Reply Brief — Vakas v. Rodriquez

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‘ OCT 31 1984

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No. 84-116 _

| ALEXANOER _. STEVAS,

CLERK

In the Supreme Court of the United States “7

October Term, 1984

JOHN L. VAKAS, M.D.,

Petitioner.

VS.

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

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

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

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

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

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

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

M.D., RICHARD J. CUMMINGS, MLD., 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.

REPLY OF PETITIONER

TO THE BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Gerrit H. WorMHOUDT

(Counsel of Record)

Larry W. Wat

Joun E. Cow Les

Fieeson, Goornc, Coutson & KITcH

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201-0997

316-267-7361

Attorneys for Petitioner

E. L. Menpewnatt, Ixc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3020

TABLE OF CONTENTS

REPLY OF PETITIONER TO THE BRIEF IN OPPO-

SITION TO PETITION FOR WRIT OF CERTIO-

RARI

II.

II.

IV.

EEE EEE EEE EEE EEE EEE EEE EREEEEEEBEEEEEEEEEREEEEEEEEEEEEEEEEBELEEEEEEEERBR

Respondents Improperly Allege Facts and De-

fenses That Are Immaterial to This Court’s

Review of the Summary Dismissal of Peti-

tioner’s Claims in the Trial Court Below ........

Respondents’ Assertion That the Federal Dis-

trict Court Was Without Subject Matter Juris-

diction Over Petitioner’s Claims Is Without

Respondents Erroneously Identify the Elev-

enth Amendment Jurisdictional Bar As an

Issue Concerning Petitioner’s Direct Right of

Action Under the Fourteenth Amendment ....

Respondents’ Analysis of the Standard of Im-

munity That Should Be Applied to the State

Board Is Simply a Restatement of the Faulty

Reasoning Developed by the Tenth Circuit ....

Respondents’ Argument on the Issue of Ab-

stention Incorrectly Applies the Holding in

BORG BO THI CUD ancsascicoccesensccseteresesoveseovees

ip tal lel EE Re lla ee Dade ed ied Soe a Al

TABLE OF AUTHORITIES

Cases

Bishop v. State Bar of Texas, 736 F.2d 292 (5th Cir.

ROI saisccsisiesicsescignccrhchionspicinscbihiiheciehiaesiaiiaiaeiaiibameaaslaianandaanalibapeds 2,8

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ................ 4

Butz v. Economou, 438 U.S. 478 (1978) -...222222222--eeeeeeeee- 4

Conely v. Gibson, 355 U.S. 41 (1957) ..202--2-2--cnceeeeenee 2

Jones v. United States, 729 F.2d 326 (5th Cir. 1984) .. 2

Konigsberg v. State Bar of California, 353 U.S. 252

CIE scccricnscinsciimtasineniaabaciielaaga atria halide iat 3

Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980)... 6

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982) —........002........... 6,7

Schware v. Board of Bar Examiners of New Mexico,

BS Se Bey REO nen eee eee 3

Shaw v. Garrison, 467 F.2d 113 (5th Cir.), cert. denied,

GBD TEE, BEE CID enteisnccsciceeeentstiiiliiienisncitanesatiinniints 7-8

Stump v. Sparkman, 435 U.S. 349 (1978) -.............-... 4,6

Theard v. United States, 354 U.S. 278 (1957) —.............. 3

United States v. Lee, 106 U.S. 196 (1882) 00000. 4

Vakas v. Rodriquez, 728 F.2d 1293 (10th Cir. 1984) ... 5,7

Younger v. Harris, 401 U.S. 37 (1971) -2222.2020.2ecececeeeee 6

Statutes

OD TERR. © TID wniscececcinttccteteeeetecenteiae inn 4

No. 84-116

In the Supreme Court of the United States

October Term, 1984

JOHN L. VAKAS, M.D.,

Petitioner,

vs.

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

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

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

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

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

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

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

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

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

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.

REPLY OF PETITIONER

TO THE BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

I. RESPONDENTS IMPROPERLY ALLEGE

FACTS AND DEFENSES THAT ARE IMMATE-

RIAL TO THIS COURT’S REVIEW OF THE

SUMMARY DISMISSAL OF PETITIONER’S

CLAIMS IN THE TRIAL COURT BELOW.

Respondents’ brief contains a dozen pages of self-

serving and largely unsubstantiated allegations in a so-

called “Statement of Case.” Respondents shamelessly seek

2

to garner the sympathies of the Court by describing peti-

tioner as an object of an investigation by the State Board

for abuse of prescription practices. Respondents fail to

state, however, the final result of that investigation. All

charges against Petitioner were dismissed as being fac-

tually baseless, following the filing of petitioner’s action in

federal court.

