207 Conn. 346 | Conn. | 1988
The issue on this appeal is whether the trial court erred in granting interlocutory injunctive relief to the plaintiff physician in an administrative action brought by the defendant department of health services (department) before the defendant Connecticut medical examining board (board).
It is necessary to set out briefly the procedural history of the action. In an amended statement of violations,
The hearing commenced on June 24, 1986. A second hearing date was scheduled for August 19, 1986, but was postponed at the plaintiffs request. It was eventually held on November 4, 1986. Two additional hearing dates were scheduled for December 2 and December 16, 1986, but these were also continued at the request of the plaintiff. In the meantime, the plaintiff instituted an action in the Superior Court in which he applied for a temporary injunction and order to show cause on November 13,1986. The defendants department and board filed a motion to dismiss on December 4, 1986, claiming that the plaintiff had failed to
The defendants appealed the decision to the Appellate Court and this court transferred the case to itself pursuant to Practice Book § 4023.
On appeal, the defendants claim that the trial court erred in: (1) concluding that the plaintiff was not required to exhaust his administrative remedies and had no adequate remedy at law; (2) concluding that irreparable harm had been established; (3) ordering that the plaintiff be accorded prehearing discovery “concomitant” to what is provided in the civil rules of discovery; (4) ordering that each board member who participates in the decision be required either to hear the case or to read the record in toto; (5) ordering that the ongoing hearing before the board recommence on or before May 1, 1987, and conclude on or before June 30,1987, absent further court order; and (6) ordering that the testimony of a witness in the hearing before the board be stricken if she continued to exercise her attorney-client privilege as she had done. We agree with the defendants that the plaintiff failed to exhaust his administrative remedies.
I
“ Tt is a settled principle of administrative law that, if an adequate administrative remedy exists, it must
“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” Concerned Citizens of Sterling v. Sterling, supra, 557; Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra. “The doctrine of exhaustion ‘furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review.’ Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57, 385 N.E.2d 560, 412 N.Y.S.2d 821 (1978).” Cahill v. Board of Education, supra, 242. Most important, a favorable outcome will render review by the court unnecessary as the United States Supreme Court has noted: “A complaining party may be successful in vindicating his rights in the administrative process. If
The defendants assert that “when a party has a statutory right of appeal from a decision of the administrative agency, he may not, instead of appealing, bring an independent action to test the very issues which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984). The defendants claim that General Statutes § 4-183 (a)
On appeal, the plaintiff has advanced four grounds for avoiding the usual requirement of exhaustion of administrative remedies. He maintains that: (1) exhaustion would be futile; (2) he would suffer irreparable harm; (3) his constitutional rights would be violated; and (4) he has filed a claim under 42 U.S.C. § 1983. Although he lists these four claims to avoid being required to exhaust his administrative remedies, the plaintiff’s first three claims essentially involve alleged violations and deprivations of constitutional rights that he argues are impossible to vindicate without permitting an exception to the exhaustion doctrine. The plaintiff correctly observes that a license to practice medicine is a recognized property right and may only be revoked under procedures that comport with constitutional
Even claims of constitutional violations, however, are not always an exception to the general requirement of exhaustion. Doe v. Heintz, 204 Conn. 17, 34, 526 A.2d 1318 (1987); see Florentine v. Darien, 142 Conn. 415, 426-27, 115 A.2d 328 (1955). “Simply bringing a constitutional challenge to an agency’s actions will not necessarily excuse a failure to follow an available statutory appeal process. Sullivan v. State, 189 Conn. 550, 554, 457 A.2d 304 (1983) . . . .” LaCroix v. Board of Education, supra, 79. “[D]irect adjudication even of constitutional claims is not warranted when the relief sought by a litigant ‘might conceivably have been obtained through an alternative [statutory] procedure . . . which [the litigant] has chosen to ignore.’ Sullivan v. State, supra, 559.” Id., 87.
