*1 Respondent’s practice suspended actions demonstrate dered from the of law pattern neglect prosecuting indefinitely apply with with leave to for rein- potential year. filing Plaintiffs’ case that resulted in a statement in one Prior to for (1) reinstatement, injury legal Respondent to his clients and must obtain profes say malpractice sion. While this Court cannot insurance an amount no less with $250,000, percent certainty subject ap- one hundred that Re than to the CDC’s (2) spondent’s ultimately proval complete actions of the policy; cost must claim, management, Plaintiffs their what can office procedure the Court civil Respondent’s determine is that po practice continuing legal actions ethical education tentially injured the totaling Plaintiffs effective courses 15 hours of CLE’s of ly eliminating opportunity their at proceed which least 3 hours must be ethics (3) credits; potentially with a against prepare valid claim must and submit for Respondent’s neglectful approval management MCM. an office plan; actions CDC (4) coupled with his attempt successfully pass non-credible must retake and clients, explain those actions to his Responsibility Multistate Professional court and potentially injure the DHP also Examination. credibility profession as a whole. WHITE, STITH, C.J., WOLFF, It should Respon be noted that TEITELMAN, LIMBAUGH and dent’s conduct does not have to be inten RUSSELL, JJ., GAERTNER, Sp.J., tional deceiving when comes to a client concur.
in order to discipline.17 warrant While Respondent may intentionally not set have PRICE, J., participating.
out to abuse the professional relationship clients,
between himself and his Respon
dent committed attempt misconduct when
ing to shroud his substandard actions with varying explanations that he proffered. Further complicating position his has been UNITED PHARMACAL COMPANY recognize steadfast refusal his INC., OF MISSOURI breach principles, of ethical giv even when Respondent, en opportunity to do during so this argument.18
Court’s oral PHARMACY, BOARD OF MISSOURI V. Appellant. determining When of discipline level No. SC 86104. impose, the Court Respon- considers actions, dent’s the mitigating factor that Missouri, Supreme Court of Respondent practiced has law this state En Banc. thirty-nine years with one minor April 2005. action, disciplinary propriety and the
sanctions under the Missouri rules and the
ABA Respondent model rules.19 is or- Standards, Respondent public reprimand 17. ABA Rule 7.2. 19. received a diligence, in 2002 for violations of the rule on Snyder,
18. See at Rule 4-1.3. *2 Nixon, Gen., (Jay) Atty. Jeremiah following W. Board’s determination that Gen., Daryl Hylton, Atty. R. Asst. Jeffer- Laws rules are violated.” and/or MO, City, Appellant. son 338.010.1, The letter listed then sections including and 338.195 the text of Ehlert, Boulware, R. Todd R. Dan Shar- *3 It each statute. listed no rules as authori- MO, on Kennedy, Joseph, Respon- St. for ty. statutory The board claims that it has dent.
authority drugs prescribed by over animal PRICE, JR., RAY Judge. WILLIAM veterinarians as well as human medicines. any Pharmacal denies the board has Company United Pharmacal of Missouri authority animal drugs. over brought suit in County Buchanan for de- claratory judgment against the Missouri Pharmacal claims that the cease-and-de- Pharmacy jurisdiction Board of claiming sist letter was issued pursuant to an 536.050, 2000,1 under section RSMo which agency posted a frequently as asked allows brought suit to be in county question (FAQ) on the board’s website. plaintiff where if resides the suit concerns in pharma- Sometime the board of an administrative rule. The trial court cy’s displayed FAQs. website a number of granted summary judgment on the merits them, longer displayed One of which is no opinion Pharmacal. After by the court website, on the reads as follows: of appeals, granted this Court transfer. Const, V, Mo. art. sec. 10. The state Missouri claims that only venue was in proper Cole County statute, under the venue Pharmacy Board of 508.010(1). section The judgment is re- versed, and the case is remanded because Registration Division of Professional pleaded the facts statutory concern viola- tions, which cannot support venue in Bu- Questions Frequently Asked —General chanan County. Pharmacy Law Background I. Missouri,
