*1 attempt to The statutes do not of counties. counties. class of
create an additional VI, 8 of the Missouri Constitu-
article apply.
tion does we affirm foregoing
For the reasons trial
judgment of the court. LIMBAUGH,
BENTON, C.J., PRICE, JJ., HOLSTEIN,
COVINGTON and STITH, Special Judge,
LAURA DENVIR
concur.
WHITE, J., participating. LINTON, D.V.M., Respondent,
Janet G. MEDICAL
MISSOURI VETERINARY
BOARD, Appellant.
No. 80964. Missouri,
Supreme Court of
En Banc.
April May
Rehearing Denied *2 1994, 270-2.031(1),
RSMo and 4 denied CSR application Janet Linton’s for a license to practice veterinary medicine in Missouri be- it took cause Linton four times required examination. Linton contested denial, claiming was the Board’s action arbi- capricious trary and and that the regulation upon which Board relied vio- protec- right late her constitutional The County tion. Circuit Court of Cole agreed with Linton and reversed the decision challenges Boаrd. Because Linton 340.240.6, constitutionality of sec. this Court jurisdiction has exclusive appeal. Mo. V, judgment Const art. 3. The sec. reversed, trial court and the decision is affirmed. Board I. graduated University
Linton from the Veterinary Missouri School Medicine May of 1996. In order to be licensed to Missouri, practice veterinary medicine however, Linton needed to achieve certain minimum score on the National Exam- Board (NBE), Competency ination Test Clinical (CCT), and the State Board Examination (SBE). 8JtO.W; 270-2.031(1) Sec. CSRU (2). In prior December graduation, Linton took and NBE. failed the passed January Linton 1995. In CCT April passed again Linton the SBE but failed the NBE. In December Linton NBE took the for a thud time in Missouri April and failed for the third time. finally Linton took the Illinois and NBE passing received score. Illinois,
After the NBE Linton applied practice to the for a Board license to applica- The Missouri. Board denied her NBE tion because Linton had taken petitioned total of four Linton times. Nixon, Gen., (Jay) Atty. Mary Jeremiah W. Hearing Administrative Commission re- Gen., Bryan, Atty. Moulton Asst. Jefferson verse the Board’s and to decision order City, Appellant. for issue her a license. The Commis- McIntosh, Audrey Hanson Hawkins Law decision, leaving sion affirmed Offices, LLC, City, Respon- Jefferson for the constitutional for the court to de- issues dent. cide. State Tax Comm’n Administrative Commission, HOLSTEIN, Judge. JOHN C. petitioned the Cir- County judicial The Missouri Medical Board cuit for review Court Cole (the Board), 340.240.6, decision, pursuant to sec. alleging of the Board’s several regulation 4 CSR times.” The Board reversing Board’s decision. three grounds for 270-2.041(2) interprets limitation to actiоn circuit court held that may “no take arbitrary person statute mean capricious, that the (3) either or out to more violated Linton’s qualify licensure Missouri.” Board’s Missouri to equal protection, and reversed the *3 against taking prohibition the examina This decision. effect three times went into tion more than 270-2Ml(2). 28, August CSR h II. failed All that Linton took and three times point, only appeal, Linton raises On 1992. The August after the NBE were “unsup- arguing action was that the Board’s claims were applicants, who she other two ported, arbitrary, capricious and unreason- situated, any not take examina similarly did Board licensed two other able” because the the effective more than three times after tion similarly applicants, there- allegedly situated read the Linton would date of the statute. protection. by violating right her preventing the statute and point her that Linton also asserts anyone August of licensing after equal protec- regulation violate statute and 1992 had ever taken the who tion because the three-examination limitаtion times. even where But more rationally any legitimate is not related per is retrospective application of state interest. mitted, usually op are construed statutes point sug Appellant’s relied on also United, prospectively only. Utilicorp erate gests the Board has the burden to estab that Revenue, Inc. v. Director 785 S.W.2d constitutionality lish the of the statute 1990). (Mo. regu 278 The statute and banc producing evidence that three-examina Board, lation, properly construed governmental in requirement tion serves a taking an only prohibit applicant from premise terest. That is incorrect. Statutes Au three times after examination more than presumed are to be constitutional. One at has not shown that gust of 1992. Linton tacking constitutionality of a statute al applicants two was either the other extremely heavy “bears an burden.” Consol than to take the more lowed Co., v. idated School Dist. Jackson August of 1992. three times after 1996). (Mo. S.W.2d 102 banc ‘“When the not arbi denial of her license was attacked, constitutionality of con a statute is trary capricious nor did the decision stitutionality presumed, burden any equal protection on the basis violate upon prove the attacker to the statute uncon of her. differential treatment stitutional.’ The Court will not invalidate undoubtedly clearly statute ‘unless B. ‘plainly and contravenes the constitution’ and Linton next claims that the statute palpably fundamental law affronts embodied ” right her violate constitutional (citations omitted). in the constitution.’ Id. equal protection because the three-exami limitation is not related nation A. previously As legitimate state interest. Linton asserts that the Board’s action noted, showing burden of Linton has the capricious arbitrary and and that legislatively classification does created equal protection Board violated Casualty Recipro not have a rational basis. similarly applicants two situated Mut. Exchange Employers v. Missouri cal licensed. The claims fail because were (Mo. Co., 249, 257 banc Ins. put by Linton were other forward standard, a rational basis Under similarly her. situated with judi limitation will survive three-examination creating scrutiny purpose provides that if an cial if state’s Section 340.240.6 “if legitimate and examination, the classification is applicant fails an may reasonably con facts except that statement of may “[n]o the examination retake accom justify means chosen to person may take the examination more ceived plish purpose.” pleted Missourians Tax experi- examinations. Based on this Holden, Project ence, Justice Education attorney professor Linton’s asked the S.W.2d 1998)(quoting 103-04 whether, opinion, in his a veterinarian was Maryland, McGowan v. 366 U.S. 81 competent practice if that veterinarian was (1961)). S.Ct. L.Ed.2d 393 not able to the NBE a certain num- answered, professor ber “I argues legitimate there is no guess my opinion sure,” I’m but state interest in limiting the number professor did believe that there should be required examination can be taken. The However, escape “an clause.” when asked objective Linton can up come with tois whether he let students retake examinations limit the veterinarians Missouri. class, that, professor in his However, animals, admitted healthy domestic a safe “Usually, Though we don’t.” supply neither agricultural food and a sound econo- *4 question nor my in answer were couched in terms heavily dependent state are Thus, certainty reasonable scientific quality veterinary or research the legis- services. data, expert opined the a a rational basis legitimate lature has that interest in establish- “pro- of the three-examination ing a limit could be high competence level of for veterinari- tectionism” of the number in ans in veterinarians Requiring applicants Missouri. practice. But he pass any concluded the “three test is a itself limitation that treats requirement very impact time” had little applicants differently and limits the number ability people” the “qualified retain in in Requiring veterinarians Missouri. an gave testimony indicating Missouri. He no applicant pass an in at least availability competent the cost or attempts simply threе a raises the barrier to veterinary level; thus, adversely had higher services been af- somewhat the interest of requirement. fected the This evidence legislature enacting in sec. 340.240.6 establishing falls far short of that those who establishing same interest as in a test must take the examination four or more place. first passing greater before are of or legitimate Once a interest can be articulat- competence pass than those who test ed, all that remains is means Moreover, attempts. threе or fewer this evi- chosen, limit, the three-examination is ration- establishing dence short falls that the sole ally achieving related to purpose. Mis- purpose legislative or effect of the enactment Justice, sourians Tax at S.W.2d artificially compe- was to limit the number of reasonably As evidence that there is no con- tent veterinarians licensed Missouri. limitation, ceivable basis for Linton points only out that Alabama has a similar above, As stated under a rational basis limitation, Alabama, absolute Flori- test, the Court does not have to determine da and Tennessee have a three-examination legislature whether the “should have” done all, limitation at and the Model something or different whether there is a Practice Act does not such contain limi- accomplish better means to goal, the same tation. The fact mere that most or even all certainly not whether the chosen means adopted states stringent policies have less as is the best method. The fact that Missouri may practice veterinаry to who medicine is has decided to hold its a veterinarians to policy not evidence that the chosen our higher standard than most states does not Assembly is not General related show that there is no reasonable connection promoting quality veterinary services. competence between the exami points testimony
