Fisher v. Iowa Bd. of Optometry Examiners, 92-1949

• Decision Date: 19 January 1994
• Docket Number: No. 92-1949,92-1949
• Citation: 510 N.W.2d 873
• Parties: Gary W. FISHER, Appellant, v. IOWA BOARD OF OPTOMETRY EXAMINERS, Appellee, State of Iowa, Intervenor-Appellee.
• Court: Iowa Supreme Court

Page 873

510 N.W.2d 873

Gary W. FISHER, Appellant, v. IOWA BOARD OF OPTOMETRY EXAMINERS, Appellee, State of Iowa, Intervenor-Appellee.

No. 92-1949.

Supreme Court of Iowa.

Jan. 19, 1994.

Rehearing Denied Feb. 21, 1994.

David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

Mark McCormick of Belin Harris Lamson McCormick, A P.C., Des Moines, for appellee Iowa Bd. of Optometry Examiners.

Bonnie J. Campbell, Atty. Gen., Elizabeth M. Osenbaugh, Deputy Atty. Gen., and Rose Vasquez, Asst. Atty. Gen., for appellee State.

Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and ANDREASEN, JJ.

HARRIS, Justice.

This is an appeal from a district court decision on judicial review of agency action in a contested case. The challenge is to a finding of "practice harmful or detrimental to the public." We affirm.

Petitioner Gary W. Fisher is a licensed Iowa optometrist. Respondent board of optometry superintends licensing of optometrists pursuant to Iowa Code chapter 147 (1989) and 645 Iowa administrative code 180.112(1)(c) (1989). Fisher was charged with misconduct incident to physical examination of women. The notice of hearing and statement of charges accused Fisher of "engaging in unethical conduct or practice harmful or detrimental to the public," language taken verbatim from Iowa Code section 147.55(3) (grounds for revocation or suspension of license of health care professional person). The matter proceeded to hearing at which several women testified that Fisher had asked them to remove all clothing above the waist so he could conduct scoliosis examinations. With one exception the women were upset and felt violated by the procedure.

Fisher testified that conducting a scoliosis examination to determine the source of eye problems is an accepted, although rare, practice in the field of optometry. This opinion was generally supported by an optometrist friend of Fisher who testified as an expert witness. The expert did not perform such examinations himself. He said scoliosis patients "seem to complain a lot of ocular problems, including headaches, eye fatigue and tiredness." Fisher testified he never made sexual advances or fondled any of his patients, and none of the women testified he did.

Fisher testified that his optometrist father was the first person to mention to him the potential relationship between eye problems and scoliosis. He acknowledged it was not a part of his curriculum in school but said he reviewed medical literature and found mention of the possible correlation. Fisher began scoliosis screenings as a part of his physical assessment procedures in his office approximately three years previously. He conducted the examination rarely, and mostly on young women. He performed the test with the patient nude from the waist up and without a third person in the room.

The case is somewhat unusual in that it yielded two successive and somewhat contrary decisions. The first concluded Fisher "was honestly attempting to provide the best care for his patients, and did not engage in unethical conduct, or practice harmful or detrimental to the public." The initial decision concluded that a licensed optometrist may conduct such screening if the optometrist believes an eye condition may be related to scoliosis. Because it found Fisher held such a belief and had been motivated by an intent to care for his patients, the board decided his actions were within the scope of his professional practice and dismissed the charges.

The case had stimulated considerable coverage in the news media and, certainly not surprisingly, the board's initial decision precipitated enormous publicity and criticism. The assistant attorney general who had represented the board at the initial hearing filed a petition for rehearing on behalf of the State. A second attorney general moved to intervene on behalf of the Iowa board of medical examiners, ¹ an attempt that was rejected as untimely.

Reacting to the petition for rehearing, the optometry board reconvened and, although no additional evidence was received, reconsidered the matter and issued an amended decision. It again found that Fisher had been prompted by a wish to help his patients and found him innocent of unethical conduct. The amended decision again found Fisher had not harmed his patients but this time found his conduct "harmful and detrimental to the public," in violation of Iowa Code section 147.55(3) and 645 Iowa administrative code 180.112(1)(c), because it was an unreasonable intrusion upon his patients' expectation of privacy. The board specifically noted that scoliosis screening "should not be done as a part of an eye examination by any Iowa optometrist." The board therefore placed Fisher on three years probation with conditions.

