Megdal v. Oregon State Bd. of Dental Examiners

• Decision Date: 21 November 1978
• Citation: 37 Or.App. 219,586 P.2d 816
• Parties: Philip MEGDAL, Petitioner, v. OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent. CA 9772.
• Court: Oregon Court of Appeals

Page 816

586 P.2d 816

37 Or.App. 219

Philip MEGDAL, Petitioner, v. OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent.

CA 9772.

Court of Appeals of Oregon.

Argued and Submitted June 23, 1978.

Decided Nov. 21, 1978.

Donald W. McEwen, Portland, argued the cause and filed the brief for petitioner. 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., Salem.

Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.

JOHNSON, Judge.

This is an appeal of the Oregon State Board of Dental Examiners' (Board) order revoking petitioner's license to practice dentistry. Petitioner practices mostly in Oregon, but also maintains two offices in California, wherein he employs other dentists. Petitioner submitted to an insurance company applications for malpractice insurance for six dentists employed by him in California. The space on the application forms requesting the applicants' business address had been left blank. The Board found in effect that the business addresses were not disclosed on the applications with the intent of inducing the insurance company to believe the dentists were practicing in Oregon, rather than California, and to issue insurance at premium rates which are less than those prevailing in California. The Board concluded that the non-disclosures constituted both false and fraudulent representations, constituting "unprofessional conduct," which is grounds for license revocation under ORS 679.140(1)(c). ¹ Petitioner makes two assignments which we do not reach. ² In his third assignment petitioner contends that the statutory term "unprofessional conduct" as applied to the facts here is unconstitutionally vague. The "void for vagueness" doctrine is primarily applicable to criminal statutes, although it has been applied in administrative law. See Lane County v. Heintz Const. Co. et al., 228 Or. 152, 364 P.2d 627 (1961). In actuality, the "void for vagueness" doctrine is merely part of the larger body of law concerning the constitutionality of delegation of legislative authority. See Lane County v. Heintz Const. Co. et al., supra; Klein v. Real Est. Comm. Holbrook, 19 Or.App. 646, 528 P.2d 1355 (1974); Gellhorn and Byse, Administrative Law 104 (6th ed. 1974).

As a general proposition the delegation to licensing authorities, including the Board of Dental Examiners, of authority to sanction "unprofessional conduct" had been upheld. See Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945 (1963); Ward v. Ore. State Bd. of Nursing, 266 Or. 128, 510 P.2d 554 (1973); Hurley v. Board of Dental Examiners, 29 Or.App. 223, 562 P.2d 1229 (1977). These cases are consistent with the trend of judicial authority since 1930, which has been not to invalidate on constitutional grounds broad delegations of legislative authority to administrative agencies. But the fact that courts have been prone to uphold broad legislative delegations does not indicate a lack of judicial concern for the problem. As recently as 1963 the United States Supreme Court divided five to four over the issue of whether an act of Congress constituted an overbroad delegation. See Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). Justice Harlan, writing for three of the dissenting Justices, stated the underlying concern:

" * * * The principle that authority granted by the legislature must be limited by adequate standards serves two primary functions vital to preserving the separation of powers required by the Constitution. (footnote omitted) First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged." (emphasis in original) 373 U.S. at 626, 83 S.Ct. at 1511, 10 L.Ed.2d at 604.

