*1 MORDHORST, al., Respondent v. EGERT et Respondents KELLEY,
C. al., A. et Appellants 2d
(223 501) N.W. (File 21, 1974) Opinion No. 11264. filed November January rehearing Order denying petition for *2 McCullen, Butler, Bangs, Simmons, & Foye Rapid City, Stewart, Hatfield, Whicher, & Klass Sioux City, Iowa, for plaintiff respondent. Evans, Davenport, Smith, Hurwitz & Falls, Sioux for and respondent,
defendant R. Egert. W. Haeder, Huron, Blue & for defendant and D. respondent, J. Bregel. Costello, Porter, Hill, Nelson, Bank & Rapid City, defendant and M. A. respondent, Grove. Aldrich, Warder, Wil-
Gunderson, Farrar, DeMersseman & kins, Austin, Hackett, Watertown, Hinderaker & City, tor Rapid appellants. defendants and
ADAMS, Judge. Circuit
This is but another round in the continuing contest that has optometrists, Optometric involved numerous the South Dakota Association, the State and at Board Examiners Optometry two One manufactures corporations. least corporations eye-care plans. and the other optical goods provides prepaid sells a Prior events are well Only the latter this lawsuit. party Inc., 84 S.D. Kelley Duling Enterprises, described N.W.2d decided this court on December *3 down, Less than one after year that decision was handed State Board of Examiners received Optometry written com- plaints signed by the of the South president Dakota Optometric Association Grove, that R. W. alleging D. M. A. Egert, Bregel, J. and one other were of optometrist guilty unprofessional conduct. It was claimed that of each these optometrists aided and abetted Duling Optical in the unlawful of Company practice optometry. 30, Informal were held hearings By on November its Order 1, and 1971, Notice Hearing of dated the four optometrists June were advised of the and charges told that formal hearings would be held on December 1971. That date came and went without the hearings held or being rescheduled.
On May Mordhorst, Charles a South Dakota citizen an (and employee of Duling Optical com- Company), menced this action. His includes pleading charges Drs. against Egert, Bregel and Grove that are substantially identical to those described in the Board’s Order and Notice of plus an Hearing, that allegation the Board had failed to commence and properly process these and other He also charges. included as defendants the three members of the South Dakota State Board of Examiners An Optometry. additional defendant is the corporation that offers prepaid care eye for the patients or customers of certain member optometrists, unlawful on activity its part being alleged.
Mordhorst each of the sought enjoin nonboard member defendants from further conduct and unprofessional enjoin continuance unlawful alleged practices of the named members, As Board and corporation. to the its Mordhorst sought further enjoin proceedings on the pending complaints against the nonboard member optometrists.
Answers, answers, cross-claims, amended and motions briefs followed. was had and Discovery were held. The hearings trial was eventually decision, completed. By its memorandum the trial court found no on the unprofessional conduct Drs. part Egert, Grove, and Bregel and relief granted injunctive against South State Dakota Board of Examiners “because Optometry of a of a lack showing of a fair and tribunal and impartial violation of the South also Dakota Administrative Procedures Act.” The court found and capping between steering South Dakota Visions Service Corporation its member optometrists, that the corpora- tion was unlawfully practicing optometry. Neither the corpora- Battin, tion nor Drs. Hines have Kelley appealed.
This the trial appeal court’s part judgment the Board from further enjoins action on the still unresolved administrative proceedings against Drs. Egert, and Grove. Bregel questions Numerous have been raised by appellants only but three issues seem critical: Does Charles
(1) Mordhorst’s status as an employee of *4 Co. Duling Optical him as disqualify plaintiff estab- lish that this action is collusive? Should
(2) there have been an exhaustion of administrative
remedies before the circuit court assumed jurisdiction? Were the (3) of the Board of Examiners sufficient
when measured due process requirements? Each of these questions must be answered in negative. the The answers will be discussed and in order. separately
Proper Plaintiff This action commenced which was under SDCL 36-7-28 provides part: of this chapter the
“Any
violating
provisions
person
in the circuit
further violations
be
may
enjoined
be
the state
brought by
this state in actions to
courts of
also be
may
Such suits
optometry.
board of examiners
*”
* *
the state.
citizen of
brought by any
result of an
this lawsuit is the
contend
Appellants
Optical Company (the corpora-
between
“arrangement”
Duling
a
this
but which is not
plaintiff
party
tion that
employs
Grove,
the nonboard
and Drs.
