Arizona State Bd. of Medical Examiners v. Clark

• Decision Date: 03 February 1965
• Docket Number: No. 7239,7239
• Parties: ARIZONA STATE BOARD OF MEDICAL EXAMINERS, Appellant, v. Clarence Laurence CLARK, Appellee.
• Court: Arizona Supreme Court

Page 908

398 P.2d 908

97 Ariz. 205

ARIZONA STATE BOARD OF MEDICAL EXAMINERS, Appellant, v. Clarence Laurence CLARK, Appellee.

No. 7239.

Supreme Court of Arizona, In Banc.

Feb. 3, 1965.

Wade Church, Former Atty. Gen., Robert W. Pickrell, Atty. Gen., by Charles T. Stevens, Asst. Atty. Gen., for appellant.

Johnson, Darrow, D'Antonio, Hayes & Morales, Tucson, for appellee.

BERNSTEIN, Justice.

Dr. Clarence L. Clark, the appellee, filed an application for a license to practice medicine and surgery in the State of Arizona with the State Board of Medical Examiners on December 3, 1958. On June 22, 1959, the Board cited Dr. Clark pursuant to A.R.S. § 32-1452A ¹ to show cause why his application should not be denied. Dr. Clark filed a sworn answer and thereafter a hearing was held at which Dr. Clark was the only witness. After the hearing the Board secured a deposition in support of one of the Specifications, at the taking of which Dr. Clark was represented by counsel. On October 16, 1959, the Board entered an order denying Dr. Clark's application. Dr. Clark then filed a Petition for Review in Maricopa County Superior Court, under the provisions of A.R.S. § 32-1453B. After reviewing the entire record of the hearings before the Board, including the deposition of Dr. George M. Cowan of Duluth, Minnesota and letters submitted by Dr. Clark, hearing arguments of counsel, and considering the briefs, as required by the statute, the trial judge set aside the order of the Board, and directed it to issue the appropriate license. The Board of Medical Examiners has appealed to this court pursuant to A.R.S. § 32-1453H.

Dr. Clark was graduated in 1940 with an M.D. degree from the St. Louis University School of Medicine in Missouri. At the time of the filing of the application he was, and now is, licensed to practice medicine in the States of Missouri, Michigan and Minnesota.

In 1948 Dr. Clark accepted employment with the Arrowhead Clinic in Duluth, Minnesota, and moved his family from St. Louis, Missouri to Duluth. At the time he accepted employment with the Arrowhead Clinic, he had no knowledge that the Arrowhead Clinic was not in good standing with the St. Louis (Minn.) County Medical Society, because of certain countracts which it had with labor unions that the Society believed interfered with the free practice of medicine. To avoid confusion it should be pointed out that Duluth is located in St. Louis County Minnesota. There are no complaints about any act of Dr. Clark in Missouri or Michigan. About three months after moving to Duluth, Dr. Clark became aware of the strained relation between the St. Louis County Medical Society and the Arrowhead Clinic when the Medical Society refused his application for membership. At some later date he was admitted to membership in that Society, and suspended on January 17, 1959, after the Arizona application was filed. At the time this complaint was filed, the grounds for refusal by the Board of a license to practice medicine under A.R.S. § 32-1452A were:

'A. The board shall refuse a certificate to any applicant who is mentally or physically unable safely to engage in the practice of medicine and surgery or who is guilty of unprofessional conduct, but before refusal the applicant shall be cited upon a sworn complaint filed with the board, charging the applicant with such inability or having been guilty of unprofessional conduct, and setting forth the particular facts of such inability or act constituting such conduct. * * *' (Emphasis supplied.)

Dr. Clark may be refused a license only if he has been guilty of unprofessional conduct and charges have been proven by competent evidence after notice and hearing. He cannot be denied a license to practice in Arizona merely because accusations have been made against him by an out of state medical society. See In re Abbatangelo's Petition, Nev., 397 P.2d 182.

'Unprofessional conduct' is defined in A.R.S. § 32-1401. The only part of that definition relevant to this case is subsection 2(l) which reads:

'(l) Any conduct or practice contrary to recognized standards of ethics of the medical profession or any conduct or practice which constitutes a danger to the health, welfare or safety of a patient or the public.'

