finding the fact that the Board relied on expert witnesses who were competitors of the sanctioned individual was not sufficient to invalidate the Board’s decision
How later courts described this case
- finding the fact that the Board relied on expert witnesses who were competitors of the sanctioned individual was not sufficient to invalidate the Board’s decision
Written by the judges who cited it.
The opinion
CANTRELL, Judge,
concurring.
I concur in the majority opinion but I write separately because of my concern about the bias charge leveled at the board. I believe that due process does require an opportunity *253 to be heard before a fair and impartial tribunal. And an administrative board composed of members who stand to benefit from their decision is not impartial. Gibson v. Berryhill, 411 U.S. 564 , 93 S.Ct. 1689 , 36 L.Ed.2d 488 (1973).
But the situation here is not the same one that confronted the court in Gibson v. Berryhill. In that case every board member had a pecuniary interest that might be affected by the board’s decision. Although actual bias was not shown by the record, the appearance of partiality was enough to disqualify the board members, using due process analysis.
In this case three members out of a seventeen member board were medical doctors. One of the three medical doctors was an orthopaedic surgeon. I am not satisfied, however, to presume that the pecuniary interest of any of the three would be affected by the board’s vote. The record does not show that it would. And, while the appellee raises an issue about his inability to voir dire two of the three members, I believe the record would have to be developed by more substantive evidence about the specialities of the board members and how the practice of each speciality would be affected if chiropractors had hospital admitting privileges.
This is an important and complicated issue affecting many of the boards and commissions that play such a vital role in state government. The courts should be sensitive to the possibility that state administrative agencies might make arbitrary decisions. I do not think, however, that this is such a case.