Storrs v. State Medical Bd.
| Decision Date | 29 April 1983 |
| Docket Number | No. 6882,6882 |
| Citation | 664 P.2d 547 |
| Parties | Henry G. STORRS, M.D., Appellant, v. STATE MEDICAL BOARD and Alaska State Division of Occupational Licensing, Appellees. |
| Court | Alaska Supreme Court |
A. Lee Peterson, A. Lee Peterson, Inc., Anchorage, for appellant.
Richard D. Monkman, Asst. Atty. Gen., Anchorage and Wilson L. Condon, Atty. Gen., Juneau, for appellees.
Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and JOHNSTONE, Superior Court Judge. *
This is an appeal from a superior court order affirming a decision by the State Medical Board to revoke the license of Dr. Henry G. Storrs to practice medicine in Alaska on the grounds that Dr. Storrs was professionally incompetent.
The substantive issues raised by Dr. Storrs are as follows: (1) the combination of statutory and regulatory standards under which his license was revoked were unconstitutionally vague; 1 (2) the procedures followed by the State Medical Board were improper under AS 44.62.500, the provision in the Administrative Procedure Act which delineates the procedure to be followed in the resolution of contested cases; 2 (3) the Board's decision was not supported by substantial evidence.
Upon consideration, we reject Dr. Storrs' claims. Because we are in agreement with the reasoning of the superior court on each of the above questions, we adopt the court's opinion as the basis for our disposition of this appeal.
Dr. Storrs' principal claim is that the standard of "professional incompetence" under which his license was revoked was unconstitutionally vague. In addition to the reasoning set forth by the superior court, we note that the recent United States Supreme Court decision of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), has clarified the operation of the vagueness doctrine under the due process clause where the constitutionality of a civil statute or regulation is in question. Flipside establishes that civil laws must satisfy a minimum requirement of meaningfulness under the federal constitution, but that vagueness scrutiny is a flexible test to be adapted to fit the nature of the challenged regulation.
The degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depend in part on the nature of the enactment.... The Court has ... expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.
455 U.S. at 498-99, 102 S.Ct. at 1193, 71 L.Ed.2d at 371-72 (footnote omitted). We think that the reasoning of the superior court falls clearly within the dictates of Flipside.
Secondly, we note the recent decision by the Supreme Judicial Court of Maine in Board of Dental Examiners v. Brown, D.D.S., 448 A.2d 881 (Me.1982). In that case, a dentist's license was revoked under a statute that provided for such action in the case of proven "incompetence or unskillfulness." Id. at 882. Dr. Brown challenged the revocation on a theory quite similar to that relied upon by Dr. Storrs today:
He contends that the phrase "incompetence or unskillfulness" is so vague that no dentist can predict accurately whether his conduct falls within the purview of the disciplinary statute and that such vagueness permits ad hoc determinations uncontrolled by any regulatory standards.
The court rejected this contention, finding that the words "competence" and "skillfulness" were replete with meaning.
The expression "incompetence or unskillfulness" is not so uncertain in its meaning that further definitive rulemaking by the Board is required before a dentist may be disciplined.... It is sufficient to place a dentist on notice that if his professional performance does not remain at a minimally acceptable level of competence in the current state of the art, his license to practice may be revoked.
Understood in its ordinary meaning, the expression "incompetence or unskillfulness" provides an adequate guide for, and limitation on, the Board's exercise of authority and its range of discretion.... The plain intent of the statute is to permit the revocation or suspension of the licenses of incompetent dentists in the interest of public health and safety. Further legislative elaboration is not needed to ensure that the Administrative Court exercises its regulatory authority under this statute in accordance with a determination of policy made by the legislature or that it does not exercise unbridled discretion in carrying out the legislative mandate.
Id. at 884 (citations omitted). The persuasive reasoning of the Maine Supreme Court provides additional support for the result reached below in this case.