Linton also of her ex- nation at least three Even Lin witness, pert an professor expert say associate of veteri- ton’s own witness could nary surgery competence medicine and from the no Univer- there was connection between sity twenty In Missouri. addition to over and the number of times it takes years experience in giving grading pass “If standardized examination. university, professor at question legislative judgment examinations of the remains debatable, questions testified that he had written for the at least the issue settles on the validity.” NBE and the and had Mahoney CCT reviewed com- side Doerhoff interprets Services, regulation The Board’s Surgical prohibiting the Board has to meet her sec. 340.240.6 failed transferring showing exercising any discretion it was irrational for burden of achieved on out of state that was legislature to that a veterinarian who score from decide interpretation is attempt. This con competency examination in three can a fourth granting attempts competent more subsection or fewer with the earlier sistent pass. transferring an one that takes four or more sole discretion the Board reserves The Board still
out of state score. transferring an out of state full discretion III. one, two and three. Consis from tests score point on nor Neither Linton’s relied 6, however, the Board tent with subsection challenges argument portion of her brief accept not have discretion concluded did being arbitrary because it four or be score from test an out of state expansive Though is more than the statute. yond. policy expressed light In of the to the petition Linton made this claim in her interpretation giving the Board’s statute and court, chose to omit it from her circuit certainly weight,” interpretation “great event, appeal. claims on reasonable. capricious arbitrary, or un action cannot be Therefore, Board’s action was arbi- if that following a reasonable *5 denying trary, capricious in or unreasonable regulation is A is valid regulation valid. the NBE on Linton a after license plainly inconsis “unless unreasonable and attempt denial was fourth because this regu tent” with the statute under which the regulation a that rea- valid consistent with promulgated. lation was Foremost-McKes The rеal interpreted see. 340.240.6. sonably Davis, son, Inc. v. 488 S.W.2d question focused on question, and the regulation A is not unreasonable brief, the statute is valid Linton’s is whether merely subjective feeling of a analysis. equal protection under unduly regulation arbitrary is or burdens ome.1 Id. at 197-98. CONCLUSION Here, prohibition regulatory noted, previously the three-examination As against accepting a fourth test score taken protection. equal violate limitation does not is either in or outside of Missouri consistent reversed, judgment of the circuit court Thе 340.240.4, In sec.
with the sec. 340.240.
is affirmed.
of the Board
and the decision
granted the Board
discretion
legislature
“sole
accept
or not
transfer a
whether
C.J.,
BENTON,
LIMBAUGH and
licensing authori
score from another state’s
COVINGTON, JJ., concur.
later,
ty.”
legislature
A few subsections
stated,
person may
“No
take the
WOLFF, J.,
separate opinion
in
dissents
The
more than three times.” Sec. 340.240.6.
filed.
promulgated
its
Board then
WHITE, JJ.,
in
concur
person may take the examination more
PRICE
“no
WOLFF,
(3)
opinion
in
J.
either
or out of Mis
then three
qualify
souri to
for licensure in Missоuri.” 4
WOLFF, Judge, dissenting.
A.
MICHAEL
270-2.04.1(2).
interpretation and
“The
CSR
Linton, D.V.M., challenges on
agency
a
an
Janet G.
construction
provision of
grounds the
equal protection
is entitled to
charged
its administration
with
Foremost-McKesson,
Inc.,
limits an
340.240.61 that
great weight.”
pass
no more
at 197.
pass
an examination
Contrary
suggestion,
of times it takes
Linton's
to the dissent’s
expert
merely
he did not
witness
testified that
difference.
makes
“personally
feel that it makes
difference
person passes
or
a
an exam the first
whether
unless other
references arе RSMo 1994
1. All
above,
expert
As stated
the witness'
fifth time."
wise indicated.
opinion was
he was "not sure” whether
licensing examination. Dr.
took
questions (presumably
question
each
National Board Examination in Illinois and
point,
pass-
counts for more
one
than
substantially
received a score
above
ing grade
Mis-
higher
Missouri
souri’s
rate for that examination. Be-
questions). Questions
number of
on each
Dr.
previously
cause
Linton had
taken the
administration of the
national
unsuccessfully
examination three times
examinations,
previous
differ from those of
Missouri, the Missouri Veterinary Medical
though
subjects
range
remains
tested
Board denied her
license.
same.