Egert, Bregel,
lawsuit),
herein).
member defendants (respondents
is not to be found in the
Factual
for this contention
support
the court must conclude that Charles
record. Absent such proof,
Mordhorst,
state,
a citizen of this
does
as a
qualify
proper
is
a
plaintiff. Only upon
showing
plaintiff
using
interest, will courts
contrary to the
statutory right
public
aid.
Salt
v. G. S.
Company
Suppiger
withdraw their
Morton
U.S.
62 S.Ct.
Exhaustion Remedies Two well-established doctrines are involved at this point. e., One claims the generic doctrines title exhaustion of (i. the other is referred to as the remedies); primary doctrine of jurisdiction.
It is often said that where a claim is or dispute cognizable an body, judicial administrative interference will be withheld until the administrative has run its process Myers course. 41, 50, Bethlehem 303 U.S. Shipbuilding Corporation, 58 S.Ct. 459, 463, broad; L.Ed. 644. This statement is too it is not Both the supported by holdings. doctrine of exhaustion of remedies the doctrine of be primary must jurisdiction Davis, considered when of this nature are encountered. problems Treatise, 20.01; Administrative Law The Exhaustion Of Jaffe, § Remedies, Administrative 12 Buffalo L.Rev. 327.
The exhaustion of remedies doctrine is primarily concern ed with the review timing judicial of administrative Law, action. Administrative be Am.Jur.2d, 595. It § *5 from the doctrine of distinguished primary jurisdiction; applica- whether the court or the determines latter doctrine tion of the East determination. Far Confer- make the initial should agency 576; 492, States, S.Ct. 96 L.Ed. 342 U.S. v. United ence Treatise, 19.08. Davis, Law Administrative § when only can arise jurisdiction of primary The doctrine authority have to agency and an administrative the court both should The of this proper application a question. on pass doctrine of agencies and sensible coordination of the work orderly result in Treatise, Davis, Administrative Law 19.01. and the courts. § and the South Dakota State Board of both the courts Since on some of the authority pass have to Optometry Examiners lawsuit, and lawsuit is an raised since this not by questions the South Dakota Board of from a decision or order of appeal action, a primary but is an Optometry original Examiners exists. question jurisdiction the fact that
The remedies doctrine is raised exhaustion of State Board written were filed with the South Dakota complaints were parte hearings of Examiners in and ex informal Optometry held, have been an formal not though hearings Even completed. such It can be proceedings. argued was issued calling order action has been taken. In administrative significant that some addition, attacks the administrative on procedures this plaintiff of Examiners in that the South Dakota State Board the ground constituted. More it unconstitutionally specifically, Optometry bias and render that the Board’s its inaction it is his contention act. incompetent coupled
The of constitutional with a presence questions of administrative relief and inadequacy sufficient showing harm incident flowing delay irreparable impending is sufficient administrative following prescribed administrative must first be the claim that overcome Kleinheim, v. Sandia and Loan Association Savings exhausted. 324; P.2d Wisconsin Collectors Assn. Thorp N.M. 33; 2 Am.Jur.2d, Finance 32 Wis.2d 145 N.W.2d Corp., Law, Administrative § Davis that the suggests applicability
Professor certain factors: be determined weighing exhaustion doctrine
533 injury extent of factors are three: “The key apparent of remedy, degree of administrative pursuit and jurisdiction, administrative about clarity or doubt understanding administrative of specialized involvement * * * Unfortunately of question jurisdiction. in the of amount judgment for a considerable each often calls Davis, Administrative Law appraisal.” its proper Treatise, 20.03. § several courts. by used adopted test has been Davis
This 1964, Cir., 339 C., 9 T. F. Corporation Star Cement Lone Ellis, 1961, Or. Co. v. 505; Lumber Valley Willamette F.2d of the instant the facts P.2d 926. P.2d When to court’s refusal trial this test the are measured against case and affirmed. is justified doctrine the exhaustion apply is also question The the primary jurisdiction answer to the plaintiff The statute relied upon gives clear. South Dakota over alleging unprofes the circuit court jurisdiction proceedings Since conduct the others. part optometrists sional on been held time formal administrative had not at the proceedings commenced, correctly action was the trial court concluded this court; orderly, fair and jurisdiction that vested the primary to all adequate effective were available and resolve the issues. conducted administrative could Properly proceedings have handled the issues the lawsuit but not all some of raised Hence, of the of primary of them. doctrine application jurisdic this situation the trial court’s tion to factual fully supports of jurisdiction. assumption
