*1 for Unfortunately, regulatory administering schemes programs sufficiently complex two to baffle sophisticated just striving mothers lawyer, college not two welfare to obtain appellants For training. example, have received defi- different state, nitions of the cost of their education from various county, Recognizing and federal officials. the diverse definitions others, some the lack operative words and of the definition of it parties surprising not became lost in the maze regulations. remedy
We conclude appropriate to remand the Tufaro matter stamp to the Division to determine her food light right allotment in to an exclusion of of her books $200 for and supplies transportation expenses. for Similarly, $700 we remand the matter Anzalone the Division to receive earmarking by evidence on the County. College issue of an to determine is entitled to whether she exclusion for trans- portation so, expenses. Division If should then determine her light food stamp allotment of that exclusion and the $200 expense supplies. exclusion for the of books and For modification and remandment—Chief Justice WILENTZ PASHMAN, CLIFFORD, SCHREIBER, Justices HAN- DLER, POLLOCK and O’HERN—7.
Opposed—None. IN THE MATTER OF THE OF THE LICENSE OF REVOCATION M.D., POLK, IRWIN JACOB LICENSE NO. 141816 TO PRACTICE MEDICINE AND IN THE SURGERY STATE OF NEW JERSEY.
Argued Decided July January 1982. *7 Goltz, Jr., Deputy General, Bertram P. Attorney argued the cause for appellant (Irwin Board of Medical State Examiners I. Kimmelman, Attorney General of New Jersey, attorney; Ermi- Conley, General, counsel). nie L. Attorney former Assistant of argued respondent Lewis Cohn the cause for Irwin Jacob Polk, Cummis, (Sills, Beck, M.D. Radin Tischman, attorneys; & Sills, counsel). Arthur J. of opinion
The the delivered by of Court was HANDLER, J.
This medical appeal of a involves doctor’s the revocation by license the Board of Medical Examiners for violations practice Jersey regulating of New statutes the of medicine. The primary question presented whether such violations must be by convincing by established clear and evidence rather than preponderance of evidence. The doctor the whose license was revoked contends the of the lesser of proof use burden medical proceedings license due contrary revocation process equal protection guarantees and of the federal and State validity Constitutions. Other claims relate to the of the statuto- ry standards, evidence, sufficiency proce- lack of by dural which the fairness in the manner Board reached its ultimate determination, the excessiveness of the sanc- final license tion of revocation.
I with filing of a seven-count proceedings These commenced of Medical (Board) with Board Examiners complaint the State M.D., against Polk, allergist, charging a Lincroft him Irwin J. juvenile patients. with female The sexual abuse of five com “gross guilty plaint alleged malpractice” that Polk was under 45:1-21c; repeated acts 45:9-16(h) N.J.S.A. and N.J.S.A. 45:1-21d; meaning profes N.J.S.A. malpractice within the 45:1-21e, well as a lack sional misconduct N.J.S.A. as under 45:9-6; N.J.S.A. good inability under and an moral character health, welfare,” public’s safety act “consistent as with required under 45:1-21i. N.J.S.A. at a juveniles against hearing testified Polk complaining panel witnesses designated by
before Board. The were Polk, patients adolescent who were in some females instances many years. there were individual Although for variations allega- a common core among stories, they of factual shared that, period tions. All of the over the girls testified time had complaints, them, covered Polk embraced and kissed areas, attempted pubic their fondled kissed touch their *8 sexually suggestive breasts and remarks. of made Some the juveniles they extremely upset were testified that and dis- case, In one traught episodes. girl’s a the as result of these against family police Polk which complaint apparently filed a pursued. was not testimony
The of the of 34 defense witnesses. case consisted testify regard- Over three heard several doctors days, the Board during stethoscope female ing both the to touch breasts need during to for palpate exams and the abdomen checks ulcers. heightened They sensitivity further to the of adoles- testified as innocent touching during physical cent females to or inadvertent past presidents examinations. included three of Witnesses County Society, Monmouth Medical each of whom to testified good reputation. Polk’s Other character witnesses included two ministers, rabbi, assemblymen, a a mayor, two the editor and publisher newspaper patients. of the local and former Ten present testified, of doctor’s and former members staff as personal did his office All confirmed his style, associate. which staff, of for physical gestures included affection friends and patients alike. having
Polk also behaved improperly testified. He denied or, indeed, any toward witnesses any complaining toward to of patients. example, complaining his For as one witnesses, C.D., might he patted he have conceded her on body, her rear on complimented only gestures her but as did affection. He that he not deliberately also said touch her breasts, might except necessary as have been for the stethoscope exam. He defended his actions as those a physician trying to develop who rapport patient having with a was a difficult time at trying any patients home. He denied kiss also his anyone if he had kissed it intimately and that would have been on the only. cheek
The panel complaining found that the three-member witnesses were exception credible. With the of two witnesses whose evidence, stories supported by panel were not sufficient believed complaining all witnesses determined that lascivious, Polk acts engaged particular charged had in the for medical, not his “repre- reasons. It concluded conduct was hensible.” to have It further the acts been committed “in found “no knowing manner” there was evidence of mental since Polk although sought emotional had been incompetence,” granted prepare a psychiatric time defense. It additional that Polk’s medical license be revoked. recommended the full presented Its Board findings were of Medical vote Examiners, accepted report’s which unanimous recommendations, including penalty revocation. Polk reversed, then appeal. Appellate filed an Division holding: *9 560 from a It is conviction aside violation our considered that, quite any fundamental fairness alone demand constitutional considerations of prohibitions, (essentially against proceedings in no different physicians disciplinary lawyers) in effect than the and no less crucial purpose upon physicians upon subject clear-and-convincing In instance, be standard each proof. “the dire of the interest is the concern, protection paramount public finding” flow from an adverse are identical. In short, which consequences may justifiable we are for the unable to basis to receive lawyer perceive any advantage of the more favorable standard of in proof quantum disciplinary
proceedings, denying while the benefit of the same standard to the physician Re Polk License Revocation, situated. similarly [In N.J.Super. (App.Div.1981)] petition filed a The Board of Medical Examiners for certifica- granted. tion which was N.J.
