Fortune Williams
13763 Campus Drive
Oakland
California 94605
Plaintiff
CIVIL CIRCUIT
COURT OF KENTUCKY
JEFFERSON COUNTY
FORTUNE WILLIAMS M.D.
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Plaintiff
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V. |
| Civil Action KENTUCKY
BOARD OF MEDICAL | JUDICIAL
REVIEW
LICENSURE
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Defendant
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_______________________________________|
PETITION FOR JUCICIAL REVIEW OF FINAL ORDER
1. Comes Now Fortune Williams,
pro se, pursuant to a Matter of Final Order Judicial Review Law. This petition and appeal is regarding a Fourth Amendment
violation by the defendant which breached the United States and Kentucky Constitutions, the Kentucky Administrative Procedure
Regulations, KRS 311.555 policy and the Medical Practice Act in Kentucky Board of Medical Licensure (The Board), jurisdiction
Jefferson Cir., administrative Case No. 806. The plaintiff seeks to void the Final Orders of revocation in Case No. 806 as
unconstitutional and invalid. Oral argument requested.
2. The legislative intent of this review is
under Commonwealth v. Reynolds, 136
S.W.3d 442 (Ky. 2004). The plaintiff seeks,
Jefferson County Circuit Court jurisdiction, Judicial Review under KRS 311.593
(1)(2) which provides:
Any physician who is aggrieved by a final order of the board
Denying a license or rendering disciplinary action against a
Licensee may seek judicial review of the order by filing a
Petition with the Circuit Court of the county in which
The board’s offices are located in accordance with KRS
Chapter 13B.
3.
In addition to Statutory review the plaintiffs is also entitled to such review pursuant to Section 2 of the Kentucky
Constitution as interpreted by American Beauty Homes Corp. v. Louisville & Jefferson
County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964) Basically,
judicial review of administrative action is concerned with the question of arbitrariness.
On this ground the courts will assume jurisdiction even in the
absence of statutory authorization of an appeal. There is an
inherent right of appeal from orders of administrative agencies
where constitutional rights are involved, and section (2) of the Constitution prohibits
the exercise of arbitrary power.
STANDARD
OF REVIEW
The court may only modify or remand those actions where the action of the Board:
1) constitutes a clear
abuse of discretion;
2) is clearly beyond its legislative delegated authority; or
3) violated the procedure
for disciplinary action as described in KRS 311.591. KRS 311.555. The findings of the agency shall be affirmed
if they are supported by "substantial evidence." Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972)
SCOPE OF REVIEW
4.
The gravamen of this complaint stems from the Kentucky Supreme Court decision in Fortune
Williams v. Commonwealth of Kentucky 2003-SC-00319-MR. in Res Judicata. The
Board participated in a Fourth Amendment violation while retrieving substantial administrative evidence for Case No 806. The
use of this information in administrative procedure was arbitrary and capricious leading to an unconstitutional Final Order
of revocation. The Court is authorized to review issues of law. Aubrey v. Office of
Attorney General, 994 S.W.2d 516, 519 (Ky.App. 1998).
5.
The use of unconstitutional evidence in administrative law voids any order. Pursuant to Mapp v Ohio. See, Taylor v.
Duke, 896 S.W.2d 618 (Ky.App.1995).
6.
The Fourth Amendment violation by the Board in administrative evidence gathering for the Final Order compels extraordinary
relief as provided by CR 60.02. See Gross v. Commonwealth of Kentucky 648 S.W.
853, 858 (Ky 1983) at 856.
7.
The Constitution of Kentucky very plainly protects all persons from the arbitrary acts of administrative agencies.
As recognized in American Beauty Homes, supra, the
non-ministerial orders of an administrative agency are inherently reviewable
for abuse or arbitrariness regardless of whether there is a statutory procedure established for that
purpose. Id.; see also Triad Development/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43 (Ky. 2004). Thus, whether scrutinized
under either KRS 311.593(2) or Section 2 of the Kentucky Constitution the plaintiff is entitled to judicial review.
8. The plaintiff
also applies the Williams Court decision to Administrative Case No. 806 under the
Kentucky Rules of Civil Procedure CR 60.02.
CR 60.02 qualifies the Williams Court decision as a mistake, inadvertence, excusable neglect; newly discovered evidence; fraud in Board
administrative case No. 806. The CR 60.02 “any court” provision was timely filed in the sixth District Court under
Civil Action No. 3:07-CV-286-R after the Finality of the Williams Court opinion
in February 2007.
9. In the case of Kentucky Board of Medical Licensure v. Ryan, 151 S.W.3d 778, 780 (Ky. 2004), the Supreme Court held that the Board
has no authority to enter an order modifying a final decision revoking a medical license. Once the Board revokes a license,
it loses authority to consider remedial relief in the nature of that which would ordinarily be available.
