Marmer v. Board of Registration of Chiropractors

CourtAppeals Court of Massachusetts
Writing for the CourtBefore HALE; GOODMAN
Citation309 N.E.2d 516,2 Mass.App.Ct. 162
Decision Date11 April 1974
PartiesHenry I. MARMER et al. 1 v. BOARD OF REGISTRATION OF CHIROPRACTORS.

Page 516

309 N.E.2d 516
2 Mass.App.Ct. 162
Henry I. MARMER et al. 1
v.
BOARD OF REGISTRATION OF CHIROPRACTORS.
Appeals Court of Massachusetts, Suffolk.
Argued Feb. 14, 1973.
Decided April 11, 1974.

[2 Mass.App.Ct. 163]

Page 517

Irving Marmer, Boston, for plaintiff.

Edward D. Kalman, Cambridge (Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., with him), for Bd. of Registration of Chiropractors.

Before [2 Mass.App.Ct. 162] HALE, C.J., and GOODMAN and GRANT, JJ.

[2 Mass.App.Ct. 163] GOODMAN, Judge.

This is an appeal by the plaintiffs from a final decree of the Superior Court affirming a decision of the Board of Registration of Chiropractors (board) 'not to revise . . . (their) examination results.' See G.L. c. 13, §§ 64--66; G.L. c. 112, §§ 89--97 (all as added by St.1966, c. 409, §§ 1 and 2). The decision was made after a hearing on the plaintiffs' written requests made pursuant to the opinion of the Supreme Judicial Court in Marmer v. Board of Registration of Chiropractors, 358 Mass. 13, 260 N.E.2d 672 (1970). The plaintiff in that case, who is also a plaintiff in this case, applied for registration to practice chiropractic in Massachusetts. He passed the written portion of the examination but failed the examination in 'demonstrated proficiency in manipulative techniques.' St.1966, c. 409, § 3. See G.L. c. 112, § 94. He alleged in some detail that the practical examinations were conducted unfairly; the Supreme Judicial Court held (p. 17, 260 N.E.2d p. 675) 'that where an applicant has reason to believe that the examination of him was not evaluated impartially but was conducted arbitrarily or capriciously or not in a manner uniform with the examination given to other applicants he should have a right to a test of his allegations.' The court further held (p. 17, 260 N.E.2d p. 676) that '(s)uch right is to be exercised by a request in writing from the applicant for a hearing (before the [2 Mass.App.Ct. 164] board), stating sufficient specific and factual reasons for requesting it, as distinct from simple allegations amounting only to conclusions. If he states adequate factual reasons, he should be granted a hearing with the right of judicial review' (emphasis original).

The hearing requested by both plaintiffs was held on November 25, 1970, and thereafter, on December 8, the plaintiff Marmer filed the present bill, alleging that he 'has not been heard by the Board in accordance with . . . (the first Marmer case).' 2 The board filed the record of the hearing (G.L. c. 30A, § 14(4)); the parties and the Superior Court have treated the bill as a petition for review under G.L. c. 30A, § 14, and we do likewise.

The board's decision not to revise the plaintiffs' examination results, and the reasons given 3 (see G.L. c. 30A, § 11(8)) are fully justified by the record of the hearing before the board. The agency decision was not '(b)ased upon an error of law' (G.L. c. 30A, § 14(8)(c)) or '(u)nsupported by substantial evidence' (G.L. c. 30A, § 14(8)(e)) or '(m)ade upon unlawful procedure' (G.L. c. 30A, § 14(8)(d)) or '(a)rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law' (G.L. c. 30A, § 14