II first Board Medical Examin- issue whether the State ers could Polk’s constitutionally practice revoke Dr. license to medicine of the using preponderance evidence burden proof convincing as to clear and evidence. Polk asserts opposed Amendment, that due process under the Fourteenth as well as Constitution, requires application higher under the of the State’s clear convincing proof. burden of jurisdiction recognized
This has the usual bur long establishing den of proof agencies for claims before state adjudications contested is a fair preponderance administrative Parsekian, 143, 149 (1962), Atkinson v. 37 N.J. evidence. we proceedings “In before an observed that: administrative agency, necessary it is to establish truth only ... charges of the believable not by preponderance evidence and prove doubt.” See guilt beyond Suspen a reasonable In re Kerlin, N.J.Super. 179, sion or License of n.2 Revoc. (“Where disciplinary proceedings (App.Div.1977) respect with profession occupation agen vested in an administrative cy instance, in the must be charges first a fair established evidence”). preponderance of the believable explicitly This proof any general burden of found not statute in contested cases governing proceedings before State
561 any nor of agencies, provisions administrative is it found in the 45, the regulatory authority of Title which defines the of governs practice Board of the of medi Medical Examiners Nevertheless, particular cine in this jurisdiction. this standard of the evidence—has proof—a preponderance been consistent ly applied agency adjudications many years.1 in for See Malone Fender, v. N.J. (1979). 80 129
Despite this settled Polk that practice, application contends preponderance the the proof evidence burden of in the practice proceedings to revoke his license to medicine constitutes a denial of due process. substantive jurisdictions
Several
that have expressly considered this issue
have held
a preponderance
that
of the
proof
evidence burden of
is adequate
protect
the interest
involved in professional
Hamrick,
Ferguson
981,
licensure.
388
v.
So.2d
(Ala.1980);
983
Sherman v.
on
Commission
Licensure to Practice
Healing
Art,
595,
(D.C.App.1979);
407
Wilkins,
A.2d
601
In re
294 N.C.
528,
829,
(1978).
242
842
Robson,
S.E.2d
Cf.
575
Matter
P.2d
771,
1978)
(Alaska
(holding
776-77
process
that due
does not
a
require
higher
preponderance
than
standard
of the evidence
for
attorney).
disbarment of an
But see Fallon v. State Bd. of
Examiners,
322,
Medical
P.2d
326 (Wyo.1968).
441
Other deci-
sions that apply greater
proof suggest
burden of
this may
be
as
legislative policy,
desirable
a matter of
it is
but
not
constitutionally
Woodby
INS,
276,
mandated. Cf.
v.
385 U.S.
87
(N.J.S.A.
Procedure Act
amendments
the Administrative
1In
1978
Law,
52:14B-1,
Legis
seq.), creating
of Administrative
et
Office
report
hearing
provided
required to
their
examiners
lature
sufficient,
upon
findings
law
based
and conclusions of
“...
fact
competent,
52:14B-10(c), adopted
and credible evidence ...” N.J.S.A.
L.
1978,
67,
not, however,
particular
prescribe
c.
8. The enactment did
§
proof
applied
agency hearings.
history
long
burden of
to be
Given
preponderance standard, together
any
with the total lack of
indication in
language
legislative history
of an
statute or
its
intent to alter that
standard,
Legislature
it is
was content to
reasonable to infer that the
continue
preponderance-of-the-evidence
agency
“the traditional
standard” at the
hear
SEC,
102,
999,
ing
91,
1008,
level. Steadman v.
