Satloff v. Massachusetts Board of Registration in Dentistry, No. 05-3054-A (MA 10/5/2005)
| Decision Date | 05 October 2005 |
| Docket Number | No. 05-3054-A.,05-3054-A. |
| Parties | DAVID SATLOFF, DMD, Plaintiff, v. MASSACHUSETTS BOARD OF REGISTRATION IN DENTISTRY; et al, Defendants. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
RULING.
Upon consideration of the complaint, of the application for preliminary injunctive relief and all supporting factual materials and memoranda of law, and of all opposition materials with exhibits, the court hereby DENIES plaintiff David Satloff's application for a preliminary injunction restraining the defendant Board of Registration in Dentistry from further adjudication of the charges against him in Board Docket Numbers DN-02-003; DN-02-011l; DN-02-048; DN-02-262; DN-03-079; DN-03-189; and DN-04-007. The reasons follow.
REASONING.
Introduction: Standards for Preliminary Injunctive Relief.
I have applied the settled criteria for consideration of preliminary injunctive relief set out in the leading precedent of Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 616-622 (1980). Under those criteria, an applicant for preliminary injunctive relief must demonstrate (a) a likelihood of success upon the ultimate legal merits of its claim; (b) the threat or presence or actionable or inequitable irreparable harm in the absence of preliminary injunctive assistance; (c) the absence or the lesser degree of harm to the opposing party from the imposition of the requested preliminary injunction; and (d) the significance of a public interest, if any is present in the circumstances of the dispute. The court must consider these criteria in combination and not in isolation. In the assessment of any harm, detriment, or burden, the court must always ask whether those consequences are actionable or inequitable in light of the governing law of the circumstances. Packaging Industries Group, Inc., 380 Mass. at 617.
I will analyze the parties' factual and legal submissions under each of these criteria in turn.
The administrative adjudication of the Board of Registration in Dentistry is still incomplete and ongoing. The hearings are now complete. However, deliberation and final decision are still pending. Upon completion of that adjudication of a final decision, jurisdiction to review the work of the Board would appear to reside exclusively in the Supreme Judicial Court under G.L. c. 112, § 64. A specific statutory route of judicial review typically precludes alternate general authorizations of judicial review (such as G.L. c. 38, § 14). Id., first and second paragraphs; Department of Public Health v. Cumberland Cattle Co., 361 Mass. 817, 829 (1972). However, § 64 operates upon the predicate of a completed administrative decision or order which "has...suspended, revoked or cancelled" the professional registration, license, or authority of a claimant. Here we have not reached that point of finality. Consequently exclusive jurisdiction has not yet passed over to the Supreme Judicial Court. The Superior Court possesses jurisdiction under the Declaratory Judgment Act, G.L. c. 231A, § 1; its general statutory grant of legal and equitable power, G.L. c. 212, § 4; and under its inherent authority at common law and in equity.
As a general rule of Massachusetts administrative law, the doctrine of exhaustion of administrative remedies requires a complainant to complete the administrative process and to receive a final administrative decision before he may seek judicial review or judicial intervention into the administrative adjudication. The purposes of the doctrine are (a) to permit the administrative agency to apply its presumptive expertise to a dispute within a statutory scheme for which it has primary enforcement responsibility, East Chop Tennis Club v. MCAD, 364 Mass. 444, 451-453 (1973) (leading statement); (b) to permit the agency to undertake competently the technical fact finding within its presumed expertise, Buteau v. Norfolk County Retirement Board, 8 Mass. App. Ct. 391, 394-395 (1979); and (c) to prevent inefficient piecemail judicial review of incomplete administrative adjudicatory proceedings, Broderick's Case, 320 Mass. 149, 151 (1946). See also Kargman v. The Superior Court, 371 Mass. 324, 329-330 (1976).
Recognized exceptions to the doctrine of exhaustion have evolved. They include circumstances (a) showing the futility or inadequacy of any remaining administrative remedies for the complainant; (b) establishing the decisive issue of the case as a question of law and not of fact or mixed law and fact; (c) presenting a novel or recurrent issue; (d) and/or presenting an issue of public importance (often involving an agency's treatment of a large number of matters). See Kelleher v. The Personnel Administrator, 421 Mass. 382, 384 (1995); Space Building Corp. v. Commissioner of Revenue, 413 Mass. 445, 448 (1992); Construction Industries of Massachusetts v. Commissioner of Labor & Industries, 406 Mass. 162, 166-167 (1990); and McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 793-794 (1979).
In this instance, the general rule of exhaustion seems to me to be more applicable than any of the possible exceptions. At present the Board has the charges against Dr. Satloff under advisement. We do not know whether it will render a decision adverse to him. We do not know the quality, degree, reasoning, or effect of any decision whatsoever at this point. A favorable decision could result. Or a decision so mildly unfavorable as not to provoke any appeal to the court. The uncertainty of any administrative decision tends to render judicial intervention premature under the usual standards of exhaustion. In addition, the presumption of competence and integrity in behalf of administrative adjudication by state officers tends to weigh against interlocutory intervention by the courts. Withrow v. Larkin, 421 U.S. 35, 55 (1975); and Raymond v. Board of Registration in Medicine, 387 Mass. 708, 715-716 (1982).
At the same time, this case discloses the presence of a major procedural irregularity in the work of the Board. It would appear to present a substantial question of procedural and substantive fairness under the statutory requirement of G.L. c. 30A, § 10, commanding "agencies [to] afford all parties an opportunity for full and fair hearing;" and under due process standards of both the United States and Massachusetts Constitutions.
Dr. Satloff alleges, and the Board acknowledges, that throughout the ten hearing sessions comprising the adjudication of the charges against him, a former member of the Board has sat with the formal attorney hearing officer as a technical consultant. The former Board member and technical consultant has been Dr. Frederick Mackler. Dr. Mackler participated in the decision to issue the underlying order to show cause (containing the charges under investigation) against Dr. Satloff. His term on the Board has since expired. In the course of the hearing upon preliminary injunctive relief, counsel for the Board explained that Dr. Mackler served to provide ongoing technical assistance to the hearing officer, attorney Mitchell Goldstein. Counsel for Dr. Satloff relates that the hearing officer and the consultant conferred inaudibly through the course of the hearings. It appears that their consultations remained unrecorded and unknown to Dr. Satloff and his counsel (and presumably to the prosecuting attorney). The consultation process is alleged to have continued throughout the evidentiary process and the hearings.
In response to questioning at the preliminary injunction hearing, counsel for the Board justified the adjudicatory consulting arrangement as a permissible exercise of Board expertise. In particular, Board counsel cited the decisions of D'Amour v. Board of Registration in Dentistry, 409 Mass. 572, 579-581 (1991) and Raymond v. Board of Registration in Medicine, 387 Mass. 708, 714-717 (1982).
In light of this very unusual procedural arrangement, I have studied those cases carefully. Those decisions uphold the doctrine that an adjudicatory agency may combine the investigative and the prosecutorial functions without violation of due process or statutory fairness because the law will presume that the agency personnel participating in both the investigative process and the later decisional process have done so with open-minded integrity and impartiality. A Board may forfeit that presumption by its particular conduct in a case. Also, the doctrine permitting the combination of investigative and adjudicatory functions does not permit the combination of the accusatory or prosecutorial function with the adjudicatory function.
The Board's rationale for the consultant arrangement appears to miss the point. Dr. Satloff is not arguing simply that Dr. Mackler has improperly participated in the investigative and adjudicatory roles. Rather the contention here is different and more serious. Dr. Satloff is asserting that the Board has violated the administrative law doctrine that an agency may...
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