Indeed, the lengthy recitation by respondents of their

fruitless investigation is irrelevant to the issues before

this Court. Respondents must know that this Court will

not provide de novo review nor allow respondents to en-

gage in a manipulation of the extremely limited record

developed in the trial court.

To the contrary, it is axiomatic that review of any

summary dismissal by a trial court necessitates that the

claims of plaintiff be taken as true and in the light most

favorable to plaintiff. This same rule was recently re-

affirmed by the Fifth Circuit in circumstances similar to

this case.

Because we consider a Rule 12 dismissal, our record

is slim and our standard generous: we may affirm

only if it appears beyond doubt that [plaintiff] can

prove no set of facts in support of his claim that

would entitle him to relief.

Bishop v. State Bar of Texas, 736 F.2d 292, 295 (5th Cir.

1984) (citing Conely v. Gibson, 355 U.S. 41, 45-6 (1957)

and Jones v. United States, 729 F.2d 326, 330 (5th Cir.

1984) ).

Indeed, respondents’ version of the facts is particularly

inconsequential in this case, as the trial court did not grant

the motion to dismiss because of any factual insufficiency

as to petitioner’s claim, rather the dismissal was based upon

the trial court’s finding that the Board and its members

3

were entitled to full judicial immunity and that federal

courts should abstain from such controversies as a matter

of law.

II. RESPONDENTS’ ASSERTION THAT THE FED-

ERAL DISTRICT COURT WAS WITHOUT SUB-

JECT MATTER JURISDICTION OVER PETI-

TIONER’S CLAIMS IS WITHOUT MERIT.

Respondents’ first argument in response to the petition

is that the Federal District Court lacked subject matter

jurisdiction over this controversy. Respondents’ Brief at

p. 14. This same hapless argument was briefed by respon-

dents in the Tenth Circuit below, but the court of appeals

did not even mention the point in its decision.

Quite simply, this argument has nothing whatsoever

to do with the issues before this Court. Respondents merely

attempt to muddy the waters by attempting somehow to

analogize the so-called “Theard Doctrine” to this case.

The Theard Doctrine was developed from a trio of

decisions from this Court in 1957. Theard v. United States,

354 U.S. 278 (1957); Schware v. Board of Bar Examiners

of New Mexico, 353 U.S. 232 (1957); Konigsberg v. State

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

simply states that Federal District Courts do not have

jurisdiction to review the decisions of a state’s supreme

court concerning the denial or revocation of bar licenses.

This rule is designed to promote comity between the state

and federal system so that a Federal District Court will

not sit in review of a discretionary decision of the state’s

highest court. Rather, appeal must be directly to the

United States Supreme Court.

Respondents offer a puzzling extrapolation of the

Theard Doctrine to argue that the State Board of Healing

Arts deserves the same deference as the Kansas Supreme

4

Court. This ill-conceived notion was not even addressed

by the Tenth Circuit, and is plainly unsupportable in law

and in logic. To hold that no federal subject matter

jurisdiction exists over a state board and its members

would be tantamount to granting the board a sort of

“super-immunity,” nullifying the clear dictates of this

court in such cases as Stump v. Sparkman, 435 U.S. 349

(1978), Butz v. Economou, 438 U.S. 478 (1978), and United

States v. Lee, 106 U.S. 196 (1882) (“No officer of the

law may set that law at defiance with impunity.”)

Certiorari should be granted by this Court in order

to defuse the state’s hopes of constructing for itself this

sort of “super-immunity.”

III. RESPONDENTS ERRONEOUSLY IDENTIFY

THE ELEVENTH AMENDMENT JURISDIC-

TIONAL BAR AS AN ISSUE IN THIS CASE,

WHILE IGNORING THE TRUE ISSUE CON-

CERNING PETITIONER’S DIRECT RIGHT OF

ACTION UNDER THE FOURTEENTH AMEND-

MENT.

Respondents write in detail about the eleventh amend-

ment prohibition against suits naming a state as a de-

fendant. This is not an issue, however, as Petitioner has

conceded from the beginning that his damage claim

under 42 U.S.C. § 1983 is so barred. The State of Kansas

is named as a defendant only as to Petitioner’s claim

under the fourteenth amendment as authorizing a direct

right of action under the egregious circumstances pre-

sented in this case. Because this action arises directly

under the fourteenth amendment, the immunity afforded

states by the eleventh amendment does not apply. Bivens

v. Six Unknown Named Agents of Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971).

5

Respondents ignore the true issue before this Court

by offering the bare conclusion that the fourteenth amend-

ment claim is a “non-issue.” Respondents’ unwillingness

to face the issue should not deter this Court from ad-

dressing this important question which was slighted by

the Tenth Circuit’s decision below. Vakas v. Rodriquez,

728 F.2d 1293, 1296 (10th Cir. 1984).

IV. RESPONDENTS’ ANALYSIS OF THE STAN-

DARD OF IMMUNITY THAT SHOULD BE AP-

PLIED TO THE STATE. BOARD IS SIMPLY

A RESTATEMENT OF THE FAULTY REASON-

ING DEVELOPED BY THE TENTH CIRCUIT.

