Johnson v. Board of Governors of Registered Dentists

SUMMERS, Justice,

dissenting in part to the denial of rehearing (concurring in part and dissenting in part to the opinion) with whom LAVENDER and WATT, Justices, join.

My only disagreement with the opinion is in its requirement that the burden of proof on dental license revocation must be by evidence that is clear and convincing rather than by a preponderance of the evidence, as had been provided by the Dental Board of Governors. I believe the Court errs in holding that clear and convincing evidence is constitutionally required before the license of a professional can be revoked. In my opinion the higher standard is not required by either the Due Process Clause or the Equal Protection Clause.

The majority opinion holds that failure to use the clear and convincing standard is a violation of due process. It cites as support for the “clear and convincing standard” cases involving licensed professionals in the judicial rather than the executive branch. State Bd. of Official Shorthand Reporters v. Isbell, 803 P.2d 1143 (Okla.1990); State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892 (Okla.1989). The Board, on the other hand, cites the United States Supreme Court case of Steadman v. SEC, 450 U.S. 91 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981), which held that the appropriate standard of proof in a federal administrative disciplinary action is preponderance of the evidence. In this type of situation the Supreme Court has held due process requires a weighing of the private and public interests affected. Green-holtz v. Nebraska Penal Inmates, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979). The Board urges that the Legislature has flexibility in regulating professions for the protection of the public health and safety. In regulating other medical professions the legislature has set the standard of proof at preponderance of the evidence. See 59 O.S. 1991 § 1370.

The intermediate standard of proof — clear and convincing evidence — is generally used when there are allegations of fraud or some type of quasi-criminal wrongdoing. “The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce risk to the defendant having his reputation tarnished erroneously by increasing the plaintiffs burden of proof.” Addington v. Texas, 441 U.S. 418, 424 , 99 S.Ct. 1804, 1808 , 60 L.Ed.2d 323 (1979). This standard has been used sparingly by the Supreme Court, and generally in cases involving deportation and denaturalization. Woodby v. INS, 385 U.S. 276 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966); Chaunt v. United States, 364 U.S. 350 , 81 S.Ct. 147 , 5 L.Ed.2d 120 (1960).

The Supreme Court, relying on Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), enunciated the three interests to be considered and weighed in deciding which standard of proof is constitutionally required: (1) assessment of the individual interests at stake, (2) assessment of the state’s interest and (3) the risk of erroneous decisions. The greater the individual’s interest, the greater the state’s *1353 must be to justify a lower standard of proof.

In Steadman v. Securities & Exch. Comm’n, 450 U.S. 91 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981), the Supreme Court upheld the “preponderance of the evidence” standard when used by the securities and exchange commission to discipline a securities broker. The broker challenged the use of the “preponderance of the evidence” standard because of the severe sanctions involved. Importantly, the Court began’ its analysis by noting that absent a constitutional restraint, the judiciary should defer to the “traditional powers of Congress to prescribe rules of evidence and standards of. proof....” Id. The Supreme Court held that the Federal Administrative Procedure Act required only a preponderance of the evidence, and that such a standard was acceptable.

While the Supreme Court has not directly addressed the standard required for a professional license revocation, many of our sister jurisdictions have. Thirty-nine state medical boards profess to use the preponderance of the evidence standard for all offenses, eighteen use the clear and convincing standard for all offenses, and four use some variation of standards. Table 42 of Review and Disciplinary Function, Exchange Federation of State Medical Boards (1995) 1 ; A Resource Guide for Responding To Attempts to Weaken State Medical Licensing Boards by Legislating a Higher Standard of Evi dence, Citizen Advocacy Center, Swank and Cohen (1992). The obvious favorite is the preponderance of the evidence standard. The standard recommended by the Federation of State Medical Boards, an organization whose goal is to aid and support doctors and their review boards, is the preponderance of the evidence. Federation of State Medical Boards Handbook, at p. 4.