Due Process The Egert, trial court determined that Drs. Bregel were denied due the that are still process Grove before South Dakota State Board of Examiners the pending were entitled relief. Some of they that Optometry; injunctive be the evidence on must point noted. Corwin, who the formal complaints
Dr. the person signed Board, no admitted he had personal filed with the that he made no the specific charges, with respect knowledge contentions, he and that executed verify effort a meeting of those request attending instruments at the This Association. the South Dakota Optometric directors and members of the included officers of the Association meeting Examiners in It was Dr. Optometry. State Board of South Dakota of the accused was testimony guilt optometrists Corwin’s *7 were offered by complaints those before the agreed upon present be had been complaints It must noted signing. served as counsel for both the by attorney who prepared and the Board. Association
On these facts it can be concluded that the agency given decide had done its authority by job statute to the matter before were the formal or to it for action. Of charges signed presented interest is the fact that neither the informal during conducted the Board nor the trial of this case was during any solid evidence of conduct on the of Drs. unprofessional parts and Grove Egert, Bregel produced.
Basic due were described recently process requirements Circuit Wall et al. v. American Morgan, Judge, Optometric Associátion, al., Inc. et as follows: of laws mainstays system of the of our
“It one property affect a or person’s personal that a state cannot a fair and impartial after a before except hearing rights * * * tribunal re A fair and impartial tribunal. fact be disinterested at least the trier of quires * * * bias any he also be free from form of and that of the case the outcome regarding or predisposition * * fair, very be ‘the *. Not must the only e fairness’ must also b present. of complete appearance * * * trials, not but only These principles apply so, proceedings, if not more to administrative equally, American Optometric Wall et al. v. omitted)” (citations Ga., Association, al., 175 (N.D. Inc. et 379 F.Supp. 1974). filed April v. Berryhill,
Of interest on this is Gibson special point problems U.S. S.Ct. L.Ed.2d The parties, and procedures Gibson Berryhill, supra, were quite similar to those now before this court. The Alabama statutes regulating the practice of optometry were under fire. Following its established procedures, the Alabama Board acted as both prose- cutor and judge delicensing As proceedings. case, in our appointed Board, members of that because of the selection were process, almost certain to have “preconceived opinions” with regard to matters likely come before them. It was held that actual bias need not be shown. The court was concerned with whether in the usual course events there was an indication of possible temptation for man as a average sitting judge be biased for or any in a against party presented case to him. law that the Acknowledging disqualification concerning because of interest equal with force applies to both administrative and the court affirmed the judicial adjudications, lower court’s disqualification of the board v. Berryhill, members. Gibson The instant supra. of Gibson to the case would application Board. require disqualification members of this
Conclusion *8 followed fairness fundamental The absence of in Optometry Examiners State Board of South Dakota examine the asked to was The trial court litigation. this spawned had been requirements due process and concluded situation However, and other more. decide no and We affirm violated. their structures re-examine should boards constituted similarly have refuge people final that the remembering procedures, and the eternal process, due is that of governmental all passion. undue foe of unrelenting and of justice friend DOYLE, concur. JJ., WINANS DUNN, C. J., WOLLMAN, specially. concurs J., BIEGELMEIER, Retired sitting ADAMS, Judge, Circuit a member of was argument of oral time at the who Justice, court, disqualified. himself and deemed at the the court a member been
COLER, having not J., participate. does not orally argued was this case time WOLLMAN, specially). (concurring Justice
The trial court found that defendants' Egert, Bregel Grove had not entered into or operated under any form of plan, or arrangement with understanding Duling Optical Company and entered a based judgment these upon findings enjoining members of the State Board of Examiners in Optometry from with proceeding any disciplinary action or proceeding against these defendants based acts upon committed prior to the date of the judgment. I would affirm the judgment on the basis upon which it was entered and would not reach the constitutional question. COMMISSION,
STATE HIGHWAY Respondent ux, BEETS et Appellants N.W. 2d 567) (224 (File 16, 1974) Opinion No. 11356. filed December