained on pages Al through A9 of the
Petition for a Writ of Certiorari, as

filed by Petitioner Vakas.

STATEMENT OF CASE

The action now before this Court
began on April 19, 1979, with a letter of
complaint from six pharmacists in
Coffeyville, Kansas, to the Kansas Board
of Healing Arts, which stated in part:

We have reason to believe
that John UL. Vakas, M.D.,
Coffeyville, Kansas, through
the abuse of his script-writing
privileges, has helped to
create a serious drug problem
in our community and the
surrounding area. (See,
Appendix Exhibit B, attached
hereto for full copy of
letter.)

The Kansas Board of Healing Arts assigned
an investigator to check on this charge.

After the investigation in February,

— wr Trt lil cl DT ETC ceTllCeTCOlC LETC Ol LETC eT lClCOCelClCOClCUr

1980, Dr. Vakas appeared before the Board

to explain the complaints the Board of
Healing Arts had been receiving
concerning the number of prescriptions he
had been writing for controlled and
scheduled substances. At that February
23, 1980, hearing, a stipulation was
presented to Dr. Vakas that he relinquish
his Drug Enforcement Administration
registration for one year. The Board
decided that if he did not agree to the
stipulation, the case should proceed to a
formal hearing.

Dr. Vakas’_ did not accept the
Stipulation, and in April, 1980, the
Board of Healing Arts held that since the
investigation showed there was
substantiated evidence of excessive
prescription writing, charges should be
filed for disciplinary hearing. The

hearing date was set for June 20, 1980,

and a hearing panel was instituted. Onor

‘about May 15, 1980, the Board denied a

request by Dr. Vakas for continuance of
the disciplinary hearing.

The disciplinary hearing was held on
June 20 and 21, 1980, in Wichita, Kansas.
The members of the panel were Paul
Rodriquez, M.D., chairman, William
Swischer, M.D., Dr. Marshall, Ms.
McNett, Dr. Good, and Julia Barbee, M.D.
The panel found Dr. Vakas used poor
judgment and did over-prescribe
controlled substances to his patients.
It based its findings in part on the
testimony that the drug dependency of
Jack Atkins, D.C., was maintained by Dr.
Vakas, and that the testimony of William
Emmot, M.D., supporting the finding that
Dr. Vakas over-prescribed controlled
substances. The panel recommended that
the license of Dr. Vakas be revoked, but
that the revocation of his license be

4

Stayed, provided he relinquish his D.E.A.
registration for a period of one year.
This recommendation was adopted by the
Board of Healing Arts.

Dr. Vakas appealed this decision to
the District Court of Montgomery County,
Kansas. In October, 1981, the District
Court of Montgomery County, Kansas,
reversed and remanded the Board of
Healing Arts' revocation of Dr. Vakas'
license, due to procedural problems. The
Montgomery County district court never
held the Board's decision that Dr. Vakas
over-prescribed controlled substances was
not supported by the evidence. (See,
Appendix Exhibit C attached hereto and p.
A20-21 of Petition for Certiorari.)

In November, 1981, the Board of
Healing Arts and Dr. Vakas began to
discuss the possibility of arriving at
some amicable conclusion of this case. In

December, 1981, Dr. Vakas, through his

attorney, submitted to the Board of
Healing Arts evidence of completion of
various continuing education courses by
Dr. Vakas in an attempt to show he had
changed his method of medical practice.
In late December, it was agreed that the
Board of Healing Arts' investigator would
talk to Dr. Vakas to determine whether he
was attempting to change his method of
practice. The Board of Healing Arts'
investigator met with Dr. Vakas in March,
1982, and submitted his report to the
Board. The Board of Healing Arts at that
time had two alternate courses it could
take in light of Judge Palmer's order. It
could either take issue with Judge
Palmer's findings and file an appeal to
the Kansas Supreme Court, or it could, for
the purposes of this particular case,
accept the findings of Judge Palmer and
have the matter remanded and reheard. In

the spring of 1982, the Board also

6

considered an alternative to the two

legal courses it had before it. The Buard
was willing to consider reaching an
amicable conclusion of the case and not
require additional hearings; in part, due
to the costs of re-trying the case, the
time necessarily involved therein, and
the unavailability of important witnesses
because of the passage of time. It was
for this reason that the parties arranged
for the Board of Healing Arts'
investigator to investigate Dr. Vakas'
continuing education courses and his
attempts to change his method of
practice. (See, Appendix Exhibit D.)

In April, 1982, the Board of Healing
Arts offered to amicably resolve this
matter with Dr. Vakas and proposed a
journal entry in this action. The journal
entry proposed by the Board of Healing
Arts stated, in part:

(4.) That the parties
hereto mutually agree that any

7

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 be hereby

Satisfactorily resolved. (See,

Appendix Exhibit E£.)

On April 30, 1982, Dr. Vakas'
attorney wrote a letter to Wallace Buck,
attorney for the Kansas Board of Healing
Arts, rejecting that agreement without
comment. (See, Appendix Exhibit F.) On
behalf of the Board of Healing Arts, Mr.
Buck responded to the April 30 letter of
Dr. Vakas' attorney on May 5, 1982. (See,
Appendix Exhibit G.) On May 8, 1982, for
the first time, Dr. Vakas' attorney
Suggested to Mr. Buck that the language in
his proposed resolution of this case was
being viewed by them as a release of legal
claims by this client, Dr. Vakas. (See,
Appendix Exhibit H.) Mr. Buck responded
to Dr. Vakas' attorney's letter on May 10,

1982, and in that response, stated in

8

part, on page 3 of that letter:

Obviously, if you are advising

your client Or suggesting

lawsuits be filed by him

against the Board, the Board

Cannot preclude this activity,

nor does it choose to interfere

with whatever thoughts you and

your client are exchanging or

intending.
Mr. Buck made it very clear that the
language in the journal entry was not in
any way to be taken as a waiver of any
legal claims; rather, Mr. Buck made it
clear that the only purpose of the
proposed resolution was to conclude the
procedure before the Board of Healing
Arts. (See, Appendix Exhibit te)
Respondents feel that many parts of
petitioner's Statement of the Case, as
contained on pages 3, 4, and 5 of his
petition for certiorari are patently
false when discussing his "“extortion"
allegations.

In June, 1982, a journal entry was

finally signed in the appeal heard by the

9

District Court of Montgomery County,

Kansas, and the state district court
remanded the disciplinary action against
Dr. Vakas back to the Board of Healing
Arts for further hearing. A hearing date
was set on August 21, 1982, so the Board
Of Healing Arts could re-hear the case
following all due process’ standards,
Pursuant to the order of the Montgomery
County district court.

On July 16, 1982, prior to _ the
scheduled date of rehearing, petitioner
Vakas filed this lawsuit in federal
court, seeking to have the state court and
State administrative proceedings enjoined
and monetary damages for the
constitutional violations found by Judye
Palmer. Due to the action pending in
federal court against the State of
Kansas, the Kansas Board of Healing Arts,
and members of the Board, the Kansas Board

of Healing Arts agreed to grant a

10

continuance of the date scheduled for the
rehearing of the disciplinary action
against petitioner Vakas until the
federal court lawsuit could be resolved.

Respondents below moved to dismiss
petitioner Vakas' lawsuit on the bases of
the Eleventh Amendment’ jurisdictional
bar, judicial or quasi-judicial immunity,
that federal district courts are without
subject matter jurisdiction to review
state professional disciplinary
proceedings and on the grounds of comity,
federalism, and abstention.

Petitioner Vakas' federal court
lawsuit was dismissed on August 27, 1982,
after a hearing before the Honorable
Patrick F. Kelly, United States District
Judge. The district court granted
respondents’ motions to dismiss, holding
that the State and the Board were immune
from suit in federal court under the

Eleventh Amendment, that the respondent

11

Board members were protected from suit
because of judicial immunity, and

pursuant to the teachings ot Middlesex

and Younger, the Court exercised its

discretion and refused to hear the case
upon comity, federalism, and abstention
grounds. (See, Appendix Exhibit A.)
Thereafter, the Board of Healing Arts
once again re-set petitioner Vakas'
disciplinary action for rehearing,
Pursuant to the remand order of the
District Court of Montgomery County,
Kansas.

Prior to the Board of Healing Arts'
rehearing of this case, petitioner Vakas,
through his attorneys, asked the Kansas
Board of Healing Arts to once again
consider amicably resolving this
disciplinary claim as they had _ been
willing to do in the spring of 1982. The
Board considered petitioner Vakas'

request and agreed with petitioner Vakas

12

to resolve the disciplinary complaint,
because of the time and money expense
involved because the passage of time had
caused major witnesses to become
unavailable. The case was settled and
Since December, 1982, there has not been
any underlying administrative action in
this case. Kansas statutes have since
been changed in an attempt to alleviate
some of the problems involved in Dr.
Vakas' case. (See 1984 Session Laws of
Kansas, Ch. 237.)

This action was appealed to the
United States Court of Appeal for the
Tenth Circuit by petitioner Vakas from
the dismissal of his federal court claims
by the United States District Court for
the District of Kansas. The Tenth Circuit
Court of Appeals affirmed the district
court decision on March 7, 1984. It is
that opinion which petitioner Vakas seeks

to have reviewed by this Court.

aa

REASONS FOR DENYING WRIT

I. THE UNITED STATES
DISTRICT COURT FOR KANSAS
DID NOT HAVE SUBJECT
MATTER JURISDICTION IN
THE FIRST INSTANCE IN THIS CASE

Respondents have maintained
throughout this action that the federal
courts, based on long-standing case law,
are without subject matter jurisdiction
in this action, both as to the requested
injunctive relief and as to the
underlying civil rights action. The
purpose of the instant lawsuit is to stop
State disciplinary proceedings against
petitioner Vakas. When the same concepts
are applied to attorneys, the law is
extremely clear that even if the state

proceedings are constitutionally

deficient, the federal district courts

are without subject matter jurisdiction

to review the state professional
disciplinary proceedings. See, Selling
14

ae
J

v. Radford, 243 U.S. 46 (1917); Theard v.

U.S.., 354 U.S. 278 (1957); Schware v.

Board of Bar Examinations of New Mexico,

353 U.S. 232 (1957); Korigsberg v. State

Bar of California, 353 U.S. 252 (1957);

Gately v. Sutton, 310 F.2d 107 (10th Cir.

1962); Mayes v. Honn, 542 F.2d 822 (10th

Cir. 1976); Doe v. Pringle, 550 F.2d 596

(10th Cir. 1976); MacKay v. Nesbett, 412

F.2d 846 (9th Cir. 1969) cert. denied, 396

U.S. 960 (1969); Ginger v. Circuit Court

for County of Wayne, 372 F.2d 621 (6th

Cir. 1967) cert. denied, 387 U.S. 935

(1967); Feldman v. State Board of Law

Examiners, 438 F.2d 699 (8th Cir. 1971);

Jones v. Hulse, 391 F.2d 198 (8th Cir.

1968) cert. denied, 393 U.S. 889 (1968);

In Re MacNeil, 266 F.2d 167 (lst Cir.

1959); Clark v. State of Washington, 366

F.2d 678 (9th Cir. 1966); Lenske_ v.

Sercombe, 266 F.Supp. 609 (D.C. OR. 1967)

aff'd., 401 F.2d 520 (9th Cir. 1968);

15

ae-:e<tEBasSes BEBE ZEEE SB ES

Turner v. American Bar Association, 407

F.Supp. 451 (W.D. Wisc. 1975); Diehl v.

United States, 438 F.2d 705 (5th Cir. 1971

(cert. denied, 404 U.S. 830 (1971); Polk

v. State Bar of Texas, 480 F.2d 998 (5th

Cis. 1973); Saier Vv. State Bar of

Michigan, 293 F.2d 756 (6th Cir. 1961);

Mildner v. Gulotta, 405 F.Supp. 182 (£.D.

N.Y. 1975); Tang v. Appellate Division,

487 F.2d 138 (2d Cir. 1973) cert. denied,

416 U.S. 906 (1974); Coogan v. Cincinnati

Bar Association, 431 F.2d 1209 (6th Cir.

