Barsky v. Board of Regents of University of State of New York

• Decision Date: 26 April 1954
• Docket Number: No. 69,69
• Citation: 98 L.Ed. 829,347 U.S. 442,74 S.Ct. 650
• Parties: BARSKY v. BOARD OF REGENTS OF UNIVERSITY OF STATE OF NEW YORK
• Court: U.S. Supreme Court

347 U.S. 442

74 S.Ct. 650

98 L.Ed. 829

BARSKY

v BOARD OF REGENTS OF UNIVERSITY OF STATE OF NEW YORK.

No. 69.

Argued Jan. 4, 1954.

Decided April 26, 1954.

Mr.

Abraham Fishbein, New York City, for appellant.

Mr. Henry S. Manley, Albany, N.Y., for appellee.

Mr. Justice BURTON delivered the opinion of the Court.

The principal question here presented is whether the New York State Education Law,¹ on its face or as here construed and applied, violates the Constitution of the United States by authorizing the suspension from practice, for six months, of a physician because he has been convicted, in the United States District Court for the District of Columbia, of failing to produce, before a Committee of the United States House of Representatives, certain papers subpoenaed by that committee.² For the reasons hereafter stated, we hold that it does not.

In 1945, the Committee of the United States House of Representatives, known as the Committee on Un-American Activities, was authorized to make investigations of 'the extent, character, and objects of un-American propaganda activities in the United States.'³ In 1946, in the course of that investigation, the committee subpoenaed Dr. Edward K. Barsky, appellant herein, who was then the national chairman and a member of the executive board of the Joint Anti-Fascist Refugee Committee, to produce "all books, ledgers, records and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or any subcommittee thereof, together with all correspondence and memoranda of communications by any means whatsoever with persons in foreign countries for the period from January 1, 1945, to March 29, 1946."⁴ Similar subpoenas were served on the executive secretary and the other members of the executive board of the Refugee Committee. Appellant appeared before the Congressional Committee but, pursuant to advice of counsel and the action of his executive board, he and the other officers of the Refugee Committee failed and refused to produce the subpoenaed papers.

In 1947, appellant, the executive secretary and several members of the executive board of the Refugee Committee were convicted by a jury, in the United States District Court for the District of Columbia, of violating R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, by failing to produce the subpoenaed papers. Appellant was sentenced to serve six months in jail and pay $500. See United States v. Bryan, 72 F.Supp. 58; United States v. Barsky, 72 F.Supp. 165. In 1948, this judgment was affirmed by the Court of Appeals, Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and certiorari was denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767. In 1950, a rehearing was denied. Two Justices noted their dissents, and two did not participate. 339 U.S. 971, 70 S.Ct. 1001, 94 L.Ed. 1379. Appellant served his sentence, being actually confined five months.⁵

Appellant was a physician who practiced his profession in New York under a license issued in 1919. However, in 1948, following the affirmance of his above-mentioned conviction, charges were filed against him with the Department of Education of the State of New York by an inspector of that department. This was done under § 6515 of the Education Law, seeking disciplinary action pursuant to subdivision 2(b) of § 6514 of that law:

'2. The license or registration of a practitioner of medicine, osteopathy or physiotherapy may be revoked, suspended or annulled or such practitioner reprimanded or disciplined in accordance with the provisions and procedure of this article upon decision after due hearing in any of the following cases:

'(b) That a physician, osteopath or physiotherapist has been convicted in a court of competent jurisdiction, either within or without this state, of a crime; or * * *.'