Fisher then sought judicial review. At this point the board obtained its present, private counsel. The State thereafter petitioned to intervene. ² The matter is before us on Fisher's appeal from a district court judgment affirming agency action.

I. Judicial review of contested proceedings, both in district court and in the appellate courts, is reviewed to correct errors at law. Iowa Code § 17A.19. We also reverse if the agency decision is unsupported by substantial evidence. Northwestern Bell Tel. Co. v. Iowa State Commerce Comm'n, 359 N.W.2d 491, 495 (Iowa 1984). Constitutional issues are reviewed de novo. Office of Consumer Advocate v. Iowa State Commerce Comm'n, 465 N.W.2d 280, 281 (Iowa 1991).

II. Fisher first asserts that the Iowa Code provision and administrative rule which constituted the grounds for the board's actions were vague and overbroad, both on their face, and as applied to him. ³

A statute is overbroad "if it attempts to achieve a governmental purpose to control or prevent activities constitutionally subject to state regulation by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." State v. Pilcher, 242 N.W.2d 348, 353 (Iowa 1976). The overbreadth analysis ordinarily is applicable only when first amendment rights are implicated. City of Maquoketa v. Russell, 484 N.W.2d 179, 181 (Iowa 1992). Because Fisher does not claim any violation of first amendment rights, he lacks standing to assert an overbreadth challenge, either facially or as applied.

Fisher also challenges the statutory and administrative rule language as being unconstitutionally vague under the due process clauses of the United States and Iowa Constitutions, a challenge we also find to be without merit. We explained the vagueness challenge in Eaves v. Board of Medical Examiners, 467 N.W.2d 234, 236 (Iowa 1991) (citing Knepper v. Monticello State Bank, 450 N.W.2d 833, 838 (Iowa 1990)). A civil statute is unconstitutionally vague under the due process clauses only when its language does not convey a sufficiently definite warning of proscribed conduct as measured by common understanding or practice. Vagueness exists when persons must necessarily guess at the meaning of a statute and its applicability. A party attacking the constitutionality of the statute must overcome a presumption of constitutionality by negating every reasonable basis on which the statute can be sustained. Eaves, 467 N.W.2d at 236; Knepper, 450 N.W.2d at 838.

We have also recognized that in "regulating certain matters a degree of indefiniteness is necessary to avoid unduly restricting the applicability of the proscribing rule." Eaves, 467 N.W.2d at 236. "Regulation of the medical profession requires flexibility," and "the limits between good and bad professional conduct can never be marked off by a definite line of cleavage." Id. We noted that "it would be impossible to catalog all the types of professional misconduct." Id.

Fisher was found to be in violation of a rule promulgated under the same Iowa Code provision assailed in Eaves. Under this provision Fisher was held to the minimally acceptable standards of care accepted in the field of optometry. Fisher is deemed to have been on notice of these standards and was properly held accountable when he violated them. We think the statute and the rule cannot be considered vague.

In arguing that the statute was vague as applied to him, Fisher contends that his scoliosis procedures were within the realm of minimally competent care and therefore could not be found to violate the statute. The district court was correct in rejecting this argument. As the optometry board held in its amended decision, and we emphatically agree, scoliosis procedures were without, rather than within, the realm of competent care for an optometrist. We think the statute's proscription of practices that are harmful or detrimental to the public was sufficient to inform Fisher he ought not conduct the tests. Fisher's admission that he made mistakes and was not properly sensitive to the needs of his patients is a strong indication that he was so informed.

III. Fisher argues the board's combination of investigative, prosecutorial, and adjudicative functions violates the due process clause of the fourteenth amendment to the United States Constitution and article I, section 9 of the Iowa Constitution. Iowa Code section 17A.17(3) also prohibits individuals who prosecute a contested case from participating in the making of any decision. We have said that the contention that the combination of investigative and adjudicative function necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual...