in a physician disciplinary proceeding before the State Board, complainants had burden of proving, by clear and convincing evidence, charges that physician used false or fraudulent statements in his medical practice
How later courts described this case
- in a physician disciplinary proceeding before the State Board, complainants had burden of proving, by clear and convincing evidence, charges that physician used false or fraudulent statements in his medical practice
Written by the judges who cited it.
The opinion
McINTYRE, Justice,
concurring with Justice GRAY.
I feel justified in concurring in the opinion with Justice GRAY in this case because of a situation which he has not discussed.
The record shows clearly that Blue Cross, Blue Shield and the Wyoming State Medical Society were complainants in the hearing before the Board of Medical Examiners. Dr. Bernard J. Sullivan at one point stated the Board started out to investigate the complaint of Blue Shield and from that it got into other matters. Although the district court in its review un *330 dertook to change the actual title of the cause, it did not erase the fact that Blue Shield was the principal complainant.
During the time of our consideration of the appeal in this case, information from Blue Shield was made public through a general news release in the state, concerning membership on the Board of Directors of Blue Shield. This information advised the public that Dr. Thomas A. Nicholas is now and at the time of the hearing in this case was a member of the Board of Directors of Blue Shield, one of the complainants. The record of the case discloses that Dr. Nicholas not only was a member of the Board of Medical Examiners, which heard the complaint against Dr. Walter W. Fallon, but he was also the chairman and presiding officer of the Board. The general rule, as stated in 31 C.J.S. Evidence § 9, pp. 824-826, is that courts will take judicial notice of matters of common knowledge. See also Rozelle v. Barnard, 72 N.M. 182 , 382 P.2d 180, 181 .
As stated in Nev-Cal Electric Securities Co. v. Imperial Irr. Dist., 9 Cir. (1936), 85 F.2d 886, 906 , cert. den. 300 U.S. 662 , 57 S.Ct. 493 , 81 L.Ed. 871 , if a fact is “openly and notoriously made known,” it is to be presumed that it was known to the court. Also, in Palmer v. Mitchell, 57 Ill.App.2d 160 , 206 N.E.2d 776, 779 , it was said, the doctrine of judicial notice operates to admit into evidence, without formal proof, those facts which are a matter of common and general knowledge and which are established and known within the limits of the jurisdiction of the court.
In Wyoming, our court has recognized it to be common knowledge that horses are ridden in Frontier Days rodeo parades and have been so ridden for many years without injury to anyone. O’Keefe v. Cheyenne Chamber of Commerce, 56 Wyo. 170 , 105 P.2d 279, 285 . Also, the United States Circuit Court of Appeals, in a Wyoming case, Schoening v. Chicago, B. & Q. R. Co., 8 Cir. (1929), 30 F.2d 803, 806 , took judicial notice that the Federal Government took over the Burlington Railroad during the portion of time from 1912 to 1922.
The case of Dearborn Motors Credit Corp. v. Neel, 184 Kan. 437 , 337 P.2d 992, 1002 , indicates the test may be whether the fact may be disputed by competent evidence. In this particular instance, the fact of Dr. Nicholas’ membership on the Blue Shield Board, at the time of Dr. Fallons’ hearing, is so well known that competent evidence could only verify and not contradict such fact.
I an unable to point to other cases where courts have specifically held that judicial notice may be taken of membership on a board such as a Blue Shield Board. However, the supreme court of Washington in the case of In re Thacker, 35 Wash.2d 605 , 214 P.2d 507, 514 , took judicial knowledge of the reputations of certain persons sitting on the trial committee of the State Bar Association, among their fellow members of the bar, judges of courts and communities in which they resided and practiced their professions.
If the decision in this case hung solely on the question of whether it would be proper to take judicial notice of Dr. Nicholas’ membership on the Blue Shield Board at the time of the hearing, I realize the question could and would be debatable. However, as I indicated at the outset, I consider the situation sufficient to justify my concurrence in the opinion of Justice GRAY.
There can be no denial that the most fundamental requirements of due process would dictate that Dr. Nicholas as a board member for Blue Shield was disqualified to sit on the board which was deciding the charges against Dr. Fallon. As stated in 1 Am.Jur.2d Administrative Law, § 63, pp. 859-860, the common-law rule of disqualification applicable to judges extends to every tribunal exercising judicial or quasi-judicial functions; and the rule has been applied or recognized in cases of suspension or revocation of licenses. For case authority to this effect see Board of Medical Examiners v. Steward, 203 Md. 574 , 102 A.2d *331 248, 251-252 ; In re Heirich, 10 Ill.2d 357 , 140 N.E.2d 825, 838 , 67 A.L.R.2d 827 , cert. den. Ericksen v. Bristow, 355 U.S. 805 , 78 S.Ct. 22 , 2 L.Ed.2d 49 ; and New Jersey State Board of Optometrists v. Nemitz, 21 N.J.Super. 18 , 90 A.2d 740, 745, 749 .
In the Steward and Nemitz cases cited in the preceding paragraph, recognition was given to the fact that the due process clause of constitutions guaranteeing to every person a fair hearing before a fair and impartial court applies to administrative agencies exercising judicial or quasi-judicial functions. In the Heirich case, the court said it is a classical principle of jurisprudence that no man who has a personal interest in the subject matter of decision in a case may sit in judgment on that case; and the principle is as applicable to administrative agents as it is to those who are technically judges in the full sense of the word.
Although the Wyoming Administrative Procedure Act was not effective at the time of the hearing before the Medical Board, provisions in the act give recognition to the principle that one with Dr. Nicholas’ disqualification should not preside or participate in a decision such as the one made in this case. See §§ 9-276.29 and 9-276.30, W.S.1957, 1967 Cum.Supp.
For reasons which I have pointed out, coupled with reasons set forth in Justice GRAY’s opinion, I agree the order and judgment of the trial court should be reversed with instructions to remand the case to the Board of Medical Examiners for rehearing. If the new hearing is to be fair and impartial, persons holding an official position in one of the complainant organizations, such as a member of its board of directors, should not preside or participate in making a decision.