Petition of Grimm

• Decision Date: 17 December 1993
• Docket Number: No. 92-012,92-012
• Citation: Petition of Grimm, 635 A.2d 456, 138 N.H. 42 (N.H. 1993)
• Parties: Petition of Ruediger GRIMM, PH.D. (New Hampshire Board of Examiners of Psychologists).
• Court: New Hampshire Supreme Court

Page 456

635 A.2d 456

138 N.H. 42

Petition of Ruediger GRIMM, PH.D. (New Hampshire Board of Examiners of Psychologists).

No. 92-012.

Supreme Court of New Hampshire.

Dec. 17, 1993.

Linda E. Fraas, Concord, on the brief and orally, for complainant.

Sulloway & Hollis, Concord (Margaret H. Nelson and Sean M. Dunne on the brief, and Ms. Nelson orally), for Ruediger Grimm, Ph.D.

HORTON, Justice.

Ruediger H. Grimm, Ph.D., brings this petition for writ of certiorari seeking to vacate a decision of the New Hampshire Board of Examiners of Psychologists (board) revoking his psychologist certificate. The board's decision was based on findings that Dr. Grimm violated the American Psychological Association Ethical Principles, and thereby acted unprofessionally within the meaning of RSA 330-A:14, II(d), by engaging in sexual relations with the complainant. Dr. Grimm argues that: (1) the board violated his due process rights because not all the hearing panel members were present for all the parties' testimony; (2) the board's decision is unsupported by the record; (3) the full board did not participate in the hearings in violation of RSA 330-A:15; (4) the board's application of the "preponderance of the evidence" standard violated the due process and equal protection guarantees of the New Hampshire Constitution; (5) the board members were biased; (6) the board relied on data not made part of the record; and (7) the board's evidentiary rulings were improper. We vacate and remand.

From September 1984 through January 5, 1988, the complainant visited Dr. Grimm, a certified psychologist in New Hampshire, for weekly psychotherapy sessions. In March 1990, she filed a letter of complaint with the board which alleged that she and Dr. Grimm had engaged in sexual contact beginning in July 1985, and that they had intercourse on December 9, 1986, November 24, 1987, and October 24, 1989. Dr. Grimm denied all the allegations set forth in the complaint.

After reviewing the complaint, the board appointed Sybille Carlson, Ph.D., to investigate and report on the allegations. Dr. Carlson submitted her report to the board in August 1990, and based on her findings, the board initiated disciplinary proceedings against Dr. Grimm.

Upon receipt of the complaint, Dr. Grimm filed a number of motions with the board, including: a motion to strike, or in the alternative, to exclude Dr. Carlson's report; a request for voir dire of the board; a request for recusal of board members; a request for a hearing in front of the full board; motions to exclude the testimony of the complainant; and a request to admit the results of a polygraph examination taken by Dr. Grimm. The board granted the doctor's motion to exclude Dr. Carlson's report and her expert testimony, and after discovering that board member Daniel C. Williams, Ph.D. shared office space and expenses with Dr. Carlson, it also recused Dr. Williams. The board rejected Dr. Grimm's argument that the conduct of another board member, Dennis Forgue, who had previously recused himself because he was the complainant's ex-son-in-law, biased the other panel members. All of Dr. Grimm's other requests were also denied. Finally, the board denied a motion by the complainant to amend her complaint to include new allegations, but it ruled that the evidence of the new allegations would be admitted where relevant to the original charges of sexual contact.

The board held hearings on eight days from December 1990 through February 1991. Five members of the seven-member board participated in the hearings. On September 20, 1991, the board revoked Dr. Grimm's psychologist certificate, finding that Dr. Grimm had violated the American Psychological Association Ethical Principles, and thereby acted unprofessionally within the meaning of RSA 330-A:14, II(d), by engaging in sexual relations with a client.

I. Due Process Claim

Dr. Grimm argues that the failure of every member of the hearing panel, acting in a fact-finding capacity, to attend all of his and the complainant's testimony violated his right to due process under the State and Federal Constitutions. We agree.

We address Dr. Grimm's state constitutional claim first, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only if it aids our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because we find a constitutional violation under this analysis and vacate, we need not analyze his federal constitutional claim.