Administrative Hear-
case,
ing
Commission found
the Na-
The statute and the Board’s
for-
tional Board Examination
“is
excellent
ever bar Dr. Linton
from licensure Mis-
knowledge,
measure
its
candidate’s
souri. Because the
record
this case fails
efficacy is not less for a
has
candidate who
to show that this
bar
absolute
(Emphasis
taken it more than three times.”
protecting
public
unquali-
related to
addеd.)
words,
In other
not “learn”
does
veterinarians, I
fied
hold
would
ab-
by multiple
the examination
Dr.
takings.
solute bar
violates
Linton’s
expert
Linton’s
witness was Dr. Robert
protection
respectful-
of the law. I therefore
Miller,
University
Bruce
of the
of Missouri
ly dissent.
Medicine,
Veterinary
helped
School of
who
The
Medical Examination
develop the National Board Examination.
The Administrative
Commission’s
graduated
Dr. Linton was
from the Uni-
supported by
conclusion is
Dr. Miller’s testi-
versity
veterinary
of Missouri’s
medical
mony that the National Board Examination
To
school
be licensed as a veteri-
qualified
shows that
candidate is
requires,
narian
addition
the doctorate
attempt.
first
fifth
succeeds
or
medicine,
degree
veterinary
successful
(1)
completion of three examinations:
*6
Veterinary
Prior
the Missouri
developed
National Board
un-
Examination
regulation
Medicine Board
limited a can-
der the National Board Examination Com-
attempts
didate to three
the
at
National
Medicine,
Veterinary
mittee for
which used
regulation provid-
Board Examination. The
(2)
states;
in most
The
Competency
Clinical
attempts
ed
appli-
that after three failed
(3)
Test,
Jurisprudence
and
The State
Exam-
cant take additional
and then
education
seek
(or
ination
“Missouri
Board Examina-
State
permission from the Board to take the exam-
tion.”)
Perryman
again.
ination
In
Mis-
passed
Dr. Linton has
all three examina
Registration
Healing
souri Board
of
tions, but
the issue here is
Arts,
29HA,
No.
AHC
92-0000
Adminis-
deny
Board can
her a license under the
Hearing
trative
ruled that
Commission
a sim-
regulation, purportedly
basеd on sec
regulation
ilar
was unenforceable without
340.240.6,
passage
tion
of
her
statutory authority. Between this decision
National
preceded
Board Examination was
August
when section 340.240 was
three unsuccessful
On her
amended,
the Board
Medicine
taking,
fourth
which was in Illinois —a state
addition,
regulation.
did not
In
enforce the
that has
limit on
no
the number
at
present
and former executive
tempts
Linton
well above
scored
—Dr.
directors testified that
there have been no
point.2
passing
the Missouri
safeguards
independent
оr
verification of the
they
Missouri uses
results
the National
times
stated
passing
application.
Board Examination and sets
took the
on
examination
their
425;
Assembly
score at
section 340.240.4
the The
authorizes
1992 General
enacted
statute,
licensing
establish the
score. The
amendment to the
in sec-
340.240.6,
multiple
person may
consists
tion
examination
of 400
choice
which reads: “No
15,-
questions
from a bank of
take
more than three times.”
selected
some
the examination
December,
previous
Dr. Linton’s
scores were 364 De-
cember, 1994,
April,
403 in
and 383 in
by deciding a
on statu
case
can be obviated
promulgated
The Board then
case with
tory
should
grounds,
we
decide
arguably
more restrictive
question.
28, 1992,
constitutional
per-
reaching
out
August
no
“Effective
statute:
See,
Home v. Missouri
Louis Christian
more than
St.
may take
examination
son
Rights,
(3)
634 S.W.2d
on Human
out Missouri Commission
times either
or
three
Kil
(Mo.App.1982),
Simpson v.
4 CSR
qualify for licensure Missouri.”
