Opposition — Arthurs v. Stern

In the

Supreme Court of the United States.

OctTroser Term, 1977.

No. 77-701.

ALEXANDER T. ARTHURS, M.D.,

PETITIONER,

v.

CHRIS O. STERN,

AS SHE IS EXeCUTIVE SECRETARY OF THE BOARD

OF REGISTRATION AND DISCIPLINE IN MEDICINE

OF THE COMMONWEALTH OF MASSACHUSETTS,

AND

THE MEMBERS OF THE BOARD OF REGISTRATION

AND DISCIPLINE IN MEDICINE,

AND

THE DIVISION OF HEARING OFFICERS OF

SAID COMMONWEALTH,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT.

Respondents’ Brief in Opposition to Certiorari.

Francis X. BELLotT,

Attorney General,

S. STEPHEN ROSENFELD,

Assistant Attorney General,

Chief, Government Bureau,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-1021

BATEMAN & SLADE, INC. BOSTON, MASSACHUSE) Is.

Table of Contents.

Questions presented

Statement of the case

Reasons for denying the writ

I. The petition should be denied because pe-

titioner’s claim has become moot.

II. Certiorari should be denied because, in up-

holding the constitutionality of the statute, the

circuit court correctly interpreted and applied

this Court’s decisions.

A. A statute which precludes the pendency

of a criminal action as the exclusive basis for

an indefinite continuance of disciplinary

proceedings does not necessarily offend due

process.

B. In rejecting petitioner's broad attack on

§ 63, the circuit court applied the limits

which this court has set as prudent guides

for constitutional adjudication.

III. As independent grounds for decision, the

Court should deny certiorari because peti-

tioner’s underlying claim is (a) not ripe for ad-

judication and (b) precluded by principles of

abstention.

A. The record in this case was devoid of evi-

dence to demonstrate the existence of a case

or controversy ripe for judicial intervention.

B. This Court should deny review because

principles of comity preclude federal court

intervention in this case.

10

12

13

14

ii TABLE OF CONTENTS.

C. This Court should deny review because

petitioner is seeking to overturn an am-

biguous state statute never interpreted by

the courts of Massachusetts. 15

Conclusion - 18

Table of Authorities Cited.

CASES.

Alabama State Federation of Labor v. McAdory, 325

U.S. 450 (1945) ll

Baird v. Attorney General, Mass. ____, Mass.

Adv. Sh. (1977) 96 17

Baxter v. Palmigiano, 425 U.S. 308 (1976) 8, 9n

Bellotti v. Baird, 428 U.S. 132 (1976) 13n

Boehning v. Indiana State Employees Association,

Inc., 423 U.S. 6 (1975) 15n, 17

Broadrick v. Oklahoma, 413 U.S. 600 (1973) 1]

Erznoznik v. City of Jackronville, 422 U.S. 205

(1975) ll

Golden v. Zwickler, 394 U.S. 103 (1969) 12n

Griffin v. Breckenridge, 403 U.S. 88 (1971) ll

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 14

Juidice v. Vail, _._. U.S. ___, 97 S. Ct. 1211

(1977) 14

Laird v. Tatum, 408 U.S. 1 (1972) 13

Lefkowitz v. Cunningham, ___. U.S. ___, 97 S. Ct.

2132 (1977) 8,9

TABLE OF AUTHORITIES CITED. iii

Railroad Commission of Texas v. Pullman Co., 312

U.S. 496 (1941) 16

Silver v. McCamey, 221 F. 2d 873 (D.C. Cir. 1955) 9

Sosna v. Iowa, 419 U.S. 393 (1975) 6

Trainor v. Hernandez, ____ U.S. ___., 97 S. Ct.

1911 (1977) 14

United Public Workers v. Mitchell, 330 U.S. 75

(1947) 13

United States v. Kordel, 397 U.S. 1 (1970) 9, 10

United States v. Munsingwear, Inc. 340 U.S. 36

(1970) 6n

United States v. National Dairy Products Corp., 372

U.S. 29 (1963) ll

United States v. Raines, 362 U.S. 17 (1960) ll

Weinstein v. Bradford, 423 U.S. 147 (1975) 5, 6n

Yazoo & Miss. R.R. Co. v. Jackson Vinegar Co., 226

U.S. 217 (1912) il

Young v. American Mini Theatres, 427 U.S. 50

(1976) ll

Younger v. Harris, 401 U.S. 37 (1971) 14

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Article III 12

Fifth Amendment 13

Fourteenth Amendment ,

iv TABLE OF AUTHORITIES CITED.

M.G.L. c. 30A (West 1966)

§§ 10-11 3n

§ 11(7) 3n, 14n

§ 14(7) l4n, 15

M.G.L. c. 94C, § 19(a) (West 1972) 3,5

M.G.L. c. 112 (West 1971)

§ 61 16n

§ 62 16n

§ 63 2, 5, 7, 10, 11, 15, 16

§ 64 3n, l4n, 16n

St. 1894, c. 458 3n

St. 1963, c. 241, § 1 16n

St. 1975, c. 362 2

In the

Supreme Court of the United States.