Pharmacal is a St. Joseph, entity 8. Does an have to be licensed as selling business animal supplies. It has pharmacy veterinary legend sell in been for twenty years business and sells drugs to the of the ani- consumer/owner federal “veterinary legend” drugs to ani- mal(s)? Veterinary legend drugs Yes. mal owners with prescrip- veterinarian’s may only be sold based on the or- tion. pharmacy The board of part is a der/prescription of a veterinarian. An the Missouri Division of Reg- Professional entity may veterinary legend not sell istration and in charge pharmacy is (owner drugs directly to the consumer licensing for the state. Secs. animal) on a prescription based without 620.010.14. The board maintains its of- a pharmacy. licensed as City. fices Jefferson The board issued cease-and-desist let- If an entity veterinary legend sells 21, 2001, ter on June demanding drugs to veterinarians or other wholesal- stop selling ers, animal drugs entity with- would have to be licensed pharmacy out a license. The cease-and- as a pharmacy drug either or a distribu- “Specifically, desist letter stated it is the tor. Pharmacies are limited to 5% of statutory 1. All further references are to RSMo 2000 unless otherwise indicated. gross pharmacy
their before The board of was the de- pharmaceutical sales declaratory judg- fendant named in the re- drug as a distributor is licensure ment suit. quired. State law allows a licensed vet- veterinary pre- dispense erinarian to II. The Venue Statutes he scription drugs to with whom clients This held Court has that “when relationship. has an established defendant, the sole [sec PAQ The board that the a rule. denies 508.010(1)2 requires ... that the ac tion comply the rule- board did with brought County unless a tion be Cole making 536.021 requirements special venue statute allows the action to FAQ. concerning this filed State ex rel. Mo. *4 be elsewhere.” Dept. Roper, v. 824 S.W.2d Natural Res. of brought this for de- action (Mo. 1992). 901, 903 Alternate venue banc claratory judgment stating petition: in its may pursuant to section be available belief, in 22. information and On provides: 536.050.1. That section 2001, Pharmacy adopted the Board of power The of the courts of this state to rule, to all of federal applicable sellers ex- declaratory judgments render shall consumers, drugs to veterinary legend declaratory judgments respect- tend to those entities to have licensed requiring rules, or ing the threatened validity of of sales pharmacists present when such may applications thereof, and such suits place take to a license to agencies and obtain against whether be maintained requested has operate pharmacy plaintiff to conduct such or not the first upon question the agency pass sales. venue of such suits presented. The shall, agencies option at the of against rules Pharmacy’s 28. The Board of of in the circuit court plaintiff, be veterinary of requiring sellers federal county in the County, Cole comply legend drugs residence, to consumers to or if the plaintiffs plaintiff regulatory require- foreign, and hav- corporation, with licensure domestic office ing registered office business pharmacy ments a licensed and as state, county regis- in this in the of such pharmacist duty have a licensed office office. tered or business of place when such take fall outside sales the Board delegation authority of added). Pharma- (emphasis Sec. 536.050.1 Assembly, Pharmacy by of the General provided it with cal claims that this statute notice and were without County, its busi- in Buchanan where venue are, therefore, hearing. and Said rules claims office is located. state ness unlawful, ap- illegal improper void under case for this venue Unfortunately, after statutory provisions and all oth- plicable County. in Buchanan opinion court and judgment by the circuit pertinent er law. Registration general Professional statute Missouri Division of 2. Section 508.010 is venue County. City, by Cole has its offices in Jefferson for Missouri. It states: “Suits instituted