A
The plaintiff claims that the department’s denial of prehearing discovery prevented him from “a reasonable opportunity to know the claims of the opposing party and to meet them.” Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 82 L. Ed. 1129, reh. denied, 304 U.S. 23, 58 S. Ct. 999, 82 L. Ed. 1135 (1938). The defendant asserts that there is no general due process right to prehearing discovery in an administrative proceeding. We agree with the defendant. “It is well-settled that parties to judicial or quasi-judicial proceedings are not entitled to pre-trial discovery as a matter of constitutional right.” National Labor Relations Board v. Interboro Contractors, Inc., 432 F.2d 854, 857-58 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S. Ct. 1375, 28 L. Ed. 2d 661 (1971); Federal Trade Commission v. Anderson, 631 F.2d 741, 748 (D.C. Cir. 1979) (“[t]he Constitution does not require that a respondent in an administrative proceeding be aware of all evidence, information and leads to which opposing counsel might have access”). A number of state courts have rejected claims of pretrial discovery based on general due process rights. See, e.g., Cooper v. Board of Medical Examiners, 49 Cal. App. 3d 931, 943, 123 Cal. Rptr. 563 (1975); Hanlon v. Board of Education of the Parkway School District, 695 S.W.2d 930, 933 (Mo. App. 1985); Marshall v. State Board for Professional Medical Conduct, 73 App. Div. 2d 798, 799, 423 N.Y.S.2d 721 (1979). The Uniform Administrative Procedure Act (UAPA),which is the governing statute in this proceeding, does not expressly provide for pretrial discovery. Nevertheless, this court has held that the “procedures required by the UAPA exceed the minimal
Pretrial discovery may be expressly authorized by statute, but, absent an express provision, the extent to which a party to an administrative proceeding is entitled to discovery is determined by the rules of the particular agency. Pacific Gas & Electric Co. v. Federal Energy Regulatory Commission, 746 F.2d 1383, 1387 (9th Cir. 1984). Although the trial court also stated that the “inequities of this case mandate that the plaintiff be accorded the ‘common law’ right announced by the Shively [v. Stewart, 65 Cal. 2d 475, 421 P.2d 65, 55 Cal. Rptr. 217 (1966)] court,” it cited no authority for its conclusion. Shively, upon which the trial court laid great stress, is not persuasive and is not the majority view. See Waller v. Powers Department Store, 343 N.W.2d 655, 657 n.2 (Minn. 1984) (noting that “[a] few courts [citing Shively and one other court] have taken the position that due process and fairness require that some form of access to information in the possession of an administrative agency be made available to one haled before the agency”). In Shively, a mandamus action, the court ordered certain discovery made available to the physician petitioner in a disciplinary proceeding which could have resulted in the loss of his license for allegedly performing abortions. In ordering the defendant board to issue certain subpoenas to obtain depositions and documents from the executive secretary of the board and its attorney prior to the disciplinary hearing, the Shively court said: “We are committed to the wisdom of discovery, by statute in civil cases . . . and by common law in criminal cases. . . . The criminal law analogy is appropriate here.” Shively v. Stewart, supra, 479. In that context, it noted that the medical board had the resources to obtain complete
The plaintiff claims that Matter of Doe v. Axelrod, 123 App. Div. 2d 21, 26, 510 N.Y.S.2d 92 (1986), supports his position because there the court held that inadequate discovery regarding a complaining witness in a delicensure proceeding would be unconstitutional, thus justifying an interlocutory order. A divided court did reach the merits of the due process question, but a crucial part of the decision dealt with the authority of the commissioner to exercise authority over evidentiary rulings made by the administrative law officer. Id., 29. A close examination of Axelrod, however, does not at all give it the force for which the plaintiff contends. In rejecting the respondent’s (commissioner of health) claim that the plaintiff had not exhausted his administrative remedies, the Axelrod majority said: “Nor is judicial intervention at this juncture an attempt to abort the adjudicatory process or to prevent the responsible licensing authority from proceeding with the statutory mandate, as asserted in the dissent. It is merely sought to prevent the Commissioner from
We conclude that the plaintiff is not entitled to a right, constitutional or otherwise, to general pretrial discovery that is “concomitant” to that required in civil cases in general. This does not mean that a party can be denied due notice of the hearing, the right to pro
B
The plaintiff requested in his motion for a temporary injunction that, since the credibility of witnesses is uni
C
The plaintiff’s next award of injunctive relief by the trial court was the ordering of a “continuous hearing.”