1970); Getty v. Reed and Collis v. Reed,

cons'd, 547 F.2d 971 (6th Cir. 1977);

Niles v. Lowe, 407 F.Supp. 132 (D.C. HA

1976).

This fundamental law is not changed
by labeling the cause as a "civil rights”
action. In the Tenth Circuit, a civil
rights action can be maintained when the
allegations claim due process or equal

protection deprivations in the adoption

16

and/or administration of general rules

and regulations governing the admission
and disciplining of attorneys. Doe v.

Pringle, 550 F.2d 596 (10th Cir. 1976).

The same is true in the present action.
Petitioner Vakas has never made any
allegations to the general rules and
regulations regarding the disciplining or
licensing of doctors in Kansas. This
Court lacks subject matter jurisdiction
Over petitioner Vakas' allegations. The
writ should not be granted.
II. THE LOWER COURT'S RULING
ON THE ELEVENTH AMENDMENT
JURISDICTIONAL BAR ARE
NOT IN CONFLICT
WITH OTHER COURTS’ DECISIONS
Petitioner Vakas sued the State of
Kansas and the Kansas State Board of
Healing Arts in the federal district
court. The federal district court

dismissed both of these parties because

the Eleventh Amendment to the United

17

States Constitution prohibits the

bringing of a suit against a state or an
alter ego of a state in federal court.
(See, Appendix Exhibit A.)

No one has ever questioned the
Kansas State Board of Healing Arts is an
alter ego of the State of Kansas, created
by the State to regulate the practice of
the healing arts within the State. See,
K.S.A. 65-2801, et seq.

No one in this action has ever
questioned the State of Kansas is one of
the fifty states. The act for the
admission of Kansas into the Union
provides, in part:

That the state of Kansas shall

be, and is hereby declared to

be, one of the United States of

America, and admitted into the

Union on an equal footing with

the original states in all

respects whatever. (Act. Jan.

29, 1861, Ch. 20, §1, 12 Stat.

126.)

The Eleventh Amendment was ratified

in 1798 in response to the case of Chisolm

18

v. Georgia, 2 U.S. (2 Dall.) 419 (1793),

and states:

The judicial power of the
United States shall not be
construed to extend to any suit
in law or equity, commenced or
prosecuted against one of the
United States by Citizens of
another State or by Citizens or
Subjects of any Foreign State.
(U.S. Constitution, Amend. XI.)

The scope of the plain language of
the amendment has been widened through
judicial interpretation to preclude suits
against a state by her own citizens, see

Edelman _v. Jordan, 415 U.S. 651 (1974);

Unified School District No. 480 vy.

Epperson, 583 F.2d 1118 (10th Cir. 1978);

and by Foreign governments, see

Principality of Monaco _v. State of

Mississippi, 292 U.S. 313 (1934). The

Eleventh Amendment serves as a
jurisdictional bar to suit against a
State in federal district courts.

The law in this area is absolutely

Clear and may be simply stated as follows:

19

In a United States district court a state
is absolutely immune in law or in equity
for damages or any other relief, either
prospective or retrospective in nature,
in any action brought by any citizen. See

Edelman v. Jordan, supra; Monroe v. Pape,

365 U.S. 167 (1961); Quern v. Jordan, 440

U.S. 332 (1979); Alabama v. Pugh, 438 U.S.

781 (1978); Hutto v. Finney, 437 U.S. 678

(1978); Cory v. White, 457 U.S. 85, 102

S.Ct. 2325 (1982); Unified School

District No. 480 v. Epperson, supra. This

jurisdictional bar extends to state

agencies. See, Mt. Healthy City School

Dist. Bd. of Ed. v. Doyle, 429 U.S. 274,

280 (1974).

There are only two exceptions to
this absolute immunity granted by the
Eleventh Amendment.

The most significant court-created
exception to the Eleventh Amendment

prohibition is contained in Ex parte

20

Young, 209 U.S. 123 (1908). There, the

Supreme Court held that suits seeking
declaratory or injunctive relief against

State officials are not barred. The

exception is justified by the distinction
between suits directly against the
sovereign states, and suits against state
officials who, if engaging in
unconstitutional conduct, lose their
official representative character and can
be held accountable for their individual
conduct. Id., at 159-60. Thus, this
concept is not really an exception to the
Eleventh Amendment, but only allows suits
against state officials. Because the
retrospective award of damages by a
federal court against a state, payable
from the state treasury, is clearly
prohibited by the Eleventh Amendment,

Edelman ¥. Jordan, supra, only

prospective equitable relief is av&ilable

even when state officials are named as

21

defendants, Quern _v. Jordan, supra, and

that relief is against the state
official, not the state itself which

remains immune, Alabama v. Pugh, supra,

and Hutto v. Finney, supra.

The other significant exception is
when suit against a state is either
expressly allowed by United States
congressional legislation, predicated on
the Fourteenth Amendment to the United

States Constitution, [Fitzpatrick Vv.

Bitzer, 427 U.S. 445 (1976), wherein it
was held that Congress had expressly
abrogated the states' Eleventh Amendment
immunity by passage of the 1972 Amendment
to the Civil Rights Act of 1964 (Title
VII)], or when a state has waived its
immunity.

The United States Congress has
never authorized suit against the state
pursuant to 42 U.S.C. §1981, et seg. See

statutes and Quern v. Jordan, supra.

22

The State of Kansas has never waived
its Eleventh Amendment immunity. See

K.S.A. 1983 Supp. 75-6116(d) and Noel v.

Blues, et al., No. 82-2184 (D. Kan.

10/4/82; Holt Vv. Wichita State

University, No. 82-1172 (D. Kan. 9/7/82).

Respondents, State of Kansas and
Kansas State Board of Healing Arts,
further believe an action may not be
brought against them in any federal
district court because jurisdiction over
states is limited, by Section 2 of Article
III of the United States Constitution, to
the United States Supreme Court and not
any inferior federal court. This is true,
because that section of the Constitution
says, in part, "In all Cases... in
which a State shall be Party, the supreme
Court shall have original Jurisdiction.”

The dismissal of this action against
the State cf Kansas and the Kansas State

Board of Healing Arts does not conflict

23

;

with any established court decisions.
Petitioner Vakas' request for the writ
should be denied.

III. THE LOWER COURT'S RULINGS

ON JUDICIAL IMMUNITY ARE
NOT IN CONFLICT WITH
OTHER COURTS’ DECISIONS

Petitioner Vakas also brought his
lawsuit against the individual members of
the Kansas State Board of Healing Arts.
As to those respondents, the federal
district court dismissed petitioner
Vakas' action because, as a matter of law,
he found the Board to be a quasi-judicial
body and its members to be entitled to
judicial immunity. (See Appendix Exhibit
A.)

Members of administrative boards who
perform judicial functions are immune
from damages in a 42 U.S.C. §1983 action
to the same extent that judges are immune

from suit. Butz v. Economou, 438 U.S.

24

478, 57 L.Ed.2d 895, 98 S.Ct. 3894 (1977).
Administrative boards that perform
judicial functions are sometimes referred
to as quasi-judicial agencies.

In Thompson v. Amis, 208 Kan. 658,

663, 493 P.2d 1259 (1972), the Kansas

Supreme Court defined quasi-judicial.

The Court stated:

It may be added that

quasi-judicial is a term
applied to administrative
boards or officers empowered to
investigate facts, weigh

evidence, draw conclusions as a
basis for officials actions,
and exercise discretion of
judicial nature.

This Court in Butz v. Economou, supra,

also employed this same test. In Butz v.

Economou, supra, this Court said the

.

crucial question in determining whether
judicial immunity applies to an
administrative board is whether’ the
administrative board shares enough of the
characteristics of the judicial process
that those who participate in the
adjudication are immune from lawsuits.

25

The Kansas Healing Arts Act, K.S.A.
65-2801, et seq., provides for an
adversary proceeding in matters’ of
limitation, suspension, or revocation of
a license. It provides the board members
shall act without partiality. It also
provides for the presentation of oral and
documentary evidence and a hearing.
Additionally, after the hearing the Board
issues findings of fact, conclusions of
law, and makes its decision concerning
whether to issue an order of revocation,
suspension, or limitation of a license.
The Act provides the Board may issue
subpoenae in a manner like the district
courts of the state. The Board may rule
on evidence, regulate the course of the
hearing, and may make recommendations.
Additionally, the Kansas Board of Healing
Arts is considered to be an integral part
of the Kansas judicial system in that

appeals from Board decisions are brought

26

SBS SB8BE BSB B KB GB KB KEE BE A

into district court in the Kansas
judicial system. Based on the
above-cited statutes and case law, it is
clear members of the Board of Healing Arts
serve a judicial function in matters of
license revocation, suspension, or

limitation. (See also, Jordan v. Hawaii

Gov't. Employee Assn., Local 152, 472

F.Supp. 1123 (D. HA 1979); Kondosta v.

Vermont Elec. Cooperative, Inc., 400

F.Supp. 358 (D. VT. 1975); Sellers v.

Procunier, 641 F.2d 1295 (9th Cir. 1981);

and Morales v. Vega, 483 F.Supp. 1075 (D.

Puerto Rico 1979).

Public policy requires judicial
immunity to be granted to administrative
agencies that perform judicial functions.

In Butz v. Economou, supra, the Supreme

Court reaffirmed the importance of the
doctrine of applying judicial immunity to
administrative agencies with judicial

duties to encourage unfettered, impartial

27

decisionmaking by officials vested with

such adjudicatory authority. The Court
held the immunity was necessary to assure
that judges, advocates, and witnesses can
perform their respective functions
without harassment or intimidation. In
all judicial and quasi-judicial
litigtion, there is always the
possibility there will be disappointed

litigants. In Sellars v. Procunier,

supra, the Court held the decisionmaker
in quasi-judicial proceedings should not
be under pressure by the constant threat
of litigation by disappointed litigants.
The members of the Kansas Board of Healing
Arts are asked to make important
decisions concerning the licensure of
health care professionals and in order to
make these decisions in an _ impartial
manner, free from threat and fear of
litigation, public policy encourages they
be granted judicial immunity from suits
for damages.

28

Petitioner Vakas claims that judges
and quasi-judicial agencies are not
immune when they act unconstitutionally
in an intentional, deliberate, and
malicious manner. Petitioner Vakas wants
the opportunity to prove the deliberate
and intentional nature of the
unconstitutional actions of the members
of the Board during the admilnistrative
hearings. This is a misstatement of the
law regarding judicial immunity. This
Court addressed the scope of judicial

immunity in Stump v. Sparkman, 435 U.S.

349, 55 L.Ed.2d 331, 98 S.Ct. 1099 (1978)

reh. den., 436 U.S. 951. In that case,

this Court held that judges are
absolutely immune from damage suits under
42 U.S.C. §1983, when acting as judges,
and are only subject to suit when they
have acted in "clear absence of all

jurisdiction." Stump v. Sparkman, supra,

at 357. Judicial immunity is applied when

29

two tests are met. The first test is
whether the judge had jurisdiction to act
in the matter (was it within the judge's
normal function), and the second test is
whether the parties dealt with the judge

in his judicial capacity. Stump vv.

Sparkman, supra, at 362.

In its decision in the Stump case,

this Court held:

A judge will not be deprived of
immunity because the action he
took was in error, was done
maliciously, or was in excess
of his authority; rather he
will be subject to liability
only when he has acted in "the

clear absence of all
jurisdiction." 13 Wall., at
351, 20 L.Ed. 646. (Id., at
356.)

There is no separate concept of

quasi-judicial immunity apart from the
concept of judicial immunity. Rather,
administrative boards who act in an
adjudicatory capacity, sometimes called
quasi-judicial boards, are entitled to

judicial immunity.

30

BEHEREESSESE SESE SE SBE SE SE

Since the Board of Healing Arts is an

adjudicatory administrative body, and
Since the members of the Board were acting
within their statutorily authorized
jurisdiction in adjudicating the
disciplinary action involving petitioner
Vakas, they are entitled to immunity from
petitioner Vakas' suit for damages

pursuant to 42 U.S.C. §1983. Butz v.

Economou, supra; Stump v. Sparkman,

supra. See also, Dennis v. Sparks, 449

U.S. 24, 66 L.Ed.2d 185 (1980), where the
judge involved was granted judicial
immunity, even though he had accepted a
bribe for ruling a certain way.