10.
The Williams Court decision applies to administrative law in that the plaintiff
was not afforded procedural and substantive due process based on the unconstitutional evidence and illegal activity by the Board in Administrative Case No. 806. The provision of such due process ”by
an administrative body includes; a hearing, the taking and weighing of evidence if such is offered, a finding of fact based
upon a consideration of evidence, the making of an order supported by substantial evidence.” Morris v. City of Catlettsburg,
437 S.W.2d 753, 755 (Ky. 1969) (quoting Kentucky Alcoholic Beverage Control Bd.v. Jacobs, 269 S.W.2d 189, 192 (Ky.
1954)).
11.
This is a de novo, review of licensure revocation of the hearing
officer's "Findings of Fact, Conclusions of Law, and Recommended Order". The boards pre-administrative and administrative
conduct in Case No.806 paired with a Fourth Amendment [U.S.] violation was arbitrary and clearly erroneous and in de novo is not supported by substantial evidence in the record. Kentucky State Racing Commission
v. Fuller, Ky., 481 S.W.2d 298 (1972). Hughes v Kentucky State Racing
Authority 2004 WL 175244 (Ky. Ct of Appl). 12.
There was an appeal of the Emergency Suspension in Jefferson Circuit Court that this was arbitrary and capricious and
not properly supported factual findings Urella
v. Kentucky Board of Medical Licensure, 939 S.W.2d 869 (Ky. 1997).
13. When taken with the Williams decision and a judicial review no reasonable
person can be persuaded to uphold the judgment in administrative Case No. 806. See
Carnes v. Tremco Mfg. Co., 30 S.W.3d 172, 176 (Ky. 2000)(workers' compensation case); Morgan v. Nat'l Resources &
Envtl. Protection Cabinet, 6 S.W.3d 833, 837 (Ky.App. 1999)(emphasis added).
14. The suppression of a substantial material facts based on the Williams Court
applied in de Novo leaves insufficient evidence to sustain the Final Order. Starks v. Kentucky Health Facilities, 684 S.W.2d 5, 6 (Ky.App. 1984). The
facts in De Novo cannot be affirmed in the Final Order. Brown Hotel Company v. Edwards, 365 S.W.2d 299, 302 (Ky. 1963)
15. The Fourth Amendment violation by the Board
makes the Revocation Order Clearly erroneous. "Clearly erroneous" means not supported by substantial evidence. Kentucky Bd.
of Nursing v. Ward, Ky.App., 890 S.W.2d 641, 642 (1994).
16. Substantial evidenced was suppressed
by the Williams Court decision. "Substantial evidence" is evidence which, when
taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable
persons. Bowling v. Natural Resources and Environmental Protection Cabinet, Ky.App., 891 S.W.2d 406, 409 (1994).
17. "Administrative regulations of any kind
which have been duly adopted and properly filed have the full effect of law." Flying J Travel Plaza v.
Commonwealth, Transportation Cabinet, Department of Highways, Ky., 928 S.W.2d 344, 347 (1996). The regulations,
however, "are valid only as subordinate rules when found to be within the framework of the KRS 311.555 policy defined by the
legislation" as an administrative agency's authority "is limited to a direct implementation of the functions assigned to the
agency by the statute." Id. Any doubts concerning the existence or extent of an administrative agency's
power should be resolved against the agency. [Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418, 422 (1948)
].
THE DEFENDANT
18.
The Kentucky Board of Medical Licensure (KBML) located at 310 Whittington Parkway, Suite 1B, Louisville, KY
40222.
BACKGROUND
19.
Before or on September 26, 2001 and before any bona fide institution of
KRS 311.555 policy or grievance in Administrative Case No. 806 Kentucky Medical
Board investigator Eric Tout met with Ron Burgess, an investigative agent, for the Kentucky Office of the Attorney General
and Robert Kelly from the Office of Drug Control, in ex parte, for the purpose
of criminal and administrative prosecution of the plaintiff.
20.
The purpose of their meeting was to determine what evidence was to be retrieved by Tout under the color of former KRS
311.605(2) for law enforcement objectives to initiate Kentucky Board of Medical Licensure Case No. 806.
21.
On or about September 26, 2001 based on a pretext of automobile parking
four (4) different Kentucky State agencies including agents from the Kentucky Medical Board and the Kentucky Office of the
Attorney General (OAG) and seized evidence which included the partial records of thirty five (35) patient records from the
plaintiffs’ office.
22.
The Kentucky Supreme Court later opined, in “November 2006,”
that records seized on or about September 26, 2001 are invalid under the Fourth Amendment. This rendered all the seized evidence
as fruit from the poisonous tree.
23.
However, by October 30, 2001 the OAG had used the poisonous fruit to file Grievance # 02024 which initiated and sustained
Kentucky Medical Board administrative Case No.806. Pursuant to Mapp v. Ohio, Horton v. California
496 U.S. 128 (1990).
24.
