            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 BLAKE H. DONALDSON, D.O.,    )
                   Appellant, )
                              )
 v.                           )                 WD83217
                              )
 MISSOURI STATE BOARD OF      )                 FILED: July 7, 2020
 REGISTRATION FOR THE         )
 HEALING ARTS,                )
                 Respondent. )
                  Appeal from the Circuit Court of Cole County
                    The Honorable Patricia S. Joyce, Judge
                 Before Division Two: Mark D. Pfeiffer, P.J., and
                   Alok Ahuja and Edward R. Ardini, Jr., JJ.
       Dr. Blake Donaldson filed a petition in the Circuit Court of Cole County,

seeking judicial review of a decision rendered by the Administrative Hearing

Commission (the “AHC” or “Commission”) and by the State Board of Registration

for the Healing Arts (the “Board”) in a license-discipline proceeding. The

administrative proceeding resulted in the emergency suspension, and ultimately the

revocation, of Dr. Donaldson’s medical license. The circuit court upheld the

administrative agencies’ decision. On appeal, Dr. Donaldson challenges the

agencies’ disciplinary decision on multiple procedural and substantive grounds.

Among other things, he challenges the constitutionality of § 334.102,1 which




      1      Statutory citations refer to the 2016 edition of the Revised Statutes of
Missouri, updated through the 2019 Cumulative Supplement.
provides for the emergency suspension of licensees without a hearing, and for

expedited proceedings thereafter to determine if cause for discipline exists.

      We conclude that Dr. Donaldson’s challenges to the constitutional validity of

§ 334.102 invoke the exclusive appellate jurisdiction of the Missouri Supreme Court

pursuant to Article V, § 3 of the Missouri Constitution. We accordingly lack

jurisdiction over Dr. Donaldson’s appeal, and order the case transferred to the

Missouri Supreme Court pursuant to Article V, § 11 of the Missouri Constitution.

                                    Background
      From 1995 to December 2017, Dr. Donaldson was licensed by the State as a

physician and surgeon. During part of this time, he owned and operated Primary

Care North Kansas City, LLC, in Parkville.

      On November 27, 2017, the State Board of Registration for the Healing Arts

filed with the Administrative Hearing Commission a complaint and motion for

emergency suspension of Dr. Donaldson’s medical license. The Board alleged that

from May 2012 through February 2016, Dr. Donaldson engaged in various sexual

acts with one of his patients, both in his medical office, and at his home. The Board

alleged that the patient at issue was a minor when some of the sexual acts occurred.

Dr. Donaldson was served with the Board’s complaint and motion for emergency

suspension on the same day it was filed.

      On December 5, 2017, acting pursuant to § 334.102 and without conducting a

hearing, the AHC issued an order finding probable cause that Dr. Donaldson

engaged in sexual conduct with a patient and engaged in sexual misconduct with a

minor, and that such conduct was harmful to the mental and physical health of the

patient. As a result, the Commission immediately suspended Dr. Donaldson’s

medical license pending the final outcome of the disciplinary proceedings.

      Dr. Donaldson filed a Petition in the Circuit Court of Cole County on
December 12, 2017, seeking injunctive and writ relief to prevent the Board and


                                           2
Commission from enforcing the emergency suspension of his license (No. 17AC-

CC00617). The circuit court dismissed the action. It held that Dr. Donaldson had

failed to exhaust his administrative remedies, and that his claims could be

addressed in a judicial review proceeding brought under § 536.100 of the Missouri

Administrative Procedure Act, after issuance of a final administrative decision.

      The Administrative Hearing Commission held a hearing on February 22-23,

2018, in which Dr. Donaldson and his counsel participated. Dr. Donaldson had

requested a stay of proceedings, and a continuance of the hearing date, to permit

him to conduct further discovery, and had agreed to remain subject to the

emergency suspension order in the interim. The AHC denied the requested

continuance on the basis that it “d[id] not have the authority to extend the

emergency suspension beyond the time frame under § 334.102.” Dr. Donaldson

asserts that a continuance would have permitted him to obtain records from third

parties (including records concerning the activation and de-activation of his office’s

alarm system, and his work schedule at a local hospital) which would have

disproven some of the sex abuse allegations. Dr. Donaldson later obtained some of

the third-party records, but the Commission, the Board, and the circuit court

refused to consider them.
      On March 15, 2018, the AHC entered its decision finding cause for discipline

of Dr. Donaldson’s license under § 334.100.2. The Commission found that Dr.