The lower court's findings that the
individual members of the Kansas State
Board of Healing Arts acted as a
quasi-judicial body and were, therefore,
clothed with judicial immunity which
required dismissal of Petitioner Vakas'

action were not contrary to any

31

established court authority and were in
complete agreement with the teachings of
this Court. Petitioner Vakas' petition
for a writ of certiorari should be denied.
IV. THE FOURTEENTH AMENDMENT
ARGUMENTS OF PETITIONER
IS A NON-ISSUE

Petitioner Vakas, throughout’ the
appeal of this case, has tried to have the
Fourteenth Amendment recognized as a
separate and distinct cause of action.
This is a non-issue in this case, and this
action is not a proper case for this Court
to make such a decision.

This action was dismissed at the
district court level on the concepts of
the Eleventh Amendment jurisdictional
bar, the concept of judicial immunity,
and the doctrine of comity, federalism,
and abstention. All of those concepts and
their application are discussed elsewhere
in this brief. All of those concepts
would be equally applicable to this case

32

nies

even if this Court should decide that a
private right of action existed under the
Fourteenth AMendment; hence, the whole
concept is a non-issue. Petitioner
Vakas' request for a writ of certiorari
should be denied.

V. THE DOCTRINES OF COMITY,

FEDERALISM, AND ABSTENTION
WERE PROPERLY INVOKED BY THE
DISTRICT COURT IN THIS ACTION

After careful review of Petitioner

Vakas' original action, the district

court judge decided this was a proper case

to invoke the doctrines of comity,
federalism, and abstention and to dismiss
the action on those bases as to all
respondents, in addition to other reasons
and even -if a cause of action was
stated by petitioner Vakas.

Statutory and case law have
resoundingly espoused the principle that

federal courts should pursue a

"hands-off" or “noninterverntion" doctrine

33

when injunctive relief is sought to
enjoin the actions of a state court,
although many different names for this
principle have been used. Where, as here,
the exercise of authority by state boards
and officials is attacked, federal courts
must be constantly mindful of the
"special delicacy of the adjustment to be
preserved between federal equitable power
and state administration of its own law.

Stefanelli v. Minard, 342 U.S. 117, 120

[apear © « ¢-¢ Rizzo v. Goode, 423

U.S. 362, 378 (1976).

This Court has had the opportunity
to address the issue of federal court
restraint in enjoining state civil
proceedings on a number of geensiene. In

Huffman v. Pursue, Ltd., 420 U.S. 592

(1975), Rizzo v. Goode, supra, Juidice v.

Vail, 430 U.S. 327 (1977), and Middlesex

County Ethics Committee v. Garden State

Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515

34

ae mim Be Eeeeastsks& ee & S|

(1982), this Court extended the doctrine

of restrain enunciated in Younger vv.

Harris, supra, beyond the criminal

content and has applied the principles of
comity, federalism, and abstention to
include civil actions.

In both Huffman and Juidice, this

Court focused upon the notion of
"comity," which it defined as:

A proper respect for state
functions, a recognition of the
fact that the entire country is
made up of a Union of separate
governments, and a continuance
of the belief that the National
Government will fare best if

the States and their
institutions are left free to
perform their separate

functions in their separate

ways. Juidice, 430 U.S. at

334, quoting Huffman, 420 U.S.

1592, 601, 43 L.E&4d.2d 482, 95.
S.Ct. 1200, and Younger, 401

U.S. 37, 44, 27 L.Ed.2a 669, 91

S.Ct. 746.

In Juidice, the decision focused upon

appellees' "opportunity" to present their
federal claims in the state proceedings.

Acknowledging that the opportunity was

35

present, the Court concluded, "no more is

required to invoke Younger abstention."

430 U.S. 327, 1k337, 51 L.Ed.2d 376, 97
SiGe ESLi- The abstention doctrine has
also been extended to include child abuse

in Moore v. Sims, 442 U.S. 415 (1979), and

to state efforts to control welfare

programs in Trainor v. Hernandez, 431

U.S. 434 (1977). In Moore v. Sims, supra,

it was stated this doctrine of abstention
prohibits federal court intervention
unless the refusal of intervention would
result in great and immediate irreparable

injury to the plaintiff. In Kugler v.

Helfant, 421i U.S. 117 (1975), the

doctrine of abstention was said to be
founded on notions of equity and comity
with the federal system, and on notions
properly assuming that state proceedings
provide a full and fair opportunity for
the vindication of federal constitutional

rights.

The application of the principles

set out in Middlesex County Ethics Comm.

v. Garden State Bar Association, supra,

required that the district court abstain
from taking jurisdiction and dismiss
petitioner Vakas' claims. This Court in

Middlesex held that abstention is

appropriate in this type of case when
three factors are met: (1) does the
action seek to enjoin an ongoing state
judicial proceeding; (2) do the
proceedings implicate important state
interests; and (3) is there an adequate
Opportunity in the state proceedings to
raise constitutional challenges? The
State’s interest in maintaining and
assuring the professional conduct of the
doctors it licenses cannot be questioned.
It is as great as the state's interest in
assuring the professional conduct of its
lawyers. The purpose of the Kansas

Healing Arts Act succinctly states the

37

mH HH lClC STCOCOCOlUlClC CTC CCOCOlClC CCl COC LTCC ETTCClClClCU

act's importance to the state and its
people. K.S.A. 65-2801. The purpose of
the Healing Arts Act is to protect the
public against unprofessional, improper,
unauthorized, and unqualified practice of
the healing arts. Certainly, the state
and the public have an interest in
assuring a medical practitioner is not
Ooverprescribing controlled and scheduled
drugs.

Policy and law of this Court, as

expressed in the Younger, supra, and

Middlesex cases clearly hold the United

States district courts should not
entertain jurisdiction in cases like the
one presently before this Court.

This Court has often suggested that
federal courts should restrain themselves
from interfering in what is essentially a
state matter, using the doctrine of
comity, federalism, and abstention. The

district court, knowing this case and

38

using its discretion, decided to invoke
those doctrines and dismiss petitioner
Vakas' action. This proper ruling should
not be disturbed on appeal. Petitioner
Vakas has never made a showing that the
district court abused its discretion.
The writ should not be granted.
VI. PETITIONER VAKAS HAS NOT
PRESENTED AN ISSUE OF NATIONAL
IMPORTANCE, NOR HAS HE PRESENTED
AN IMPORTANT FEDERAL QUESTION
Petitioners seeking a writ of
certiorari from this Court have an
Obligation to demonstrate there are
special and important reasons for
granting the writ of certiorari. It is
not a remedy for achieving “individual
justice in individual cases." Wright,

Miller, Cooper and Grossman, Federal

Practice and Procedure, Jurisdiction

§4004.
It is petitioner Vakas' burden to
show he is’ presenting an _ important

39

question of federal law or an issue of
national importance. He has totally
failed to do either in his petition.

Matters concerning public health and
safety have long been considered to be
matters of state interest. The entire
purpose and tenor of the Healing Arts Act
in Kansas is to protect the public against
unprofessional, improper, unauthorized,
and unqualified practice of the healing
arts. K.S.A. 65-2801. It is the state
that licenses doctors to practice the
healing arts. Medical licensure is not
granted by the federal government, nor is
licensure of physicians and other healing
arts professionals considered to be
within the purview of federal government
authority. Bluntly stated, there is no
federal interest in who is or is not a
licensed medical doctor. Medical
licensure is an area wholly left to each
individual state to control and
administer.

40

In Middlesex County Ethics Committee

v. Garden State Bar Ass'n., 457 U.S. 423,

102 S.Ct. 2515 (1982), this Court held
that the state of New Jersey has an
extremely important interest in
maintaining and insuring the professional
conduct of the attorney it licenses.
Traditionally, States have exercised
extensive control over the professional
conduct of attorneys. Supra, at 4714.
The state's interest in maintaining and
monitoring the professional conduct of
the doctors it licenses cannot be said to
be less important. In fact, it can only
be more important because medical ‘iat
are licensed only by state entities,
while lawyers are licensed by both state
and federal entities.

If this Court allows Petitioner
Vakas to maintain this action, then any
medical doctor will be free to “push

drugs" or do any other act detrimental to

41

BSE SB SESE BZ RB BKK KZKBZSBE ES

the health of the citizens of Kansas,
because he could easily stop any
disciplinary or revocation action
directed against him by the Board of
Healing Arts by filing civil rights
claims in federal district court alleging
any baseless set of facts. This is not
the law and cannot be allowed to become
the law. Petitioner Vakas' request for a

writ of certiorari must be denied.
CONCLUSION

This Court needs to remember that
petitioner Vakas' original lawsuit was
filed demanding a permanent injunction to
stop the Kansas State Board of Healing
Arts proceeding concerning the possible
revocation of petitioner Vakas' state
medical license; and for money damages
for the violation of his constitutional
rights as Kansas district court Judge
Palmer had previously found were

committed.

42

Many lower judicial bodies' (even

state and federal district courts) acts
and opinions are found to be in violation
of constitutional standards on appeal.
Their correction lies by way of appeal,
not by way of suing those judicial bodies
for their constitutional violations.
There is simply no case here; there never
was.

The district court correctly
dismissed petitioner Vakas' case under
the concepts and doctrines’ of the
Eleventh Amendment jurisdictional bar,
judicial immunity, and comity,
federalism, and abstention. Petitioner
Vakas' request for a writ of certiorari
should be denied.

Respectfully Submitted,

ROBERT T. STEPHAN
Attorney General

ruce £. Miller

Deputy Attorney General
Kansas Judicial Center
Second Floor
Topeka, KS 66612
913/296-2215

43

Donald G. AyLt) Sh, l,

General Counsel for
Kansas State Board of
Healing Arts

503 Kansas Avenue

Suite 500

Topeka, KS 66603

Attorneys for Respondents

PROOF OF SERVICE

The undersigned, BRUCE E£. MILLER, a
member of the Bar of this Court and one of
counsel of record for Respondents, hereby
certifies that on the 12th day of October,
1984, he caused to be served the foregoing
Brief In Opposition To The Petition For
Writ Of Certiorari, together with
Respondents’ Appendices A Through I, on
Petitioner in this appeal, by mailing
five (5) copies thereof by ordinary mail,
postage prepaid, addressed to his
attorney, as follows: GERRIT H.
WORMHOUDT, Fleeson, Gooing, Coulson &
Kitch, Suite 1600, 125 North Market
Street, P.O. Box 997, Wichita, Kansas,
67201, Attorney for Petitioner.

Boca Shell

Bruce £. Miller

44

APPENDIX EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS

JOHN L. VAKAS, M.D.,
Plaintiff,
vs. Case No. 82-1589
PAUL RODRIGUEZ, M.D., ET AL,

Defendants

TRANSCRIPT OF INJUNCTION PROCEEDINGS

On the 27th day of August, 1982, came
on to be heard preliminary injunction
proceedings in the above-entitled and
numbered cause before the HONORABLE
PATRICK F. KELLY, Judge of the United
States District Court for the District of
Kansas, sitting in Wichita.

APPEARANCES:

The Plaintiff appearing by and through
his counsel, Gerrit H. Wormhoudt and Larry

Wall;

The Defendants appearing by and
through their counsel, Bruce Miller, Wallace
Buck, Jr. and Leslie Kulick.

THE COURT: I regret the delay in that I
was here but I forgot to notify my court
reporter.

This is it is matter of Dr. Vakas
versus Rodriguez, et al, which is as I
would track to be the Kansas Board of
Healing Arts and its members. In the
recent past, this matter had come on on
the plaintiffs motion for injunctive
relief, and shortly prior to that
hearing, the state had filed a motion to
dismiss, and as I came to the bench I
signalled to the parties that at least to
the extent I understood the circumstances
as of then, I would be well advised to
listen to the board. MThe plaintiffs had
not had occasion to brief it, and so we
delayed the hearing until such time as

that had occur.

