78 Hawai'i 21, Loui v. Board of Medical Examiners

• Decision Date: 21 February 1995
• Docket Number: No. 16469,16469
• Citation: 889 P.2d 705
• Parties: 78 Hawai'i 21 Wallace W.S. LOUI, M.D., Appellant-Appellant, v. BOARD OF MEDICAL EXAMINERS, Appellee-Appellee.
• Court: Hawaii Supreme Court

Page 705

889 P.2d 705

78 Hawai'i 21

Wallace W.S. LOUI, M.D., Appellant-Appellant, v. BOARD OF MEDICAL EXAMINERS, Appellee-Appellee.

No. 16469.

Supreme Court of Hawai'i.

Feb. 21, 1995.

As Amended March 23, 1995.

Roger C. Lerud, on the briefs, Honolulu, for appellant-appellant.

Richard A. Young, Regulated Industried Complaints Office, Dept. of Commerce and

Consumer Affairs, State of Hawaii, on the briefs, Honolulu, for appellee-appellee.

Before MOON, C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and CHANG, Circuit Judge in place of KLEIN, J., recused.

RAMIL, Justice.

Appellant Wallace W.S. Loui appeals from the First Circuit Court's order affirming the decision of the Board of Medical Examiners (the Board) to suspend him from practicing medicine for one year after he was convicted of attempted first degree sexual abuse and kidnapping. On appeal, Loui argues that the circuit court erred by: (1) affirming the suspension of his medical license by the Board because the suspension violates his constitutional right against double jeopardy; (2) allowing the Board to consider the testimony of the hearings officer; (3) affirming the Board's determination that Loui's convictions were substantially related to the qualifications, functions, or duties of a physician as required by Hawai'i Revised Statutes (HRS) § 453-8(a)(12); and (4) affirming the Board's decision to admit evidence of Loui's convictions and various police reports.

We disagree with all of Loui's points of error on appeal. Accordingly, we affirm the circuit court's order affirming the Board's decision to suspend Loui from practicing medicine for one year.

I. BACKGROUND

The facts established at the administrative hearing and adopted by the Board can be summarized as follows. Loui was issued a license to practice medicine in the State of Hawai'i in 1959. In March 1986, Loui hired a medical assistant (the complainant) to work for him. Her duties included office clerical work as well as patient preparation for physical exams. During the last week of July 1986, while at work, Loui asked the complainant to go to his residence on August 3, 1986, for the purpose of doing paperwork on medical files/records. He told her that she would be paid for this work, and although the complainant had not previously done any work at Loui's home, she agreed to do so on that date.

On the morning of August 3, 1986, the complainant arrived at Loui's residence in accordance with their agreement. Shortly thereafter, Loui confronted her with verbal and physical invitations to engage in sexual relations with him. When the complainant resisted his advances and attempted to leave, he physically restrained her and attempted to force himself upon her against her will. Based upon these events, Loui was indicted for attempted first degree rape ¹ and kidnapping. ² After a jury-waived trial in the Circuit Court of the First Circuit, Loui was convicted of attempted first degree sexual abuse and kidnapping. ³

The circuit court sentenced Loui to two concurrent terms of five years probation, during which he was ordered to comply with various special conditions. The special conditions of Loui's probation included: (1) 100 hours of community service for the attempted sexual abuse conviction; (2) 150 hours of community service for the kidnapping conviction; and (3) mandatory participation in a psycho-sexual treatment program directed by the Adult Probation Division until clinically discharged. Additionally, he was fined a total of $3,500. Loui appealed both of his convictions. ⁴

On April 12, 1991, the Department of Commerce and Consumer Affairs filed a petition for disciplinary action against Loui. On August 21, 1991, an administrative hearing commenced before Richard A. Marshall (the hearings officer). After considering the arguments and reviewing the evidence presented at the administrative hearing, the hearings officer concluded that Loui had violated HRS §§ 453-8(a)(7) and 453-8(a)(12). ⁵ The hearings officer then issued the following recommended order:

The Hearings Officer recommends that based upon the above findings of fact and conclusions of law, the Respondent's license to practice medicine in the State of Hawai[']i be suspended for one year and that the Respondent pay a fine in the amount of $1,000 to the Department of Commerce and Consumer Affairs within thirty days.