Donaldson engaged in sexual conduct with a patient, knowing that the individual

was his patient and was sixteen years of age. The Commission also found that Dr.

Donaldson engaged in additional sexual acts with the same patient when the

patient was seventeen and eighteen years old.

      The Board held a hearing to determine the appropriate discipline on August

3, 2018. Dr. Donaldson appeared with counsel. On September 25, 2018, the Board




                                           3
issued its decision and disciplinary order revoking Dr. Donaldson’s medical license,

with leave to apply for reinstatement after seven years.

      On October 25, 2018, Dr. Donaldson filed a petition for judicial review in the

Circuit Court of Cole County. (Pursuant to § 621.145, the AHC’s finding of cause for

discipline, and the Board’s decision imposing discipline, are treated as a single

decision for purposes of judicial review.) The circuit court rejected Dr. Donaldson’s

challenges and upheld the administrative decision. Dr. Donaldson appeals.

                                      Discussion
      Before reaching the merits of Dr. Donaldson’s claims, we must first

determine whether we have jurisdiction over his appeal. Dieser v. St. Anthony’s

Med. Ctr., 498 S.W.3d 419, 427 (Mo. 2016).

      Dr. Donaldson asserts nine Points on appeal. In Points III and IV, he

contends that § 334.102 “on its face violate due process.” In Point III, he argues

that § 334.102’s emergency suspension provisions violate due process because the

statute does not require a pre-suspension hearing, and does not authorize judicial

review of an emergency suspension order until all proceedings before the AHC and

the Board are concluded. In Point IV, Dr. Donaldson argues that the provisions of

§ 334.102.4(1), which require that a final hearing concerning cause for discipline be

conducted on an expedited basis following entry of an emergency suspension, are

unconstitutional because they afford a licensee an insufficient opportunity to

investigate and conduct discovery to respond to the Board’s allegations of

misconduct. The parties agree that Dr. Donaldson properly preserved his

constitutional claims in the circuit court.

      Article V, § 3 of the Missouri Constitution provides that the Missouri

Supreme Court has “exclusive appellate jurisdiction in all cases involving the

validity of a . . . statute . . . of this state.” The Supreme Court’s “exclusive appellate
jurisdiction is invoked when a party asserts that a state statute directly violates the


                                              4
constitution either facially or as applied.” Dieser, 498 S.W.3d at 427. “‘If any point

on appeal involves such [a] question, the entire case must be transferred to the

Supreme Court.’” Accident Fund Ins. Co. v. Casey, 536 S.W.3d 360, 364 (Mo. App.

W.D. 2017) (citation omitted).

      The Supreme Court’s “exclusive appellate jurisdiction is not invoked,”

however, “simply because a case involves a constitutional issue.” McNeal v.

McNeal-Sydnor, 472 S.W.3d 194, 195 (Mo. 2015). “To invoke the [Supreme] Court’s

exclusive jurisdiction, the constitutional issue must be real and substantial, not

merely colorable.” Matter of Care and Treatment of Bradley v. State, 554 S.W.3d

440, 448-49 (Mo. App. W.D. 2018) (citations and internal quotation marks omitted);

accord, Boeving v. Kander, 496 S.W.3d 498, 503 (Mo. 2016); Mayes v. Saint Luke’s

Hosp. of Kansas City, 430 S.W.3d 260, 270 (Mo. 2014).

             In determining whether a constitutional claim is real and
      substantial, we make a preliminary inquiry as to whether it presents a
      contested matter of right that involves fair doubt and reasonable room
      for disagreement. If the initial inquiry discloses the claim is so legally
      or factually insubstantial as to be plainly without merit, the claim may
      be deemed merely colorable.
McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387, 404 (Mo. App. W.D. 2004)

(citations omitted). “‘In the context of the ‘not merely colorable’ test, the word
‘colorable’ means feigned, fictitious or counterfeit, rather than plausible.’” Dieser,

498 S.W.3d at 429 (quoting Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 52

(Mo. 1999)); Snodgrass v. Martin & Bayley, Inc., No. ED87304, 2006 WL 1735246,

at *3 (Mo. App. E.D. June 27, 2006) (same).