Now I have had an opportunity to read
and review Dr. Vakas' response to the
motion, and for the most part, the state's
response to Dr. Vakas and Dr. Vakas'
response again to the state, the thrust of
which is that you folks have fully
apprised me of your respective positions.
Have fully apprised me of your respective
positions. While I believe I have a
pretty good grasp of what is at issue
here, I think it might be well that we
would commence by hearing the state on its
motion in a brief way, and at least if I
have any additional questions or need
Clarification, I will ask for it. Mr.
Miller.

MR. MILLER: Thank you, Your Honor.
May it please the Court. I believe this
Case originates on two requests of the
members' positions.

First of all, pleadings are a motion
to dismiss. First of all for

AA3

Simplification, as to the Kansas State
Board of Healing Arts and as to the State
of Kansas, who are named defendants in
this action, those two defendants raise
llth Amendment to the United States
Constitution in that these actions may
not be brought against the state in
Federal Court. And I believe there is
long standing law cited in our briefs to
that basis, that these two parties simply
may not be sued in this type of action in
Federal District Coiurt.

As to the defendants motion to
dismiss the individual members, there are
several reasons raised. First of all, as
to the damage actions that has been pled
and never contested otherwise, Kansas
State Board of Healing Arts is a quasi
judicial body and they are_ seeking
damages for actions done in that
capacity. In that capacity, they have the
right to receive full immunity whether

AA4

its called quasi judicial immunity or
whether its called judicial immunity.

As to the second part of the suit
against the individual members for
injunctive relief, I believe the law is
clear that injunctive relief will lie
against--under 1983 will lie
under--against individual members of a
State board except for something that
might bar that situation. Primarily the
State relies on and the _ individual

members rely on Middlesex and quite a

String of cases prior to Middlesex both

out of this district and other places
invoking the concept of comity and
abstention which has been long recognized
by Federal District Courts, by the
Supreme Court. These proceedings are
very similar I think in nature to bar
proceedings where an attorney, for
whatever reason, becomes somewhat
involved with his licensing agency and I

AAS

think the law has been quite clear for a
long, long period of time that Federal
District Courts should abstain from
interference in something that is
licensed primarily by the state in the
case of attorneys; in the case of doctors
I think is brought out in our brief its
even more important because no one else
licenses doctors, only this board that
has any say on who may or may not practice
medicine in the State of Kansas.
Extremely important right to the
individual doctor, also extremely
important right to the citizens of the
State of Kansas to have some
qualifications for people that practice
law.

Simply won't take any more of the
Court's time but the doctrine of comity
and abstention control in this’ case.
Nothing raised that would even suggest

that this Court ought to take any other

AA6

path other than to dismiss this action.

THE COURT: All right. Mr. Wail.
Mr. Wormhoudt.

MR. WORMHOUDT: Thank you, Your
Honor. If Your Honor please, I think it
might be helpful here to weed out the
things that we are not trying to dispute.
One, we are not trying to dispute that a
quasi judicial body or its members acting
in their quasi judicial capacity has
certain immunities against damage claims.

THE COURT: Isn't any question in
your mind but what the Healing Arts Board
is indeed a quasi judicial board and that
their proceedings are judicial as defined
by Justice Berger in the Middlesex case.

MR. WORMHOUDT: Yes, Your Honor, I
have considerable dount about that.

THE COURT: All right.

MR. WORMHOUDT: Certainly I question
whether or not this particular body is the

kind of quasi judicial body that the Court

AA7

was talking about in the Butts case. And
I might begin Your Honor by --

THE COURT: Butts case I have
particular reference to as_ to the
immunities that would run --

MR. WORMHOUDT: That is correct.

THE COURT: -- to that group.

MR. WORMHOUDT: That is correct.

THE COURT: Inasmuch as if it is
understood that their function is a
function to monitor, certify, discipline
members of the medical practice, seems to
me that that is a function assigned to
them, and hearings are conducted in an
orderly way as set out by the code, about
its being duly facilitated by
representatives within that community,
and their purpose is indeed a state
function after all; it's the medical

practice with which that board is

concerned. I appreciate "medical"
meaning those in osteopathic,
AA8

chiropractic or medical all come within

the perview of the Healing Arts Board.
But that seems to me an extremely
important state function. And I
seriously have no problem with it, Mr.
Wormhoudt. Apparently you do.

MR. WORMHOUDT: Your Honor, I have no
problem whatsoever with what you have
just said, not a single problem.

THE COURT: All right.

MR. WORMHOUDT: Licensing and
discipline of the medical practitioners
is, without question, a very important
state function.

THE COURT: Then why isn't it within
their perview to regulation the ethical
practice of a member that in turn they
have the duty to hear complaints, weigh
evidence, make decisions as to _ the
propriety of continuing that

practitioner's license?

AAY

MR. WORMHOUDT: I have no problem
with that statement, Your Honor, none
whatsoever.

THE COURT: Is that not a judicial
proceeding.

MR. WORMHOUDT: May or may not be,
depending upon how in fact it"s
conducted. That to me is the question:
Was it conducted as a judicial
proceedings. And that, Your Honor, is not
a question of state law; under the ]4th
amendment to the United States
Constitution, that is a question of
federal law.

THE COURT: Was that ever raised by
the plaintiffs at any time until you just
said it, Mr. Wormhoudt? As I say
understood the plaintiff's complaint, in
response to the motion to dismiss, it's
been denied due process, so to speak.

MR. WORMHOUDT: That is correct.

AALO

THE COURT: Inasmuch as since Judge
Palmer's decision, a something has
occurred between the doctor and the board
that gave rise to dispute for which he now
claims violated due process’ but had
nothing to do with the propriety of the
board's right or conduct as to
determining his fitness.

MR. WORMHOUDT: Your Honor, the
appeal to Judge Palmer was based on due
Process grounds. Judge Palmer's decision
reversing the setting aside the action of
the board was based on due _ process
grounds.

THE COURT: And said: Retry him, or
appeal it.

MR. WORMHOUDT: Remanded it to the
board, Your Honor. That's all he did.

THE COURT: Well, to do what? To
hear it.

MR. WOR) dAOUDT: To 40 bhatever was

appropriate under the circumstances.

AAI

a —_S —_— aa a a a_i a ae fF — )h(lUE!

THE COURT: Well --

MR. WORMHOUDT: What happened was
simply this: That the board decided to
conduct a further investigation, received
a report indicating there was no further
need to process any complaints against
this doctor, submitted a journal
entry -- a proposed journal entry that
clearly amounts to a release of any and
all claims against the board.

THE COURT: You read it that way but
let's say that's right. What does that
have to do with their right to hear him in
the first place or to amicably resolve it
if they could, which they apparently
thought they had?

MR. WORMHOUDT: I would like to
address that question, Your Honor.

THE COURT: That's why we are here.

MR. WORMHOUDT: I would like to
address that. I would like to direct your

attention to how a quasi judicial body is

AAL2

supposed to perform its functions as set

out in the Butts case, and why under the
Butts case certain immunities’ were
allowed because of the safeguards that
were built into the manner in which the
proceedings were conducted in that case.
And I would like Your Honor then to have
an open mind as to whether or not the
facts in this case would bring it within
the kind of strictures that are announced
in the Butts case.

What the Court said there was we
think that an adjudication within a
federal administrative agency shares
enough of the characteristics of the
judicial process that those who
participate in such adjudication eal
also be immune from suits for damages.
And the Court then goes on to set out one
safeguard after another, all of which are
embodied in the Federal SAsiniatrative

Procedure Act, all of which have led to

AAL3

7s me Se SFE SE SE Se S&S Se F&F Se SS & & ee |

professional judges of the highest
quality, law judges and hearing
examiners, that are available for these
types of counterpart proceedings in the
Federal Courts.

THE COURT: This is the state board.

MR. WORMHOUDT: Exactly right, Your
Honor, and therein lies the difference.
As Judge Reels (ph.) said to me, and I
think every Judge on the Appellate Court
of Kansas would agree: We dont’ have a
decent kind of Administrative Procedure
Act in Kansas, and because we don't have,
the review procedures are in the morass
and what happens before these
administrative agencies is utter chaos
and there's hardly an opportunity for
anybody to know in advance what is going
to happen in a state administrative
procedure because there sivply isn't any
law or guidance.

THE COURT: Let me ask you this

AA14

though: You say that is so, and yet in
this very case, this very plaintiff who
took issue with the conduct of that
procedure, had at hand the opportunity to
appeal it to the District Court, had a
hearing and was sustained. How can you
tell me then he wasn't given a fair shake
before that board or under the perview of
the Kansas law and with appellate
procedures to the State Court and, if he
wanted, to the Supreme Court?

MR. WORMHOUDT: You have asked me two
questions, Your Honor, which I think need
to be separated: Was he given a fair
shake before the board? Judge Palmer
already answered that question: Indeed
he was not.

THE COURT: All right.

MR. WORMHOUDT: Second question is,
did he get a fair shake before the Court?
He did. He did indeed. Now I think the
question -- you have framed the real

AAL5

question in this case, and I think this is
where Your Honor has, I think, rushed to
judgment.

THE COURT: I haven't rushed to any
judgment, Mr. Wormhoudt. I just came on
the bench. I came to the bench the last
time to hear you on a motion to dismiss
and I thought I should hear it. I have
now listened to your briefs -- read your
briefs, I'm ready to hear you. I'm asking
questions ‘which seems to me are of
interest and should be decided by me.

MR. WORMHOUDT: All right Your
Honor. Let's address the second part of
your question: Did it cure the
deficiencies in the administrative
proceedings because in all likelihood if
we get to a Kansas Court, they will be
corrected there. Isn't that the issues
Your Honor really has to address?

THE COURT: No. You have to convince

me that there is something untoward about

AAL6

the board in the first place.

MR. WORMHOUDT: I can only do it one
step at a time.

THE COURT: I don't know of any at
this point, why I should say there is; I
guess that is something I have a problem
with, Mr. Wormhoudt, because I don't
know. All I know is that the District
Court didn't like what they did and sent
it back to to them and said: Try it
again, I guess.

MR. WORMHOUDT: You don't have to
guess about that. The District Court's
decision is very explicit that at least
five different ways they violated the
man's right to procedural due process
under the Federal Constitution and under
the Constitution of Kansas. We don't have
to guess about that, Your Honor.

THE COURT: Let me ask you this, Mr.
Wormhoudt: Lets say in some hearing a

somebody takes umbrage with something I

AA17

have done. They go to the circuit and
they say: We agree with you. Judge
Kelly, you didn't let this guy put on
witnesses, didn't let him cross examine
witnesses, short with him. We think you
ought to hear it again. We agree he
didn't get process. They send it back and
I'm ready to hear it again. Is there
something about the fact that I have been
reversed, now been instructed as to what
the law is or should be that I can't hear
that case openly and objectively? I don't
know why I couldn't.

MR. WORMHOUDT: Your Honor, that may
very well be. On the other hand, if your
remarks are such as to indicate some kind
of personal interest in the case, there is
a very good quick remedy available in the
Federal Courts: We ask you to recuse
yourself, do we not?

THE COURT: Certainly.

MR. WORMHOUDT: You almost

AAL8

automatically would do so, would you not?

THE COURT: By all means.

MR. WORMHOUDT: Why is that, Your
Honor, I ask? Simply because every man is
entitled to a hearing before an impartial
tribunal.

THE COURT: All right.

MR. WORMHOUDT: That's the essence,
I think, Your Honor, of why we are here
today. And I would direct your attention

directly to the Gibson v. Berryhill case

which raised these issues: Here ‘the

predicate for a Younger against Harris

dismissal was lacking for the appellees
alleged and the District Court concluded
that the State Board of Optometry was
incompetent by reason of bias to
adjudicate the issues pending before it.
I don't want to address that fact question
at this stage, Your Honor; I merely want
to lay the predicate for addressing it. I

think you have got to let me do that.

AAL9

THE COURT: I will let you have all
afternoon, Mr. Wormhoudt. I'm not
cutting you off. You seem to think I am.
I just think I'm trying to get --

MR. WORMHOUDT: I'll be candid with
Your Honor: I read the transcript of the
first hearing. Seems to me Your Honor
pretty well made up his mind.

THE COURT: Well, I'm sorry you did.
I gave you a hearing, asking for briefs
and here we are.

MR. WORMHOUDT: I said almost made up
his mind.

THE COURT: All right.