The board’s customary schedule contemplated a full day of hearings every two weeks in an individual case in light of the various hearings on other cases conducted by the board. It is undisputed that board members serve on an entirely voluntary basis. The department’s representative estimated that without cross-examination, its case would take “at the most four days.” The trial court, however, found that it was “undisputed that the hearing is likely to exceed twenty-one full hearing days.”
The defendants argue that, under the test for due process of Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the hearing schedule passes constitutional muster. On the other hand, the plaintiff argues that only a continuous hearing of the type he claims can avoid the irreparable injury which has resulted from the delay. “A due process analysis requires balancing the governmental interest in existing procedures against the risk of erroneous deprivation of a private interest through the use of these procedures. Mathews v. Eldridge, [supra, 335].” Petrowski v. Norwich Free Academy, 199 Conn. 231, 235, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986). In Mathews v. Eldridge, supra, 348-49, the United States Supreme Court stated: “The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and an opportunity to meet it.’ . . . All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard’ ... to insure that they are given a meaningful opportunity to present their case.” Under the Mathews v. Eldridge test, three factors must be considered: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id., 335. Although the private interest impli
D
The final disputed order by the trial court concerned the striking of a witness’ testimony if she continued to exercise her attorney-client privilege. The dispute arose when the principal complaining witness, W, testified at both the June and November hearings. At the latter hearing, the plaintiff sought to cross-examine W on the contents of a diary that she had completed in 1984. W testified that, at the request of her attorney in a pending civil lawsuit against the plaintiff, she had reviewed her diary several years after composing it. Using a different color pen, W circled certain code words and inscribed personal notes on the borders of particular pages. When the plaintiff cross-examined her on the reasons for such notations, W invoked her attorney-client privilege. The plaintiff’s counsel examined her closely concerning the nature and invocation of the privilege, but she invoked it only once at this juncture. Although the trial court admittedly did not examine the diary, it held that the attempted cross-examination on it “could lead a trier to find bias, or self-serving efforts to strategize a complaint.” The court ordered that, upon resumption of the hearing, if the witness persisted in claiming her attorney-client privilege, then all of her testimony would be stricken and not considered by the board.
The question of whether the right of the plaintiff to confront adequately this complaining witness against him via unfettered cross-examination has been impaired by the attorney-client privilege invoked by the witness is a difficult one. It is apparent, however, that an interlocutory injunction is not the proper vehicle by which to address this question in this case. The board has per
The trial court should not oversee and intervene in the administrative process as it did in this case. If every adverse ruling on motions presented in the early stages of administrative proceedings are subject to injunctive actions or other judicial intervention, the exception to the exhaustion doctrine would swallow the rule. “To permit judicial review, either by injunction or by declaratory judgment, of every procedural, preliminary and interlocutory order or ruling by which a person may
II
Another claimed exception to the exhaustion requirement is the filing of a § 1983 action. In this case, the § 1983 action was not filed in the original request for a temporary injunction but was added to the complaint by amendment filed in the Superior Court on December 11,1986. The trial court did not rule either on the impact of the § 1983 count on the exhaustion requirement or on its impact on any ground of the relief it ordered in its twenty-six page memorandum of decision. Actually, the § 1983 count is not mentioned in its entire decision. Moreover, the defendants moved for articulation on the exhaustion issue but its motion was denied. The plaintiff has now offered this as a ground for avoiding the exhaustion doctrine. We disagree.
The United States Supreme Court has held that exhaustion of state administrative remedies is not a prerequisite to an action for damages under § 1983. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 501, 102 S. Ct. 1699, 73 L. Ed. 2d 172 (1982); see also Laurel Park, Inc. v. Pac, 194 Conn. 677, 690, 485 A.2d 1272 (1984). We also noted in Laurel Park,
Ill
Our conclusion above that there are no constitutional infirmities in the due process rights granted to the plaintiff worthy of an exception to the exhaustion doctrine does not preclude a grant of injunctive relief on some other ground that might arise. West v. Bergland, 611 F.2d 710, 718 (8th Cir. 1979); Bakersfield City School District of Kern County v. Boyer, 610 F.2d 621, 626 (9th Cir. 1979); Darien v. Stamford, 135 Conn. 71, 77, 60 A.2d 764 (1948); see Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974). Any grant of injunctive relief, however, would be extraordinary and the circumstances of this case certainly do not justify such action at this time. The issuance of an injunction “rests in the sound discretion of the trial court.” Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law.” Hartford v. American Arbitration Assn., 174 Conn. 472, 476, 391 A.2d 137 (1978). “Absent a showing of immediate and irreparable harm, a party who is aggrieved by a decision of an administrative agency may not institute an independent action for the purpose of bypassing the UAPA appeal process.” Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982). We conclude that the trial court erred in finding that the plaintiff had sustained his burden on both requirements.