Respondents ask this Court to refuse to correct the

aberrant standard for judicial immunity developed by the

Court below: if a “facial review” of the statutes under

which a state administrative agency operates reveals that

the agency has a single function that resembles a quasi-

judicial activity, then the agency automatically gains full

judicial immunity for whatever actions it takes, whether or

not such activity bears any relationship to the applicable

statutes. See Vakas, 728 F.2d at 1296-7.

The concept of reviewing the enacting statutes of an

agency instead of the agency’s activity itself to determine

the appropriate standard for immunity has absolutely no

precedent in this Court or any other circuit. The writ

should be granted to rectify the Tenth Circuit’s misconcep-

tion of the appropriate method to determine the proper

measure of immunity for state administrative agencies.

Even if respondents could properly claim general quasi-

judicial immunity for its normal operations based upon

a facial review of the board’s underlying state statutes,

such immunity would be dissolved in this instance because

the board’s actions against petitioner were “in clear absence

of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 357

(1978). Respondents’ actions against petitioner began with

vexatious efforts to unjustifiably subject petitioner to the

state power wielded by the board, and ended with personal

self-protecting attempts by individual members of the

board to use their power to extort a release from petitioner

in order to shield them from the consequences of their

abuses. Respondents blithely assume that Stump was

intended to countenance such affirmative violations of a

physician’s civil rights. This Court should set them

straight.

A purely personal abuse of state power by board mem-

bers to coerce petitioner’s signature on a release of claims

certainly does not qualify as being within the jurisdiction

of the board. The board was not concerned with its re-

sponsibility to the healing arts profession in Kansas.

Rather, the Board members were engaged in a desperate

attempt to deflect the consequences of their unlawful pro-

ceedings against the petitioner. They abused their public

office toward that end by threatening reinstitution of

the same baseless charges unless petitioner would sign the

release. A judicial entity that wrongfully engages in a

prosecutorial action designed to make possible a violation

of an individual’s civil rights, with the use of state power,

loses all immunity for such action. Lopez v. Vanderwater,

620 F.2d 1229, 1236 (7th Cir. 1980).

V. RESPONDENTS’ ARGUMENT ON THE ISSUE

OF ABSTENTION INCORRECTLY APPLIES

THE HOLDING IN MIDDLESEX TO THIS CASE.

In Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982), this Court held

that the abstention doctrine of Younger v. Harris, 401 U.S.

37 (1971) applied to attorney disciplinary proceedings be-

cause such proceedings contained sufficiently important

state interests. Federal courts, therefore, should defer to

state courts where attorneys have ample opportunity to

raise their constitutional claims.

The trial court below relied heavily on Middlesex in

dismissing petitioner’s claims. The Tenth Circuit, how-

ever, gave only a passing comment concerning the Middle-

sex decision, noting:

The principles of comity and federalism dictate that

federal courts abstain from premature entry into state

judicial construction of administrative disciplinary

procedures.

Vakas 728 F.2d at 1297 (citing Middlesex) (Emphasis

added).

The court’s reference to abstention from “premature

entry” into state proceedings is an apparent recognition of

the qualification contained in Middlesex, that bad faith or

repeated harassment by the state will justify federal in-

tervention. 457 U.S. at 436.

Petitioner in this case resorted to the federal courts

only after having undertaken the state appeal process from

the state board’s proceedings and thereafter being exposed

to renewed threats of further prosecution by the board.

Nothing in the Middlesex holding requires a litigant to for-

ever weather harassment from the state system while at-

tempting to press constitutional claims.

Although Texas disciplinary proceedings are capable

of deciding constitutional challenges to specific proce-

dures, recourse in those proceedings is not a sufficient

avenue to remedy the constitutional injury 2ouce vy pad

faith proceedings themselves. The right under Shaw

fv. Garrison, 467 F.2d 113 (5th Cir.), cert. denied. 409

U.S. 1024 (1972) ] is to be free of bad faith charges and

proceedings, not to endure them until their specious-

ness is eventually recognized.

Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.

1984) (Emphasis added).

The Tenth Circuit erred by categorizing petitioner's

claims as “premature.” Federa: intervention was com-

pelled by the board’s harassing threats to renew proceed-

ings unless petitioner would submit to signing away his

claims through a release.

CONCLUSION

For all the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Tenth Cir-

cuit Court of Appeals.

Respectfully submitted,

Gerrit H. WorMHOoUDT

(Counsel of Record)

Larry W. WALL

Joun E. Cow es

Fieeson, Goornc, Coutson & Kitcn

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201-0997

316-267-7361

Attorneys for Petitioner