450 U.S.
101
67
S.Ct.
L.Ed.2d
79,
69,
933,
2008,
451
reh. den.
U.S.
101
318
S.Ct.
68 L.Ed.
483, 17
(1966)
proceeding);
Nishi
(deportation
S.Ct.
L.Ed.2d
Dulles,
(1958)
balancing test articulated U.S. (1976), 893, 903, 47 to be relevant and L.Ed.2d S.Ct. This analytical approach, applied recently instructive.2 as most *11 by Kramer, - U.S. -, Supreme Santosky the v. Court in (1982), 1388, requires 102 599 S.Ct. 71 L.Ed.2d an examination (1) balancing private of three factors: the nature of the (2) proceeding; the by countervailing gov interest affected the by proceeding; (3) ernmental interest to be furthered the risk of error in by the ultimate determination created use of particular proof. Santosky, - burden of at U.S. -, 1394, 102 at at S.Ct. 71 L.Ed.2d 607.
Turning first private to the interest involved—the license to practice profession of medicine—we examine the nature of that of the loss or interest and the extent curtailment by jurisdiction, threatened In this proceedings. we have long occupational considered an license to be in the nature of a property right, subject “always regulation to reasonable in the public 238, interest.” Jeselsohn Inc. v. Atlantic City, 70 N.J. 242 (1976). Accord, Tilton, 349, Lane Distributors Inc. v. 7 N.J. 362 (1951); Hock, 161, (E. Kravis v. 136 N.J.L. 164 1947). & A. See also Examiners, Schireson v. Board of Medical 130 N.J.L. process 2The due issue addressed in Mathews different from that was held, Supreme using balancing involved herein. In Mathews the Court a approach, evidentiary hearing required that an not as a was matter of due process disability Despite before the initial termination of benefits. divergence process between the due claims in Mathews and in this case—re- garding hearing prior governmental notice and to termination of benefits as opposed proof required proceeding— to the burden of in a license revocation we nevertheless find Mathews to be relevant. The core of both claims implicate require concept, the same concerns and delineation of the same namely, stake, property that where certain forms of are at the state is constitutionally protections. required to individuals certain accord
563 1943) (the right is (E. property & A. license “a ... society generally, society derived the state or from practitioners protected unfit”); entitled to be from found to be Co., Liberty N.J.Super. Frazier v. Mutual Ins. (Law living a is not a Div.1977) (the right right). to make fundamental standpoint, a constitutional the clear and convinc From required to be ing found as matter of standard has been due process resulting loss from proceed when the threatened civil ings consequences of a comparable to the criminal proceeding liberty in the away deprives permanently sense it takes clearly signifi individuals interests fundamental or Thus, Addington Texas, cant to 441 U.S. personal welfare. (1978), S.Ct. upon L.Ed.2d Polk in by relied Court, case, this Supreme upholding the use of the clear and convincing involving case potential standard in a loss of liberty through proceedings, emphasized civil that “civil commit ment any significant for purpose deprivation constitutes a liberty” social consequences” engendered and that the “adverse to a involuntary hospital commitment mental have “can *12 very significant 425, Id. S.Ct. impact on the individual.” at 99 1809, 60 L.Ed.2d recently, Supreme at at 330-31. Most Santosky recognized Court in an intermediate standard of proof—clear evidence—is convincing mandated “when the in a state proceeding individual at stake interests are both ‘more ‘particularly important’ and substantial than mere loss of 102 S.Ct. at at -, 1396, U.S. money’...” Santosky, - 71 Addington, U.S. at 608, 424, 441 99 S.Ct. at L.Ed.2d quoting at 1808, 60 330. noted that L.Ed.2d at It Court deemed “has necessary preserve this level of to certainty fundamental fair- proceedings ness in a variety government-initiated significant with ‘a threaten the deprivation individual involved ” Id. There or the interest liberty’ ‘stigma.’ of natural ¿he care, management of parents in their custody child was - id. interest,” U.S. at liberty a considered “fundamental -, 1397, 610, protected by S.Ct. at 71 L.Ed.2d 102 at
564 subject higher
Fourteenth Amendment and burden proof convincing of clear and evidence. contrast, rising
In
interests not
to the
other individual
right
protection by
are not entitled
a
level of fundamental
preponderance.
than a fair
In Vance
proof greater
standard of
Terrazas,
252, 100
540,
461,
v.
444
62 L.Ed.2d
reh. den.
U.S.
S.Ct.