      “‘One clear indication that a constitutional challenge is real and substantial

and made in good faith is that the challenge is one of first impression with th[e]

[Supreme] Court.’” Dieser, 498 S.W.3d at 429 (quoting Rodriguez, 996 S.W.2d at

52); accord Mayes, 430 S.W.3d at 270 (“Because this Court has not addressed these




                                           5
issues in the context of the current version of section 538.225, the plaintiffs present

real and substantial constitutional questions.”).

      Dr. Donaldson’s constitutional claims are “real and substantial,” and not

“merely colorable.” He argues that § 334.102’s emergency suspension provision

violates due process because it denies a licensee an opportunity to be heard in a

meaningful time and manner concerning an emergency suspension ordered by the

AHC. He also argues that the statute denies licensees due process because it

requires that, following an emergency suspension order, a final Commission hearing

on cause for discipline must be heard on an expedited schedule, thereby denying

licensees an adequate opportunity for investigation and discovery.

      Dr. Donaldson’s arguments raise substantial challenges to the validity of

§ 334.102. Under the statute, the Board may apply to the AHC for emergency

suspension of a licensee for certain enumerated causes. § 334.102.1. The Board’s

complaint must “alleg[e] the facts in support of the board’s request for an

emergency suspension” and such facts must be supported by affidavits and “existing

certified court records.” § 334.102.2. Within one business day of the filing of the

complaint, the AHC must return a “service packet” to the Board (consisting of the

Board’s complaint and any affidavits or records filed with the AHC), which the
Board must serve on the licensee within twenty-four hours. Id. The licensee may

file counter-affidavits or documents with the Commission. Id.

      Within five days of the Board’s filing of the complaint, the AHC must

determine if probable cause exists that the licensee has committed any of the acts

which would justify an emergency suspension. § 334.102.3. “If the administrative

hearing commission finds that there is probable cause, the administrative hearing

commission shall enter the order requested by the board,” which becomes effective

when it is served on the licensee. Id.




                                           6
      When an emergency suspension order is issued, the AHC “shall hold a

hearing . . . to determine if cause for discipline exists” within forty-five days of the

Board’s filing of the complaint, unless continuances are requested and granted, in

which event the hearing must be held no later than 120 days after the Board’s

initial filing. § 334.102.4(1). If the AHC finds cause for discipline it must issue

findings of fact and conclusions of law and order that the emergency suspension

remain in place pending the Board’s disciplinary hearing. § 334.102.4(3). “The

board shall hold a hearing following the certification of the record by the

administrative hearing commission and may impose any discipline otherwise

authorized by law.” Id.

      The United States and Missouri Constitutions “prohibit the taking of life,

liberty, or property without due process of law.” Coyler v. State Bd. of Registration

for Healing Arts, 257 S.W.3d 139, 144 (Mo. App. W.D. 2008) (citing U.S. Const.

Amend. XIV, § I; Mo. Const. Art. I, § 10). A license to practice medicine is

“protected by both procedural and substantive due process.” Id. (citation omitted);

see Stone v. Mo. Dep’t of Health and Senior Servs., 350 S.W.3d 14, 27 (Mo. 2011) (“A

person has a property right in a license that requires sufficient procedural due

process before the license can be ‘impaired, suspended, or revoked.’” (citation
omitted)).

      “Under both the federal and state constitutions, ‘[t]he fundamental

requirement of due process is the opportunity to be heard “at a meaningful time and

in a meaningful manner.”’” Jamison v. State Dep’t of Social Servs., 218 S.W.3d 399,

408 (Mo. 2007) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (other

citations omitted)). “The Due Process Clauses require that in order to deprive a

person of a property interest, [they] must receive notice and an opportunity for a

hearing appropriate to the nature of a case.” Moore v. Bd. of Educ. of Fulton Pub.
Sch. No. 58, 836 S.W.2d 943, 947 (Mo. 1992)).


