Seidenberg v. New Mexico Bd. of Medical Examiners

• Citation: 1969 NMSC 28,452 P.2d 469,80 N.M. 135
• Decision Date: 10 March 1969
• Docket Number: No. 8720,8720
• Parties: Leonard SEIDENBERG, M.D., and Louise Geng Seidenberg, M.D., Petitioners-Appellees, v. The NEW MEXICO BOARD OF MEDICAL EXAMINERS, Respondent-Appellant.
• Court: Supreme Court of New Mexico

Page 469

452 P.2d 469

80 N.M. 135

Leonard SEIDENBERG, M.D., and Louise Geng Seidenberg, M.D. Petitioners-Appellees, v. The NEW MEXICO BOARD OF MEDICAL EXAMINERS Respondent-Appellant.

No. 8720.

Supreme Court of New Mexico.

March 10, 1969.

Rehearing Denied April 15, 1969.

Marron, Houk & McKinnon, Albuquerque, for respondent-appellant

Bigbee & Byrd, F. Joel Roth, Santa Fe, for peititoners-appellees.

OPINION

TACKETT, Justice.

These consolidated causes are before us on an appeal by the Board of Medical Examiners, hereinafter referred to as the 'Board,' which, after a very lengthy hearing, revoked the licenses of both appellees to practice medicine in the State of New Mexico.

The charges and hearings were conducted under the provisions of the Uniform Licensing Act, §§ 67--26--1 through 67--26--28, N.M.S.A., 1953 Comp.

Appellees appealed the decision of the Board to the District Court of Santa Fe County, the Honorable J. V. Gallegos, by designation, presided. After considering the record of the proceedings before the Board, the trial court entered its decision and judgment reversing the decision of the Board, on the grounds that the evidence before the Board was not clear and convincing; that it was not supported by substantial evidence; and that, in revoking the licenses of appellees, the Board acted arbitrarily and capriciously.

Under point I, appellant contends:

'THE COURT ERRED IN REVERSING THE BOARD'S DECISION AND ORDER REVOKING THE LICENSES OF EACH OF THE APPELLEES TO PRACTICE MEDICINE IN CONCLUDING:

(A) THAT THERE WAS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE ALLEGATIONS CONTAINED IN THE NOTICE OF CONTEMPLATED ACTION;

(B) THAT THE DECISION OF THE BOARD WAS UNSUPPORTED BY SUBSTANTIAL EVIDENCE ON THE ENTIRE RECORD; AND

(C) THAT THE BOARD ACTED ARBITRARILY AND CAPRICIOUSLY IN REVOKING THE LICENSES OF EACH OF THE APPELLEES.'

The scope of the trial court's review of an administrative board's decision is set forth in § 67--26--20, N.M.S.A., 1953 Comp.:

'Upon the review of any board decision under the Uniform Licensing Act (67--26--1 to 67--26--28), the judge shall sit without a jury, and may hear oral arguments and receive written briefs, but no evidence not offered at the hearing shall be taken, except that in cases of alleged omissions or errors in the record, testimony thereon may be taken by the court. The court may affirm the decision of the board or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: in violation of constitutional provisions; or in excess of the statutory authority or jurisdiction of the board; or made upon unlawful procedure; or affected by other error of law; or unsupported by substantial evidence on the entire record as submitted; or arbitrary or capricious.'

We said in Hardin v. State Tax Commission, 78 N.M. 477 at 478,432 P.2d 833, at 834 (1967):

'It is well established that a district court may not, on appeal, substitute its judgment for that of the administrative body, but is restricted to whether, as a matter of law, the administrative body acted fraudulently, arbitrarily or capriciously; whether the administrative order is substantially supported by evidence; and, generally whether the action of the administrative body was within the scope of its authority. Llano, Inc. v. Southern Union Gas Co., 75 N.M. 7, 399 P.2d 646, and authorities there collected. This court, in reviewing the district court's judgment, must, in the first instance, make the same review of the administrative agency's action as did the district court. Reynolds v. Wiggins, 74 N.M. 670, 397 P.2d 469. Our review of the record before the state tax commission leads us to agree with the commission's disposition of the valuation.'

