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Williston v. Vasterling

Court of Appeals of Missouri, Western District, First Division

October 24, 2017

KEITH WILLISTON, Appellant,
v.
GAIL VASTERLING, ET AL., Respondents.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge.

          Before Cynthia L. Martin, Presiding Judge, James E. Welsh, Judge and Karen King Mitchell, Judge.

          Cynthia L. Martin, Judge.

         Keith Williston ("Williston") appeals from the trial court's dismissal with prejudice of his petition against numerous private and state entities and individuals. Williston's petition sought damages, and declaratory and injunctive relief, based on the alleged impact of statutes and regulations on Williston's ability to operate a birthing center. Because Williston's petition was properly dismissed, we affirm the trial court's judgment.

         Factual and Procedural Background[1]

         Prior to the commencement of the litigation which gives rise to this appeal, Williston owned and operated A Mother's Love Birthing Center, LLC ("AML") in Independence, Missouri. Birthing centers are required to be licensed pursuant to section 197.205[2] and pursuant to promulgated regulations, specifically 19 CSR 30-30.010 and 19 CSR 30-30.080.

         In June 2009, Williston, directly or on behalf of AML, filed a petition with the Department of Health and Senior Services ("DHSS") requesting that DHSS amend its regulations concerning birthing centers. Williston objected to certain facility requirements that DHSS regulations imposed on birthing centers. Williston also objected to DHSS regulations which required a birthing center to have a physician on staff, and which required nurses and midwives working in a birthing center to provide services pursuant to a collaborative practice agreement with a physician. In March 2010, DHSS denied Williston's petition. In September 2010, the Small Business Regulatory Fairness Board requested DHSS to work with birthing centers to determine whether its birthing center regulations were compliant with state statutes. At about the same time, Williston officially filed an application with DHSS seeking a birthing center license for AML, including requests for variances from the regulatory requirements for birthing centers.

         In December 2010, DHSS again advised Williston that it would not amend its birthing center regulations as requested. DHSS also advised Williston that AML remained subject to the existing licensing requirements for birthing centers, and declined to grant AML any variance from the licensing requirements. DHSS did not outright deny AML's pending license application but encouraged Williston to continue to work with DHSS to bring AML into compliance with the regulations. AML was operating without a license during this period of time.

         In May 2012, Williston requested a final determination from DHSS on AML's license application. On June 11, 2012, DHSS advised Williston it no longer considered AML's license application to be active.

         In August 2012, Williston appealed to the Administrative Hearing Commission ("AHC") in his own name. The AHC later changed the named petitioner in the case from Williston to AML pursuant to a joint request from the parties. Williston, and later AML, challenged DHSS's decision not to amend its regulations. However, most of the testimony and evidence presented during the AHC hearing concerned DHSS's refusal to grant AML variances from the regulatory requirements. The AHC issued a decision concluding that AML was not entitled to most of the variances Williston had requested. The AHC denied AML's application for licensure as a birthing center, finding that AML had failed to establish that it was qualified as a birthing center. The AHC further concluded that it had no authority to amend DHSS's regulations or to order DHSS to do so.

         On December 2013, AML filed a petition for judicial review with the Circuit Court of Cole County, which upheld the AHC's decision in all respects. After the trial court issued its judgment, but within the thirty-day period during which the trial court maintained control over its judgment, Williston filed a motion to intervene, claiming that he retained an interest in the proceeding and should be added as a party because AML had filed a notice to wind up its affairs. More than thirty days after the trial court's judgment, the trial court denied Williston's motion to intervene. Williston (and not AML) then filed a notice of appeal, challenging both the trial court's denial of his motion to intervene and the trial court's judgment affirming the AHC's decision. We dismissed Williston's appeal in Williston v. Missouri Department of Health & Senior Services, 461 S.W.3d 867 (Mo. App. W.D. 2015). We found that the trial court's order denying Williston's motion to intervene was void, having been entered after the trial court lost control over its judgment. Id. at 870. We also found that Williston's notice of appeal challenging the merits of the judgment affirming the AHC decision was not timely, as the motion to intervene was not an authorized post-trial motion which extended the time to file an appeal.[3] Id.

