Sedivy v. State ex rel. Stenberg

• Decision Date: 03 June 1997
• Docket Number: No. A-96-130,A-96-130
• Citation: 5 Neb.App. 745,567 N.W.2d 784
• Parties: Wilmer SEDIVY, D.V.M., Appellant, v. STATE of Nebraska ex rel. Don STENBERG, Attorney General, Appellee.
• Court: Nebraska Court of Appeals

Page 784

567 N.W.2d 784

5 Neb.App. 745

Wilmer SEDIVY, D.V.M., Appellant, v. STATE of Nebraska ex rel. Don STENBERG, Attorney General, Appellee.

No. A-96-130.

Court of Appeals of Nebraska.

June 3, 1997.

Syllabus by the Court

1. Administrative Law: Appeal and Error. The district court's review is de novo upon the record of the administrative body when a petition for judicial review of the agency decision is filed under the Administrative Procedure Act.

2. Judgments: Final Orders: Appeal and Error. A judgment rendered or final order made by the district court may be reversed, vacated, or modified on appeal for errors appearing on the record.

3. Judgments: Appeal and Error. An appellate court, in reviewing a judgment of the district court for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings.

4. Administrative Law: Appeal and Error. In appellate review of an Administrative Procedure Act appeal for errors on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

5. Taxes: Licenses and Permits: Revocation. There is a rational relationship between convictions for federal tax evasion and the practice of a highly regulated profession such as veterinary medicine.

6. Double Jeopardy: Licenses and Permits: Revocation The state can discipline and regulate professionals, including suspending the privilege to practice, without running afoul of the Double Jeopardy Clause.

7. Constitutional Law. The First Amendment right to free speech, while a fundamental right, is not absolute.

Wilmer Sedivy, D.V.M., pro se.

Don Stenberg, Attorney General, and Amy Hollenbeck, Lincoln, for appellee.

IRWIN, SIEVERS, and MUES, JJ.

SIEVERS, Judge.

Wilmer Sedivy, D.V.M., was convicted in 1986 of two counts of federal income tax evasion in violation of I.R.C. § 7201 (1994). Thereafter, the Department of Health revoked Sedivy's veterinary medicine license in 1994 under Neb.Rev.Stat. § 71-147(4) (Reissue 1996) (misdemeanor or felony conviction rationally related to licensee's fitness to practice). Sedivy appealed the revocation to the district court for Lancaster County under the Administrative Procedure Act (APA) (specifically, Neb.Rev.Stat. § 84-917 (Reissue 1994)). The district court affirmed the revocation, and Sedivy now appeals to this court.

FACTUAL BACKGROUND

Sedivy was convicted of federal income tax evasion in 1986, was imprisoned for 18 months, was found to have violated his probation in 1991, was again sent to prison for 1 year, and was released from prison in 1992. In 1993, the Department of Health (DOH) filed a petition to revoke Sedivy's license to practice veterinary medicine in Nebraska on two statutory grounds: violation of § 71-147(2) (grossly immoral or dishonorable conduct affecting fitness to practice) and § 71-147(4) (misdemeanor or felony conviction rationally related to fitness to practice). A hearing before an administrative hearing officer of the DOH occurred on January 31, and on June 7, 1994, the director of the DOH revoked Sedivy's veterinary medicine license. At the hearing, Sedivy represented himself.

At the administrative hearing, the State opened its case by introducing into evidence exhibit 1, consisting of several documents, including a partial historical account entitled "Background," a letter from the chief deputy clerk of the U.S. District Court transmitting certified copies of the "Judgment and Probation/Commitment Order," and a probation revocation and commitment order of December 18, 1991, signed by the Honorable Lyle E. Strom of the U.S. District Court. The order from the U.S. District Court indicates that "[o]n March 5, 1987, [the U.S. District] Court suspended the execution of sentence ... upon [Sedivy] after his conviction for income tax evasion in violation of Title 26, United States Code, Section 7201." The judgment and probation/commitment order, signed by Judge Strom, shows that Sedivy was sentenced to 18 months in prison and fined $5,000 for the first count. On the second count, he was sentenced to 5 years in prison and fined $5,000; however, execution of the sentence was suspended and Sedivy was placed on probation. In the "Order of Revocation of Probation and Commitment" entered on December 18, 1991, the U.S. District Court found that Sedivy violated his probation by not having regular employment (working as a consultant earning $300 a month did not qualify as regular employment); by not paying the $10,000 in fines on or before June 1, 1989; by filing income tax returns for 1982 through 1988 which did not include enough information to compute a tax liability and to which Sedivy did not sign his name; and by failing to pay any costs of his prosecution. That order then revoked Sedivy's probation and sentenced him to prison for 1 year.