920, 100
1285,
(1980),
Supreme
445
565 loss, we is recognize poten- that the interest substantial the and deprivation great. v. Peper University tial Princeton See Board Trustees, of 55, (1978); N.J. 77-78 Brennan 77 v. United Hat- ters, (E. 1906); Pennica, & A. N.J.L. 742-43 In re 36 N.J. (1962). protection significant Whether the of this private as a of requires, process, interest matter substantive due convincing of use the clear enhanced proof and standard of disciplinary in a proceedings, State-initiated license involves comparative weighing of the substantiality assessment of that interest with the additional criteria articulated in Mathews Eldridge. v. to under
The next factor be considered Mathews is the governmental through disciplinary interest to be furthered case, proceedings. In this that interest assure the health through regulation welfare of the State people of supervision profession. of medical the licensed Government paramount protect has a obligation general of health public. right practice The of physicians profession their governmental to this necessarily subordinate interest. Schireson Examiners, Bd. Med. N.J.L. (Sup.Ct. of 1942), (E. grounds, rev’d 130 N.J.L. 1943). other 570 & A. The Legislature regulation “has a interest in the deep profes sion which protects life and health” and clearly abiding has an purpose' punish “to physicians deter and who would risk the through patients gross malpractice.” health and lives of In re Marco, Suspension of De 83 N.J. Legislature recognized
The has a importance also the physician medical license and the interest of in retaining his requires, instances, license. statute in regulatory most professional physician guilty not be found misconduct unless particularly egregious his as to acts are so constitute misconduct malpractice, gross magnitude 45:9—16(h); N.J.S.A. Kerlin, N.J.Super. (a at 185-86 N.J.S.A. 45:1-21c. See greater applicable than degree ordinary misconduct tort cases is required discipline). By for requiring showing *14 misconduct, has increased
flagrant Legislature significantly proving which the must bear in the substantive burden State warrants sanction. professional dereliction that the Accordingly, we conclude State has a substan regulation supervision tial interest in the and of those who are In this capacity, the acts as practice licensed to medicine. State well-being of guardian the health and its It citizens. protect must be vigilant competent fully. these interests paramount Its own are obligations respect rights in this to the claiming practitioner privilege pursue individual his or her profession. medical preponderance
We consider whether the use of the finally engenders the evidence an intolerable risk of error. standard Mathews, inquiry Under concerns both the risk that there this may private be deprivation resulting an erroneous interests standard, preponderance from use of the as well as the likeli- higher evidentiary hood that a standard would effectively elimi- nate or reduce that risk. factfinding phase is an proceedings, adversary these
contest between the
licensee.
It is a
contested
Appeal
In re
Uniform
administrative case. See
Adm. Proced.
Rules,
(1982);
90 N.J.
to 1.7. The
N.J.A.C. 1:1-1.5
pertinent
whether,
course of such
inquiry
proceedings,
in the
preponderance
fairly
standard
allocates the risk of mistake
parties
sufficiently
between these two
reduces for
both
-
risk of
Santosky,
an erroneous determination.
at
U.S.
-,
at 607.
There are several reasons the use of the preponderance proceedings the evidence standard in medical license revocation factfinding. does not result in an undue risk of incorrect As noted, already disciplinary proceedings against medical licensees include, high involve substantive standards. These as a basis for license, of a medical suspension insanity, or revocation professional physical incapacity, or mental habitu- incompetence, intoxicants, committing al crimes of use of abortion or moral turpitude, gross malpractice neglect or the practice of medi- endangering cine and of persons. health lives N.J.S.A. broad, 45:9-16. they capable While these standards are *15 objective application. measurement In light heightened and of defining and professional strict substantive standards miscon- duct, the the evidence of preponderance proof burden consti- certainty tutes an to appropriate level establish guilt. Cf. Terrazas, Vance v. at S.Ct. 444 U.S. at 62 L.Ed.2d at 474 choice of (approving congressional the preponderance cases, noting expatriation particular standard in in its correla- requirement tion with heightened the substantive such pro- in ceedings it must be that the shown citizen an committed act .to renounce expatriating citizenship). with the intent Hence, or any perceived need to counteract overcome substan- tive potential subjective, the for standards that have discrimina- tory, arbitrary capricious or application through heightened a proof present burden of not under this regulatory are scheme. Furthermore, adequately the licensee able defend case, against for charges. example, In this respondent was represented counsel. He by outstanding used 34 defense wit nesses, professionals licensed many excep of whom were with qualifications enjoyed who tional and others reputations fine in addition, their communities and fields of endeavor. application procedural process due fairness'or in the context adjudication is administrative assured disciplinary matters before the procedures Board of Medical Examiners. give These a person threatened rights by every whose are proceedings and meet opportunity prepare realistic the charges. The framework agency designed for conduct contested cases is fairness, to provide complete objectivity impartiality in the adjudication. administrative Unemployed-Employed See Coun J., Horn, cil of N. Inc. 85 N.J.