It can be evidence on page two (2) of the grievance that the poisonous fruit of
(35) patient records were illegally used against the plaintiff to initiate KBML administrative case 806 under KRS 311.592 (1) and 13B.125, in absentia. The grievance should be the first evidence
voided in this matter.
25.
Next the (35) patient charts were given to the boards’ medical expert L. Douglas Kennedy for his opinion. See
Expert Review Worksheet. The worksheet was evaluated based on the poisonous fruit.
See top of page one of the worksheet.
26. After receiving the expert’s
opinion based on the poisonous fruit the medical board issued an EMERGENCY ORDER OF SUSPENSION against the plaintiff. Under 201 KAR 9:081 section 9 and KRS 13B.125 (1) (2) and KRS 311.592.
27. The plaintiff attended the Boards
Emergency Hearing. The November 19, 2001 hearing led to the Administrative Action
No 01-KBML-0606, in Case no. 806 leading to The Final Order of Emergency Suspension of the plaintiffs’ medical license. This order was affirmed in sixth Circuit Court Jefferson County.
28. The Final Order of Suspension contained
corroborative proof at page 6 that the 35 patient records were used as evidence against the plaintiff. ”The 35 patient
records pulled by the Kentucky Board of Medical Licensure from Dr. Williams office were introduced into the record and were
reviewed by the Hearing Officer.” This statement corroborates a more painful fact.
29. The Emergency Hearing Officer, Robert
Jones, relied on the poisonous fruit to form his judgment in the post-deprivation hearing. The use of information achieved
from a Constitutional violation voids the fundamental principles of constitutional administrative procedural due process.
Based on the Williams Court decision the Hearing Officers’ administrative
Action no. 01-KBML- 0616, which upholds the suspension is null and void.
30. In 2002 the plaintiff was found guilty
in Criminal Court of unlawfully prescribing controlled substances substantially based on the seized evidence. This was reversed
and remanded in the Kentucky Supreme Court.
31. The Final Hearing was held on January
27-28, 2004 at the Kentucky Board of Medical Licensure. Agency Case No. 806. On
April 12, 2004 a FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER NOTICE OF EXCEPTION AND APPEAL RIGHTS was filed
by Hearing Officer Susan Durant.
32.
The poisonous fruit continued to taint Board case 806 in the Final Hearing decision.
At page six, Finding of Fact, Conclusions of Law Administrative Action No. 01-KBML-0607. The poisonous fruit emerges
at page 6 “September 26 was the date that agent Tout seized medical records for the Board.” The medical board relied heavily on the opinion of its expert L.D. Kennedy regarding the (35) patient records
for determining his conclusions. See at page 9 “The ultimate foundation of Kennedy’s testimony rested upon the
office records of (35) of Williams’ patients obtained from First Care.”
This hearing recommended the revocation of the plaintiffs’ medical licensed based on the poisonous fruit and
multiple counts of a felony conviction. The evidence used in the Final Hearing was suppressed in criminal court under the
Williams Court decision.
33. On June 14, 2004 an Order of Revocation
was filed by the Board against the plaintiff based on the Final Hearing recommendations.
34. The plaintiffs Tennessee medical
license no. 28330 was revoked in its’ Case No. 2004013251 based on the Final Order in of Kentucky Medical Board Case
No 806.
GROUNDS UPON WHICH REVIEW IS SOUGHT AND ASSIGNMENT OF ERRORS. 35. The Kentucky Board
of Medical Licensure violated the Fourth Amendment of the United States Constitution
in seizing medical records from the plaintiff. The Kentucky Medical Board illegally used unconstitutional fruits as
“substantial evidence” from this seizure to revoke the plaintiffs’ Kentucky medical license in its’
administrative case no 806.
36. Fourth Amendment of
U.S. Constitution violation by Board agent Eric Tout on or About September 26, 2001 under color of former KRS 311.605(2).
See Fortune Williams v Commonwealth of Kentucky
2003-SC-00319-MR. This constitutes arbitrariness and a “clear abuse of discretion.” Also illegal search and
seizure under Kentucky Constitution section 10.
37. The medical boards working
“hand and hand” with law enforcement for criminal prosecution is clearly beyond the Boards legislative
delegated authority under KRS 311.555. See Williams.
38. The Board violated procedure
for disciplinary action as described in KRS 311.591 and KRS 311.555.
39. The findings of the
Board in de novo are not supported by “substantial evidence.” Under Kentucky State Racing Commission v. Fuller,
Ky., 481 S.W.2d 298 (1972).
40. The Board used unconstitutionally seized material as substantive evidence for its’ administrative
Case No. 806.