The parties were given an opportunity to file written exceptions to the hearing officer's findings of fact, conclusions of law, and recommended order.

On October 14, 1991, Loui filed a statement of exceptions with a request to present oral arguments before the Board. On December 18, 1991, the entire Board heard oral arguments from the parties. The Board also heard from the hearings officer. On the same day, the Board issued its final order finding that Loui violated HRS § 453-8(a)(12), which provides that disciplinary action may be taken against a licensee for a "[c]onviction ... of a penal offense substantially related to the qualifications, functions, or duties of a physician[.]" ⁶ Consequently, the Board suspended Loui's medical license for a period of one year and required him to pay a fine in the amount of $1,000.

On February 5, 1992, Loui filed an appeal of the Board's decision to the circuit court. At the same time, he filed a motion to stay the final order of the Board pending the outcome of the appeal of his convictions of attempted sexual abuse and kidnapping. On April 16, 1992, the circuit court denied Loui's motion to stay the final order of the Board. On September 15, 1992, the circuit court overturned the $1,000 fine because it found that the fine violated the double jeopardy clause of the United States Constitution. However, the circuit court denied the remaining issues on appeal, finding no constitutional or statutory violations with respect to the Board's suspension of Loui's license to practice medicine for one year. The court held that:

[s]uspension does not constitute a violation of the bar against double jeopardy or of any other constitutional or statutory provision. The conviction is final for the purposes of the [Board's] proceedings. The Findings of the Board are not clearly erroneous in view of the reliable, probative[,] and substantial evidence on the whole record. The decisions of the Board are not affected by any errors of law and are not otherwise violative of HRS [s] 91-14.

This timely appeal followed.

II. STANDARD OF REVIEW

Review of a circuit court's decision that is based upon its review of an agency's ⁷ decision is a secondary appeal. Vail v. Employees' Retirement Sys., 75 Haw. 42, 57, 856 P.2d 1227, 1236, reconsideration denied, 75 Haw. 580, 861 P.2d 735 (1993) (citations omitted). The standard of review in such cases is one in which the appellate court must determine

whether the [circuit] court was right or wrong in its decision, applying the standards set forth in HRS § 91-14(g) to the agency's decision. [Appellate] review is further qualified by the principle that the Board's decision carries a presumption of validity and [appellant] has the heavy burden of making a convincing showing that the decision is invalid because it is unjust and unreasonable in its consequences.

Id. (quoting Sussel v. Civil Service Commission, 74 Haw. 599, 608-09, 851 P.2d 311, 316-17 (1993)). Thus, our review of the circuit court's review of the agency's decision is based on the right/wrong standard. In order to determine whether the circuit court was right or wrong, we must apply the standards enumerated in HRS § 91-14(g) to the Board's decision suspending Loui from practicing medicine for one year.

HRS § 91-14(g) (1985) provides:

(g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact are reviewable under subsection (5); and an agency's exercise of discretion is reviewable under subsection (6). Vail, 75 Haw. at 58, 856 P.2d at 1236 (citing Sussel, 74 Haw. at 609, 851 P.2d at 317). Because each of Loui's points of error on appeal involve alleged errors of law, we review the Board's conclusions de novo under the right/wrong standard of review as required by HRS § 91-14(g). See id. 75 Haw. at 59, 856 P.2d at 1236-37 (citation omitted).

III. DISCUSSION

A. Double Jeopardy

Loui contends that the suspension of his medical license by the Board violates the double jeopardy clause of the Fifth Amendment to the United States Constitution. ⁸ We disagree. The double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969)). It is undisputed that the first two protections under the double jeopardy clause do not apply in this case. Loui is not facing a second prosecution after a prior conviction or acquittal. Instead, we are faced with the third...