The complaint, although inartfully drawn, was legally sufficient to confer jurisdiction on the Board to hear and determine the matter. Some of the Specifications include charges that are barred by the two year statute of limitations provided in A.R.S. § 32-1452C. See also, Eastman v. Southworth, 87 Ariz. 394, 351 P.2d 992. The Board in reaching the decision which it now asks us to affirm concedes that it erred in considering barred matters which were abandoned for the first time on this appeal.

The statute governing the review in this case, A.R.S. § 32-1453, was adopted in 1952, after the adoption of the Federal Administrative Procedure Act. ² Prior to that time review of the actions of the Arizona Board of Medical Examiners had been by the common law writ of certiorari. DuVall v. Board of Medical Examiners, 49 Ariz. 329, 66 P.2d 1026. Under A.R.S. § 32-1453 the trial judge must review the entire record. A.R.S. § 32-1453G provides:

'G. The court may affirm the decision of the board or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the petitioners have been prejudiced because the administrative findings of the board are:

'1. In violation of a constitutional provision.

'2. In excess of the statutory authority or jurisdiction of the board.

'3. Affected by other error of law.

'4. Unsupported by competent, material and substantial evidence in view of the entire record as submitted.

'5. Arbitrary or capricious.' (Emphasis supplied.)

This section of the statute, with minor changes not material to the problem involved here, is taken from the judicial review section of the Model State Administrative Procedure Act § 12(7), 9C Uniform Laws Annotated page 184. This act was suggested for general adoption by the Commissioners on Uniform State Laws to apply the principles of the Federal Administrative Procedure Act.

In the Report of the Committee on Tentative Draft of Uniform Act on Administrative Procedure to the 1943 Conference of Commissions on Uniform State Laws, with regard to the judicial review section which uses the language of A.R.S. § 32-1453G, the Committee stated:

'The above section is one of the most important in the act. * * *

'The crux of any plan for judicial review of the decisions of administrative tribunals lies in the scope of review to be allowed. . . . Almost [sic] every court that has had to deal concretely with the problem has vacillated in the course of time from one pole to the other. The full range of review extends from a complete trial de novo on the one hand to review limited to controverted questions of law on the other. * * *'

This legislative history contradicts the Board's contention that its denial of a license to Dr. Clark must be upheld by the Superior Court if there is any evidence in the record to sustain its decision. That rule no longer applies under A.R.S. § 32-1453G.

The significance of the reference to the 'entire record' was explained by Mr. Justice Frankfurter in Universal Camera Corp. v National Labor Relations Board, 340 U.S. 474, 481, 71 S.Ct. 456, 460, 95 L.Ed. 456 as follows:

'Three members of the Committee [The Attorney-General's Committee on Administrative Procedure] registered a dissent. Their view was that the 'present system or lack of system of judicial review' led to inconsistency and uncertainty. They reported that under a 'prevalent' interpretation of the 'substantial evidence' rule 'if what is called 'substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to the obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate--unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored.' Their view led them to recommend that Congress enact principles of review applicable to all agencies not excepted by unique characteristics. One of these principles was expressed by the formula that judicial review could extend to 'findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence.' So far as the history of this movement for enlarged review reveals, the phrase 'upon the whole record' makes its first appearance in this recommendation of the minority of the Attorney General's Committee. This evidence of the close relationship between the phrase and the criticism out of which it arose is important, for the substance of this formula for judicial review found its way into the statute books when Congress with unquestioning--we might even say uncritical--unanimity enacted the Administrative Procedure Act.' (Footnotes omitted)

'Entire record' as used in the State Act, and 'whole record', as used in the Federal Act, are synonymous.

When the legislature adopted A.R.S. § 32-1453G it had knowledge of the extensive research into the problem of judicial review of administrative decisions by Congress and the committees which reported to it. Where the legislature adopts the provisions of a Uniform or Model Act, this court will presume that the legislature acted with knowledge of the construction placed upon the proposed act by its draftsmen, and intended to adopt it. Salt River Val. etc. Assn. v. Peoria Ginning Co., 27 Ariz. 145, 231 P. 415; Arnett v. Clack, 22 Ariz. 409, 417, 198 P. 127, 129; Maestro Music, Inc. v. Rudolph Wurlitzer Company, 88 Ariz. 222, 232, 354 P.2d 266, 273.

The Board furnished the court below with the entire record. The Board, in its brief, in this court, quotes...