Megdal v. Oregon State Bd. of Dental Examiners

Decision Date08 January 1980
Citation288 Or. 293,605 P.2d 273
PartiesPhil MEGDAL, Petitioner, v. OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent. CA 9772; SC 26120.
CourtOregon Supreme Court

John R. Faust, Jr., of Hardy, McEwen, Newman, Faust & Hanna, Portland, argued the cause for petitioner. Donald W. McEwen, Portland, on the brief.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen.

LINDE, Justice.

Petitioner, a dentist licensed both in Oregon and in California and maintaining offices in both states, seeks review of an order of the State Board of Dental Examiners which revoked his Oregon license on the ground of "unprofessional conduct." ORS 679.140(1)(c) and (5)(d).

The conduct which the board found unprofessional under the statute was that petitioner obtained malpractice insurance coverage for other dentists employed by him in his California practice by a misrepresentation that they were employed in Oregon. Briefly stated, the board found that petitioner had requested this coverage from his insurance brokers on his Grants Pass, Oregon, letterhead, that thereafter he had his California employees submit application forms on which a line asking for their office address had been cancelled out or left blank, purposely leaving the impression that the applicants were employed in Grants Pass, and that upon this misrepresentation the insurance carrier, to its damage, provided liability coverage which it otherwise would not have provided. The issue, in sum, is whether the board may revoke a dentist's license under an unparticularized rubric of "unprofessional conduct" upon an administrative finding that he practiced a fraud on an insurance company.

Petitioner objects that before revoking a license for unprofessional conduct other than the kinds specified in the statute itself the board must first adopt rules indicating the forbidden conduct, because the phrase "unprofessional conduct" alone is too vague a standard to be applied directly from case to case.

A similar claim by a physician licensed under another statute was rejected by this court in Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963), a decision later followed in the case of a nurse in Ward v. Ore. State Bd. of Nursing, 266 Or. 128, 510 [288 Or. 296] P.2d 554, 55 A.L.R.3d 1134 (1973). Nevertheless, the Court of Appeals was troubled by the problem posed by forbidding a skilled or professional person, once found qualified, to practice his or her occupation on essentially ad hoc determinations of "unprofessional conduct." The panel which first heard this case, with one dissent, distinguished the Mintz and Ward precedents because the unprofessional conduct in those cases was an "inchoate" form of conduct expressly proscribed by the governing statutes, and it concluded that prior rulemaking was required to proscribe other conduct that bears no such relationship to the statute. 37 Or.App. 219, 586 P.2d 816 (1978). However, on reconsideration En banc the court decided that petitioner's challenge to the statutory standard was foreclosed by this court's holding in Board of Medical Examiners v. Mintz, supra, and that the demand for prior rulemaking had not been properly presented; it therefore affirmed the board's order. 38 Or.App. 469, 590 P.2d 745 (1979). 1 We allowed review in order to reexamine the role of broadly stated standards in laws governing disciplinary actions against occupational licensees. For the reasons that follow, we conclude that the board's order must be reversed.

1. Petitioner's constitutional claim.

Petitioner begins his brief in the Court of Appeals with a constitutional attack on the statutory phrase "unprofessional conduct." The attack is as unspecific as its target. We have had previous occasion to point out that constitutional claims should identify the provisions of the constitution, state and federal, that the governmental action is said to contravene and should show the relevance of these provisions to the claim. See, e. g., Rogers v. Department of Revenue, 284 Or. 409, 412 n. 2, 587 P.2d 91 (1978). Petitioner's brief cites no clause of either constitution for his assertion that "unprofessional conduct" is so vague as to be "constitutionally impermissible." Possibly the seductive alliteration "void for vagueness" is thought to have achieved constitutional status on its own, judging by how often it is invoked. Actually, "vagueness" in a statute, ordinance, regulation, decree, order, or other legal rule is a fault for reasons which differ with the function of the rule at issue, and which must search for footing in still unsettled constitutional premises. But since the constitutional claim in this case, though inarticulate, is not frivolous and addresses a significant problem, and since our duty is to credit the lawmaker with intending to act constitutionally, 2 we briefly examine its possible merits.

