Frokjer v. N.D. Bd. of Dental Examiners

• Decision Date: 30 April 2009
• Docket Number: No. 20080200.,20080200.
• Citation: 764 N.W.2d 657,2009 ND 79
• Parties: Greg M. FROKJER, DDS, Plaintiff and Appellant v. NORTH DAKOTA BOARD OF DENTAL EXAMINERS, Defendant and Appellee.
• Court: North Dakota Supreme Court

764 N.W.2d 657

2009 ND 79

Greg M. FROKJER, DDS, Plaintiff and Appellant v. NORTH DAKOTA BOARD OF DENTAL EXAMINERS, Defendant and Appellee.

No. 20080200.

Supreme Court of North Dakota.

April 30, 2009.

Kerry S. Rosenquist (appeared), Rosenquist Arnason & Hankey, PLLP, Grand Forks, N.D., William Michael, Jr. (argued), Gina Cesaretti (appeared), Thomas M. Jancik (on brief), Dorsey & Whitney, LLP, Minneapolis, MN, for plaintiff and appellant.

Douglas Alan Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Dr. Greg Frokjer appeals from a district court judgment affirming orders of the North Dakota Board of Dental Examiners that suspended his license to practice dentistry in North Dakota. We affirm, concluding that Frokjer was not denied his right to a fair hearing before an impartial decision maker and that the Board's findings of fact were supported by a preponderance of the evidence.

I

[¶ 2] Frokjer is an oral surgeon who practiced in Grand Forks for about twenty years. In December 2006, the Board began disciplinary proceedings against Frokjer based on allegations he had inappropriately touched two female patients in a sexual manner during pre-operative physical examinations. The Board subsequently amended the complaint to include similar allegations by two additional patients. Each of the four patients alleged Frokjer inappropriately touched, cupped, or groped her breasts in a manner inconsistent with a medical breast examination. In addition, one patient alleged Frokjer placed his hand inside her underwear and touched her vagina with his finger.

[¶ 3] Frokjer denied the allegations, claiming he was required by the hospital to perform a pre-operative physical examination on all of his surgical patients. He specifically denied performing breast examinations on two of the patients, and denied that the breast examinations he performed on the remaining two patients were abnormal or medically inappropriate. He denied any inappropriate contact whatsoever with any of the four patients.

[¶ 4] A hearing was held before an administrative law judge ("ALJ"), with five of the seven members of the Board attending the hearing. The ALJ recommended findings of fact, conclusions of law, and order that the evidence did not establish, by the greater weight of the evidence, that Frokjer had acted in an unprofessional or dishonorable manner. The ALJ recommended to the Board that the complaint against Frokjer be dismissed and that no disciplinary sanction be imposed.

[¶ 5] The Board adopted many of the ALJ's recommended findings of fact, but disagreed with the ALJ on the credibility of the witnesses. The Board issued its own findings of fact, conclusions of law, and order, specifically finding that the testimony of the complaining patients was more credible than the testimony of Frokjer and that Frokjer had touched the breasts of the four patients and the vagina of one patient in a dishonorable, unprofessional, and immoral manner. The Board ordered Frokjer's license to practice dentistry in the state suspended for six months, ordered Frokjer to complete forty hours of continuing education approved by the Board, and ordered Frokjer to pay the costs and attorney fees of the Board for the hearing. The Board subsequently issued a separate order on costs and attorney fees, declining to assess costs or attorney fees against Frokjer because the complaint had not given notice to Frokjer that he might be subject to such costs and fees.

[¶ 6] Frokjer appealed to the district court from the Board's order and sought to conduct discovery into alleged defects in the procedures followed by the Board. The district court remanded the matter to the Board to determine whether the Board had considered extraneous matters outside the evidence presented at the hearing in reaching its decision. Frokjer was given the opportunity to conduct discovery on this issue on remand. After considering the written discovery responses and additional information submitted by Frokjer, the Board issued an order on remand concluding that the Board had not considered matters outside the administrative hearing and that Frokjer had been afforded due process.