Page 518

(8) (g)). At the hearing before the board the plaintiffs' counsel in effect refused to proceed unless the board should produce, for introduction [2 Mass.App.Ct. 165] into the record of the hearing 4, the entire file of each applicant who had been examined at the same time as the plaintiffs. 5 Much of this was obviously irrelevant to their factual allegations, as set out in the requests for a hearing, that the practical examination had been improperly given. 6 But counsel for the plaintiffs kept insisting on obtaining information about the written examinations[2 Mass.App.Ct. 166] taken by the applicants, although the plaintiffs had both passed the written examinations and the requests for a hearing raised no question with reference to them. (See fn. 6.) The plaintiffs argue that the files were public records, but we need not decide which, if any, of the board's records could be so characterized. See Town Crier, Inc. v. Chief of Police of Weston, Mass., 282 N.E.2d 379 (1972) a; Dunn v. Assessors of Sterling, Mass., 282 N.E.2d 385 (1972). b Whether any part of the board's records was or was not a public record was not determinative of the plaintiffs' right to introduce any of them as evidence at the hearing--their purpose in requesting them. (See fn. 4.) The admissibility of the records was a matter of their relevancy to the allegations made by the plaintiffs. Despite repeated requests by the board, the plaintiffs' counsel did not address himself to the allegations in the letters requesting a hearing. (See fn. 6.) Nor was he willing to explain how the total records were necessary in this case or...

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4 practice notes
  • School Committee of Franklin v. Commissioner of Educ.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 5 Septiembre 1985
    ...Div. of Employment Sec., 391 Mass. 848, 464 N.E.2d 69 (1984); Marmer v. Board of Registration of Chiropractors, 2 Mass.App. 162, 164-168, 309 N.E.2d 516 (1974). Additionally, by applying the Federal standard of "fair preponderance" under § 1415, rather than a review on the administrative re......
  • She Enterprises, Inc. v. State Bldg. Code Appeals Bd.
    • United States
    • Appeals Court of Massachusetts
    • 28 Junio 1985
    ...case no undisclosed procedural irregularity is alleged. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass.App. 162, 168, 309 N.E.2d 516 (1974). Accordingly we disregard the additional extra-record material submitted to the judge as well as the observations of the special mast......
  • RicMer Properties, Inc. v. Board of Health of Revere, No. 01-P-1083.
    • United States
    • Appeals Court of Massachusetts
    • 5 Septiembre 2003
    ...was in any way so unfair as to raise a question of procedural due process. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass. App. Ct. 162, 168-169 (1974), and cases Substantial evidence. There is no merit in RicMer's sweeping assertion that the board's denial was not support......
  • Ricmer Properties, Inc. v. Board of Health of Revere, No. 01-P-1083.
    • United States
    • Appeals Court of Massachusetts
    • 5 Septiembre 2003
    ...was in any way so unfair as to raise a question of procedural due process. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass.App.Ct. 162, 168-169 (1974), and cases cited. Substantial evidence. There is no merit in RicMer's sweeping assertion that the board's denial was not su......
4 cases
  • School Committee of Franklin v. Commissioner of Educ.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 5 Septiembre 1985
    ...Div. of Employment Sec., 391 Mass. 848, 464 N.E.2d 69 (1984); Marmer v. Board of Registration of Chiropractors, 2 Mass.App. 162, 164-168, 309 N.E.2d 516 (1974). Additionally, by applying the Federal standard of "fair preponderance" under § 1415, rather than a review on the administrative re......
  • She Enterprises, Inc. v. State Bldg. Code Appeals Bd.
    • United States
    • Appeals Court of Massachusetts
    • 28 Junio 1985
    ...case no undisclosed procedural irregularity is alleged. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass.App. 162, 168, 309 N.E.2d 516 (1974). Accordingly we disregard the additional extra-record material submitted to the judge as well as the observations of the special mast......
  • RicMer Properties, Inc. v. Board of Health of Revere, No. 01-P-1083.
    • United States
    • Appeals Court of Massachusetts
    • 5 Septiembre 2003
    ...was in any way so unfair as to raise a question of procedural due process. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass. App. Ct. 162, 168-169 (1974), and cases Substantial evidence. There is no merit in RicMer's sweeping assertion that the board's denial was not support......
  • Ricmer Properties, Inc. v. Board of Health of Revere, No. 01-P-1083.
    • United States
    • Appeals Court of Massachusetts
    • 5 Septiembre 2003
    ...was in any way so unfair as to raise a question of procedural due process. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass.App.Ct. 162, 168-169 (1974), and cases cited. Substantial evidence. There is no merit in RicMer's sweeping assertion that the board's denial was not su......

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