Const, IV, (1) board sec. brought: ... be ... either Mo. art. summons shall registered pharmacy its offices county defendant maintains in the within which the resides, City in Bu- county cannot be “found” which the Jefferson or in the within Therefore, resides, venue may County. be chanan plaintiff and the defendant suit, only the requires executive statute where found....” Sec. 508.010. As an sued, County. brought in Cole agency, pharmacy, part of the board is the board by by any appeals, agrees adopted, the court of this Court amended or rescinded this case does not concern ad- unless such shall first ministrative rule or the or threat- secretary file with the of state a notice of application ened of a rule. proposed rulemaking subsequent and a fi rulemaking, nal order of both of which FAQ A. The was not a rule published Register shall be in the Missouri Administrative indepen rules have secretary practi of state as soon as power Psychare Mgmt., dent as law. Inc. filing cable after the thereof in that of Serv., Dept. Soc. Serv. Div. Med. fice. ...” Sec. 536.021. S.W.2d reason, specific For this pro detailed “[fjailure This Court has held that procedures required tective are for an rulemaking procedures follow renders void promulgate an administrative purported changes policy.” statewide rule. In St Louis Christian Home v. Serv., NME Hosps. Dept. Inc. v. Soc. Rights, Missouri Commission on Human (Mo.App.1982), This Court has further held that “some court observed: null; thing ineffectual; that is void is nu *5 very purpose of proce- the notice gatory; having legal binding no force or dure for a proposed rule is to allow ...; effect an instrument or transaction opportunity for by supporters comment ineffective, wholly inoperative, which is opponents measure, or of the and so to and incapable of ratification and which a induce modification.... To neglect the thus has no force or effect so that nothing notice ... or to give effect to a proposed R.E.J., can City cure it.” Inc. v. Sike rule before time for comment has ston, 2004) 745 S.W.3d run ... undermines integrity (citation omitted). procedure. 536.010(6) Section defines the sub everything that Not is written or requirements stantive “ of a rule as follows: published by agency an constitutes an ad ‘Rule’ agency means each statement of case, ministrative rule. In this the board general applicability that implements, in attempt comply pro made no with the terprets, prescribes or policy, law or or procedures required pro tective for the organization, describes the procedure, fact, mulgation of a rule. In practice requirements or any agency.”3 try FAQ did not even to promulgate the as However, “[o]nly rules promulgated by an pursu rule. Pharmacal’s claim of venue administrative properly with dele ant to section 536.050.1 must fail because gated authority have the force and effect FAQ was not an administrative rule Inc., of law.” Psychare Mgmt., and, such, challenge as there is no to the 313-14; at Soybean see Mo. Ass’n validity appli of a rule or to a threatened Comm’n, v. Mo. Clean Water FAQ merely cation of a rule. The was an Section 536.021 provides expression interpretation of the board’s promulgation requirements. these proposed, “No rule shall any legal hereafter be law without force or effect. Harm, Muddy Agency It has been noted that "MAPA’sdefinition of No Rule: The Waters of Policy ‘rule’ is of little assistance Statements and Judicial Review Under Act, enough encompass virtually any ‘broad the Missouri Administrative Procedure (2004) (citations agency might any statement an make in con- Mo. L.Rev. ” Note, omitted). Christopher Pieper, text.’ R. No “validity” requires port dispute validity A at venue to rule. B. promulgated rule. regarding least be a suit simply There cannot an statutory authority, rule’s administrative by its argument Pharmacal continues law, arbitrary conflict with state or claiming provides that section 536.050.1 capriciousness when there never a challenging it is venue because promul- an attempt rule or FAQ rule. of this as an administrative a rule. gate Secs. 536.024. provides 536.014 circumstances Section a rule It states which could be invalid.