[¶ 7] Frokjer filed an amended notice of appeal to the district court, appealing from the original disciplinary order and the order on remand. The district court affirmed the Board's orders.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 28-32-42 and 43-28-21(2). Frokjer's appeal to this Court is timely under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 9] Appeals from the Board's disciplinary orders are governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. N.D.C.C. § 43-28-21(2). Courts exercise only a limited review in administrative appeals under N.D.C.C. ch. 28-32. Bergum v. North Dakota Workforce Safety & Ins., 2009 ND 52, ¶ 8, 764 N.W.2d 178; Bruder v. North Dakota Workforce Safety & Ins. Fund, 2009 ND 23, ¶ 6, 761 N.W.2d 588; North Dakota State Bd. of Med. Exam'rs v. Hsu, 2007 ND 9, ¶ 11, 726 N.W.2d 216. Under N.D.C.C. § 28-32-46, the district court must affirm the order of the administrative agency unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from the district court's decision in an administrative appeal, we review the agency order in the same manner. N.D.C.C. § 28-32-49; Bruder, at ¶ 6; Hsu, at ¶ 12. An agency's decisions on questions of law are fully reviewable. Hsu, at ¶ 12. We exercise restraint, however, in reviewing an agency's findings of fact, and we do not substitute our judgment for that of the agency or make independent findings of fact. See Bruder, at ¶ 7; Hsu, at ¶ 12; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979).

III

[¶ 10] A medical professional's interest in a license to practice is a substantial, constitutionally protected property right. Hsu, 2007 ND 9, ¶ 27, 726 N.W.2d 216; Jones v. North Dakota State Bd. of Med. Exam'rs, 2005 ND 22, ¶ 14, 691 N.W.2d 251. Accordingly, disciplinary proceedings against a dentist under N.D.C.C. ch. 43-28 must provide due process protections, including the right to a fair hearing before an impartial decision maker. See, e.g., N.D.C.C. § 28-32-46(4); Singha v. North Dakota State Bd. of Med. Exam'rs, 2000 ND 134, ¶¶ 18-20, 613 N.W.2d 34; State v. Brewer, 444 N.W.2d 923, 925 (N.D.1989); State v. Anderson, 427 N.W.2d 316, 320 (N.D.1988).

[¶ 11] Frokjer contends the Board had a pecuniary interest in the outcome of the dispute, thereby depriving him of his due process right to an impartial decision maker. Frokjer does not contend the Board members had an individual financial interest in the case, nor does he present any evidence of actual bias. Frokjer's argument is premised entirely upon his contention that the Board as an entity stood to benefit because N.D.C.C. § 43-28-21(1) authorizes the Board to assess costs, disbursements, and attorney fees incurred for the hearing if it finds the accusations contained in the complaint were established by substantial evidence.

[¶ 12] When a party alleges lack of due process at an administrative hearing because of bias, we begin with the presumption that the Board regularly performed its duty and afforded the parties due process at the hearing by refusing to allow any possible previous bias or prejudgment to interfere with its decision based upon the evidence presented at the hearing. See, e.g., N.D.C.C. § 31-11-03(15); Singha, 2000 ND 134, ¶ 20, 613 N.W.2d 34; Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, ¶ 30, 562 N.W.2d 878; Opdahl v. Zeeland Pub. Sch. Dist. No. 4, 512 N.W.2d 444, 447 (N.D. 1994); Froysland v. North Dakota Workers Comp. Bureau, 432 N.W.2d 883, 893 (N.D.1988). The burden is upon the party alleging bias to overcome the presumption that the Board regularly performed its duty and refused to allow any preconceived biases to interfere with its decision. Singha, at ¶ 20. As this Court explained in Brewer, 444 N.W.2d at 924 (quoting First Am. Bank & Trust Co. v. Ellwein, 221 N.W.2d 509, 517 (N.D.1974)):

Our trust must be in the integrity of legally constituted boards to act upon the evidence alone. Judicial review of those actions is the ultimate due process protection accorded those aggrieved.

See also Froysland, at 893.

[¶ 13] Frokjer attempts to overcome the presumption by suggesting that the mere fact the Board has the authority to assess costs and attorney fees for the hearing created a financial incentive for the Board to find against him. If an administrative agency is deemed inherently biased merely because it has the authority to impose costs and attorney fees as part of the disciplinary process, numerous boards with the authority to render disciplinary decisions would automatically be considered biased and their disciplinary decisions would be rendered invalid. See N.D.C.C. § 43-01-16 (Abstracters' Board of Examiners); N.D.C.C. § 43-02.2-09(3) (State Board of Accountancy); N.D.C.C. § 43-05-16.7 (Board of Podiatric Medicine); N.D.C.C. § 43-06-15(8)(f) (Board of...