A majority of other states have upheld the preponderance of the evidence standard as constitutional. Swiller v. Commissioner of Public Health & Addiction Serv., 1995 W.L. 611754 (Conn. October 5, 1995) (chiropractor); Sobel v. Bd. of Pharmacy, 130 Or.App. 374 , 882 P.2d 606 (1994) (pharmacist); Pickett v. Utah Dept. of Commerce, 858 P.2d 187 (Utah Ct.App.1993) (pharmacist); Petition of Grimm, 138 N.H. 42 , 635 A.2d 456 (1993) (psychologist); Gandhi v. Medical Examining Bd., 168 Wis.2d 299 , 483 N.W.2d 295 (1992) (physician); Eaves v. Bd. of Med. Examiners, 467 N.W.2d 234 (Iowa 1991) (physician); Johnson v. Arkansas Bd. of Examiners of Psychology, 305 Ark. 451 , 808 S.W.2d 766 (1991) (psychologist); Lyness v. Commonwealth, State Bd. of Medicine, 127 Pa.Cmwlth. 225 , 561 A.2d 362 (1989) (physician); Foster v. Bd. of Dentistry, 103 N.M. 776 , 714 P.2d 580 (1986) (dentist); Thangavelu v. Dept of Licensing & Regulation, 149 Mich.App. 546 , 386 N.W.2d 584 (1986) (physician); Matter of Proposed Disciplinary Action Against Dentist License of Roger W. Schultz, 375 N.W.2d 509 (Minn.Ct.App.1985) (dentist); Rucker v. Michigan Bd. of Medicine, 138 Mieh.App. 209, 360 N.W.2d 154 (1984) (physician); In re Polk, 90 N.J. 550 , 449 A.2d 7 (1982) (physician); Sherman v. Commission on Licensure to Practice the Healing Art, 407 A.2d 595 (D.C.Ct.App.1979) (physician). 2 Several other states have noted and stayed with the preponderance of the evidence standard in the absence of a constitutional challenge. Golan v. Sobol, 195 A.D.2d 634 , 599 N.Y.S.2d 752 (3d Dept.1993) (doctor); Matter of the Disciplinary Action Against the Dentist License of Wang, 441 N.W.2d 488 (Minn.1989) (dentist); Ferguson v. Hamrick, 388 So.2d 981 (Ala.1980) (doctor); In re Kincheloe, 272 N.C. 116 , 157 S.E.2d 833 (1967) (doctor); Texas State Board of Medical Examiners v. Haynes, 388 S.W.2d 258 (Tex.Civ.App.1965) (doctor).

*1354 Three cases are particularly enlightening. In Gandhi, supra, the Wisconsin Medical Board adopted the preponderance of the evidence standard. Gandhi, a physician, argued that the standard was violative of his constitutional guarantees to due process and equal protection. He urged that the nature of his interest — his professional license — warranted greater protection than the preponderance of the evidence standard provided. He also argued that using a lesser standard, when attorneys may only be disciplined upon a showing by clear and convincing evidence, violated his rights of equal protection.

The Wisconsin court disagreed. Relying on the three-part test used by the United States Supreme Court, the court weighed the interests of the individual and the state. The individual’s interest was substantial and the potential deprivation of a professional license is of great consequence. This deprivation was tempered by the fact that once revoked a license may be again granted upon a showing that the individual is competent and fit to practice medicine.

The state’s interest was also substantial. The state has a strong interest as well as an obligation to protect the health, safety and welfare of its citizens. The wrongdoing of a physician can threaten life itself. The court believed that “the obligation of the state is superior to the privilege of any individual to practice his or her profession.” Id. at 299 . “The private interest of a physician to practice medicine is not a right: it is a privilege.” Id. at 300 .

As for the third factor, the court looked to the reviewing panel in a medical licensure revocation. The panel, being also the fact finders, consisted mostly of physicians. Thus they are trained and experienced in the particular profession. This minimized the risk of error. Furthermore, the Wisconsin statutes provided safeguards for a doctor faced with disciplinary proceedings. The Wisconsin court concluded that due process was not offended by the use of the preponderance of the evidence standard.

In re Polk addressed similar arguments, and through similar reasoning, the New Jersey Court reached the same results. Polk pointed out that the legislature must be left to do what the constitution permits it to do— enact laws for the well-being of its citizens. Unless the laws are unconstitutional they should be upheld. Although there is an argument that the medical profession would be better served by a higher burden of proof, the statute requiring only a preponderance of the evidence was upheld, as it was not constitutionally infirm. Id. at 12.

In Petition of Grimm, 138 N.H. 42 , 635 A.2d 456 (1993), the New Hampshire Supreme Court addressed the issue of which standard of proof should be used in a license revocation involving a licensed psychologist. The court held that “the state is free to treat professions differently according to the needs of the public in relation to each, particularly where, as here, the regulations being compared have been created by separate branches of government_” (emphasis mine) Although an attorney license revocation in New Hampshire required clear and convincing evidence, public interest required that a revocation of a license of a psychologist be held to a lower standard of proof. Unlike an attorney whose professional behavior is generally on display in a courtroom, in front of opposing counsel, or well-documented by a paper trail, a medical/psychological professional generally conducts his or her practice in private with no other witnesses but the patient. Thus, the quantity of proof may be less available when dealing with a medical professional than with an attorney.

In the present case, the Board adopted the preponderance of the evidence standard. Under the reasoning of the Supreme Court in Mathews v. Eldridge and a majority of our sister jurisdictions, this standard is constitutionally permissible. Johnson’s interest in practicing dentistry is substantial, but so is the interest of the state in safeguarding the health of its citizens. The review board is made up of practicing dentists, and it has seen fit to govern its own by requiring only a preponderance of the evidence. By adopting this standard, the Board made an implicit determination that the risk of error should be equally borne by both the dentist and the public. See Disciplinary Matter Involving Walton, 676 P.2d 1078, 1085 (Alaska 1983) (attorney could be disciplined by preponder- *1355 anee of the evidence since there were substantial interests on both sides and the risk should be equally borne).

