licensing body has authority to punish licensees unless the measures are “shockingly unfair”
How later courts described this case
- licensing body has authority to punish licensees unless the measures are “shockingly unfair”
Written by the judges who cited it.
The opinion
Fuchsberg, J.
(concurring in part and dissenting in part). For the very reason that the great expansion of administrative law, as a concomitant to the vastly increasing number, size and complexity of regulatory agencies in recent decades, make it practical for the judicial branch of government to exercise restraint in reviewing the determinations of such agencies, we are required, in the course of judicial review, to be, if anything, more alert than ever to those instances which call out for our intervention because a penalty, punishment or measure of discipline imposed by an administrative agency is *187 so "' "disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222 , 233). The majority holds, and I agree, that there has been such abuse of discretion as to the measure or mode of the penalty imposed here sufficient to require judicial action. Where that has occurred, though it may be appropriate "more often to remand the matter for the fixing of the sanction by the agency initially exercising the power”, we may "deem the record sufficient to permit the reviewing court to assess the permissible measure of punishment warranted”. (Matter of Pell v Board of Educ., supra, at p 234). I believe this to be such a case. Therefore, I would not only affirm the judicial annulment of the penalty imposed by the Board of Regents, but also the Appellate Division’s decision to reinstate the specific lesser penalty, as recommended by the board’s own hearing panel itself, providing as it does for an adequate period as a nursing probationer instead of dealing a death knell to the career of one who has already demonstrated the will to cure her personal problem. (Cf. Matter of Shore Haven Lounge v New York State Liq. Auth., 37 NY2d 187 ; dissent in Matter of Leake v Sarafan, 35 NY2d 83, 92 .)
Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Fuchsberg concurs in part and dissents in part and votes to affirm in a separate opinion; Judge Cooke taking no part.
Order modified, without costs, and the matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.