Hoke v. BOARD OF MEDICAL EXAM. OF STATE OF NC, C-C-75-01.

• Decision Date: 06 June 1975
• Docket Number: No. C-C-75-01.,C-C-75-01.
• Citation: 395 F. Supp. 357
• Parties: Harold R. HOKE, Plaintiff, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF NORTH CAROLINA et al., Defendants.
• Court: U.S. District Court — Western District of North Carolina

395 F. Supp. 357

Harold R. HOKE, Plaintiff, v. BOARD OF MEDICAL EXAMINERS OF the STATE OF NORTH CAROLINA et al., Defendants.

No. C-C-75-01.

United States District Court, W. D. North Carolina, Charlotte Division.

June 6, 1975.

Roy Lucas, Washington, D. C., and Adam Stein, Chapel Hill, N. C., for plaintiff.

John H. Anderson and Henry A. Mitchell, Jr., Raleigh, N. C., and Harry

C. Hewson, Charlotte, N. C., for defendants.

Before CRAVEN, Circuit Judge, JONES, Chief District Judge, and McMILLAN, District Judge.

CRAVEN, Circuit Judge:

This three-judge court was convened to consider a doctor's attack on certain aspects of the procedure pursuant to which the state's Board of Medical Examiners (the Board) revokes a license to practice medicine. Sought, inter alia, is permanent injunctive and declaratory relief against provisions allegedly defective under the fourteenth amendment's due process clause.

The plaintiff, Dr. Harold Hoke, has since November 1973 operated Hallmark Clinic, a private abortion clinic in Charlotte, North Carolina. On September 20, 1974, the Board noticed in writing nineteen "Charges and Allegations," all of which, as paragraph 19 itself alleged, showed that Dr. Hoke had "engaged in dishonorable and unprofessional conduct unworthy of and affecting" his practice and that therefore grounds existed for revocation of his license.¹

The complaint² sets out two levels of attack on the Board's move to revoke Hoke's license. As to the revocation procedure: (a) the Board's combined role under the statute³ as investigator, prosecutor, and judge renders it inherently biased; (b) the statutory standard —"unprofessional or dishonorable conduct unworthy of, and affecting, the practice of his profession" — is vague and overbroad; and (c) since, assertedly, his former patients could constitutionally refuse to appeal at a "public"⁴ hearing — claiming infringement of their right of privacy under Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) — his right to present witnesses in his own behalf will be substantially impaired. Secondly, many of the specific substantive charges would, if revocation were based at least in part thereon, infringe his constitutional rights under the first, fifth, and fourteenth amendments.⁵

Hoke's prayer for relief is specific: a permanent injunction prohibiting the Board from proceeding against him under the September 1974 charges;⁶ a declaratory judgment that § 90-14 violates the due process clause for the aforementioned reasons; an order requiring any Board hearing to be held in camera; and declaratory relief (and in two instances injunctions) against the constitutionally defective charges.

As a three-judge court, in the present posture of this case, we need reach only the claim that § 90-14, the underlying authority for the proceeding against Hoke, is itself violative of the due process clause. Whether a subsequent revocation based wholly or in part upon charges implicating Hoke's constitutional rights would be void is a question which, assuming ripeness at this stage, would not turn on the unconstitutionality of a state statute,⁷i. e., § 90-14. Any injunctive relief prohibiting the Board from basing revocation, say, on Hoke's distribution of a brochure, as protected by the first amendment, could be granted by a single judge without reaching § 90-14. Whether an order requiring an in camera hearing — contrary to § 90-14.2 as construed by the state court — can or should issue is a question which, assuming it touches upon the constitutionality of § 90-14.2 as applied, is not, as we view the record, ripe for adjudication at this stage.⁸ Hoke's claim that he will be deprived of the right to present evidence on his behalf depends at least on: the nature of the evidence presented against him; the extent to which that evidence could be arguably rebutted by his former patients; whether and to what extent those patients have a privilege of refusing to testify or even appear; and the extent to which that privilege, if recognized, is asserted. The most Hoke can assert at this stage is that it is conceivable that on review of a then-completed public revocation hearing a court could conclude that Hoke's defense was so materially disabled as to deny him due process. The question is presently wholly speculative, and we decline to consider it.