MR. WORMHOUDT: I think you left a
crack and I'm going to try to get through
there crack. I don't think its a crack; I
think its a wide open door.

Court went on in the Gibson case to
say: If the District Court's conclusion
was correct in this regard, it was also

correct that it needn't defer to the board

AA20

came SERRE RR SBE KR KR RE SB

nor -- and here is the key -- nor in these

circumstances would a different result be
required simply because judicial review
de novo or otherwise would be forthcoming
at the conclusion of the administrative
proceeding.

Your Honor, I think now we are to the
question: Is the factual predicate there
that establishes some element of bias, of
personal interest, of possible prejudice
on this administrative board, quasi
judicial agency? I think that's the fact
question that has to be addressed before
Your Honor can apply any of the legal
propositions which have been invoked by
us or by the state indeed, either way.

I would submit to Your Honor that the
question cannot be simply decided on the
face of the language in the journal entry.
To me it's very clear what that proposed
journal entry indicates, have no
difficulty with it. But there are a host

AA21

of other facts that need to be adduced to
support our position in that respect,
Your Honor, and we expect to be able to
establish beyond any question exactly
what motivated the board members in these
cases.

Your Honor asked the question: What
did they proffer, what could they
possible proffer by having a release of
claims? But, again, Your Honor has, I
submit, rushed to judgment that they had
nothing there to lose, and I suggest to
you that Your Honor is wrong, simply
wrong. You lose -- lets concede thery
have absolute immunity, even though they
do not meet the criteria, don't even come
Close to the criteria established in
Butts. But lets make that assumption that
immunity only exists while they are
acting in their quasi judicial
Capacities. Now simply put this question
to Your Honor: What happens when they go

AA22

beyond their quasi judicial function,
beyond the line of duty? That language

appears in Middlesex, appears in Gibson,

appears in Butts. Question is not a
question of law in this case, are quasi
judicial officials entitled to absolute
immunity? Answer to that is yes, if they
are acting in there capacities as such.
The question before Your Honor is -- and
this is a question of fact at
least -- were they acting in there quasi
judicial capacities when they said: We
want a release of claims before we will
dismiss this action, release of claims
against us personally. Is that a quasi
judicial function, Your Honor? If it is,
then let's -- if Your Honor thinks that is
a quasi judicial function, then
prosecutors and judges, administrative
officers have a right to insist that
somebody against whom they have brought
de-licensing proceedings, whose liberty

AA23

Ze SB SSS SES SB SS KB SBE EBE ES

and property, whose whole career. and
perhaps, in a real sense, their lives are
at stake, and who have abused the hearing
process, and then say: We will back off
from that process, we will not pursue you
further provided you release your federal
constitutional rights. If you think that
is a quasi judicial function, Your Honor,
then I say let's stop this proceeding now,
let's certify that question up to the
Court of Appeals or dismiss the whole case
predicated on that assumption. We think
the journal entry lends itself only to
that construction, but we are prepared to
Prove a number of additional facts which
support our interpretation of that
journal entry, Your Honor. |
Now, I don't think you can reach
judgment on that factual question at this
stage in these proceedings. If you can,
Your Honor, I hope you will at least let
us make the proffer of all of the evidence

AA24

=

which we think is relevant to that
particular point. I understood we would
be given that opportunity and I assume
that Your Honor meant it when he said it.
Because if that factual predicate exists,
then, one, there is no immunity at all in
this case; we are not talking about
immunity any longer; we are talking about
acts completely outside of the proper
functions of any judicial officer, quasi
Or otherwise. And these fact questions
determine the appropriate principles of
law, Your Honor. We don't dispute a
Single principle of law, Your Honor. We
don't dispute a single principle of law
that you have set forth as your view. We
are in agreement with them. Question is
whether or not they have relevance to the
facts of this case.

Certainly there is an important
State interest, as I said earlier, in

disciplining and licensing professions of

AA25

= GE

every kind and character: Lawyers,
doctors, whatever. The question is
whether or not in this ease there was an
important state interest to be served
after a finding that in fact there was no
need to proceed further against this man
if he would just simply sign the form of
journal entry, which, in effect,
exonerated these people from exposure to
substantial liability, Your Honor, if
they were acting beyond their judicial
offices, their quasi judicial offices, if
they were when they exacted this release.
As I submit, and certainly I think any
appellate Court, Your Honor, would agree,
these kind of exactions amount to common
law extortion, clear violations of the
Kansas Misdemeanor Statute dealing with
official misconduct in office, and those
are simply not quasi judicial functions
which enjoy the kind of absolute immunity

that the Supreme Court of the United

AA26

States afforded federal hearing officers
governed by the Administrative Procedure
Act as set out in the Butts case. Those
are not the facts in this case, Your
Honor; they don't even come close.

There are other important issues
lurking in this case, Your Honor, which I
think should be addressed.

THE COURT: I would only say to you,
Mr. Wormhoudt, the first one you have
raised is the first I have heard of it. I
never read it or perceived it to be an
issue in any of your briefs.

MR. WORMHOUDT: I thought these were
good briefs, Your Honor; that is the way I
read them.

THE COURT: All right. What is the
next issue.

MR. WORMHOUDT: We have the who1é
question of whether or not in addition to
the 1983 predicate for this action there
is a direct 14th Amendment predicate for

AA27

this action.

Your Honor, I have messed around in
this area of law enough I think to
conclude this is really one of the great
issues that the Supreme Court of the
United States has been playing
hide-and-go seek were for the last 30
years and some day they are going to have
to meet it head-on. I have got pending
before Judge Theis now civil rights case
that's been -- let's see. It was tried in
1973. At that time school boards weren't
persons under 1983. So the plaintiffs
brought their action based directly on
the 14th Amendment, as well as 1983.
Judge Theis found that school boards were
not persons under 1983 as the law then
stood. He found out later of course that
the law can change before a case is
finally decided. And on other grounds,
dismissed the plaintiffs case. Went up by
them to the Tenth Circuit as a direct

AA28

BE BS ESE BS SEB SB Be SS SF)

claim for damages under the 14th
Amendment. The Circuit took the case,

Epperson against Liberal School Board,

U.S.D. 480. Circuit took that case and
decided it on the assumption that you do
have a direct right of action for damages
under the 14th Amendment. Then
subsequently, of course, the Monell case
came down and all became interesting
theoretical law.

The Supreme Court has still put that
question right out there in front as sone
that it is going to ahve to to be dealt
with some day. I think you can get as
many different views as there are judges
and lawyers on this question. I have no
trouble with it myself, Your Honor. 14th
Amendment says in so many words: No state
shall deny any person of due process of
law. Doesn't say: No person acting under
color of law. It says: No state shall.
We talk about llth Amendment immunity, we

AA29

talk about common law immunity, we talk
about state immunity. All of that talk,
Your Honor, pertains to actions under
1983; has nothing to do with the causeof
action predicated squarely under kthe
14th Amendment. The 14th Amendment, of
course, overrides the llth Amendment.
Any kind of common law immunity or
whatever maybe involved its later in time
and it speaks finally on this issue.

THE COURT: On the other hand, isn't
the 14th Amendment codified in 1983?

MR. WORMHOUDT: Indeed it's not,
Your Honor. Indeed it is not. I submit
now the Supreme Court has finally gotten
around to a sé€@nsible interpretation of
what that old reconstruction Congress
meant when it passed 1983. 14th Amendment
Says no state shall deny any person of due
process of law. When they said no state,
however, did that also apply to school
districts, apply to counties and cities?

AA30

Reason for the passage of 1983, given the
benefit of a hundred years of
interpretation, now is very simple. It
was to make sure that Congress, in the
exercise of its power afforded it under
Section 5 of the 14th Amendment, intended
to go beyond the amendment or clarify the
amendment as need be. That these state
instrumentalities or subdivisions or
municipalities or whatever you want to
call this, as well as the state itself,
were obligated by the constitutional
strictures which the amendment said
applies to the state. Amendment speaks
for itself: No state shall deny any
person of due process of law. You didn't
need a statute to cover the state
question. So what that reconstruction
Congress said was we want to make it clear
that any minions of the state such as
school district and municipalities and
counties and other creatures of state

AA31

ne

making are also bound by those’ same
constitutional strictures that the
amendment directly applies to the states.

Your Honor, I think the big question
in this case in terms of constitutional
interest lies right there, because unless
Your Honor is prepared to rule adversely
on that issue, all of these questions of
immunity and abstention and the like
simply go out the window also if Your
Honor agrees that there is under
appropriate circumstances a direct right
of action against the state under the 14th
Amendment.

I think it's a beautiful question,
Your Honor. I think it's one that
deserves careful consideration. |

THE COURT: Anything else?

MR. WORMHOUDT: Just as I said, Your
Honor, we would like to make the
appropriate proffer on the fect question.

THE COURT: Let me start out with you

AA32

as I have heard you and I suppose it must
come as some surprise to you that I have
carefully tracked Mr. Wall's brief, every
instrument in it, read them all, all of
the correspondence kthat was exchanged,
all of your briefs, every case has been
reseasrched and I have _ read_ several
myself, from which I have at least drawn
some appreciation of the issues here and
what I think perhaps is the applicable
ruling and decision. I would say to you
that some of the things you have raised I
did not perceive to be raised henceforth;
I don't find them in your brief; they
maybe there. I have been convinced that

Middlesex is controlling. You haven't

addressed it but its been suggested in
your brief it's not controlling.

MR. WORMHOUDT: Like to address it,
Your Honor.

THE COURT: Middlesex seems to me is

quite clear. But in the course of that

AA33

decision, that trial Judge saw fit to at
least listen tothe grievant in those
areas which he thought were areas of
harassment or special circumstances, I
recall. I thought as I came to the bench
that was what it is you were asking.

MR. WORMHOUDT: That is one of the
grounds, Your Honor.

THE COURT: All right. That was not
addressed is all.

MR. WORMHOUDT: May I speak?

THE COURT: Still some state of
confusion from what I really wanted to
hear from plaintiff: Where is it since
receipt of the decision from Judge Palmer
by the board through the course of their
attempts to reconcile their situation
with Dr. Vakas, very failed -- where is
the extraordinary circumstance or
harassment that Mr. Wall had me
understand the reason we are hert that is
so factually rank that you're entitled to

AA34

a re es

a hearing? What is it?

MR. WORMHOUDT: We are entitled to a
hearing, Your Honor?

THE COURT: Uh-huh.

MR. WORMHOUDT: Before you?

THE COURT: Of course.

MR. WORMHOUDT: All right. Well,
again, Your Honor, I simply put the
question: If after you denied -- one of
these quasi judicial proceedings -- the
attempts of the person proceeded against
whose life, liberty and property are at
stake -- if you have denied them their
request for sufficient particularity with
the charges so that you can prepare a
decent defense.

THE COURT: All right.

MR. WORMHOUDT: If you have denied
them the opportunity for timely
preparation of their case; if as I can
personally testify, if there is any
dispute about it, you have refused them a

AA35

continuance when counsel for the licensee
is laid up in a hospital and home, and I
had to do half of his work while he was, a
continuance on that ground; if you have
denied them the opportunity to put into
evidence the testimony of some cf the
people whose complaints are now quoted in
the brief, Your Honor, at least in summary
fashion. They took the depositions of
some of these pharmacists and then the
very pharmacists who supposedly made
complaints which give rise to these
proceedings then wouldn't let’ their
evidence in, which would have completely
impeached the complaint.

THE COURT: All from which an appeal
was taken. |

MR. WORMHOUDT: That is correct,
Your Honor.

THE COURT: Remanded back.

MR. WORMHOUDT: Right.

THE COURT: Under Kansas law and by a

AA36

Kansas Judge.

MR. WORMHOUDT: That's right, Your
Honor.

THE COURT: From that moment on --

MR. WORMHOUDT: Now you are right
back in front of that same board who did
all of those things, who, after having
done all of this those things -- and
there is a host more -- then says: Let
bygones be bygones and let's dismiss this
case not go any further, provided you
release any claims you may have against
us. If you don't, however, and
notwithstanding our subseq ent’ report
that says there is no further need to
proceed against you, we are going to
proceed against you. |

THE COURT: Isn't that the hassle and
harassment that you have _ specifically
addressed?