         On August 21, 2015, Williston filed a petition with the Board of Nursing. Williston asked the Board of Nursing to amend its regulations concerning the criteria necessary to practice as an advanced practice registered nurse ("APRN"), [4] and its regulations concerning collaborative practice agreements.[5] Williston's petition also asked the Board of Nursing to promulgate a rule defining the scope of practice for APRNs to limit the need for collaborative practice agreements. The Board of Nursing conducted a hearing on Williston's petition in September 2015 and denied the petition on the same day.[6] Williston did not seek administrative review of the Board of Nursing's decision.

         On or about November 10, 2015, Williston filed a petition in the Circuit Court of Jackson County, Missouri, which named a plethora of defendants, including DHSS, its current and former director, and its deputy director; the Board of Nursing and its appointed members; the Missouri Board of Registration for the Healing Arts and its appointed members; former Governor Jeremiah Nixon ("former Governor Nixon"); former AHC Commissioner Marvin Teer ("former Commissioner Teer"); the Missouri State Medical Association ("MSMA"); the Missouri Association of Osteopathic Physicians and Surgeons ("MAOPS"); the American College of Obstetricians and Gynecologists ("ACOG"); and physicians licensed in Missouri who are members of MSMA, MAOPS, ACOG, or any combination of those three organizations.

         On February 21, 2016, Williston registered the fictitious name "A Mother's Love Birth Center" with the Missouri Secretary of State. The next day, February 22, 2016, Williston filed another application with DHSS for a license to operate a birthing center. On February 23, 2016, Williston filed an amended petition ("First Amended Petition") in the Jackson County Circuit Court proceedings. Williston alleged in the First Amended Petition that he "anticipates that DHSS will deny his [pending license] application since Williston will not comply with regulations that DHSS insists are valid, and Williston insists are not." Williston's lawsuit was transferred to the Cole County Circuit Court in March 2016.[7]

         In his ten-count First Amended Petition, Williston sought damages for alleged conspiracies, and declaratory and injunctive relief. Broadly stated, Williston complained that regulations promulgated by DHSS, the Board of Nursing, and the Board of Registration for the Healing Arts improperly impose limits on birthing centers and on APRNs' scope of practice, and that the defendants conspired to promulgate, enforce, and refuse to amend regulations in order to limit Williston's ability to operating a birthing center in the manner he believes appropriate. Williston believes that he should be able to operate a birthing center without hiring a physician to serve on staff and without requiring APRNs to have a collaborative practice agreement with a physician.

         Specifically, Count I asserted that the Board of Nursing, the Board of Registration for the Healing Arts, MSMA, MAOPS, ACOG, and the members of MSMA, MAOPS, and ACOG engaged in a conspiracy to violate Williston's right to free speech and association. Count II alleged that DHSS, former Governor Nixon, the former director of DHSS, the deputy director of DHSS, and former Commissioner Teer conspired to interfere with Williston's political speech before DHSS. Count III asked the trial court to declare that the Board of Nursing's and Board of Registration for the Healing Arts' policies which require an APRN to secure a collaborative practice agreement with a physician are void because the policies were not promulgated as rules. Count IV asked the trial court to declare that diagnosing and prescribing fit within the statutory definition of "professional nursing." Count V asked the trial court to declare that the Board of Nursing's and Board of Registration for the Healing Arts' policies requiring an APRN to obtain a collaborative practice agreement with a physician are void. Count VI asked the trial court to declare that the Board of Nursing and its members have a ministerial duty to license and regulate APRNs by promulgating a rule which clarifies the scope of "professional nursing." Count VII asked the trial court to declare that statutes which delegate the regulation of nurses to physicians are unconstitutional, and to enjoin the Board of Nursing and its members, the Board of Registration for the Healing Arts and its members, DHSS, the Director of DHSS, MSMA, MAOPS, and members of MSMA and MAOPS from delegating the regulation of nurses to physicians. Count VIII asked the trial court to order the Board of Nursing, DHSS, and the director of DHSS to recognize APRNs' legal authority to diagnose and prescribe. Count IX asserted that the Board of Nursing's members, the Board of Registration for the Healing Arts' members, MSMA, MAOPS, ACOG, and members of MSMA, MAOPS, and ACOG engaged in a conspiracy to deprive APRNs of their constitutional right to practice without interference by physicians. Finally, Count X named only DHSS and its director, and asked the trial court to declare DHSS's regulations concerning birthing centers to be invalid.