Thus, reaching the twin charge that § 90-14 impermissibly co-mingles investigatory, prosecutorial, and adjudicatory functions and grounds revocation upon a vague and overbroad standard, for reasons which follow we deny the requested injunctive relief and remand to the single-judge court for its resolution of those particularized claims not requiring our attention under 28 U.S.C. § 2281.

I.

Hoke alleges that, according to standard practice, each member of the Board to some degree participated in the preceding months in the investigation and development of the facts which ultimately led to the September 1974 charges;⁹ that each member after this review voted to prefer charges; and that each member of the seven-man Board plans to sit in judgment on the validity of the charges. In exposing the Board to one side of the facts and implicitly requiring it to make a kind of probable cause determination, this procedure, in his view, creates an inherent bias towards vindicating the Board's initial judgment when it sits as final adjudicator. The Board's procedure under § 90-14, therefore, deprives an accused physician of the due process right to have disputed facts weighed and evaluated by an impartial hearing body.

Hoke's position rested primarily on Larkin v. Withrow, 368 F.Supp. 796 (E. D.Wis.1973) (three-judge court).¹⁰ The Wisconsin scheme authorized the state's medical hearing board to "investigate, hear and act upon practices" by doctors and order temporary suspensions.¹¹ Since the statute co-mingled the three functions the doctor stood to lose his liberty or property without "the intervention of an independent, neutral and detached decision maker." 368 F.Supp. at 797. Finding imminent irreparable injury and a high likelihood of success on the merits, the court entered a preliminary injunction against further procedures under the challenged statute. Hoke has vigorously asserted that his case is identical with, if not stronger than, Larkin v. Withrow, supra, since here the Board can revoke and not simply suspend.

But how we might have applied the reasoning of the Wisconsin district court is irrelevant, for the Supreme Court has unequivocally and unanimously reversed. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). The Court noted previous cases in which "the adjudicator has a pecuniary interest in the outcome" or "has been the target of personal abuse or criticism from the party before him, "saying of them: "In endeavoring to prevent even the probability of unfairness, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable." Id., 421 U.S. at 47, 95 S.Ct. at 1464. Distinguishing the Wisconsin doctor's argument, the Court stated:

The contention that the combination of investigative and adjudicative functions 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 bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Id., 421 U.S. at 47, 95 S.Ct. at 1464.

The Court rejected the doctor's attempt to show inherent bias, noting that, for example, the pretrial involvement of a judge in probable cause determinations has never been seen as barrier to that judge's presiding over a later trial or even sitting as the trier of fact. Also, administrative agencies typically receive the results of investigations, file charges, and sit at the subsequent hearing, all in conformity with the due process clause. Id., 421 U.S. at 56, 95 S.Ct. 1456.

We are of course bound by the holding that the combination in an agency of investigative and adjudicatory functions does not itself violate due process, and we deem it controlling in this case. The only material difference in North Carolina's procedure is that the Board itself is empowered to revoke, whereas in Wisconsin the medical board could revoke only by instituting a quasi-criminal action.¹² But there is no suggestion in the Court's opinion that the combination of functions in Wisconsin's board presented less risk of actual bias because it could order only a temporary suspension, and that therefore combined functions in a board with permanent revocation power might be more vulnerable. The generality of the holding is in the opposite direction. "The initial charge or determination of probable cause and the ultimate adjudication have different bases and purposes. The fact that the same agency makes them in tandem and that they relate to the same issues does not result in a procedural due process violation." Id., 421 U.S. at 58, 95 S.Ct. at 1470 (emphasis added). In other words, whether a medical board's ultimate decision results in temporary or permanent revocation, the due process analysis is the same.

Although we hold § 90-14 on its face and as generally applied to physicians does not deny due process under Withrow, we note the Court's caveat:

That the combination of investigative and adjudicatory functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the

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