that: did C. This case also involve the or department, agency, application
No commission threatened of a rule. in the event board shall valid provides also a choice Section 536.050.1 (1) of statuto- that: There is absence declaratory judgment of venue for actions. ry any portion the rule authority for “respecting applications” ... threatened thereof; (2) The rule is in conflict rules. The letter sent to cease-and-desist (3) law; state rule is so with “Specifi- the board stated capricious as to create arbitrary cally, it is Board’s determination that inequity to be unrea- such substantial as rules are following Laws and/or sonably persons affect- burdensome then violated” The letter listed sections ed. 338.010.1, 338.220, including and 338.195 added). (emphasis 536.014 Section Sec. text of It listed no rule each statute. provides: as- 536.024 “When the action. as a source for its sembly any authorizes regulations, adopt administrative rules or century ago, Half a this Court consid- *6 authority granting rulemaking the of such provision ered the venue section 536.050 validity regula- the of such and pre- and rules nearly type in of situation the same upon agency com- contingent tions is the ex sented State rel. Toberman v. here. in plying provisions with the of this section Cook, 274, 281 365 Mo. ” (emphasis rules .... promulgating case, such plaintiff In that added). by merely alleging tried to create venue it rule Id. But dispute. that concerned a however, validity, pre- question
The this Court said: promulgated of a supposes existence rule, least, at to purports or a rule that petition is whether the Our concern promulgated. have been Section 536.053 or to state a states can be amended links to a rule. Sec- standing gives that rise to the cause of action “[a]ny person tion 536.053 provides provisions of special [section] venue any rule may aggrieved by is or be who facts pleaded 536.050. If the agency a have promulgated by state shall they not and can- petition show that do any standing promulgat- rule as to present justiciable not issue bring such by may ed state validity (promulgated of a rule rules pursuant provisions an action agencies) by administrative relators as (emphasis 536.050.” Sec. 536.053 section thereof applications threatened added). meaning and fair by them within Administra- intendment of the so-called attempt
In case there was no this Act, then FAQ as tive Procedure Review promulgate the board to this by ... not lie action does of an adminis venue said promulgation rule. Without words, rule, County. In other sup- cannot [outside Cole] trative 536.050.1 plaintiffs may WHITE, C.J., in said action by separate concurs in allegation mere petition in their opinion filed. ... County
venue lies [outside un- Cole] LIMBAUGH, JJ., TEITELMAN and subject der [section] 586.050 relators to WHITE, opinion concur in C.J. (and onerous) special provi- venue WHITE, Justice, RONNIE L. Chief sions thereof. concurring. Id. (parentheticals original). This hold- I concur with the principal de- opinion’s ing has not changed. termination that United Pharmacal Com- Pharmacal cannot generate venue (Pharmacal) Missouri, pany of Inc. lacked under section 536.050.1 “by allega mere standing pursue its claim challenging tion” that the pur board’s letter was sent of the Missouri Board of Phar- suant to an administrative rule. It must (Board) macy’s I separately rule. write plead and specific establish facts that a principal opinion’s analysis promulgated rule was the basis of the strays legislature from what the has clear- board’s action. specific authority re ly rule, defined as administrative lied upon here, the board for its action and it blurs the distinction between the however, rule, was not a but a state stat proper for challenges forums to the rule- ute. Pharmacal pleaded has no facts that making process. show that the threatened against action Section 536.053 provides “Any per- that: was pursuant any promulgated rule. may aggrieved son who is or be by any Section 536.050.1 provide cannot venue in promulgated by rule shall the absence of an application of a rule or standing have to challenge any pro- allegation the mere of such an applica mulgated by may a state bring tion. pursuant such an action provisions to the III. of section 536.050.” standing Conclusion statute a party bring allows a court any action “Venue is determined solely by time it may aggrieved is “or by” any statute.” State ex rel. Sys. BJC Health promulgated, procedurally valid, rule. Neill, *7 No threatened enforcement action is re- “An brought action in a court where venue quired by an for entity an to have improper is shall be transferred to a court standing to initiate a lawsuit. All that is where venue is proper if a motion for such might required entity is that an ag- be transfer timely is filed.” Rule 51.045. Ac grieved promulgated by a rule. The cordingly, judgment is reversed and standing hinges totally issue this case on the case is remanded to the Circuit Court whether promulgated there was a rule that of Buchanan County, which is instructed to aggrieve could Pharmacal. transfer to the Circuit Court for Cole “Agency rulemaking occurs with the for- County. 508.010; Sec. State ex rel. Mo. mulation, or repeal, gen- of a ‘statement of Dept. Natural Res. v. Roper, 824 S.W.2d of applicability eral that implements, inter- (Mo. 901, 1992). 903-04 banc
prets prescribes or policy, law or or that WOLF, STITH, RUSSELL, JJ., and organization, procedure, describes the ”1 concur. practice requirements any agency.’ of Country 2001); 536.010(6). 1. Greenbriar Hills Club v. Director Section of Revenue, 346, (Mo. 47 S.W.3d 357 banc 368 FAQ meets a rule is it promulgated.