MR. WORMHOUDT: That is correct,

Your Honor.

THE COURT: What is open to hear and
explained?

MR. WORMHOUDT: That's right, and we
think there are all kinds of additional
witnesses that can substantiate the
malice, ill-will, the intentional effort
to violate this plaintiff's rights.

THE COURT: Can it be ill-will if
that same board in what would appear to me
in an extended time frame of a year or so
who now has the decision back, take stock
of the situation, finds that the doctor
has reconciled his practice, somewhat in
concert with their directives, has agreed
to a restriction on his prescriptions,
all is well so far as they see and say:
Well, at this time let's permit the
gentleman to practice his medicine and we
will shut down this hearing? Now that's
what they did, and how can that same board
then be the same kind of people that are
so ill-willed they can't give him a fair

AA38

hearing?

MR. WORMHOUDT: Your Honor omitted
one very important fact: We will do that
all that provided he releases any claims
he may have against us.

THE COURT: All right. That seems
to be a critical difference. Is that the
harassment you're focusing down to?

MR. WORMHOUDT: I'm saying you
couple it with what went before it,
certainly, but you can't separate what
went before from the final step in the
proceeding. I think we should be given an
Opportunity to flush those facts out in
considerable detail including the whole
transcript. It was a travesty in plain
language. I don't think I will take
second chair to you or anybody else in
pride in our state courts and in our state
law, but this was a travesty and it needs
to be corrected and shouldn't be allowed

to continue, Your Honor. It was a

AA39

=a~maeQRBEBE RSS SB KSB SE SES SE

disgrace to this state. As I said, I
won't take second chair to you or anybody
else in pride in this state and its
proceedings. In most instances but not in
this one.

Your Honor, Gibson case, Berryhill

case, very point you're trying to make was
addressed and thrown out by the Supreme
Court in this foot note. They say: fThis
Court was assured at oral argument by
counsel for both parties that Alabama law
provides for de novo Court review of
de--licensing orders issued by the board.
Nonetheless, District Court expressly
found that the revocation by the board of
appellees' licenses to practice their
profession, together with the attendant
publicity which would inevitably be
associated therewith, would cause
irreparable damage to the appellees for
which no adequate remedy is afforded by

state law.

AA40

mee Be EE SES Ss Se SE S&S S&S & & |

There isn't any adequate remedy
under any law, Your Honor, after a man has
been tried by a kangaroo court. We are
prepared to prove that is exactly what
this man is faced with, as a matter of
fact. That, Your Honor, I think addresses
the harassment issue as well as_ the
abstention issue.

THE COURT: All right.

MR. WORMHOU)T: Might point out that

Middlesex expressly cited Gibson and

Berryhill three times. Kind of

illustration to which that case does not
apply. Thank you.

THE COURT: I read that it clarified
Gibson, Mr. Wormhoudt. What do you say,
Mr. Miller, to opening this hearing for
the limited purpose of hearing evidence
on harassment or special circumstances?

MR. MILLER: My opinion, Your Honor,
is that the harassments that they are

presently talking about at least that I
AA41

understand deals with that journal entry

and the subsequent correspondence over
that journal entry which I believe is in
front of the record -- in front of the
Court, I think a reading of that just does
not indicate in the slightest the degree
of harassment or intimidation or anything
else that counsel is talking about.

Two other -- three other points I
would like to bring up very quickly. My
memory of reading the complaint and the
pleading for injunctive relief, I don't
remember any allegations ever being in
there that the board was not acting in
quasi judicial function during any of the
acts taken anywhere in this.

As to the allegation that there's no
way they could receive a fair hearing, its
now been approximately two years since
the original hearing. The board is
composed of thirteen members; five
members head the original complaint, I

AA42

;

believe. There has been a change in that
particular board and its composition and
makeup. I believe the statute require
only three members of the board to actually
hearing the complaints. My only point
being odds are that the same hearing panel
will not rehear this case on remand any
way. And I would suggest that if
Plaintiff would perhaps file a motion to
recuse the first hearing panel that they
would probably would take that into
consideration and might make very sure
that none of the original hearing panel
sat on the second hearing panel. There
has been no allegations that the entire
board of thirteen people is acting in bad
faith and in collusion or conspiracy
against this particular person.

As to the 14th Amendment due process
argument, I believe that Judge Rogers
addressed this in a separate case in this
district and held that was not at least at

AA43

the present time a cause of action.

THE COURT: Against whom?

MR. WORMHOUDT: I didn't get the
citation of that case, Your Honor.

MR. MILLER: I'm relying on Les
because she does much more civil rights
action than I do.

THE COURT: I think all of the Judges
have been up to our ears in these areas
and 14th Amendment and contentions of
immunity. I don't need to hear any more
on it.

Let me think out loud with you a
moment in the interest of tracking what I
think is important and perhaps to suggest
some findings:

I think it would be well that I
review what I understand to be of interest
and should be determined. If I have
misstated it someone can track me on it.

Doctor Vakas is at this time and has
been a licensed practitioner in the

AA44

medical field. It owuld appear that in
days past, a complaint had been filed
against him alleging certain violations
of the controlled substance laws,
prescription practice. The Healing Arts
Panel or the board or the Board of Healing
Arts took its upon themselves then to
pursue the complaint, to hear the
evidence and make certain findings. This
is authorized under Kansas statute
65-2801, as I undestand it. They are
indeed duly impaneled and authorized by
the State of Kansas to do so. As I came
to this bench, Mr. Wormhoudt, I was not
aware nor am I now, of any challenge with
regard t* that authority. 3 ee ee
Court's view that it is indeed a judicial
panel as Justice Berger defined it ih

Middlesex. I'm frank to say as I came to

the bench I was not aware that a test of
the due process as to those proceedings
was of interest to me. Due process, as I

AA45

would understand it, either before this
Court or such a judicial panel, is simply
that of reasonable notice and hearing,
opportunity to confront witnesses, to
certainly address the issues in his own
defense, before a fair and objective fact
finding panel. This judicial proceeding
Or panel was a proceeding necessary for
the vindication of an important state
policy. And you have indicated you
certainly agree that the functions and
affairs of the Healing Arts Board are in
the interest of important state policy,
being the management of the medical
practice.

Now this board conducted hearings
and made these findings which were
appealed to the District Court, and that
Court, after hearing the arguments and
evidence, entered its order, the thrust
of which vacated and remanded the matter
to the board. As I would track the order

AA46

and the correspondence, its to say that it
is to be retried or et cetera where either
side may appeal it but he straightened out
the board so far as his findings of the
absence of due process.

I see no reason as of this moment or
for anything as of that point in time to
make further inquiry as to the propriety
of the state function and seems to me, that
the exercise of the board was wholly
within the perview of the state function
as envisioned in that law.

What I see happens, as I track this
time frame, the board does self the case
back. There is deliberation within the
board as to what it should and could do.
In the course of that time frame, this
doctor had been operating within certain
Sanctions or restrictions of the board.

MR. WORMHOUDT: No, Your Honor that
simple --

THE COURT: Maybe I'm wrong.

AA47

MR. WALL: Yes, Sir.

THE COURT: He had seemingly
reconciled himself.

MR. WALL: No, that's not the fact,
Your Honor.

THE COURT: May not be. It ae
irrelevant to the extent that it seems to
me the board continued, concluded that
under the circumstances as they saw it at
that time he could and should continue
with his practice. There were certain
restrictions imposed, and he had complied
with them. It seems to me that in a means
Or way of shutting down the file, they
simply proposed a basis for disposition,
which included suggestions that’ the
controversy had been amicably resolved.
Now whether that's a something that flows
through this Court by lawyers in journal
entries or whether its the verbage of an
attorney in behalf of the board, or

whether any other reasons went into it,

AA48

|

what they said is that the parties are
desirous of concluding these proceedings
by accepting Judge Palmer's decision, not
requesting that either his decision be
appealed or that the matter be remanded
for additional administrative hearing.
The parties mutually agreeing thatit is
in the best interest of both parties for
reasons as they have discussed to
conclude these proceeding in this
fashion. That the parties have mutually
agreed that any and all differences
having existed between them are now
resolved to the satisfaction of both
parties, any and all issues existing
between the parties hereby satisfactorily
resolved.

From which a somebody suggests this
is tantamount to a release and somebody is
offended and strikes me somebody
exercised a sense of obstinancy as
Opposed to appreciating what the board

AA49

had just said in authorizing this

gentleman to continue his practice. That
is as I see it as of then.

It is obvious to me that he takes
issue with them, and in the terms of these
proposals, I read in the course of this
correspondence and communication that
they raised suggestions of civil rights
claims and damages that have somehow
occurred in the course of these
Proceedings, threatened aie.” And any
appreciation af what I have read here, Mr.
Wormhoudt, an impasse obviously results
by reason of of Dr. Vakas' position, when,
in fact, it would appear to me that is an
entirely innocuous term and ae formal
means of resolving this thing’= and
shutting down the file.

It would appear to me that then as a
consequence of this impasse, in time the
board elects to rehear the original
complaint which has always been their

AA5O

precogative and they apparently did so.
As I understand it, it is presently set
and as a courtesy to the parties they have
agreed to pass it over at least until such
time as this matter could be heard.

I can recail as I came to the bench a
couple of weeks ago or whenever it was,
that the timing of that hearing was of
some interest and I had been assured that
it would be set over at least until this
Court had a chance to hear it.

Plaintiff then has filed its suit
under civil rights, and seeks injunction,
Suggesting of the denial of due process
and, in effect, that the board is estopped
to proceed further. The first note I made
was if you thought that this board is
unfair, there are indeed procedures to
request them to recuse and others step up
or that they be replaced, and if that is
not so, take it to the State Court and let
Judge Palmer make that decision I should

AAS1

think. Those were my thoughts earlier,
and I see no reason why they can't.

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 sale to you, Mr.

Wormhoudt, 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 underlining Younger versus

Harris are such that I should abstain.

Specifically in Middlesex it says that in

a judicial proceeding, as I believe and
have so found that the hearing of the
Healing Arts Board is intended to be and I
so find, and where important state
interests are involved, as I believe the

AA52

licensing and the marshalling of the
medical practitioners must be and is and
so find, the Federal Court should
abstain. Justice Berger points out that
the principles of comity and federalism
dictate that Federal Court abstain so
that the state is afforded the
opportunity to interpret its rules in the
face of constitutional challenge.

Now, just seems to me that Dr. Vakas
has every opportunity to preserve and to
raise before that board and if he is not
Satisfied, before the Kansas state
District Court, or the Supreme Court of
Kansas, whatever constitutional question
he may think of interest. I can only see
from this file that he is extremely
sensitive to these issues and he has fully
exercised that same right henceforth in
this case and has been successful before
Judge Palmer, and if other eaekionn are
present, he has the same opportunity and

AA53

the same right to do so in the State

Court. And I read Middlesex to _ say:

Judge Kelly, that is where it should be
litigated.

Mr. Wormhoudt, you prejudged
everything I said or thought. I want you
to know further, however, that as I read

Middlesex, and frankly at the time I came

to the bench, I was prepared to, that I'm
also mindful that in that case that Judge

read into Younger the opportunity to at

least listen. I don't believe that the
Supreme Court squarely addressed that
aspect of the case, but I certainly belief
they acquiesed in it. That trial Judge
afforded the opportunity to that
respondent, an opportunity to establish
bad faith, harassment or other
extraordinary circumstances which would

constitute an exception to Younger. I

don't know where its that you read into my
statement pre-judgment. You haven't been

AA54

before this Court, that I recall, in days

past. I would like to think that if I
have any reputation amongst the lawyers,
it is that I will listen. And I will
listen careful to every case and
hopefully to determine each on their own
merit. The problem I have had in this
case is the attempt to find factually what
it is you're saying. What you have tried
to say I think I have ruled upon. I'm
not going to listen to your
constitutional questions of due process
because I believe that is for the state.
I will be happy to listen to whatever its
you think is in the areas of harassment,
Or other circumstances.