An initial distinction is whether "unprofessional conduct" is attacked as inadequate to guide the Board of Dental Examiners or as inadequate to inform dentists of the conduct expected under their license.

Often very broad terms, even broader than "unprofessional conduct," are employed in laws that assign an agency responsibility for managing a program or pursuing a policy whose goals the law indicates only in the most general sense. As recently stated in Anderson v. Peden, 284 Or. 313, 587 P.2d 59 (1978), the constitutional issue in such broad delegations of authority is only whether it remains possible for the agency and for reviewing courts to determine when subsequent agency rules or actions have honored and when they have departed from the general policy indicated by the politically accountable lawmaker. 3 So much necessarily follows from the assignment of the legislative power to the Legislative Assembly (when not exercised directly by the people or by local home rule) and its denial to the other departments. Or.Const. art. IV, § 1; art. III, § 1. But almost always scrutiny of the grant of authority will turn this necessary determination into a question of interpreting the agency's assignment rather than of invalidating the delegation for vagueness. Beyond doubt "unprofessional conduct" is constitutionally adequate as a directive giving the board authority to prescribe standards under which its licensees will be subject to professional discipline.

It is another question whether "unprofessional conduct" is adequate by itself as a standard for deciding individual cases. It involves additional considerations which are reflected in different constitutional premises. In criminal cases, one concern about overly general or vague penal laws is that they not only allow a court or a jury to define a crime but to do so after the fact, contrary to article I, section 21 of the constitution. See State v. Blair, 287 Or. 519, 601 P.2d 766 (1979), quoting from State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969). 4 The second concern is that such laws do not give fair notice of what they proscribe in time to let a person conform to the law, so that the imposition of punishment deprives him of liberty or property without due process of law under the fourteenth amendment. See State v. Hodges, supra; Lenzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). As a premise for a requirement of due process, the right to notice of the law has its own problems. 5 But in any event this principle, like that against Ex post facto laws, is generally confined to penal sanctions. No one familiar with the common law expects due process to preserve one either from indefinite standards or from their delegation to juries or judges in civil cases, though one may stand to lose far more than under many criminal laws. See Anderson v. Peden, supra, 284 Or. at 324, 587 P.2d 59.

We may assume that petitioner could not be prosecuted for a statutory crime described only as "unprofessional conduct." But the same premises do not obviously apply to a revocation of his professional license under that standard. If loss of the right to practice one's profession were employed as a form of punishment for delinquencies apart from safeguarding proper performance in the professional role, the implications would go beyond the adequacy of the standard to issues of criminal procedure generally, See Brown v. Multnomah County Dist. Ct., 280 Or. 95, 100, 105, 570 P.2d 52 (1977) and Cf. Dickinson v. Davis, 277 Or. 665, 670-671, 561 P.2d 1019 (1977), if indeed its use for punishment would be constitutional at all. Cf. Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867) (invalidating the disqualification of former Confederate supporters from law practice in federal courts). No doubt the disqualified person's loss is equally grave whether it is inflicted as punishment for wrongdoing or as enforcement of professional discipline. But we have no reason to attribute the former rather than the latter objective to laws that allow disqualification for unprofessional conduct. Petitioner cannot rest a constitutional attack on ORS 679.140 on the decisions that hold penal laws unenforceable for vagueness.

In common parlance a claimed denial of due process of law may intend simply a claim of illegality, of failure to follow what the claimant asserts to be the law. But when a state law is attacked for failure to provide due process, we are in the realm of the fourteenth amendment, where guidance must be found in the decisions of the United States Supreme Court. 6 Such an attack depends not on our own views but, rather, on the premise that if a state law explicitly directed a board to apply "unprofessional conduct" case by case in disciplinary proceedings, the Supreme Court would reverse the revocation of an occupational license without prior specification of standards as a deprivation of liberty or property...

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    ...art. I, §§ 15 and 16. Cf. Sterling v. Cupp, 290 Or. 611, 625 P.2d 123 (1981), note 1 and cases there cited, Megdal v. Board of Dental Examiners, 288 Or. 293, 296, 605 P.2d 273 (1980).The concurring opinion asserts that defendant abandoned his reliance on Or.Const. art. I, § 20, on appeal, t......
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