                                            7
      The Missouri Supreme Court has recognized “the well-settled principle that if

the State feasibly can provide a hearing before deprivation of a protected interest, it

generally must do so in order to minimize ‘substantively unfair or mistaken

deprivations.’” Jamison, 218 S.W.3d at 408 (quoting Zinermon v. Burch, 494 U.S.

113, 132 (1990) (other citations omitted)). Although due process principles

frequently require a hearing before a person may be deprived of their property, the

Missouri Supreme Court has recognized that a pre-deprivation hearing is not

required in all instances, because “[d]ue process is a flexible concept.” State ex rel.

Williams v. Marsh, 626 S.W.2d 223, 230 (Mo. 1982) (citations omitted); accord, City

of Kansas City v. Jordan, 174 S.W.3d 25, 43 (Mo. App. W.D. 2005) (quoting Fuentes

v. Shevin, 407 U.S. 67, 82 (1972)).

      Besides affording affected persons a right to a hearing at a meaningful time,

due process principles also require that interested parties have a fair opportunity to

protect their interests in such a hearing. “In an administrative proceeding, due

process is provided by affording parties the opportunity to be heard in a meaningful

manner. The parties must have knowledge of the claims of his or her opponent,

have a full opportunity to be heard, and to defend, enforce and protect his or her

rights.” Wunderlich v. Jensen, 496 S.W.3d 522, 528-29 (Mo. App. W.D. 2016)
(quoting Scrivener Oil Co. v. Crider, 304 S.W.3d 261, 271-72 (Mo. App. S.D. 2010)).

      In this case, an emergency suspension of Dr. Donaldson’s license to practice

medicine was entered without any pre-suspension hearing, based on a finding that

there was probable cause to believe that he had committed serious acts of

misconduct. While the statute permits licensees to file affidavits and evidence in

response to the Board’s request for an emergency suspension, the statute

apparently does not require the AHC to delay its decision on the Board’s request to

permit a licensee to submit such opposing evidence. A hearing before the
Commission was required to be held no later than 120 days after the Board’s initial


                                            8
filing, to determine whether cause for discipline existed. Dr. Donaldson argues that

this expedited timetable for the final hearing on cause for discipline denied him a

meaningful opportunity to conduct discovery and investigation to enable him to

defend against the Board’s allegations, even though the Board had an unlimited

amount of time to develop its own case before filing its complaint. Dr. Donaldson

also complains that, after the Commission found cause for discipline, further

proceedings were required in front of the Board (to determine what discipline would

be imposed) before the administrative procedure concluded. It does not appear that

the Board was subject to any specific deadline within which it was required to issue

its final disciplinary decision. All the while, the emergency suspension order

remained in effect, and Dr. Donaldson was denied any opportunity to obtain judicial

review (because the administrative proceedings had not yet concluded).

      Neither the Missouri Supreme Court nor this Court has addressed the

validity of § 334.102’s procedures for emergency license suspensions, and for

imposing final discipline following an emergency suspension, under due process

principles.2 Nor does it appear that any Missouri appellate court has addressed

similar issues with respect to any analogous statutory framework.3 Other


       2       Citing Farm Bureau Town & Country Ins. Co. v. Angoff, 909 S.W.2d 348 (Mo.
1995), the agencies contend that the Missouri Supreme Court has held that it is generally
appropriate to require a regulated party to exhaust administrative remedies before
asserting a constitutional challenge to a statute. But in Farm Bureau – unlike here – the
administrative agency had not taken any interim, emergency action which significantly
affected the regulated party’s interests during the pendency of the administrative
proceedings. Thus in Farm Bureau, the regulated party’s interests had not yet been
affected by the ongoing administrative proceeding, and that proceeding might ultimately
have concluded in the regulated entity’s favor. In those circumstances, the Supreme Court
held that – until the administrative proceeding concluded – “it is impossible to know if a
subsisting justiciable controversy exists between the agency and the party seeking
declaratory relief.” 909 S.W.2d at 353. In this case, by contrast, the AHC denied Dr.
Donaldson his right to practice medicine on an emergency basis, while administrative
proceedings continued. There was nothing “hypothetical or speculative” concerning his
challenge to the emergency suspension. Id. at 352.
      3       Section 335.066 provides a nearly identical procedure for the emergency
suspension of a nursing license pending disciplinary proceedings. Neither the Missouri


                                            9
jurisdictions in analogous circumstances have recognized that “emergency

suspension [of a professional license] pending a full hearing did not, in and of itself,

violate [a licensee]’s due process rights.” Gershenfeld v. Justices of the Supreme

Court of Pa., 641 F. Supp. 1419, 1424 (E.D. Pa. 1986). “The guarantee of a prompt

dispositional postdeprivation hearing, however, is a critical factor in determining

the constitutional validity of the previously invoked interim or temporary

deprivation processes.” Id. (collecting cases).

