Johnson v. Board of Governors of Registered Dentists

OPALA, Justice,

with whom KAUGER, Vice Chief Justice, joins, concurring.

Today’s pronouncement holds that the Board of Governors of Registered Dentists of the State of Oklahoma [Board] must prove by clear and convincing evidence any disciplinary complaints it brings against the professionals who are subject to its cognizance. I join the court’s opinion but write separately to explain my commitment to maintaining the clear-and-convincing standard of persuasion in disciplinary proceedings against dentists.

I

THE ANATOMY OF LITIGATION

The Board instituted disciplinary proceedings against Charles Ray Johnson, D.M.D. [Johnson or dentist] based upon an investigation conducted by a board-appointed “investigatory officer.” 1 After receipt of the complaint, Johnson sought to enjoin the disciplinary proceedings by a district court decree. Among other things, he asserted that the Board had failed to designate the standard of persuasion required to prove the charges brought against him. After Johnson began his district court action (but before any formal disciplinary hearings were had), the Board adopted — on an emergency basis — the preponderance-of-the-evidence standard of persuasion 2 to govern its disciplinary proceedings. Johnson urged that the proper standard is that of clear-and-convincing evidence. By its September 17, 1993 judgment the district court ruled that due process requires clear-and-convincing proof in any proceedings which affect a dentist’s license to practice. The Board appealed and Johnson brought a counter-appeal.

II

SEVERAL IMPORTANT PROFESSIONAL AND PERSONAL-STATUS INTERESTS ARE PRESENTLY PROTECTED BY THE CLEAR-AND-CONVINCING STANDARD OF PERSUASION

Our concern here is not whether Johnson should be initially licensed for the practice *1350 of dentistry but rather to define the standard of persuasion 3 that is to govern in proceedings which affect his conferred license. 4 In the latter process Johnson’s stake is different from that in the former. It takes the shape of a constitutionally protected property interest which may not be revoked sans procedural due process. A person’s professional license no longer may be treated as a mere privilege — something the King [government] may both create and take away at will. 5

Both federal and Oklahoma’s extant jurisprudence protect holders of various professional licenses and personal-status interests whenever the individual’s interest at stake represents something more substantial than mere loss of money. 6 Clear and convincing evidence is required to affect a shorthand reporter’s license. 7 The Bar Association must prove a lawyer’s violation of professional responsibility by clear and convincing evidence as a precondition to imposition of discipline. 8 Parental status may not be ter *1351 minated except by clear and convincing proof. 9 The existence of an unsolemnized, non-ceremonial (common law) marriage must be established by clear and convincing proof. 10

Ill

ARTICLE 5, § 46 11 AND THE DUE PROCESS CLAUSE 12 INTERDICT DISPARATE PROCEDURAL REGIMES FOR LICENSE REVOCATION AFFECTING SIMILARLY SITUATED PROFESSIONALS

Academically credentialed and governmen-tally licensed professionals constitute, for remedial purposes, but a single class. 13 Johnson — as a dentist — is a member of this class. To withhold from dentists the protection affordable by the clear-and-convincing standard of persuasion 14 would destroy the symmetry of our present procedural regime. Its uniformity is commanded by Art. 5, § 46, Okl. Const. 15 Apart from the strictures of § 46, due process, both state and federal, which has a vigorous anti-discrimination component, also demands that academically credentialed and state licensed professionals— who comprise a single class — be accorded the same probative standards when proceeded against by the State acting in the exercise of its policing powers. 16

The Board’s adoption of the preponderance-of-the-evidence standard, 17 if allowed to survive this court’s scrutiny, would impermis-sibly interject procedural asymmetry into the process that governs license revocation. *1352 Other similarly situated professional licensees have already been given the protection of the clear-and-convincing standard. Both the remedial uniformity commanded by § 46 and the due process clause compel today’s holding that the clear-and-convincing standard of persuasion stand as the dentists’ constitutional due.