A more concrete manifestation of the judicial concern is the case law where courts have upheld the statutory delegation, but by statutory construction have narrowed the scope of the delegation. See, e. g., Ore. Newspaper Pub. v. Peterson, 244 Or. 116, 415 P.2d 21 (1966). Cf. Bernard v. Bd. of Dental Examiners, 2 Or.App. 22, 465 P.2d 917 (1970). Alternatively, courts have increasingly subscribed to the concept advanced by Professor Davis that broad delegations of legislative authority are constitutionally permissible, provided the administrative agency adopts rules which circumscribe the delegation in order that affected parties will know the rules of the game and courts can perform a meaningful role upon judicial review. See Davis, Discretionary Justice: A Preliminary Inquiry (1969): Davis A New Approach to Delegation, 36 U.Chi.L.Rev. 713 (1969). Our decision in Sun Ray Dairy v. OLCC, 16 Or.App. 63, 517 P.2d 289 (1973), adopted the Davis approach with respect to the Oregon Liquor Control Commission. In Application of Portland General Electric Co. (Marbet v. Portland Gen. Elect.), 277 Or. 447, 561 P.2d 154 (1977), the Oregon Supreme Court implied that in the absence of an express legislative direction, it would judicially impose a requirement that an agency with a broad legislative delegation adopt rules as a prerequisite to implementing and enforcing its authority. However, in both Marbet and Sun Ray Dairy it was recognized that flexibility is essential. Administrative agencies with broad statutory powers may be required to adopt rules defining the outer perimeters of their authority as a precondition to implementation, but agencies can also rely on case by case adjudication as a means of determining the legality of particular conduct within those perimeters. The seminal case on "unprofessional" conduct is Board of Medical Examiners v. Mintz, supra, which is consistent with Sun Ray Dairy and the implications of Marbet.

In Mintz the Board of Medical Examiners revoked a physician's license for allegedly administering drugs to induce an abortion. ORS 677.190 then provided that it was grounds for revocation for a physician to engage in "unprofessional or dishonorable conduct" and also for "procuring or aiding or abetting in procuring an abortion . . .." ³ The trial court overruled the Board of Medical Examiners on the grounds that the conduct could not constitute "unprofessional or dishonorable conduct" unless the Board had previously adopted rules defining such conduct as unprofessional or dishonorable. The Supreme Court reversed. ⁴ We quote at some length from the court's opinion:

"There is authority for the proposition that a prior formulation of specific standards by the administrative agency is necessary where the grounds for suspension or revocation is cast in broad terms. Sometimes this result is predicated upon the violation of a constitutional right to 'due process' and sometimes upon the theory that there is an invalid delegation of legislative power. * * * "

"We agree with the view expressed by the court in the Bell case, supra, (Matter of Bell v. Board of Regents, 295 N.Y. 101, 65 N.E.2d 184), first in regarding the prior promulgation of rules as unnecessary Under the circumstances, and secondly in treating 'unprofessional conduct' as an adequate standard. We have previously held that the failure to specify in a statute the standards circumscribing administrative actions is not necessarily fatal. It may be advisable for the legislature or the administrative agency to set out specific adjudicatory standards in some instances. But this does not mean that a statute must always set out the precise instances under which it is to be operative. No matter how specific the standard or standards are stated, there is almost always a penumbra which requires the administrative agency to exercise a judgment as to whether the facts before it fall within or outside the legislative design. And delegated power to decide may be in such vague terms that it is impossible to discern the legislative policy behind the statute.

"But the statute here is not that vague. Admittedly, the term 'unprofessional conduct' does not have precise contours circumscribing its meaning. The limits between good and bad professional conduct can never be marked off by a definite line of cleavage. And the variety of forms which unprofessional conduct may take makes it infeasible to attempt to specify in a statute or regulation all of the acts which come within the meaning of the term. The fact that it is impossible to catalogue all of the types of professional misconduct is the very reason for setting up the statutory standard in broad terms and delegating to the board the function of evaluating the conduct in each case. * * *"

"The board's discretion is not without controls. As was noted above, the standards are those which are accepted by the practitioners in the community. The standard must be ascertained through expert opinion; except where the standard is clear as it is in the present case. The act of procuring an abortion contrary to the provisions of ORS 677.190(2) is clearly unprofessional conduct. * * *" (emphasis added) (citations omitted) 233 Or. at 446-49, 378 P.2d at 947.

The court's decision in Mintz was premised on the circumstances presented in that case expressly recognizing that in other instances "specific adjudicatory standards" may be necessary. In particular, in Mintz, the alleged unprofessional or dishonorable conduct related to a specific statutory prohibition relating to abortion and also involved standards, "accepted by the practitioners in the community," which must be ascertained by the board employing its expert opinion.

In Ward v. Ore. State Bd. of Nursing, 266 Or. 128, 510 P.2d 554 (1973), the court held that acts which are inchoate of conduct expressly proscribed by the Board of Nursing enabling statute are, as a matter of law, ...