Finally,
subject
disciplinary
matter involved in the
pro-
confusion,
ceeding
misunderstanding
is such that the risk of
issues,
error
is at minimum. The
evidence and the
a
parties
involved.
thoroughly
are
understood
standards
specialty
parties,
in which the
They
profession,
relate to a
are
uniquely
members of the tribunals
all
witnesses and the
expertise. Compare Santosky,
qualified and share a common
(Court
The clear and
standard
used
factfinding
adjudicating
assist the
tribunal in
cases that involve
difficult,
so unusual or
circumstances
issues that
generate
serve to
proof
will not
confidence
by lower standard
Addington,
in the
determination. See
441 U.S.
ultimate factual
*16
423,
1808,
(“[t]he
at
In case, hand, this on the other neither an intrinsically elusive matter, subject evidence, esoteric nor the absence of reliable nor possession party exclusive of evidence one character- izes disciplinary proceedings administrative against a licensed medical that the preponderance doctor. We are satisfied of the evidence of is sufficient for proof purposes burden of an admin- adjudication concerning professional istrative guilt and disci- pline against a doctor. subject licensed medical view of the evidence, matter of the nature of the proceedings, such witnesses, qualifications special expertise tribunal, advantages parties, relative and resources and the minimal risk factfinding of inaccurate or erroneous and final decisionmaking, adjudication confidence in a final would not be imperiled by employing preponderance of the evidence stan- dard. proceedings These do not demand an enhanced burden of proof. application that the
Accordingly, we conclude burden proof by the evidence preponderance a fair standard in this any rights guaranteed case did not deprivation result Polk Process clause of the under either the Due Fourteenth under our counterpart Amendment or its State Constitution. *17 Ill Polk argues preponderance also of the application that the the evidence disciplinary proceedings standard to medical vio- equal guarantees lates the protection federal and State attorney disciplinary proceedings gov- Constitutions because 570
erned the higher convincing clear and standard. He bases his argument principally upon the rationale underlying this Court’s adoption of convincing the clear and standard in disbarment or suspension proceedings: ... Because of finding the dire which flow from an adverse consequences may regard ... finding we as greater to sustain such a a necessary production quantum than is in a civil action, i.e., proof a ordinarily required preponder ance of the evidence, but less than that called for to sustain a criminal guilt Although a conviction, i.e., reasonable doubt. proof beyond the specific rule has not been articulated in this we declare it previously State, to be that or disbarment is warranted discipline where the evidence of unethical only conduct against or unfitness to continue in an practice is clear and attorney
convincing, 36 N.J. (1962) Pennica, re [In 401, ] Polk argues that meaningful there are no differences between attorneys physicians with respect to the consequences “dire which may flow from an finding” adverse resulting in the loss of the privilege to pursue profession. Therefore, one’s he claims disparate proof burdens of violate Fourteenth Amendment’s equal protection, mandate of protection a also implicit 1, in Article the New par. Jersey Constitution. suspect
We are satisfied that no class or fundamental right is equal protection involved for purposes. If either were implicated, inequality then the or difference in treatment would be invalid unless it could be shown that a compelling state interest was at disparate stake and that treatment was essential to vindicate that compelling state interest. San Anto nio Ind. School Rodriguez, 1, 17, Dist. v. 1278, U.S. 93 S.Ct. 1288, reh. L.Ed.2d den. 411 U.S. 93 S.Ct. (1973). L.Ed.2d 418 See Tomarchio v. Township Greenwich, 75 N.J.
A license
practice
profession
a
is not a basic individu
al right. While it
embraces
substantial
individual
interest
which deserves
protection,
abundant
it cannot
equated
be
with a
right,
fundamental
regulation
the reasonable
of which can be
justified
measured and
only by compelling state interest. The
right
practice
is granted
medicine itself
in the interest of the
public
“always subject
and is
regulation
reasonable
in the
public interest,” Jeselsohn,
571
infringement
right
“Absent
fundamental
or dis
class,
against
suspect
equal protection
crimination
is not
legislative
denied if
the
classification
and bears a
reasonable
governmental
relationship
legitimate
objective.”
rational
to a
Glaser,
299,
(1980).
context,
Rubin v.
83 N.J.
309
In
it is
this
not
enough
group
to assert
merely
being
that one
differ
treated
Industries,
Kohl,
v.
ently. Trap
1,
(1973).
Inc.
5
Rock
63 N.J.
A
state
professions
is free to “deal with the different
according to
public
to each”
needs of the
in relation
and “no basis for the
charge of an unconstitutional discrimination” is
sim
established
ply
regulation
only
profession.
because a
one
affects
Semler v.
Oregon
Examiners,
608, 610-611,
294
Bd. of Dental
U.S.
55 S.Ct.
570, 571,
(1935). Accord,
There
signal
legal
differences between
medical and
professions.
legal profession
Discipline of the
reposes
this
Court,
government.
legislative
not the
branch of
Supreme
“The
jurisdiction
Court
over
the practice
shall have
admission to
of law
discipline
persons
and the
admitted.” N.J.Const.