Now, having addressed that thing to
ycu in argument, you have somehow limited
it to -- and I think you should -- this
problem of the release. If that's what
you're saying is bad faith and
harassment, while I will listen to you, I

AA55

will say to you I'm not impressed at this
point in time, but probably its because I
really don't understand what it is you're
saying factually. So --

MR. WORMHOUDT: Might I interrupt?

THE COURT: Yes, sir.

MR. WORMHOUDT: Your Honor, we are
prepared to offer and would tender the
entire transcript of proceedings on the
Original hearing. We would also want the
Opportunity to adduce facts to show that
efforts were made to lift this man's
license without even affording him a
hearing at the outset. They had prejudged
the case before they ever went to hearing
the first time.

THE COURT: Do I understand its a
different board now or partially as Mr.
Miller says.

MR. WORMHOUDT: Probably some
changes in the personnel but not, to my
knowledge, in the majority.

AAS6

THE COURT: You're net hearing me,
Mr. Wormhoudt, as -- I don't think I'm
interested in testing that, as I

understand Middlesex. Test that with the

State, take it to Judge Palmer, ask that
board to recuse itself, exhaust those
remedies within the state, and I think I
should abstain at this’' time. I'm
interested in knowing what its that's
happened since that suggests that he
can't have a fair hearing and you have
said it is because he's been obstinate in
not accepting some release and they are
saying: Well, if that's what you're going
to do we are going to hear you. Is that
what you're saying?

MR. WORMHOUDT: No, Your Honor, I'm
not. I'm trying to suggest that you have
to tells this question of harassment and
intimidation by looking at the entire
course of events beginning with the
efforts -- initial efforts of this board

AA57

to ask the man to surrender his license
before they even gave him a hearing. We
would like to tender evidence in that
respect. We would like to at least make
the proffer, Your Honor.

THE COURT: Well --

MR. WORMHOUDT: I don't think you can
separate the beginning and the end. They
go together.

THE COURT: Well --

MR. WORMHOUDT: I wonder, Your
Honor, if we might have a five minute
recess?

THE COURT: Surely may, but in doing
so, I think you should reflect upon the
fact I don't believe I will hear it on
that basis. I think I have decided that
that is a matter I shovld abstain. I
think the Supreme Court is quite clear,
that is a matter to test in the state and
its obvious to me you have had every
opportunity to exercise it. You have

AA58

prevailed. The fact that it is remanded
to the same board doesn't bother me at
all, and if you have a problem with that,
take it to Palmer. All right.

MR. WORMHOUDT: Your Honor, there
are two places to take it, of course.

THE COURT: Of course. Now, if you
want to recess and come back, be fine.

MR. WORMHOUDT: May we please, Your
Honor ?

THE COURT: Certainly.

(Short recess.)

THE COURT: You had asked for a
little recess, Mr. Wormhoudt, in the
sense that I had last suggested that I
appreciated what the trial Judge said in

Middlesex and would be pleased to open it

to hear it, but in the same breath I tried
to say to you that I wanted to know what
it is we are _ hearing. I had some
confusion factually as to what amounts to
harassment. Now, where are we?

AA5S

MR. WORMHOUDT: Your Honor, I think
it would be helpful, probably simply the
proceeding if we simply made a proffer of
what we would over in support of those
allegations. I think Your Honor has
reached certain factual judgments’ and
conclusions without the benefit of the
evidence which we sought to adduce in
support of those allegations. This is of
course not a motion to dismiss surely.
Its under rule -- what is it -- 12,
motion for summary judgment where Your
Honor is addressing and resolving certain
factual issues. We would like to complete
the record on what we would proffer
generally in support of our position on
those factual issues.

THE COURT: In what areas?

MR. WALL: We have a written proffer,
Your Honor, and in the areas of harassment
and in the areas of conduct of the board
we believe support the allegations in the

AA60

.

complaint.

THE COURT: Hand them up.

MR. WALL: This I wil hand to the --

THE COURT: Have you shared them with
the state?

MR. WALL: Yes, they have copies.

MR. WALL: I want it clear, Your
Honor, this is just a brief summary of the
proffer. We would like the opportunity
conduct discovery and the right’ to
present an oral proffer that will flush
Out any additional areas.

THE COURT: Take a minute to study
this to see if its within the framework of
what I would happen to listen to. This
the extent of the proffer, assuming its
reviewed and accepted by me | and
understood, Mr. Wall?

MR. WALL: I want it clear, Your
Honor, that this written proffer is not
the desire of the plaintifé. We would
prefer to have the opportunity to conduct

AAG]

— ——s ——p a nS as cel I ieiaiaicall = A een as” ial ical SSS a ae

discovery in this area and then to presnt
evidence on this subject.

THE COURT: Within the area
identified in the proffer?

MR. WALL: Yes, except you should add
the area of the original decision to
Charge this doctor with a petition to
limit or revoke his license, the conduct
of the board in telling the doctor the
penalty that they were going to impose,
giving him the alternative of either
accepting that or facing a petition where
his entire license to practice medicine
would be revoked, the conduct of the board
from day one up to here is really what we
want to offer.

THE COURT: All right.

MR. WALL: Materials that are
contained within the proffer, there is
about four briefcases at our office that
would need to be marked. |

THE COURT: I will accept this

AA62

=a amnma@Gai@h@G@B@ag@eaeeaeaegegegaeg8&ase @

instrument captioned a proffer of
evidence, which I said the subject matter
that you have in mind to offer or to
discover, and I would not hear it. And
the reasons for that is that as I track
the subject as is carefully set out in
your brief that were the reasons for that
and from which perhaps some absence of due
process could be inferred. That time has
expired. I would say to you that as I
understand it here, the release, as you
call it, as embodied in the back paragraph
of the journal entry in my view is an
innocuous means of resolving this
dispute. That this controversy as to
rights and remedies in this Court and
threats of suit in this Court probably
did concern that board, and if, as a
consequence, it affected some judgment, I
was willing to hear you. But I have
always felt since getting into this case
that that situation was moot, because

AA63

what I'm also ready to say that it is my
judgment and I will find that the State of
Kansas is immune in this case under the
llth Amendment, that the board is immune
under the llth Amendment, and each member
of the board is entitled to quasi
immunities from money damages as I would

see it under Butts versus Economou and

thus at the time of this dickering and, if
you will, what I perceive to be a sense of
obstinancy, they were talking about a
question that makes no difference to
anyone, that any lawyer ought to say to
his client: You have no case for recovery
of money damages under the Civil Rights
Act in this Court because the 11th
Amendment says you don't against the
state and the board, and the Butts case is
quite clear, at least as I see it, to
these members in the conduct of judicial
proceedings, are also immune from money
damages.

AA64

But I was happy to hear it and would
have, but: on the strength of what I see in
this case and heard from you and read in
the briefs, there is no harassment that
would give rise to a suggestion of the
denial of due process.

With that said, I'm going to deny
Plaintiff's rights of injunctive relief;
more than that, will dismiss this case for
the reasons that the State of Kansas is
immune, the board if immune, and as are
the members of the board immune, period.
Very well?

MR. WORMHOUDT: Very well. Your
Honor, I hope that my argument was not
offensive to Your Honor personally.

THE COURT: Mr. Wormhoudt, it's been
a joy to have you here, and there isn't
anything that you said that by any sense
sense would offend me. I appreciate your
argument. Simply attempting to extract
some provocation from you so I could in

AA65

turn try to track what it is you were
saying. I think when we finally got there
I understood it and I have ruled.

MR. WORMHOUDT: All was intended,
Your Honor, was to suggest that you and I
might have different views and that
certainly in this Court I'm wrong.

MR. WALL: If I might just add couple
of statements at this time in regards to
the proffer: I don't know if I understand
the Court's ruling. I think I understand
it being that you are rejecting the
proffer and the right for us to conduct
discovery and to proffer evidence on the
areas that occurred before Judge Palmer's
decision, is that correct?

THE COURT: Well, as I found that
those subject matters discussed were
related or iaentified in your proffer are
irrelevant.

MR. WALL: All of them?

THE COURT: All of them.

AA66

i

MR. WALL: All right.

THE COURT: For the reasons I
mentioned.

MR. WALL: Fine. I just wanted to
clarify the ruling.

Second of all, Your Honor, Your
Honor made a statement in regards to the
hearing date presently scheduled.

THE COURT: Larry, as you recall,
when this matter was first filed, it was
the kind of thing that I remember you
coming in and wanting a hearing as if to
say that the board was to meet tomorrow or
thereabouts.

MR. WALL: Within about 30 days.

THE COURT: In the course of events,
you and Mr. Buck, I guess, worked out some
understanding that that board would be
continued from 30 days from whenever it
had been scheduled and I don't know when
that was, but at least at that time it is
passed over a month's”~ time beyond

AA67

ee ee ee lll

whenever it was set. As far as I was
concerned, I had plenty of time to come on
the bench, if I was going to hear you,
hear you and decide it.

MR. WALL: What I want clear on the
record is that we don't know when the
hearing is presently scheduled in spite
of the fact that we have written to the
board's attorney and asked him_- to
identify the date of the proposed
hearing.

MR. MILLER: May it please Court, I
think --

MR. WALL: Could I finish?

MR. MILLER: Set for September 25th
presently. If he desires a
continuance --

THE COURT: Some letter identifying
a time frame and I don't know.

MR. MILLER: If he desires a
continuance it can be, I'm sure, obtained
easily.

AA68

MR. WALL: What I would like is a
stay of the enforcement of this Court's
order for sufficient time to allow the
plaintiff to perfect an appeal to the
Tenth Circuit to see if mandamus will lie
to reverse Your Honor's decision.

THE COURT: Denied.

MR. WALL: Thank you.

THE COURT: All right. I will enter
a very brief order’ reflecting what
happened here today from which you can
seek such a stay if you want with Judge

Logan or wherever. All right.

AA69

APPENDIX EXHIBIT B

[Letterhead of "The Prescription Shop"

omitted]

April 19, 1979

Elizabeth Carlson, Executive Secretary

Kansas Board of Healing Arts
503 Kansas Avenue
Topeka, Kansas 66603

Dear Ms. Carlson,

considerable attention.

privileges, has helped to

for schedule and controlled

that would be considered

AB1

As concerned members of our public's
health and well-being, we feel there is a

problem in Southeast Kansas that needs

We have reason to believe that John
L. Vakas M.D., Coffeyville, Kansas,

through the abuse of his script-writing

serious drug problem in our communilty
and the surrounding area. There seems to
be substantial evidence of his writing an
unusually large number of prescriptions

substances

See Se Se Se Se SESE SESS SEE SE SE

professionals to be "excessive" in
quantity, in strength, and also _ in
dosage. We in town have refused countless
numbers of these scripts over the past few
years, yet in spite of our efforts, the
problem still persists. As a result, we
believe that many of his patients have
emerged for the sole purpose of obtaining
controlled substances by Doctor's order.
We ask the Board for its advice and

proper guidance to remedy this situation
and ask what investigative procedures
might be instigated.

Sincerely,

Concerned Pharmacists of
Coffeyville

(Six signatures.)

APPENDIX EXHIBIT C

{Letterhead of Judge Floyd V. Palmer
omitted]
October 20, 1981

Mr. Wallace M. Buck, Jr.
Kansas Board of Healing Arts

* * *

Mr. Larry Wall
Fleeson, Gooing, Coulson & Kitch

Re: Board of Healing Arts vs John L.
Vakas, M.D., Case No. C-233 I

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
following grounds:

1. Dr. Vakas was denied a full and
fair hearing in accordance with minimal
due process of law as guaranteed by the
Sth and 14th Amendments to the U.S.

Constitution and similar provisions of

AC1l

the Constitution of the State of Kansas.
2. The charges were not stated with
reasonable definiteness. KSA 65-2841,

Morgan v. United States, 304 U.S. 1l, 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 Kari., 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 his
attorney to present closing argument.

Adams v. Marshall, 212 #£=Kan. 595;

Winkelman v. Allen, 214 Kan. 22.

AC2

ee f4 8 r Beake kk = a «a

5. As brought out in oral argument,
the Hearing Panel did not submit a copy of
its findings and recommendations 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.