      The fact that Dr. Donaldson raises issues of first impression in Missouri

indicates that he has raised “real and substantial” constitutional claims. Mayes,

430 S.W.3d at 270; see also In re Care and Treatment of Edwards, No. ED 78858,

2002 WL 171307 (Mo. App. E.D. Feb. 5, 2002) (transferring appeal to Missouri

Supreme Court where appellant argued that sexually violent predator civil

commitment statute violated his due process rights, and “the constitutional

challenge to Missouri’s sexually violent predator statute . . . raised by Edwards has

not been addressed by the Missouri courts”). The resolution of due process

challenges depends on the particular interests at stake, and the particular

procedures afforded, under a specific statute; it is significant that the Missouri

Supreme Court has not addressed due process challenges to this or an analogous
statutory scheme. Dr. Donaldson’s claims, as presented, involve fair doubt and

reasonable room for disagreement, and they do not appear so legally or factually

insubstantial that we can say they are merely colorable.

      We recognize that Dr. Donaldson’s constitutional challenge to the emergency

suspension order (Point III) is arguably moot, because the emergency suspension

order was effectively superseded by the final disciplinary order entered by the

Commission and Board after hearings before both agencies. It appears, however,

Supreme Court nor this Court has addressed a due process challenge to the nursing
provisions, either.


                                           10
that the entry of an emergency suspension was a prerequisite to the Commission

and Board using the expedited procedures specified in § 334.102.4 to finally resolve

the disciplinary proceedings. Section 334.102.4 plainly contemplates that an

emergency suspension has previously been entered, since it refers to the AHC either

terminating the emergency suspension, or continuing the emergency suspension “in

full force and effect,” depending on whether the Commission finds cause for

discipline after hearing. See § 334.102.4(2), (3). Therefore, it appears that the final

disciplinary order entered by the agencies was dependent on the existence of the

prior emergency suspension.

      Even if Point III is moot, that would not affect the separate constitutional

argument Dr. Donaldson makes in Point IV. In addition, given that Dr. Donaldson

was denied any opportunity to obtain judicial review of the emergency suspension

order pending conclusion of the administrative proceedings, it is at least arguable

that the Supreme Court would consider the merits of his challenge to the emergency

suspension order under the public-interest exception to the mootness doctrine.

Under that exception, the Supreme Court may exercise its discretion to decide the

merits of a case, despite its mootness, “‘whenever a case presents an issue that (1) is

of general public interest and importance, (2) will recur, and (3) will evade appellate
review in future live controversies.’” State ex rel. Mo. Pub. Defender Comm’n v.

Waters, 370 S.W.3d 592, 603 (Mo. 2012) (quoting Gurley v. Mo. Bd. of Private

Investigator Exam’rs, 361 S.W.3d 406 (Mo. 2012)). This exception allows the Court

to “decide an issue even though it may appear to be moot if there is some legal

principle at stake not previously ruled as to which a judicial declaration can and

should be made for future guidance.” Id. (citations and internal quotation marks

omitted). If Dr. Donaldson is prohibited from challenging the emergency

suspension order entered against him, it is unclear how any future litigant would be
better situated to raise such a challenge in a live controversy.


                                          11
                                     Conclusion
      Dr. Donaldson’s constitutional claims invoke the Missouri Supreme Court’s

exclusive appellate jurisdiction under Article V, § 3 of the Missouri Constitution.

This appeal is accordingly ordered to be transferred to the Supreme Court pursuant

to Article V, § 11 of the Missouri Constitution.




                                               ____________________________________
                                               Alok Ahuja, Judge
All concur.




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