         The following parties moved to dismiss Williston's First Amended Petition: (1) ACOG, MSMA, and MAOPS[8] (collectively "Private Defendants"); and (2) DHSS's current director, DHSS's former director, DHSS's deputy director, the Board of Nursing's appointed members, the Board of Registration for the Healing Arts' appointed members, former Governor Nixon, and former Commissioner Teer (collectively "State Defendants"). Following briefing by the parties and a hearing, the trial court issued its judgment ("Judgment") granting the motions to dismiss.[9] The trial court concluded:

Counts I, II, and Count IX are dismissed with prejudice for failure to state a claim, because State Defendants are protected from suit by sovereign immunity, official immunity, and the public duty doctrine, and because Plaintiff failed to properly fact-plead his conspiracy allegations.
Counts III, IV, V, VI, VII, VIII and Count X are dismissed with prejudice for lack of subject matter jurisdiction, because Plaintiff lacks standing to bring his claims for declaratory relief.
This Court further finds Plaintiff failed to exhaust his administrative remedies as to his February 22, 2016 Application for Licensure with the Department of Health and Senior Services and his August 2015 petition to the Board of Nursing, and orders that all claims arising from those matters are dismissed with prejudice.
This Court further finds that all claims arising from the Administrative Hearing Commission's November 7, 2013 decision denying A Mother's Love Birthing Center's licensure application, which was affirmed by the Cole County Circuit Court on July 21, 2014, are barred by the doctrine of res judicata and are therefore dismissed with prejudice.
This Court also GRANTS the Motions to Dismiss filed by ACOG, MSMA and MAOPS, and all claims against those Defendants are dismissed with prejudice.

         The Judgment then provided: "Any claims or relief sought by Plaintiff which are not specifically mentioned or disposed of within this Order and Judgment are hereby dismissed with prejudice."[10]

         Williston filed this timely appeal.[11]

         Standard of Review

         We review a judgment granting motions to dismiss with prejudice de novo. R.M.A. v. Blue Springs R-IV Sch. Dist., No. WD80005, 2017 WL 3026757, at *3 (Mo. App. W.D. July 18, 2017). A motion seeking dismissal of a petition for failure to state a claim upon which relief can be granted "is solely a test of the adequacy of a plaintiff's petition." Smith v. Humane Soc'y, 519 S.W.3d 789, 797 (Mo. banc 2017). "The facts alleged in the petition are assumed to be true, and all reasonable inferences are liberally construed in favor of the plaintiff." Id. at 798. "'If the petition sets forth any set of facts that, if proven, would entitle the plaintiff[] to relief, then the petition states a claim.'" R.M.A., 2017 WL 3026757, at *3 (quoting Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)). "A 'petition states a cause of action if its averments invoke principles of substantive law that may entitle the plaintiff to relief.'" Id. (quoting Lynch, 260 S.W.3d at 836). We will affirm the trial court's dismissal of a petition if it can be sustained on any ground alleged in the motion. Id.

         Summary of Points on Appeal

         Williston asserts eight points on appeal. Williston's first and second points relied on concern whether Williston has standing to seek declaratory relief as requested in Counts III, IV, V, VI, VII, and VIII of his First Amended Petition. Williston's first point on appeal argues that he has standing to pursue declaratory relief because his liberty interest in expressive association was harmed by the regulatory scheme which compels birthing centers to employ a physician or an APRN who has a collaborative practice agreement with a physician. Williston's second point on appeal asserts that, if we conclude that the only speech affected by the regulations concerning birthing centers is commercial speech, then Williston has standing to pursue declaratory relief because the regulatory compulsion to hire a physician or an APRN who has a collaborative practice agreement with a physician compels and restricts speech concerning the economic interests of physicians, nurses, and midwives.

         Williston's third point on appeal asserts that the trial court erred in dismissing his First Amended Petition because, in doing so, the trial court considered matters beyond the allegations in the First Amended Petition. Williston generally alleges that the trial court considered "counter-factual" allegations contained in the motions to dismiss that exceeded the allegations in his pleadings. And Williston argues that the trial court erroneously considered a copy of the Cole County Circuit Court judgment resolving AML's petition for judicial review of the AHC's decision denying AML a birthing center license. That judgment was attached as an exhibit to the State Defendants' motion to dismiss. Williston's point on appeal does not identify the Counts alleged in the First Amended Petition to which it applies, though the argument portion of Williston's Brief suggests that remand as to all Counts would be required should the point be granted.