The Board’s statement its Once formulated judicial it requires quasi-judicial of a because a decla- statutory definition to it void or interprets prescribes policy, and law or ration render invalid.5 of this rule would application impact rule, FAQ statement is a Board’s rights” of procedural the “substantive or procedurally albeit invalid one because public.2 newly The Board’s created properly promulgated pursuant not was treating of policy announced busi- However, sections 536.021 and 536.024. selling veterinary “legend as a drugs” ness not promulgated, rule was “pharmacy” confirms Board’s intention standing bring its lacked change policy.3 its statewide pursuant sec- action to circuit court proper It not forum for a chal- promulgation; is the act of howev- tion 536.053. The er, lenge validity that an into to a for not procedural converts statement rule’s rule, is having it is the act of been the Adminis- promulgation rather Commission, conveys that to the rule trative whereas procedural Hearing validity, allowing adopt, to a rule’s substantive propose, judicial opin- deciding legal it.4 The is a function.6 principal rights, amend rescind in this not ion errs when it holds that the Board’s The trial court erred case rule was void ab initio dismissing concerning having been Pharmacal’s claim 536.010(6); Baugus validity challenges 2. Section Director are with the v. dural raised Revenue, 39, 1994). (Mo. 42 878 S.W.2d banc AHC. “Changes policy in statewide are rules." NME, (Mo. 1993); 850 at 74 banc Hospitals, Department NME Services, Inc. v. Social R.E.J., Sikeston, City Inc. 142 S.W.3d 71, 1993). v. 74 744, also foot- See FAQ question 3. The fact that the in a note 6. answer format is irrelevant. See Univ. of 338.055, 338.140, 338.350, 6. Sections Shalala, Hosp. Iowa Clinics v. 180 F.3d & 536.041, 536.024, 536.010(4), (8th 951 Cir. 536.063, 621.045; 536.050.2(1), Missouri statutory Finney, Pharmacy v. John 2001 4. Section 338.350. Nowhere in the Board M. rule, Comm., 536.010(6), Hrg. is the WL Admin. 00- definition of a Mo. 2001); requirement promulgated. (Aug. it be Section PH Missouri Board Cohen, Pharmacy Sylvan WL scope of valid 536.014 defines the substantive Comm., assembly Hrg. Admin. ity challenges to rules. Mo. (Mar. 2000). The procedural made a chal PH Administrative determination va lenges adoption Hearing procedural decides to rule could and should Commission initially lidity basis. administratively. challenges a rule to rules a routine made Once Dept. validly adopted procedurally, Anthony’s St. Medical Center v. its substantive See *8 Services, Services, subject 2004 is in court. Social Div. Medical Of Comm., 1109578, Hrg. 3- why ex WL Mo. Admin. This is the administrative exhaustion 2004); 6, (Apr. Ijei, ception V. LPC 536.050.2 0661 SP Charlotte was re-enacted Services, history Dept. v. Div. Medical in 1996. See the section 536.050 Social Of 3192712, Services, Hrg. Investigators Private v. Mulvi 2004 WL Mo. Admin. Kansas Ass'n of hill, 425, Comm., (Dec. (FNs also SP 20 See 35 S.W.3d 10- Separation Tax Church and 13)(Mo.App.W.D.2000). See also State Missourians Comm’n, Robertson, Hearing Comm’n State v. v. Administrative App.1979). power to rules See "The formulate addressing specifically policy legislative. effect a of statute is also section 536.021 rights Id. attorneys proce legal judicial.” availability power when decide fees procedural validity.7 the rule’s McCORD,
Larry L. and Edith Sr. Mccord, Respondents,
Ereline
Stephen Jewell GATES and Patricia Lloyd, Appellants,
L. Phipps L.
Pete and Carrie
Phipps, Respondents.
No. WD 63319.
Missouri Appeals, Court of
Western District.
Aug. 2004.
Rehearing 3,May Denied 2005. "Standing jurisdictional 55.27(g)(3). standing is a matter ante- "Lack of cannot *9 right cedent to relief.” Farmer Kind- party standing, “[I]f waived.” Id. lacks er, If a dismiss the case does court must because it party standing, lacks the court must dismiss jurisdiction not have of the substantive issues jurisdiction because it the case does not have presented.” Id. Id.; presented. issues Rule substantive