(Mo.1988).3
added).
cher,
How
(Emphasis
270-2.041
ever,
raise
Dr. Linton does not
since
the score of 483
When
Linton achieved
ap
parties’
аccept
I
explicitly, will
issue
Examination, adminis-
on the National Board
consis
parent
notion
Illinois,
applied for a Missouri
tered in
she
equal
statute
deal with
tent with the
rejected by the Board
license. She was
protection claims.
previously
had taken
the basis that
li-
three times. Denial
examination
Equal Protection
The
Claims
appealed to the Administrative
cense was
which,
Commission,
lacking authori-
equal protection argu-
Dr. Linton’s first
issue, upheld
ty to
rule
the constitutional
theo-
“playground”
a kind of
ment centers on
appeal
On
the Board’s denial of
license.
is,
protection, that
that she should
ry
equal
County, Dr.
court for
to the circuit
Cole
given
treatment was afforded
be
the same
protection
prevailed
on her
applicants who were four-time
to two other
claim.
However,
four-time
the other two
takers.
had failed the
might
were candidates who
It
that there
takers
should be noted
August 1992 effec-
prior to the
statutory
on which to
this case.
basis
resolve
regu
tive
of the amendment
Specifically, оne could observe that the
date
restricting
specify that
adopted by
licen- 340.240.6. The statute did not
lation
the Board
prospective, or
limit
who have taken the examina
the three-time
sure to those
already
had
applied
or
to those who
tion three or fewer
out
should be
times whether
once, twice, or three
taken the
Missouri
is inconsistent with the statute.
statute,
stated,
by its
before the effective date.
could be limited
event,
for the Board to
taken in Mis
was reasonable
terms
examinations
souri,
prоspectively and not to
apply the
application
Dr. Linton’s
would be
oc-
under
count
the examination
addressed to the Board’s discretion
*7
Moreover, if
prior
August
to
a
from curred
section 340.240.4 to transfer
score
applicants
pref-
interpretation,
received some
this
the
the other two
another state. With
erence,
taking of the
the
because of their earlier
then
reviewed on
Board’s action could
be
examination,
standing
Dr. Linton is without
denying
action in
her a
basis of whether its
way that she
сapricious,
complain,
in much the same
“arbitrary,
is
and unrea
license
536.140.2(6).
compare
with
not
her own situation
should
violation of section
sonable”
it
examination takers who took
“point
fa
that of those
Dr Linton’s
relied on” recites the
licensed
times and were
judicial
stat more than three
miliar' incantation of the
review
Moreover,
theory
this
“arbitrary,
prior August
ute
the Board’s action is
that
protection
deny
legisla-
would
capricious,
equal
thus
and unreasonable” and was
discretion,”
ability
make
Boаrd the
but the
ture and the
“an
of the Board’s
abuse
536.140.2(6)
system
statute,
licensing
changes
is
examination
judicial review
changes
make licensure
challenge
such
would
where
not cited.
a constitutional
Where
fairly
is
a construction of
statute
principle is
3. A clear statement of this
found
Street,
may
by
question
be avoid-
possible
v.
which
Association Machinists
International
1784,
740, 749-750,
Benson,
22,62,
81
6 L.Ed.2d
285
52
367 U.S.
S.Ct.
v.
U.S.
ed.' Crowell
case,
which,
(1961),
quoting
earlier
1141
an
Protection stated licensing; professional occupational provides a Board com-
yet for section 340.202 public
posed of five veterinarians and entrusts to The statute thus
member. profession itself
board dominated public. cir- protecting the In these
duty of
cumstances, appropriate for courts it is protec-
guard against danger of economic scrutiny
tionism careful See, Li- “Fair Treatment actions. for censed The Missouri Adminis- Professional: ” Commission, Mo. L.Rev.
trative (1972). 416-421 basis that pursuant Board’s action
could be seen protectionism, that
to the statute is economic
is, testified, limiting the number as Miller qualified who are licensed veterinary
practice medicine Missouri. action,
Arbitrary done for reasons econom- protection, simply legitimate.
ic power ultimately to
The Board has the
protect public unqualified practi-
tioners, exclusions, but its whether based judgment, must
statute or the Board’s own objective. related to that Since here, I
that is not the case would conclude imposed by absolute bar
pursuant regulation vio- to the statute and protection.
lates Dr. Linton’s
I court would affirm the decision of the trial
ordering grant to Dr. the Board to a license
Linton. Missouri, Respondent,
STATE of RHODES, Appellant.
Bernard
No. 80825. *9 Missouri,
Supreme Court
En Banc.
April
Rehearing May Denied