         Williston's fourth point on appeal argues that the trial court erred in granting MSMA and MAOPS' joint motion to dismiss on the basis of the affirmative defense of res judicata because Williston was prevented from intervening as a party to the action which sought judicial review of the AHC decision denying AML a birthing center license. According to Williston, denial of his motion to intervene operates as a matter of law to negate the essential element of res judicata requiring identity of the persons and parties to the action. Williston's point on appeal does not identify the Counts alleged in the First Amended Petition to which it applies, though the argument portion of Williston's Brief suggests that remand as to all Counts would be required should the point be granted.

         Williston's fifth point on appeal concerns whether he has standing to pursue his claims for declaratory relief challenging the collective regulations about which he complains in light of the fact that DHSS will not issue Williston a license to operate a birthing center unless he complies with the challenged regulations. Though Williston's point relied on does not identify the Counts in the First Amended Petition to which it applies, it is plain from the record that Counts III, IV, V, VI, VII, VIII, and X of the First Amended Petition seek declaratory relief, and that the trial court's Judgment dismissed these Counts based on a lack of standing.

         Williston's sixth point on appeal argues that the trial court erred in dismissing the conspiracy claims set forth in Counts I, II, and IX of the First Amended Petition because the State Defendants are not protected by sovereign immunity, official immunity, or the public duty doctrine when sued in their individual capacities. Williston also claims that sovereign immunity, official immunity, and the public duty doctrine do not apply because Missouri explicitly permits claims for declaratory and injunctive relief against state agencies and explicitly permits challenges to the validity of state statutes.

         Williston's seventh point on appeal argues that the trial court erred in dismissing the conspiracy claims asserted in Counts I, II, and IX of the First Amended Petition because the First Amended Petition properly pleaded facts demonstrating: (1) that the Private Defendants in conjunction with the State Defendants had the unlawful objective or used unlawful means to delegate sovereign authority to private physicians to regulate APRNs, and interfered with the right to free speech and to associate with persons with different philosophical views; and (2) DHSS's former director, deputy director, former Governor Nixon, and former Commissioner Teer repeatedly and consistently interfered with Williston's exercise of political speech in that they shut down avenues of speech, and willfully and intentionally avoided ministerial duties like processing applications for licensure and petitions.

         Williston's eighth point on appeal claims that the trial court erred in concluding that Williston failed to exhaust administrative remedies associated with the license application pending before DHSS and with the petition denied by the Board of Nursing requesting amendment of its regulations. Williston asserts that administrative remedies need not be exhausted in order to challenge the threatened application of rules, statutes, or policies that are void. Williston further argues that there are no delineated administrative remedies for many of the claims set forth in his First Amended Petition. Williston's point on appeal does not identify the Counts of the First Amended Petition to which it applies, though the argument portion of his Brief suggests remand as to all Counts would be required if the point is granted.

         Summary of the Statutory and Regulatory Framework Williston Challenges

         Before we consider Williston's points on appeal, it will be helpful to explain the regulatory framework challenged by the First Amended Petition.

         Section 197.205 requires all "ambulatory surgical centers" to obtain a license from DHSS. An "ambulatory surgical center" is defined as "any public or private establishment operated primarily for the purpose of performing surgical procedures or primarily for the purpose of performing childbirths, and which does not provide services or other accommodations for patients to stay more than twenty-three hours within the establishment." Section 197.200(2) (emphasis added).[12] Section 197.225.1[13] authorizes DHSS to promulgate "reasonable rules, regulations, and standards for the types of services provided" in ambulatory surgical centers "to assure quality patient care and patient safety." Section 197.225.1 requires DHSS to promulgate rules, regulations, and standards concerning:

(1) Construction of the facility including, but not limited to, plumbing, heating, lighting, and ventilation which should insure the health, safety, comfort, and privacy of patients and protection from fire hazard;
(2) Number, qualifications, and organization of all personnel, having responsibility for any part of the care provided to the patients;
(3) Equipment essential to the health, welfare, and safety of the patients;
(4) Facilities, programs, and services to be provided in connection with the care of patients in ambulatory surgical centers; and
(5) Procedures for peer review and for receiving and investigating complaints regarding any ambulatory surgical center or any physician, dentist, podiatrist, nurse, assistant, manager, supervisor, or ...

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