IV

SUMMARY

As an academically credentialed and gov-emmentally certified dental practitioner, Johnson holds a state license that is to be treated as a constitutionally protectible property interest. It may not be suspended or revoked sans procedural due process. The degree of persuasion that is to govern a license-revocation proceeding constitutes a critical component of that process. Johnson is entitled to expect from the State no less probative persuasion than that accorded by law to similarly situated licensees. The Board’s endorsement of a lesser standard— that of preponderance of the evidence— plainly offends the constitutionally mandated symmetry of procedure. Art. 5, § 46 and Art. 2, § 7, Okl. Const.

. The appointed investigatory officer is a dentist who practices in the district in which the complaints arose and is one of Johnson's competitors. For a discussion of the neutrality-and-detachment requirements that apply to professional board membership, see Gibson v. Berryhill, 411 U.S. 564 , 93 S.Ct. 1689 , 36 L.Ed.2d 488 (1973).

. For a discussion of this standard of proof, see infra note 14.

.For many years the term "burden of proof” was ambiguous, because it was used to describe two distinct concepts. It was frequently used to refer to what is now called the burden of persuasion — the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. The term was also used to refer to what is now called the burden of production — a party’s obligation to come forward with evidence to support its claim. Director, OWCP v. Greenwich Collieries, — U.S. -, - 114 S.Ct. 2251, 2255-2256 , 129 L.Ed.2d 221 (1994) (citing J. Thayer, Evidence at the Common Law 355-384 (1898) (detailing various uses of the term burden of proof among 19th-century English and American courts). See also 2 L. Whinery, Oklahoma Evidence §§ 8.01-8.06 (2d ed. 1994), for an additional discussion of the distinctions between these two concepts.

The U.S. Supreme Court noted in 1923 that the distinction between “the burden of proof” and "the necessity of producing evidence to meet that already produced ... is now very generally accepted, although often blurred by careless speech.” Hill v. Smith, 260 U.S. 592, 594 , 43 S.Ct. 219, 220 , 67 L.Ed. 419 (1923). In the two decades after Hill , U.S. Supreme Court jurisprudence consistently distinguished between burden of proof, which it defined as burden of persuasion, and burden of production (or the burden of going forward with the evidence). Greenwich, supra at -, 114 S.Ct. at 2256 . During the same period the U.S. Courts of Appeals also limited the meaning of burden of proof to burden of persuasion, and explicitly distinguished this concept from the burden of production. Greenwich, supra at -, 114 S.Ct. at 2256 , n. * * * (citing Lee v. State Bank & Trust Co., 38 F.2d 45, 48 (2d Cir.1930); Commissioner v. Bain Peanut Co., 134 F.2d 853, 860, n. 2 (5th Cir.1943).

. For a general discussion of the burden-of-proof concept and its associated probability components, see McBaine, Burden of Proof: Degrees of Belief, 32 Cal.L.Rev. 242-268 (1944). See also 2 L. Whineiy, Oklahoma Evidence §§ 8.20-8.23 (2d ed. 1994).

. See Wolfenbarger v. Hennessee, Okl., 520 P.2d 809, 811 (1974); Whittle v. State Bd. of Examiners of Psychologists, Okl., 483 P.2d 328, 329 (1971); State v. Wood, 207 Okla. 193 , 248 P.2d 612, 615 (1952). See also Willner v. Committee on Character and Fitness, 373 U.S. 96, 102 , 83 S.Ct. 1175, 1180 , 10 L.Ed.2d 224 (1963).

Common-law rights arose ex debito justitiae, i.e., out of a debt of justice, while privileges were bom ex gratia regis, i.e., as a grace, favor or indulgence of the sovereign. Rights were interests over which the King held investitive, but not divestitive, powers. Over privilege the King held both investitive and divestitive control. The common-law right/privilege dichotomy has been rejected by modem federal jurisprudence as no longer determinative of whether procedural due process is to be available. See Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 , 92 S.Ct. 2701, 2706 , 33 L.Ed.2d 548 (1972). See also Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968); Smolla, The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of Protesting Too Much, 35 Stan.L.Rev. 69 (1982).

. See Ross v. Peters, Okl., 846 P.2d 1107, 1118-19 (1993); Addington v. Texas, 441 U.S. 418, 424-425, 431-432 , 99 S.Ct. 1804, 1808-1809, 1812-1813 , 60 L.Ed.2d 323 (1979).