Part of exhibit 1 was a photocopy of a newspaper article. This article largely duplicates what can be found in the other documents which compose exhibit 1. At the DOH hearing, Sedivy objected to exhibit 1 because the legal conclusions in the documents were invalid. Sedivy's objection to the newspaper article included with exhibit 1 was sustained, but the rest of exhibit 1 was received into evidence. Although the hearing officer explained, "[T]he record will reflect that [the newspaper article] will be removed," the newspaper article was never physically separated from exhibit 1 and is in the record before us. But, the record is clear that the newspaper article was not received into evidence by the hearing officer.

Exhibit 2, a copy of the notice of hearing, was also received into evidence. At the beginning of the hearing, the hearing officer reminded Sedivy that he had the right to an attorney, and Sedivy indicated he realized that but that he wished to proceed pro se. Additionally, when exhibit 2 was offered, Sedivy stated, "I think it sufficiently noticed me. I'm here today."

The State then called Sedivy to testify. At that time, Sedivy inquired as to whether he had a right not to be a witness for the State. After some discussion about that point, the hearing officer noted for the record Sedivy's objection to being called as a witness on the State's behalf and advised Sedivy that he would be sworn in and that if he had objections, the hearing officer would rule on them. Sedivy then explained he did not take "oaths" but he did affirm to tell the truth.

In response to the State's questions and without further objection, Sedivy admitted that he had served an 18-month prison sentence for tax evasion and a 1-year prison sentence for probation violation. Sedivy admitted that "judgment and probation commitments" for income tax evasion were entered March 6, 1987.

Exhibit 3, a copy of the indictment, was introduced and received into evidence. Sedivy then "testified" extensively in narrative format. This "testimony" was little more than Sedivy's collateral attack upon the underlying convictions for income tax evasion. "The conviction of a felony cannot be collaterally attacked in a proceeding before the Director of Health for revocation of a license to practice a profession." State ex. rel. Meyer v. Eyen, 184 Neb. 848, 850, 172 N.W.2d 617, 619 (1969). Thus, Sedivy's complaints in his "testimony" and in his brief before this court about the underlying federal convictions are of little consequence in this proceeding.

The director of the DOH found that Sedivy was convicted of income tax evasion and that thereafter he violated the terms of his probation and was imprisoned. The DOH order found that the State had failed to establish by clear and convincing evidence that Sedivy's conduct constituted grossly immoral or dishonorable conduct, but it determined that there was a rational relation between his felony convictions and his fitness to practice veterinary medicine. The DOH order explained:

While Dr. Sedivy may be sincere in his objection to the income tax the evidence does, however, indicate he apparently engaged in a rather elaborate scheme to disguise and obscure income, which could easily be characterized as out-and-out fraud. Dr. Sedivy's behavior evidences disrespect for government and government regulations. The practice of veterinary science in this state is a highly regulated activity. It appears unlikely that Dr. Sedivy would be willing to adhere to laws or regulations pertaining to the practice of veterinary science if those laws or regulations were contrary to his personal convictions.

Consequently, the DOH revoked Sedivy's veterinary medicine license on June 7, 1994.

Sedivy sought timely review of the revocation in the district court for Lancaster County under the APA. The district court properly ignored Sedivy's collateral attack on his conviction. The court found that Sedivy's other arguments could be summarized as that "the administrative action consists [of] double jeopardy." The district court found that the Double Jeopardy Clause "does not preclude disciplinary action against a professional license following a criminal conviction for the same offense," citing Kaplan v. Department of Registration & Ed., 46 Ill.App.3d 968, 5 Ill.Dec. 303, 361 N.E.2d 626 (1977). The district court found that Kaplan supported the proposition that the purpose of a disciplinary action is to protect the public health, safety, and welfare and to " 'maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the medical profession in the eyes of the public.' " Although Sedivy was licensed as a veterinarian, not a medical doctor, the district court found that this made no difference because the reasoning was equally applicable to a veterinarian.

ASSIGNMENTS OF ERROR

Sedivy assigns nine errors, and we take the liberty of stating them more succinctly: (1) The district court erred in finding the...