State ex rel. Meyer v. Eyen
Decision Date | 05 December 1969 |
Docket Number | No. 37285,37285 |
Citation | 172 N.W.2d 617,184 Neb. 848 |
Parties | STATE ex rel. Clarence A. H. MEYER, Attorney General, Appellee, v. Michael J. EYEN, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. An order of revocation of a license to practice a profession will not ordinarily
be disturbed in the absence of an abuse of discretion.
2. 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.
Shrout, Lindquist, Caporale, Brodkey & Nestle, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Benard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This action for the revocation of the license of defendant, Michael J. Eyen, to practice dentistry in Nebraska originated before the Director of the Department of Health of the State of Nebraska. On appeal, the district court found the evidence sufficient to sustain the order of revocation of the Director of Health.
In accordance with Rule 8, subd. a, par. 2(3), Revised Rules of the Supreme Court, 1967, we consider only the assignments of error specifically set out in defendant's brief. They are as follows:
Defendant pled nolo contendere to an information charging the felony offense of assault with intent to inflict great bodily harm. The offense involved the throwing of acid on the victim. On May 24, 1962, defendant was sentenced to confinement in the Nebraska State Penitentiary for a period of 4 years. On May 29, 1962, the present action for revocation was filed before the Director of Health. Defendant was served with notice at the penitentiary. He did not personally appear at hearings held June 15, 1962, and August 30, 1962, but was represented by counsel. The order of revocation was entered September 5, 1962. The appeal to the district court was heard in November 1968.
Section 71--147, R.R.S.1943, provides, so far as material herein: 'A license to practice a profession may be revoked or suspended when the licensee is guilty of any of the following acts or offenses: * * * (2) immoral, unprofessional or dishonorable conduct; * * * (4) conviction of a felony; * * *.'
The defendant does not challenge the jurisdiction of the Director of Health, nor does he contend that the evidence adduced was insufficient under the circumstances to sustain a revocation. He does, however, urge that the wording of the statute provides permissive rather than mandatory revocation or suspension, and that in his case revocation is too severe. We agree the use of the word 'may' makes the statute permissive or discretionary in this instance, but we do not accept defendant's conclusion.
An order of revocation of a license to practice a profession will not ordinarily be disturbed in the absence of an abuse of discretion. There has been no abuse of discretion herein. Defendant was convicted of a serious criminal act. To hold that the order of revocation was an abuse of discretion would be to enasculate the statute.
Defendant attempts to impeach his conviction by now denying his guilt and by producing affidavits of an accomplice that he testified falsely in the criminal prosecution, and of the victim that he wished to retract the statement that there was any sexual relationship between him and the defendant. The accomplice at the time of the execution of the affidavit was a fellow inmate. These affidavits were properly excluded. It is not possible to reverse a criminal conviction in an administrative proceeding. 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.
Defendant concedes that he understood the effect of a nolo contendere plea. To use his words: 'I understood what a no contest...
To continue reading
Request your trial-
Lasher v. Neb. State Bd. of Pharmacy
...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, 618-19 (1969). Thus, under Nebraska law, Defendants' alleged failure to allow Plaintiff to present evidence challenging her co......
-
Sedivy v. State ex rel. Stenberg
...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 conv......
-
Durousseau v. Nebraska State Racing Commission
...in an occupation or profession will ordinarily not be disturbed on appeal in the absence of an abuse of discretion. State ex rel. Meyer v. Eyen, 184 Neb. 848, 172 N.W.2d 617, cert. den. 398 U.S. 951, 90 S.Ct. 1872, 26 L.Ed.2d The judgment of the District Court was correct and is affirmed. A......
- Overland Nat. Bank of Grand Island v. Aurora Co-op. Elevator Co.