. Bd. of Official Shorthand Rep. v. Isbell, Okl., 803 P.2d 1143, 1144 (1990).

. Oklahoma Bar Ass'n v. McMillian, Okl., 770 P.2d 892, 894 (1989). See also Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.1991, Ch. 1, App. 1-A, which provides in pertinent part:

"... (c) To warrant a finding against the respondent in a contested case, the charge or charges must be established by clear and convincing evidence, and at least two of the members of the Trial Panel must concur in the findings."

[Emphasis mine.]

See also State ex rel. Oklahoma Bar Ass'n v. Farrant, Okl., 867 P.2d 1279, 1283 (1994); State ex rel. Oklahoma Bar Ass’n v. Gasaway, Okl., 810 P.2d 826, 830 (1991); State ex rel. Oklahoma Bar *1351 Ass’n v. Braswell, Okl., 663 P.2d 1228, 1232 (1983).

. Matter of C.G., Okl., 637 P.2d 66 , 69 (1981); Matter of Adoption of Darren Todd H., Okl., 615 P.2d 287, 288 (1980). See also Santosky v. Kramer, 455 U.S. 745, 748 , 102 S.Ct. 1388, 1391-92 , 71 L.Ed.2d 599 (1982).

. Matter of Estate of Stinchcomb, Okl., 674 P.2d 26, 29 (1983).

. The terms of Art. 5 § 46, Okl. Const., state in pertinent part:

“The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * * * *

Regulating the practice or jurisdiction of ... in judicial proceedings or inquiry before the courts ... or other tribunals_” [Emphasis supplied.]

See Reynolds v. Porter, Okl., 760 P.2d 816, 822 (1988); Maule v. Independent School Dist. No. 9., Okl., 714 P.2d 198, 203-204 (1986).

. The terms of Art. 2, § 7, Okl. Const., state:

"No person shall be deprived of life, liberty, or property, without due process of law.”

. See State ex rel. State Bd., etc v. Naifeh, Okl., 598 P.2d 225, 226 (1979) (Opala, J., dissenting), for a discussion of constitutional norms that demand remedial equality for all disciplinary proceedings which affect professionally credentialed and state certified licensees.

. For a discussion of the clear-and-convincing standard of proof, see Addington, supra note 6 , 441 U.S. at 424-425, 431-432 , 99 S.Ct. at 1808-1809, 1812-1813 , (in civil commitment proceedings a clear-and-convincing standard of proof is required to meet due process demands). Adding-ton observes there are three standards (or levels) of proof — i.e., beyond a reasonable doubt, clear and convincing and preponderance of the evidence. The intermediate standard of clear and convincing evidence, which serves to protect important individual interests in civil cases, reduces the risk of error by increasing the plaintiff's burden of persuasion. Id., 441 U.S. at 424 , 99 S.Ct. at 1808 ; see also Dacey v. Connecticut Bar Association, 170 Conn. 520 , 368 A.2d 125, 133-34 (1976). It is distinguishable (a) from the higher, beyond-a-reasonable-doubt standard (a doubt that would make a reasonable person hesitate to act in graver and more important life affairs but would not exclude all possible doubt), and (b) from the lower, preponderance-of-the-evidence standard, which requires the litigants to share the risk of error in a roughly equal fashion. Id. [preponderance calls for making one's claim or affirmative defense appear "more probably true than not." Midland Valley R. Co. v. Barnes, 162 Okl. 44 , 18 P.2d 1089, 1092 (1933).] See also T. Anderson and W. Twining, Analysis of Evidence 363-66 (1991).

. Brown v. Ford, Okl., 905 P.2d 223, 228 (1995); Simpson v. Dixon, Okl., 853 P.2d 176, 183 (1993); Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1229 (1992); Reynolds, supra note 11 at 822; Johnson v. District Court of Oklahoma County, Okl., 738 P.2d 151, 154 (1987) (Opala, J., concurring).

. Davis v. Passman, 442 U.S. 228 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979); Naifeh, supra note 13 at 21; McKeever Drilling Co. v. Egbert, 170 Okl. 259 , 40 P.2d 32, 36 (1935).

. For a discussion of the preponderance-of-the-evidence standard of persuasion, see supra note 14.