In 1951, after filing an amended answer, appellant was given an extended hearing before a subcommittee of the Department's Medical Committee on Grievances. The three doctors constituting the subcommittee made a written report of their findings, determination and recommendation, expressly taking into consideration the five months during which appellant had been separated from his practice while confined in jail, and also the testimony and letters submitted in support of his charcter. They recommended finding him guilty as charged and suspending him from practice for three months. The ten doctors constituting the full Grievance Committee unanimously found appellant guilty as charged. They also adopted the findings, determination and recommendation of their subcommittee, except that, by a vote of six to four, they fixed appellant's suspension at six months. Promptly thereafter, the Committee on Discipline of the Board of Regents of the University of the State of New York held a further hearing at which appellant appeared in person and by counsel. This committee consisted of two lawyers and one doctor. After reviewing the facts and issues, it filed a detailed report recommending that, while appellant was guilty as charged, his license be not suspended and that he merely be censured and reprimanded.⁶ The Board of Regents, however, returned to and sustained the determination of the Medical Committee on Grievances, and suspended appellant's license for six months.⁷

Appellant sought a review of this determination, under § 6515 of the Education Law, supra, and Article 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, 1944, §§ 1283 1306. The proceeding was instituted in the Supreme Court for the County of Albany and transferred to the Appellate Division, Third Department. That court confirmed the order of the Board of Regents. In re Barsky, 279 App.Div. 1117, 112 N.Y.S.2d 778, and see Miller v. Board of Regents of University of State of N.Y., 279 App.Div. 447, 111 N.Y.S.2d 393, and Auslander v. Board of Regents of University of N.Y., 279 App.Div. 1101, 112 N.Y.S.2d 780, 781. The Court of Appeals, with one judge dissenting, affirmed. 305 N.Y. 89, 111 N.E.2d 222. That court allowed an appeal to this Court and amended its remittitur by adding the following:

'Upon the appeals herein there were presented and necessarily passed upon questions under the Federal Constitution, viz., whether sections 6514 and 6515 of the Education Law, * * * as construed and applied here are violative of the due process clause of the Fourteenth Amendment. (The Court of Appeals) held that the rights of the petitioners under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied.' 305 N.Y. 691, 112 N.E.2d 773.

We noted probable jurisdiction, the Chief Justice not participating at that time. 346 U.S. 807, 74 S.Ct. 23.

That appellant was convicted of a violation of R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, in a court of competent jurisdiction is settled. In the New York courts, appellant argued that a violation of that section of the federal statutes was not a crime under the law of New York and that, accordingly, it was not a 'crime' within the meaning of § 6514, subd. 2(b) of the New York Education Law. He argued that his conviction, therefore, did not afford the New York Board of Regents the required basis for suspending his license. That issue was settled adversely to him by the Court of Appeals of New York and that court's interpretation of the state statute is conclusive here.

He argues that § 6514, subd. 2(b) is unconstitutionally vague. As interpreted by the New York courts, the provision is extremely broad in that it includes convictions for any crime in any court of competent jurisdiction within or without New York State. This may be stringent and harsh but it is not vague. The professional standard is clear. The discretion left to enforcing officers is not one of defining the offense. It is merely that of matching the measure of the discipline to the specific case.

A violation of R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, is expressly declared by Congress to be a misdemeanor. It is punishable by a fine of not more than $1,000 nor less than $100 and imprisonment for not less than one month nor more than twelve months. See note 2, supra. For its violation appellant received a sentence of one-half the maximum and served five months in jail. There can be no doubt that appellant was convicted in a court of competent jurisdiction of a crime within the meaning of the New York statute. ⁸

It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a state's police power. The state's discretion in that field extends naturally to the regulation of all professions concerned with health. In Title VIII of its Education Law, the State of New York regulates many fields of professional practice, including medicine, osteopathy, physiotherapy, dentistry, veterinary medicine, pharmacy, nursing, podiatry and optometry. New York has had long experience with the supervision of standards of medical practice by representatives of that profession exercising wide discretion as to the discipline to be applied. It has established detailed procedures for investigations, hearings and reviews with ample opportunity for the accused practitioner to have his case thoroughly considered and reviewed.

Section 6514, as a whole,⁹ demonstrates the broad field of professional conduct supervised by the Medical Committee on Grievances of the Department of Education and the Board of Regents of the University of the State of New York. In the present instance, the violation of § 6514, subd. 2(b) is obvious. The real problem for the state agencies is that of the appropriate disciplinary action to be applied.

The practice of medicine in New York is lawfully prohibited by the State except upon the conditions it imposes. Such practice is a privilege granted...