The sole case cited by the plaintiff to support his claim that the trial court properly concluded that he had no adequate remedy at law is Plano v. Baker, 504 F.2d 595 (2d Cir. 1974). In his brief, he cites Plano after contending that “[wjhere a dispute is largely factual, an administrative remedy that expressly forbids the examination and cross-examination of witnesses is inadequate as a matter of law . . . .” Plano is distinguishable both on the facts and on the law. In Plano, the Court of Appeals for the Second Circuit reversed the District Court’s dismissal of the petitioner’s § 1983 civil rights action because of his failure to exhaust his administrative remedies. In that case, the petitioner, a probationary teacher, was discharged without notice or hearing because he had given his pupils a controversial homework assignment on the subject of teenage attitudes toward premarital sex. The board that discharged him did not conduct a factfinding hearing and nowhere in the administrative process that the District Court required him to exhaust was there any proce
The plaintiff offered considerable evidence that he claims demonstrates that he has suffered irreparable injury and the trial court agreed. The plaintiff claims that he is subject to being disqualified from a prepaid health insurance program; his malpractice insurance was not renewed for a time and it took a lengthy resubmission and reconsideration process to do so; his name was excluded from a referral list of physicians; his practice has suffered a decrease in referrals from other physicians and a decrease in new patients. The plaintiff
We do not disagree that the plaintiffs current practice may have been “damaged” by these proceedings. The plaintiff, however, complains in great measure about injuries that are the indirect result of the initiation of the action itself. The reaction of former and prospective patients, insurance carriers, other physicians and the general public, although unfortunate since only charges have been made, is not of the defendants’ doing and yet the defendants are the target of the injunctive orders of the trial court. It is possible that a hearing that has dragged on without resolution because of inexcusable actions by the defendants could rise to the level of irreparable injury currently claimed by the plaintiff. This is not such a case. The administrative framework was not designed for instant resolution despite the foreseeability of physicians suffering temporary problems due to the pendency of serious charges against them. It was reasonably foreseeable that a board made up of unpaid physicians would not be able largely to neglect their own practices and hold a continuous hearing desired by the plaintiff. The defendant board attempted to ameliorate these circumstances by its willingness to hold hearings over the weekends to expedite matters. It was the plaintiff, not the defendants, who was responsible for the fact that only two hearing days were held in five months. The trial court’s finding that the plaintiff is suffering irreparable injury is clearly erroneous; Practice Book § 4061; and its award of injunctive relief was error.
There is error, the judgment is set aside and the matter is remanded to the trial court with direction to dismiss the case for lack of jurisdiction because of the plaintiff’s failure to exhaust administrative remedies.
In this opinion the other justices concurred.
The department of health services and the Connecticut medical examining board are agencies of the state within the meaning of General Statutes § 4-166. The department exists pursuant to General Statutes § 19a-l et seq. and the board exists pursuant to General Statutes § 20-8a et seq. The board consists of nine members, six of whom are physicians, and is authorized to “(1) hear and decide matters concerning suspension or revocation of licensure, (2) adjudicate complaints against practitioners and (3) impose sanctions where appropriate.” General Statutes § 20-8.