41. Deprivation of Fourteenth
Amendment Rights in Administrative Case N0. 806. Procedural and substantive Due Process deprivations. See also Kentucky
Constitution.
42. 201 KAR 9:081. Deprivations. The Grievance from the Kentucky Office
the Attorney General lacks truth and veracity. Section 2(1).
43.
Illegal use of former KRS 311.605(2) under color of law by Board agent Eric Tout in administrative
Case No.806.
44. Abrogation of Former
KRS 311.555 policy in Administrative case No 806. No bona fide administrative
process. No bona fide Grievance, No bona
fide Complaint. No investigation of Complaint. The Board exceeded its Statutory authority.
45. Arbitrary and capricious
use of Board authority in Administrative Case No. 806.
46. Unconstitutional Grievance
in administrative Case No.806.
47. Unconstitutional Suspension
of medical licensure by use of Poisonous fruit in the legal process.
48. 42 U.S.C. 1983
Deprivation of the plaintiffs’
rights in Administrative Case No 806 under color of law.
49. Violations of Kentucky
Administrative Procedures Act KRS 13A.010 – 13A.350.
50. Violations of Administrative
Hearings KRS 13B.005-.170
51. Trespassing by
Board administrative investigator Eric Tout. Before any grievance or bona fide administrative legal process Tout entered the
plaintiffs’ office and seized information under color of former KRS 311.605(2).
52. Failure to “independently”
investigate Complaint and Amended Complaint under KRS 311.555 policy. The
Williams Court rendered the opinion that all evidence used by the Board came from
law enforcement. A complaint compels a Board investigation.
53. Unlawful use of law
enforcement under the color of former KRS 311.605(2) and KRS 311.555. There was no Bona
Fide reason for the use of law enforcement in administrative Case No. 806.
54. The introduction of law enforcement surveillance into the administrative
hearings without the “duty of foreclosure” was unlawful. The introduction of parking lot and undercover
surveillance videos “without a legal process” violated KRS 311.11A00.
55. Violation of Kentucky
Rules of Evidence KRE 401. The introduction of parking lot surveillance as a pretext for a Medical Practice Act violation
is not relevant.
56. The defendant acted
with deliberate indifference by overstepping Medical Practice Act Jurisdiction of KRS. 311.555.
57
Breach of duty by the medical expert L.D. Kennedy. Kennedy confessed during the Emergency Hearing that he met
with law enforcement for “criminal prosecution” of the plaintiff prior to issuance of the Complaint.
58.
Broken chain of custody. The defendant obstructed the evidence by the intermingling of administrative and law
enforcement evidence without a legal process.
59.
Breach of duty . Breach of KRS 11A.00, 311.11A.005 (1) (a) the
board abrogated its’ independent and impartial administrative mandate by working in concert with law enforcement.
60.
Unconstitutional Revocation of medical licensure in administrative Case No.806.
61.
The board acted in “bad faith” breaching the Boards contract [duty] of the covenant of good faith
and fair dealing with the plaintiff. The medical licensure is a material fact of a contract of good faith between the plaintiff
and board defendants in their official capacity in state actions in administrative case no. 806. Pursuant KRS 311.591, 13A.140,
42 U.S.C. 1983.
62.
CR 60.02 (a) (b) (c) (d) (e) (f) the plaintiff has acted in due diligence by the timely filing, in September
2007, of New Discovery in Federal Court based on Williams Court Finality decision
opined in February 2007, with the inclusion of CR 60.02 in federal civil complaint
No. 3:07-CV-486-R.
63. Abuse
of Discretion in administrative case No. 806. See Goodyear Tire
and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
64.
KRS 13B.150 (2) (e). Pre-administrative ex-parte communication with law enforcement prior to Grievance under KRS 311.555 policy.
65. Truth
in Sentencing The use of the Williams Court felony conviction and its reversal
have no legal merit in current and future administrative decisions.
66. Investigative
Report lacks truth and veracity.
67. Misconduct
by Board investigator Eric Tout.
68. Negligence
by Inquiry Panels.
69. KRS 311.591
violations of disciplinary procedure.
70. Reinstatement
is the continuation of an illegal administrative process and is not an exhaustion of a legal remedy.
71. Wrongful
use of KASPER report under HIPPA as evidence of a Medical Practice Act violation of excessive prescribing of controlled
substances.
72. Suppression
of substantial evidence voids KRS 13B.090
73. Attachment
1, the Final Order in KBML (the Board) administrative Case No. 806
PRAYER
For all of the above reasons I PRAY for the Court accept jurisdiction
over the Boards Final Order in its administrative Case No.806
and vacate, reverse and remand, and otherwise inconsistent with law, and for any and all other relief to which I may appear
entitled.
Respectfully Submitted,
Fortune Williams, M.D.
13763 Campus Dr.
Oakland CA. 94605
510-638-2077
