Background
The Missouri State Board of Registration for the Healing Arts sought emergency suspension of David E. Smock’s physician and surgeon license based on allegations that he sexually abused a minor who had lived with him and was his patient. After a hearing, the Administrative Hearing Commission found that Smock had persistently sexually abused the child, constituted a serious danger to minors, and was subject to professional discipline.
At a later hearing concerning the appropriate sanction, Smock sought to rely on depositions taken in his criminal case after the commission’s hearing, arguing that they contained contradictory evidence bearing on the accusations. The Board sustained objections to that evidence and ultimately revoked Smock’s license, barring him from applying for reinstatement for seven years. The Cole County Circuit Court affirmed the administrative decision.
The Court’s Holding
The Court of Appeals affirmed. On Smock’s evidentiary claim, the court held that he failed to preserve the issue through a specific and definite offer of proof. The appellate record did not establish the contents of the excluded evidence, and it was unclear whether Smock had definitively requested admission of any particular document. His appellate briefing also did not explain why the evidence was admissible despite the Board counsel’s hearsay, relevance, and foundation objections.
The court also rejected Smock’s argument that the disciplinary hearing became unfair when Board counsel repeatedly asked questions that prompted him to invoke the Fifth Amendment. Because Smock, while represented by counsel, did not object to that questioning during the hearing, the Board had no opportunity to consider and rule on the issue. The claim therefore was not preserved for appellate review.
Key Takeaways
- A party challenging the exclusion of evidence in a Missouri contested administrative case generally must make a specific and definite offer of proof.
- An appellant must identify the excluded evidence and explain why it was admissible against each applicable objection.
- A party ordinarily cannot challenge administrative-hearing questioning on appeal without first objecting before the agency.
Why It Matters
The decision underscores that ordinary preservation requirements apply in professional-licensing proceedings. Even when excluded evidence allegedly undermines serious misconduct findings, an appellate court cannot evaluate the claim without a record showing what the evidence was and why it should have been admitted.
It also illustrates that invoking the Fifth Amendment does not itself preserve an objection to the questions asked. Counsel must separately object during the administrative hearing to give the agency an opportunity to address an asserted procedural unfairness.