We need not address Dr. Storrs' claim that he is entitled to an award of full attorney's fees as a public interest litigant. 3 Dr. Storrs plainly cannot be considered the prevailing party in this case, and he does not suggest that a losing party is entitled to a fee award under the public interest rule. No fees were assessed against Dr. Storrs by the superior court, and there is therefore no occasion to consider whether such an award was inappropriate. 4
Even if the posture of this case were such as to present Storrs' claim that he is a public interest litigant, we would hold that Storrs' case was not a public interest lawsuit. We think that Dr. Storrs had a sufficiently strong private interest in challenging the Board's determination that he would have filed suit "even if [the action] involved only narrow issues lacking general importance." Kenai Lumber Co. v. LeResche, 646 P.2d 215, 223 (Alaska 1982). See Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265-66 (1968) (per curiam); F/V American Eagle v. State, 620 P.2d 657, 673-74 (Alaska 1980), appeal dismissed, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982); Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977).
The superior court's order affirming the State Medical Board's revocation of Dr. Henry G. Storrs' license to practice medicine is AFFIRMED.
CONNOR, J., not participating.
APPENDIX
OPINION OF THE SUPERIOR COURT FOR THE STATE OF ALASKA, THIRD
JUDICIAL DISTRICT (May 12, 1982) (Edited.)
This is an appeal from a decision and order of the State Medical Board dated
February 6, 1981, revoking the license of Dr. Henry Storrs.
Dr. Henry G. Storrs is a physician licensed by the State of Alaska to practice medicine. On September 26, 1979, the State Division of Occupational Licensing filed an Accusation seeking to limit, suspend or revoke his medical license. The Division alleged that Dr. Storrs was professionally incompetent pursuant to AS 08.64.330(b)(2), and 12 AAC 40.970. The Division later filed amendments and supplemental accusations. Dr. Storrs filed his notice of defense on October 3, 1979.
The appointed hearing officer, Rebecca Snow, conducted an eight-day hearing in August 1980. Ms. Snow heard the testimony of twenty-four witnesses, seventeen of whom were physicians, and three of whom were nurses. In addition to oral testimony, 600 pages of hospital records were submitted as exhibits. On December 19, 1980, the hearing officer filed a proposed decision with the State Medical Board, recommending revocation of Dr. Storrs' license to practice medicine. When the Medical Board met in a two-day session in February 1981, counsel for the State, Dr. Storrs, the hearing officer and Dr. Storrs' counsel were present. Before making its decision, the Board met for two hours in a closed session with the hearing officer present, accepted the proposed decision with some deletions, and entered a decision and order revoking Dr. Storrs' license.
The appellant has raised the following five issues on appeal:
I. AS 08.64.330(b)(2) and 12 AAC 40.970 are unconstitutionally vague and allow selective enforcement.
II. The Board violated applicable statutory procedures.
III. The Board's Decision is arbitrary and capricious and therefore lacks a reasonable basis.
IV. The Board's findings are an abuse of discretion because they are not supported by substantial evidence.
AMBIGUITY OF THE TERM "PROFESSIONAL INCOMPETENCE"
The appellant contends that the term "professional incompetence," as it is defined in 12 AAC 40.970, is so ambiguous that it fails to give adequate notice of the conduct prohibited and therefore encourages arbitrary enforcement by the Medical Board.
While our Court has not yet addressed the constitutionality of the term "professional incompetence," a Colorado court has upheld an entire statutory provision that included this term. See State Board of Dental Examiners v. Savelle , 8 P.2d 693 (Colo.1932).
Most courts considering due process as it relates to licensing statutes and regulations have followed the reasoning of Connally v. General Construction Co., 269 U.S. 385 , 70 L.Ed. 322 (1926), requiring that the statutory language be understandable to men of ordinary or common intelligence.
In testing the vagueness of a broadly drawn licensing statute, the court in Kansas State Board of Healing Arts v. Acker , 612 P.2d 610, 616 (Kan.1980), applied a standard of "common understanding and practice." There the terms "immoral conduct" and "dishonorable conduct" were upheld against a due process attack.
The New York Court of Appeals has said, in considering a dentist's challenge to the statutory term "unprofessional conduct," that licensing regulations do not have to be so narrowly drawn that they actually "define with particularity acts which would constitute unprofessional conduct." Bell v. Board of Regents , 65 N.E.2d 184, 187 (N.Y.1946). The court was of the opinion that the professional conduct demanded of practitioners was not only embodied in their code of ethics but discernible to a "qualified person." Compare ...
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