VI,
(1947),
II,
allocating
¶
Art.
By
segregating
3.
§
powers
government,
recognized
the constitutional
framers
the separate
government
branches of
were distinct and
(1982);
Byrne,
v.
90 N.J.
independent.
Assembly
General
Knight Margate,
(1981).
They
Polk further asserts that
is no “distinction of
degree
attorneys
physicians
between
as re
constitutional
health,
welfare.”
spects
safety
However,
public
unlike
law,
practice
“daily practice
medicine concerns life
consequences
public.”
and death
to members of the
In re
Kindschi,
52 Wash.2d
P.2d
See also
re
*19
Suspension
Marco,
of De
In practice law, virtually every aspect professional subject conduct is accountability. Disciplinary jurisdiction behavior, covers all professional facets of including personal stake, 5-101, financial DR conflicts, interest or 5-105, DR client confidences, 4-101, incompetence 6-101, DR neglect, DR appearances 9-101, DR impropriety, speech, 8-102, DR adver- 2-101, tising, DR keeping, record DR 9-102(B)(3), as well as more serious such as trust, infractions breach of misuse of funds, violations, entrusted and criminal DR 1-102 and 9-102. Disbarment attorneys permanent, is in contrast to the revoca- tion of a medical license which can be subsequently restored.
The disciplinary machinery governing attorney conduct extensive. It carefully structured to assure not only fairness to attorneys protection but public. complaints Ethics are received, investigated, initially heard and by determined District Ethics Committees. R. 1:20-2. Review on a de novo basis is provided by Disciplinary Review Board. R. 1:20-3. Dis- putes involving fees can be resolved Fee by Arbitration Commit LiVolsi, tees. R. 1:20A. See In re 85 N.J. (1981). All disciplinary subject Supreme matters are to review Court. R. addition, attorneys 1:20-4. subject to the Yengo, In re contempt powers 84 N.J. of the court. See Moreover, regulatory governing structure attorney’s pro fessional provides conduct for the welfare of may clients who have been wronged by lawyer. Administrative Office of the Courts can undertake random cheeks of financial attorney’s records, files, records, attorney’s and it can take over an emergency. R. 1:20-5(b). accounts and in an practice Clients who have been seek redress from the defrauded can Clients’ *20 contribute. R. 1:28. Security Fund, attorneys must to which all distinguish legal These factors serve pro- and medical comprehensive fessions. regulations, In this total framework it cannot convincing be and proof said that the clear burden of applicable in attorney disciplinary upon matters confers them a special advantage any regulated profession. vis-a-vis other This aspect of the disciplinary scheme does not stand in isolation. It is, sense, in a by offset the strict accountability to which attorneys subject. are We are otherwise therefore satisfied that the detailed for pervasive system discipline governing legal profession, its use of a including clear and convincing burden of proof, invidious does not constitute discrimination in comparison professions. applied with that to other
IY Polk relating raises several to the validity other issues standards, license sufficiency revocation of the evidence and the lack procedural process in the ultimate due determination. He questions also of the fine against the amount assessed him.
Regarding statutory Polk’s claim that the are standards vague, conduct, both as application written and in their to his we Suspension In re virtually considered a identical issue
574
Heller,
pharmacist charged
Polk’s are answered Heller. he claims that imposition malpractice is not “gross gross sexual neglect in practice of medicine which has endangered the *21 health or life any person” (N.J.S.A. 45:9-16(h)) “gross or negligence, gross malpractice gross incompetence” or (N.J.S.A. 45:1-21c) because the acts were not related to the prac actual tice of there was no evidence that they endangered medicine and Looking whole, lives of to the patients. his statute as a it is beyond patients belief that sexual abuse adolescent under guise of anything treatment other gross could be than mal practice. danger The psychological amply health was demon strated by testimony they upset, of the victims that were frightened, doctors, wary seeing shocked and even other despite Here, requiring health conditions attention. in Hel- as ler, the cannot language of the statute have “led him to believe that his conduct was 73 N.J. at permissible.” 307.
Finally, argues concepts Polk of “professional or occupational misconduct,” 45:1-21(e), N.J.S.A. incapability cause, “for any good medical or other discharging the func tions of a public’s licensee in a manner consistent with the health, welfare,” 45:1-21(i), safety “good N.J.S.A. and moral character” unconstitutionally vague. While we did not expressly Heller, case, reasoning decide this issue in our in that as well as our explicitly citation to cases that did reach this issue, support Heller, rejection of this claim. See 73 N.J. at (“The 300-01 on to state Lentine court went that the statutory ‘unprofessional terms ‘bad moral character’ and dishonora ble vague conduct’ were as to render the not so statute unconsti tutional”). incorporates void for vagueness doctrine notions of fair
notice and warning.