/s/ Floyd V. Palmer
Associate District Judge

AC3

APPENDIX EXHIBIT D

[Letterhead of Board of Healing Arts
omitted]
April 28, 1982

Mr. Larry W. Wall
Wichita, Kansas

Re: Board of Healing Arts v. Vakas

In keeping with our telephone
conversation yesterday at which time you
inquired and I indicated to you _ the
feelings of the Board regarding the above
Captioned case, may I respond as follows.

In the Board's opinion, the present
status of this matter is:

(1) In or about July, 1980, the
Board revoked the license of Dr. Vakas;

(2) You filed your appeal to the
District Court of Montgomery County,
Kansas, in accordance with the law
applicable, and at the same time it was

requested by you and mutually agreed upon

AD1

that Dr. Vakas could maintain his license
and practice uninterrupted pending the
appeal;

(3) Upon briefs and arguments to
Judge Floyd V. Palmer, Associate District
Judge, Montgomery County District Court,
Judge Palmer did by letter of October 20,
1981, make certain findings as therein
contained stating that because of his
findings the order of the Board should be
set aside and vacated, with Judge Palmer
advising that either the Board, or for
that matter the defendant could appeal
his findings, or he would remand this
matter for further administrative hearing
and have the matter reheard;

(4) You wrote a letter to the Board
on or about October 22, 1981, and enclosed
therein your proposed findings and
conclusions;

(5) On or about October 23, 1981,

you likewise forwarded to me your letter

AD2

nae Eee eSetlUCcEelUrErEUlUC UU UC cEUCUC UCU aU CUCU ea lee

setting forth a statement for costs in the
sum of $16.00 from the Clerk of the
District Court;

(6) That on November 16, 1981, I
wrote to you discussing the current
status of the matter and the possibility
of arriving at some amicable conclusion;

(7) On November 24, 1981, I wrote to
Judge Palmer indicating you and I had
talked as well as discussing an
understanding of his opinion;

(8) On December 22, 1981, you wrote
to me setting forth what Dr. Vakas has
been doing and not only discussing would
be involved and required if the matter was
retried as an administrative hearing, and
further you enclosed some data with
reference to the completion of various
courses by Dr. Vakas;

(9) It has been agreed between the
parties, even though some minor
mechanical problems existed as to the

AD?

parties getting together, that Mr.
McGuire, the Board's Investigator, would
talk with Dr. Vakas as well as you and
determine what if ary changes or practice
was not present regarding Dr. Vakas as
compared to. prior to the original
administrative hearing;

(10) That on January 14, 1982, you
wrote to me concerning the conference to
be set up with you, your client, and Mr.
McGuire and the fact that Mr. McGuire
would talk with pharmacists in the
Coffeyville area;

(11) Your letter of February 24,
1982, to Mr. McGuire setting up an
appointment for March 19, 1982, at 2:00
p.m., to be attended by you, your client,
Dr. Vakas, and Mr. McGuire; and Mr.
McGuire's response to you of February 25,
confirming this appointment;

(12) At the Board Meeting Mr.

McGuire advised as to his activities at

AD4

i

the meeting of March 19, and discussed the
report he gave pursuant to that meeting,
dated March 22, 1982. (As we discussed by
telephone yesterday, you were of the
opinion that Mr. McGuire was to furnish
you a copy of his report, and in keeping
with that understanding I am enclosing
herein a copy of Mr. McGuire's report of
March 22, 1982, to me, setting out therein
the data acquired and discussed at the
meeting).

The Board is aware of the _ two
alternatives that are now present in
light of Judge Palmer's letter opinion,
to wit: the Board could either take issve
with the Judge's findings in this
particular case and file an appeal; or it
could for purposes of this particular
case, accept the findings of Judge Palmer
and have the matter remanded and reheard
to determine what should take place
regarding the licensure of Dr. Vakas.

ADS

.

Instead of pursuing either one of these
two legal alternatives, the Board could
consider reaching amicable conclusion and
thereby not require additional hearings,
and the costs and time necessarily
involved therein, which would not be in
the best interests possible of either
party. With this in mind the Board
directed that Mr. McGuire and I discuss
with you and your client the matters that
we have already discussed concerning Dr.
Vakas' continuing education, and what his
practice has been and his attempts to
review current literature, etc.

In light of what has transpired, the
Board is of the opinion that in this
Particular case, the matter should be
concluded without either pursuing an
appeal or the other legal remedy of the
case being remanded to have a complete and
full rehearing, for the reasons above
stated. The Board does not wish to

AD6

specify clearly that its action in this
case applied only to this case and is not
in any way to be construed adopting the
procedures as stated or implied in Judge
Palmer's letter opinion as being the
applicable law in every case, or more
specifically in any prior or future
administrative hearings conducted by the
Board.

In keeping with our recent telephone
conversation, as well as prior
discussions, I feel you and I-° fully
understand this situation as_ existed,
however for purposes of clarity I wish to
forward you this detailed letter.

Enclosed herein please find a
Journal Entry. I have’ signed this
Pleading and if it meets with your
approval, would you likewise please
approve and forward on for the Judge's
approval and filing and ask the Clerk to

please forward to me a certified copy.

AD7

With my personal regards to you, I
remain,

/a/ Wallace M. Buck, Jr.
Attorney for the Board

AD8

ee ee OY

APPENDIX EXHIBIT &£

[Caption of Case No. 80 C 233 omitted.]

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 October 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;

AE1l

BEER SBE SESS KBE KB EE EB EG

(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 and not
requesting that either his decision be
appealed or that the matter be remanded
for an additional administrative 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 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
satisfactorily resolved.

AE2

(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.

[Signatures omitted. ]

AE3

APPENDIX EXHIBIT F
[Letterhead of Larry W. Wall omitted]

April 30, 1982

Mr. Wallace M. Buck, Jr.
Topeka, Kansas

I am quite shocked and disappointed
by your letter of April 28, 1982.

My client has again cooperated with
the Board of Healing Arts as he has done
throughout this matter only to find that
said cooperation has resulted in an
unconscionable waste of time and delay
for no valid reason.

It was my understanding, and my
Client's, that Mr. McGuire wanted to
interview Dr. Vakas so that the Board
could determine if they wanted to pursue
an appeal of Judge Palmer's ruling or a

retrial of Dr. Vakas.

AF 1

Dr. Vakas has not had any choice
available to him other than to await the
Board's decision. You have now indicated
that the Board has decided to enter into
an agreement with Dr. Vakas in regard to
their decision which is totally
incorrect.

Your statement that you learned on
April 27 that I wanted to have a copy of
Mr. McGuire's report is not supported by
the correspondence between our offices
and was not our agreement. I wanted a
copy of Mr. McGuire's report before he
made his report to the Board and I wanted
to be able to be present so I could give
Dr. Vakas' side of the case. I was not
given the report and I was not allowed to
be present at the hearing.

I enclose a copy of my letter to
Judge Palmer.

/s/ Larry W. Wall

AF2

APPENDIX EXHIBIT G

[Letterhead of Board of Healing Arts
omitted. ]
May 5, 1982

Mr. Larry W. Wall
Wichita, Kansas

I have received your letter of April
30, 1982, and I cannot understand your
language in your opening paragraph that
you are shocked and disappointed by my
letter to you of April 28, 1982.

My understanding throughout’ this
entire discussion period was to effect
some mutual understanding that would be
in the best interests of all parties.
This was my sole purpose and I am sure
that it was yours. With this in mind,
what is there about my letter of April
28th to you, in which I attempted to

simply summarize our discussions and the

AG1

course of events, that bother you or you
feel in some way varies from the purpose
of hopefully satisfying the best
interests of all parties?

Further in your letter you comment
that, " .. . the Board has decided to
enter into an agreement with Dr. Vakas in
regard to their decision which is totally
incorrect." I do not understand what you
make reference to and would only comment
in this fashion. The summary of events as
they took place, as attempted to be
spelled out in my letter of April 28,
1982, to you would seem self-explanatory.

In any event, you have made it clear
in your letter of April 30, that your
client in some fashion disagrees with my
letter to you of April 28 as well as the
proposed Journal Entry that was enclosed
with that letter, and it is so noted.

I have prepared a Journal Entry and

forwarded same to Judge Palmer after

AG2

having opened your letter on May 3, 1982,
and being advised that you have already
forwarded your proposed Journal Entry. I
set forth my comments in my letter to
Judge Palmer, a copy of which also
enclosed herein.

With my personal regards to you.

/s/ Wallace M. Buck, Jr.

AG3

APPENDIX EXHIBIT H

{Letterhead of Fleeson, Gooing, Coulson &
Kitch omitted.)
May 8, 1982

Mr. Wallace M. Buck, Jr.
Topeka, Kansas

Pursuant to our telephone
conversation of May 6, 1982, I have
conveyed to Mr. Wall the Board's offer to
refrain from appealing Judge Palmer's
decision or retrying Dr. Vakas if Dr.
Vakas will agree to a release of any
Claims that he might have against the
Board.

As I expected, Mr. Wall was not under
the impression that the Board's decision
would be tied to a release of claims by
the Doctor. We were under the impression

that the Board's decision would focus

AH1

upon the merits of the case, rather than
upon the Board's potential legal
liability to Dr. Vakas for violation of
his rights.

We will convey this new position to
our client and, in that regard, it would
be very helpful if we could have from you
a draft of the release you would like Dr.
Vakas to sign.

It is our opinion that the Journal
Entry should be filed regardless of the
Outcome of any negotiations which might
take place between Dr. Vakas and the Board
in the future. We assume you will include
us in any further telephone conversations
with Judge Palmer. I was more than a
little disturbed when you indicated that
you had discussed the Journal Entry with
him over the telephone. If you wish to
present oral arguments concerning the
language of the Journal Entry, please be

kind enough to alert us so that we may be

AH2

present to represent our client.
Hopefully, we can promptly conclude
this matter. Your prompt attention to
sending us the release will be
appreciated.
If you have any questions, please do
not hesitate to contact us.

/s/ Edward J. Healy

AH3

ea ee ee. te te

APPENDIX EXHIBIT I

[Letterhead of Board of Healing Arts
omitted. ]
May 10, 1982

Mr. Edward J. Healy
Wichita, Kansas

I have just received and read your
letter of May 8, 1982.

I am somewhat concerned as to what it
is you and Larry Wall, on behalf of your
Client, are thinking about or what your
intentions are. I just recently received
a letter from Larry indicating he was
shocked, etc., concerning this matter,
and now in your letter I read that you
state you are " .. . more than a little
disturbed..." In answer to your
disturbance, maybe I should indicate to
you the reason I called Judge Palmer in

the event Larry has not told you what he

AIl

did. Without asking for my approval or
calling lme, Larry did by letter of April
30, 1982, and received by me on May 3,
1982, wrote Judge Palmer, and asked him to
promptly sign the Order forwarded to him.
Not knowing what was transpiring, I
Simply called Judge Palmer and told him
that I disagreed with the Journal Entry
submitted by Mr. Wall and would, with his
permission, file mine for his
consideration. If you are disturbed
about this series of events, I can offer
you no assistance.

In reading your letter, for some
reason it does not read as we discussed by
our telephone conversation Or in
accordance with my letter of April 28,
with enclosed Journal Entry. In order to
avoid any misunderstanding, I will once
again repeat the Board's position, as I
have expressed to you, in the following

manner.

AI2

— feceaael Bilal as RE ae Lal eee — eee — — —— a a

ee @ FT

Quite frankly until our telephone
conversation, I was not aware that you
were contemplating filing suit for
whatever reasons. During recent
conversations it was discussed that the
matter would be closed and even in
correspondence from your partner it was
mentioned that the matter would. be
closed. Your comments to me in our recent
telpehone conversation reference to your
contemplating filin suit, etc., was
interesting commentary. Especially was
it interesting in that the whole purpose,
it seemed, to the efforts of both parties
since Judge Palmer's Memorandum Opinion
was to resolve all differences that might
exist between the parties so that no need
would be presnt to either appeal the
decision or to retry it. It seemed
without question that both parties,
plaintiff and defendant, would benefit

from this type of an understanding.

AI3

Simply following good legal practice in
making sure that both parties agreed that
all issues between them are terminated
when an agreement is reached, I prepared
and forwarded to you together with my
letter of April 28, 1982, a Jo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2516%3A3. Public record. Not legal advice.