General Statutes § 20-13c provides: “restriction, suspension OR REVOCATION OF PHYSICIAN’S RIGHT TO PRACTICE. GROUNDS. The board is authorized to restrict, suspend or revoke the license or limit the right to practice of a physician in accordance with section 19a-17, when the board finds that such physician is unable to practice medicine with reasonable skill or safety for any of the following reasons: (1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; (2) emotional disorder or mental illness; (3) abuse or excessive use of drugs, including alcohol, narcotics or chemicals; (4) illegal, incompetent or negligent conduct in the practice of medicine; (5) possession, use, prescription for use, or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes; (6) misrepresentation or concealment of a material fact in the obtaining or reinstatement of a license to practice medicine; or (7) violation of any provision of this chapter or any regulation established hereunder.”
The trial court, O’Neill, J., held that the allegations, if proven by the plaintiff, would “easily lead a court to conclude that he was not receiving a fair hearing.” Although the plaintiff has asserted that this trial court found in his favor, this decision, as in any motion to dismiss, was predicated on construing the allegations most favorably to the nonmoving party, in this case the plaintiff.
Title 42 of the United States Code, § 1983 provides: “civil action for DEPRIVATION OF RIGHTS.
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”
General Statutes § 4-183 (c) provides: “The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.”
This court, however, has permitted a bypass of a direct appeal by a party raising a constitutional challenge when the party did not deliberately decide to bypass the direct appeal and the opposing party had not argued the foreclosing effect of that failure to the trial court. Connecticut Light & Power Co v. Norwalk, 179 Conn. 111, 117, 425 A.2d 576 (1979); see also Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 96 n.6, 448 A.2d 210 (1982). Despite the plaintiff’s claims to the contrary, neither condition is satisfied in this ease. The plaintiff has deliberately bypassed a direct appeal and the defendants did argue that the plaintiff had failed to exhaust his administrative remedies in its motions to dismiss. In contrast, the city of Norwalk did not appeal at the time of the deputy commissioner's ruling. Therefore, when the dispute arose, the time to appeal had expired. Thus, the court held that the city of Norwalk was not foregoing an appeal when it filed for injunctive action since an appeal was no longer possible.
The trial court said that Rhode Island “provides the most compelling arguments for allowing discovery, employing the reasoning in Shively [v. Stewart, 65 Cal. 2d 475, 421 P.2d 65, 55 Cal. Rptr. 217 (1966),] as its predicate.” It referred to Connecticut General Statutes § 19a-10 (concerning boards and commissions within the department of health services) as “almost identical” with General Laws of Rhode Island (1956) § 28-5-13 (G) (now § 29-5-7). This Rhode Island statute concerned the Fair Employment Practices Commission and provided that that agency had the following among its powers and duties: “In connection with any investigation or hearing ... to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and, in connection therewith, to require the production for examination of any books and papers relating to any matter under investigation or in question before the commission.” The statutes are not quite the same. The Rhode Island statute is broader than § 19a-10, which does not have any language about “investigation” at all.
The trial court then discussed the Rhode Island case of La Petite Auberge v. Rhode Island Commission for Human Rights, 419 A.2d 274 (R.I. 1980), which cited Shively. We do not agree with the trial court’s analysis of La Petite Auherge vis-a-vis its “employing the reason in Shively as its predicate.” Although the Rhode Island Supreme Court agreed with the fairness principle enunciated in Shively, it immediately footnoted that “agreement.” That footnote said since the Rhode Island statute “is broad enough to empower the commission to issue discovery subpoenas at the request of a party to a contested case, we do not need to hold, as the Shively court did, that the common law supplies its own authority, in the absence of stat
General Statutes § 4-179 provides: “proposal for decision, procedure. waiver. When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.”
The trial court’s finding that it was “undisputed that the hearing is likely to exceed twenty-one full hearing days” deserves some scrutiny. While it is fair to say that the plaintiff’s counsel maintained during his presentation in the trial court that he anticipated his case would take a period of time, there was no “evidence” adduced to support this finding. Cologne v. Westfarms Associates, 197 Conn. 141, 153-54, 496 A.2d 476 (1985). “[RJepresentations of the plaintiffs’ counsel are not ‘evidence’ and certainly not ‘proof.’ ” Id., 153. There is no claim that this twenty-one day period was an agreement or stipulation of counsel. It is, therefore, difficult to understand how the trial court could make such a finding, even assuming the plaintiff’s case would take much longer than the four hearing days that the defendants’ witness had testified that it would probably take for the defense case.