566, 572-73,
Goguen,
Smith v.
U.S.
S.Ct.
1246-47,
(1974).
Exam, N.J.Super. den. (App.Div.), 599-600 certif. sub nom., Community Hospital, In the Matter Garden State (1977) regulation forbidding per- N.J. claim that (rejecting “any major surgical procedure except duly formance of “a by “except qualified surgeon” emergency” in matters of dire noted, was vague. particular, The Court unconstitutionally that rule—physicians, surgeons those by hospi- affected tals—“undoubtedly” understood generally terms). these lack of “good
Polk’s further claim moral character” applies was not 45:9-6 only relevant since N.J.S.A. those who seeking licensure is without merit. It is any also clear that requirement posed at outset of licensure can be considered a continuing requirement.
Polk’s assertions this evidence was insufficient to charges establish these is also meritless. was guilty He found sexually imposing on complaining himself three witnesses who were found to and whose be credible version the events was accepted by This sort of credibility judgment the Board. judicial binding unassailable on review and therefore upon Johnson, this Court. 42 N.J. (1964); Abeles v. Inc., Co., Engineering Adams 35 N.J. 423-24 Polk as error fact assigns further that the Deputy Attorney prosecuted General who case also functioned as the legal Board’s unrelated matters. advisor on He claims that it necessarily violates due to have the process functions combined person. one proceedings The were Board’s undertaken with regard full procedural requirements to our for fairness in ad adjudications. procedures ministrative All essential designed to a proper appear assure determination to have been satisfied. The record reflects a by reasoned determination both the hear ing Board, panel and the based an upon analysis and evaluation evidence, with properly explanation adduced sufficient for their to this charge conclusions. antedote kind of inheres in the of the record. There exclusivity has been no Board was tainted demonstration that attorney *23 independent to render an prosecuting charges or failed Blum, In re the evidence before it. judgment upon based See rule, general As a a due N.J.Super. (App.Div.1970). only when a combination of will be found process violation independent judgment impossible. functions is such as to render 55-58, Larkin, 95 S.Ct. 35, 1456, 1468-70, 43 Withrow v. 421 U.S. No such 712, (1975). impossibility was shown L.Ed.2d 729-30 here . $2,000
Polk of assessment in investi- further asserts that the first argues He there was gatory improper. costs was guilty charges, him insufficient evidence to find second, only one of the accusations involved conduct which 45:1-25, N.J.S.A. place took in 1978 of adoption after the authorizing imposition Thus, of statutory provision such costs. minimum, he costs should be argues, pro-rated. at a insufficiency as to has guilt The claim of evidential statutory justifications the stated already rejected. been One of pattern including repeated for license is a of conduct revocation Thus, entirely it N.J.S.A. malpractice. acts of 45:1-21d. was determine, first, complaint whether the 1978 appropriate to pattern or reflected a of conduct related to an isolated incident Therefore, malpractice. an investi repeated acts of constituting to gation complaint properly the last extended triggered by only disclosing pattern a continuous of complaints, earlier similar statutory the assessment of professional misbehavior. Since subject the conduct which is the related to properly costs rata allocation exists. pro discipline, no basis for
V the appropriateness The final we address concerns issue that Board. imposed by the sanction jurisdiction to the to express grant Court There no grounds of excessive an sanction on revise administrative However, original jurisdiction as has such ness. the Court any matter on “necessary complete determination 2:10-5; N.J.Const., 5, ¶ 3. grant review.” R. Art. This § power impose “to a lesser or different power includes the penalty Mayflower appropriate cases.” Securities Bureau Accord, Securities, (1973). Appeals 64 N.J. In re Senior Bock, Examiners, (1972); 60 N.J. 368-70 West New York v. N.J. 519-20 imposed alter exercising authority this a sanction only an administrative can do so agency, Court when necessary bring conformity action into with agency’s its power delegated authority. indepen has no to act The Court dently as an or to its judg *24 administrative tribunal substitute for It can agency. interpose ment that of the its views only it has agency mistakenly where is satisfied that the exercised its discretion misperceived statutory or authority. its own