The majority reaches a different result, mainly relying on this third factor — risk of error. The majority asserts that risk of error is great, where as here, the investigator was a competitor of Johnson. But the opinion goes on to hold that it was error to permit a competitor to investigate. Thus the majority opinion does away with any concern because of the investigator.

In my opinion the risk of error should be equally allotted. The Board which reviews the licenses of dentists is made up of dentists. While seeking to maintain the integrity of their profession, its members are also in a position to empathize with the dentist who is disciplined. The protection of the public in these proceedings is equally important. The Board itself recognized both the public’s interest and the dentist’s interest in adopting the preponderance of the evidence standard. The majority opinion downplays the interest of the individual seeking dental treatment.

There is no constitutional requirement that licensees of all professions be governed by identical norms, and as stated in Heller v. Doe, 509 U.S. 312 , -, 113 S.Ct. 2637, 2646 , 125 L.Ed.2d 257 (1993), “states are not required to convince the courts of the correctness of their legislative judgments.” 3 I fear the Court today has impermissibly substituted its judgment for that of the Board.

The majority opinion seems concerned that a different standard is used for attorney discipline. It implies that this may run afoul of the Equal Protection Clause. First, I note that equal protection analysis begins with a determination of whether a fundamental right or a suspect class is involved. Here we have neither. Practicing a licensed profession is a privilege, not an absolute right. Sherman, 407 A.2d at 601 ; Gandhi, 483 N.W.2d at 300 . “[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Heller , at -, 113 S.Ct. at 2642 . The classification is permissible if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Id.; Nordlinger v. Hahn, 505 U.S. 1, 8-10 , 112 S.Ct. 2326, 2331 , 120 L.Ed.2d 1 (1992).

There is a rational relationship between the difference in the treatment of dentists and attorneys. First, and foremost, the governing bodies of each have chosen different standards. The Board of Governors chose the “preponderance of the evidence” standard. The Oklahoma Supreme Court, the governing body for the Oklahoma Bar Association, chose to utilize the “clear and convincing” standard. As noted by other states, there is no constitutional requirement that this higher standard be utilized for attorney discipline. See, e.g., Disciplinary Matter Involving Walton, 676 P.2d 1078 (Alaska 1983) (using the three part balancing test of Mathews, only a “preponderance of the evidence” is required to discipline an attorney); McInnis v. State, 618 S.W.2d 389 (Tx.Ct.Civ.App.981) (attorney disciplined by “preponderance of the evidence” standard). As the Connecticut Superior Court pointed out, many jurisdictions adopted the “clear and convincing” standard for attorneys because it was suggested by the American Bar Association. However, as noted above, the Federation for State Medical Boards recommended that “preponderance of the evidence” be used.

A second rational basis for the distinction is the generally acknowledged differences in the type of interest affected by the professions. Licensed medical professionals have a direct and immediate impact on the health and well-being of patients. Whereas attorneys frequently have the opportunity to amend pleadings or other writings having legal import, a great many medical procedures are irreversible once accomplished. See Swiller, supra. A different standard is clearly supported under the rational basis test, and does not run contrary to the Equal Protection Clause.

*1356 Finally, I point out the far-reaching ramifications of this decision. While this case involves a dentist, its holding will presumably extend beyond the dental profession to other licensed professions in Oklahoma. A cursory examination of Oklahoma law shows that at least thirty-seven professions, ranging from plumbers, foresters, electricians and barbers to physical therapists and embalmers, could be implicated. At least eight of these have adopted the Oklahoma Administrative Procedures Act. If interpreted similarly to the Federal Administrative Procedures Act, our OAPA requires only a “preponderance of the evidence” for a license revocation. See Steadman, 450 U.S. at 102 , 101 S.Ct. at 1008 . The validity of the OAPA, 75 O.S.1991 § 322, will likely thus be called into question. 4 While contemplation of these far-reaching consequences will not deter us from holding a statute unconstitutional, I find no constitutional necessity to override the Dental Board’s choice of standards.

. These numbers add up to a number greater than fifty. The explanation for this number is that many states have more than one medical review board. For instance, many have separate review boards for medical doctors and osteopathic doctors.

. My research located only four states which have struck down the “preponderance of the evidence" standard. Mississippi State Bd. of Nursing v. Wilson, 624 So.2d 485 (Miss.1993); Devous v. Wyoming State Bd. of Med. Examiners, 845 p.2d 408 (Wyoming 1993); Davis v. Wright, 243 Neb. 931 , 503 N.W.2d 814 (1993); Ettinger v. Board of Med. Quality Assurance, 135 Cal.App.3d 853 , 185 Cal.Rptr. 601 (Ct.App.1982).

. Quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 . 464. 101 S.Ct. 715 . 724. 66 L.Ed.2d 659 (1981).

. There is presently legislation pending which expressly would require only a preponderance of the evidence for disciplinary proceedings involving the holders of licenses. This legislation, which clarifies our OAPA, would presumably be unconstitutional under the majority opinion.