We have held that a "doctor has a legally protected property right in his license to practice medicine and thus is entitled to procedural due process." Appeal of Plantier, 126 N.H. 500, 506, 494 A.2d 270, 273 (1985). Likewise, a registered psychologist has a legally protected property interest in his psychologist's certificate. The due process requirements binding administrative procedure are quite different from those binding judicial procedure, Roy v. Water Supply Comm'n, 112 N.H. 87, 92, 289 A.2d 650, 654 (1972), and we note that the general rule in administrative proceedings is that an administrative officer "may act on a written record of testimony by witnesses whom he has not personally seen or heard." Appeal of Seacoast Anti-Pollution League, 125 N.H. 708, 716, 490 A.2d 1329, 1335 (1984) (quotations omitted).

This general rule, however, gives way to an exception where the board elects to make factual determinations as a hearing panel and the record does not provide a reasonable basis for evaluating the kind of testimony in question. Id.; see also Opinion of the Justices, 117 N.H. 390, 393, 373 A.2d 642, 644 (1977). Such is precisely the case where, as here, "the disposition turns on the credibility of the witnesses' testimony. Resolution of the matter boils down to the question of 'who do you believe.' " Appeal of Plantier, 126 N.H. at 507, 494 A.2d at 274. According to the board itself, the only direct evidence it received concerning the alleged sexual contact was the testimony of the complainant and Dr. Grimm. The decision and order of the board then rested on its conclusion that the complainant's testimony was more credible than Dr. Grimm's. We hold that, in cases such as this, due process requires all panel members deciding the case to be in attendance for all of the parties' testimony, plus any other testimony on the issue of credibility, in order to effectively assess the issue of credibility. Because the record indicates that this was not the case, we vacate.

There were eight days of hearings conducted by the board over a period of four months. Five members listed their names on the decision to revoke Dr. Grimm's certificate. On the second and third days of the hearings, only four panel members were present for the direct and cross-examination of Dr. Grimm. On the fourth hearing date, only three members were present for the entire day of direct and cross-examination of Dr. Grimm, while a fourth member was present for only a portion of the testimony. On the fifth hearing date, only four members were present for all of the complainant's direct testimony. On the sixth hearing date, two of the panel were present for the full day of the complainant's cross-examination, while a third member was present only in the morning. The fifth member of the panel was not present for any of the parties' testimony although he is cited as participating in the final decision of the board. In sum, the record indicates that only one of the five members was present for all the parties' testimony. Significantly, only two members were present for the entire cross-examination of the complainant. This fact alone demonstrates the effect their absence had on the fact-finding process, given that the purpose of cross-examination is to review testimony given on direct examination "in order to determine the veracity, accuracy and depth of knowledge of the witness." Petition of Betty Sprague, 132 N.H. 250, 258, 564 A.2d 829, 834 (1989). Contrary to the complainant's assertion, listening to the tapes of the testimony did not satisfy due process requirements under the circumstances of this case. We recognize that in the course of a long proceeding such as this, panel members may have to leave due to the exigencies of the external world. Upon remand, the board must suspend the proceedings until all the members acting in a fact-finding capacity are physically present to hear the testimony of the parties.

II. Sufficiency of the Record

Dr. Grimm also argues that the board's decision was unsupported by the record and therefore warrants reversal and dismissal. We disagree. Administrative findings of fact are deemed to be prima facie lawful and reasonable. RSA 541:13 (1974); Appeal of Toczko, 136 N.H. 480, 488, 618 A.2d 800, 805 (1992). In this case, our review of the record reveals that there was sufficient evidence to support the board's conclusion that Dr. Grimm violated the American Psychological Association Ethical Principles, and thereby acted unprofessionally within the meaning of RSA 330-A:14, II(d), by engaging in sexual relations with a client.

III. Guidance for Remand

Because similar issues may arise upon remand, we will address Dr. Grimm's remaining arguments in the interest of judicial economy. See Appeal of Plantier, 126 N.H. at 510, 494 A.2d at 275; State v. Shannon, 125 N.H. 653, 661, 484 A.2d 1164, 1171 (1984).

A. Quorum for Disciplinary Proceedings

Dr. Grimm argues that RSA 330-A:15 requires the full board to hear disciplinary complaints. The language upon which Dr. Grimm relies has been eliminated from the statute and therefore we will apply the current version for prospective guidance purposes. See Laws 1992, 280:16. RSA 330-A:15-b (Supp.1992) states: "Any complaint not dismissed or settled informally shall be heard by the board." RSA 330-A:15-b does not specify the number of board members required to lawfully hear disciplinary complaints. Chapter 330-A, however, does contain a quorum...