It in reviewing has been that test stated administra tive punishment sanctions is disproportion “whether such is 'so offense, ate light circumstances, to of all the in the as to be ” shocking to one’s sense of fairness.’ Pell v. Board of Educa tion, Etc., 222, 321, 833, 34 N.Y.2d 313 N.E.2d 356 N.Y.S.2d 841 (citation (1974) omitted). This test was specifically applied in the context a proceeding to revoke a medical license in 960, Ambach, 894, DiMarsico v. 74 App.Div.2d 425 N.Y.S.2d 895 (1980), in which the penalty court said unless the shocked the conscience, it empowered was “neither nor inclined to substi judgment” tute that of the for Board. [its] Revocation of a license abuse has frequently for sexual been upheld by courts reviewing licensing determinations medical See, e.g., boards. Cardamon v. of Optometric State Board Examiners, 25, 520, (1968) 165 441 P.2d (en banc) Colo. 26 (expressly rejecting argument excessiveness as to eye doctor who 14-year-old made a patient strip to the pretext waist on the of examining her for clinical purposes); Kincheloe, breasts In re 272 116, N.C. 833, 157 (1967), S.E.2d 841 cert. denied sub nom. Kincheloe v. Board Carolina, of Medical Examiners of North 390 U.S. 88 20 (1968) (affirming S.Ct. L.Ed.2d 283 license with a patient injected 16-year-old who for a doctor revocation with intercourse having and then unconscious to render her drug Medicine, Registration Bd. of her); Michigan v. Clark af (1962) (license revocation N.W.2d 367 Mich. office). woman in his See to a advances firmed for indecent Fe Immoral Conduct Toward Annot., “Improper generally, Against Physi Disciplinary Measure for male Patient as Ground see, (1967). But Ross Dentist,” 15 A.L.R.3d cian or Etc., (Fla.App. Professions, State, So.2d Div. of finding of supported the evidence 1977) (although substantial opinion that are of the patient, sexual abuse of a “[w]e years after twenty-two livelihood chiropractor’s] terminate [the patients is unrea profession to his of unblemished service excessive”). sonable and impor unquestioned emphasized already
We have standpoint from practice medicine tance of a license Supra at 562-566. It society as well as of the individual. designed legislatively therefore an essential element Board, discipli in a regulatory scheme administrative consider all factors relevant nary proceeding, scrupulously furthermore, must, meticulously weigh licensure. It continued the continued services of the need for interest and public *25 countervailing the concern against qualified medical doctors ineptitude. professional from society protected that be Board, the license ease, imposed by In this the sanction statutory discretion. Polk’s revocation, within its was well to Board’s “reprehensible,” use the professional, were offenses However, simple as a matter of own apt characterization. the matter remand to the Board. to fairness we are constrained the may that Board have reached suggests strongly The record giving without sufficient punishment fixed as to determination coun- circumstances which Polk’s mitigating consideration to the A remand is sought present sel to his behalf.3 therefore on appropriate that to be so the Board can reconsider the sanction imposed giving Polk’s upon attorney opportu Polk after further nity argument to issue present information material to the punishment. court of the below is judgment the modified and
Accordingly, the matter to the State Board of Medical Examin- is remanded jurisdiction. ers. We do not retain PASHMAN, J., concurring part dissenting part. I majority opinion except concur with the insofar as it re- mands the case to the Board Medical Examiners to reconsider I simply the sanction license revocation. would reinstate order the State Board of revocation. majority opinion recognizes judicial the test for whether,
review of administrative sanctions is under the circum- case, stances of is so punishment disproportionate the Ante at sense fairness. shock one’s as to 578. The offense majority recognizes that license also revocation has frequently been upheld by physicians courts when have been found to have sexually Ante patients. abused their at 578-579.
The State Board Examiners unanimously of Medical recom- mended the penalty of license revocation. We should defer this administrative I decision. understand majority’s con- cern for procedural agree fairness. I wrong it was for the Board to have determined revoke Polk’s license before hear- 3Exceptions panel’s report writing by to the had been made in Polk’s only mitigation penalty” counsel. He was advised that “in comments of the meeting hearing any argument, would be at the heard Before Board. however, Board, by vote, accepted report’s unanimous recommenda- tion, Thus, including penalty given of revocation. counsel was the chance plea penalty, urging to make a for an alternative consideration information newly submitted, only already imposed penalty after the Board had State, response license revocation. After a brief from the Board took five-minute recess and then reaffirmed its earlier vote to revoke Polk’s license. *26 However, mitigating circumstances his ing attorney. from anything less indeed to warrant have to be substantial would attorney such as this. Polk’s in a case than license revocation the Board circumstances and get urge did those a chance recon- information did not warrant that the new quickly decided penalty. sideration of the the Board’s determina-
I reason to reverse absolutely see no decision. The Board heard it reconsider its tion or to order “grossly that Dr. Polk had relevant evidence and concluded con- reality “denied the of their exploited” patients, young his his satisfy cerns,” manipulated “surreptitiously them] certainly of his license is own lascivious interests.” Revocation abuse of one’s not circumstances. Sexual shocking under these Be- professional ethics. shocking breach patients is itself unreasonable, I is not dissent. cause license revocation in this dissent. joins Justice CLIFFORD SCHREIBER, and remandment—Justices For modification HANDLER, and O’HERN-4. POLLOCK part—Justices concurring PASHMAN
Dissenting part, and CLIFFORD—2.