See also, S.I.C. Finance-Loans of Menaul, Inc. v. Upton, 75 N.M. 780, 411 P.2d 755 (1966).

In Llano, Inc. v. Southern Union Gas Company, 75 N.M. 7 at 11--12, 399 P.2d 646 at 649 (1964), it is there stated:

'This court has consistently held that on appeals from administrative bodies the questions to be answered by the court are questions of law and are restricted to whether the administrative body acted fraudulently, arbitrarily or capriciously, whether the order was supported by substantial evidence and, generally, whether the action of the administrative body was within the scope of its authority. The district court may not substitute its judgment for that of the administrative body. (Citations) * * *.'

See also, State ex rel. State Corporation Commission v. Zinn, 72 N.M. 29, 380 P.2d 182 (1963); Deaconess Hospital v. Washington State Highway Commission, 66 Wash.2d 378, 403 P.2d 54 at 70 (1965).

In the case before us, appellees were charged with and found guilty of dishonorable and unprofessional conduct because of fraudulent misrepresentations, and evidence, to be deemed substantial, must have been clear and convincing to justify the Board in its findings of guilty of six out of the seven counts.

In Lumpkins v. McPhee, 59 N.M. 442, 286 P.2d 299 (1955), it is noted that where fraud is charged, the evidence in support of a finding of fraud is not deemed substantial 'if it is not clear, strong and convincing.' First National Bank of Albuquerque v. Lesser & Lewinson, 10 N.M. 700, 65 P. 179 (1901); Shaw v. Board of Education, 38 N.M. 298, 31 P.2d 993, 93 A.L.R. 432 (1934); Frear v. Roberts, 51 N.M. 137, 179 P.2d 998 (1947).

The court below was limited in its review to determining whether the order of the Board was unreasonable or unlawful; whether the order of the Board was supported by substantial evidence; and, generally, whether the action of the Board was within the scope of its authority. Based upon the record in the instant case, we hold that the Board's actions were neither unreasonable, arbitrary nor capricious, and that the Board's decision is based on clear, convincing and substantial evidence.

Under point II appellees raise a constitutional question; that the proceedings of the Board denied appellees due process of law and violated the governing statutes as to the method of appointment and additional qualifications contained in § 67--5--11, N.M.S.A., 1953 Comp. and that such appointments are contrary to and in violation of Art. VII, § 2, and Art. III, § 1, New Mexico Constitution, and thereby do not give the Board jurisdiction over appellees to suspend or revoke their licenses to practice medicine in New Mexico.

The Board exists pursuant to §§ 67--5--1 through 67--5--26, N.M.S.A., 1953 Comp., is established under § 67--5--1, supra, and consists of five members appointed by the governor from a list of five nominees for each position.

Appellees do not challenge the right of the legislature to create a Board of Medical Examiners and to vest authority in the Board to institute appropriate disciplinary proceedings for the revocation or suspension of a physician's license to practice medicine. They do complain, however, that the statute creating the Board has usurped the governor's power of appointment of members of the Board by restricting the governor's choice to nominees of the New Mexico Medical Society.

In accordance with § 67--5--1, supra, the nominees submitted by the Medical Society must be 'qualified.'

Appellees rely on State ex rel. Swope v. Mechem, 58 N.M. 1 at 6, 265 P.2d 336 at 339 (1954), wherein we quoted from 42 Am.Jur., Public Officers, § 94 at 952:

"* * * where the Constitution makes the act of appointment an executive one, it cannot be exercised by the legislature, nor can the legislature rob the executive of such power by conferring it on an outside agency of its own choosing."

We distinguish this from the instant case in that we are not faced with a constitutional delegation to the executive of the power of appointment to the Board. Here, the legislature delegated such power to the executive and may establish qualifications for Board members. New Mexico Constitution, Art. VII, § 2(B), (1967 Pocket Supp.) provides:

'The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.'

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