OcToBER TERM, 1977.

No. 77-701.

ALEXANDER T. ARTHURS, M.D.,

PETITIONER,

v.

CHRIS O. STERN,

AS SHE IS EXECUTIVE SECRETARY OF THE BOARD

OF REGISTRATION AND DISCIPLINE IN MEDICINE

OF THE COMMONWEALTH OF MASSACHUSETTS,

AND

THE MEMBERS OF THE BOARD OF REGISTRATION

AND DISCIPLINE IN MEDICINE,

AND

THE DIVISION OF HEARING OFFICERS OF

SAID COMMONWEALTH,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT.

Respondents’ Brief in Opposition to Certiorari.

Questions Presented.

1. Has petitioner's case become moot?

2. Is a state statute consonant with the Due Process

Clause of the Fourteenth Amendment if it precludes physi-

cians charged with professional misconduct from seeking an

indefinite continuance of disciplinary proceedings solely on

the ground that criminal charges pertaining to the same

underlying conduct are pending?

2

3. Is denial of certiorari warranted when problems of

ripeness and abstention, laid to rest by the circuit court’s

decision upholding the statute, would spring to life and

render inappropriate analysis of the claims set forth in the

petition?

Statement of the Case.

The petition seeks review of a decision upholding an im-

portant part of the Commonwealth’s scheme for regulating

professions affecting health and welfare. Petitioner’s com-

plaint for declaratory and injunctive relief in the district

court claimed that M.G.L. c. 112, § 63 (West 1971) (the

statute) was unconstitutional. Petitioner asserted that the

statute exposed him to the possibility that the respondent

members of the Board of Registration and Discipline in

Medicine (the board) might draw an “adverse inference”

against him for failing to testify on his own behalf in a disci-

plinary proceeding and, relying in part upon this inference,

might suspend or revoke his license to practice medicine.

Respondents answered the complaint, and the court held a

merged hearing on petitioner’s motion for preliminary relief

and the merits. After hearing, the court entered an order

enjoining the respondents from relying upon the statute.

The First Circuit reversed. Petitioner's petition followed.

The board' is an agency of the Commonwealth created

by St. 1975, c. 362,* to license, supervise, and discipline

persons engaging in the practice of medicine.

‘The board has seven members, all of whom are named respondents.

The two additional respondents are the board’s Executive Secretary, and

a hearing officer employed by the Division of Hearing Officers, Execu-

tive Office of Administration and Finance.

*The 1975 statute significantly strengthened the institutional structure

for licensing and disciplining medical professionals. The regulation of

3

The board’s disciplinary proceedings are conducted pur-

suant to statutory authority and a set of specific regulations.

The process which the board normally follows in discipli-

nary cases fits a pattern common to many such professional

oversight agencies. Upon receipt of a complaint against a

licensed physician, the board’s Complaint Committee com-

mences an investigation. If the Complaint Committee

determines that there is reason to believe that the physician

complained of has violated the law, it refers the matter to

the board, which determines whether to dispose of the

matter informally or to commence an adjudicatory hearing *

by issuing an order to show cause. In its discretion, the

board determines whether to conduct the adjudicatory

hearing itself or to refer the matter to a hearing officer. In

petitioner’s case, the board decided to use a hearing officer

because the issues did not involve technical medical ques-

tions.‘

The proceedings began formally on October 1, 1976,

when the board sent petitioner an order to show cause why

he should not be subjected to disciplinary action for viola-

tion of M.G.L. c. 94C, § 19(a) (West 1972), the Common-

the medical profession dates back to 1894, see St. 1894, c. 458, and con-

stitutes a primary component of the state’s health care regulatory frame-

work.

*An adjudicatory hearing is a procedure governed by the provisions of

the state Administrative Procedure Act (APA), M.G.L. c. 30A, §§ 10-11.

‘In cases tried initially to a hearing officer, the board’s regulations

and the state APA require the hearing officer to prepare a proposed

decision upon the request of a party. M.G.L. c. 30A, § 11(7) (West

1966). A party then has the right to file objections to the proposed de-

cision, and the board, upon motion, may permit oral argument on them.

On the basis of the record thus compiled, the board makes its final de-

cision, and pursuant to M.G.L. c. 112, § 64 (West 1971), an aggrieved

defendant may seek judicial review of the board’s decision in the Su-

preme Judicial Court.

4

wealth’s Controlled Substances Act. A hearing on the merits

was scheduled before the hearing officer for November 18,

1976. On November 10, 1976, petitioner filed a motion to

dismiss and a motion to continue proceedings. At the No-

vember 18th hearing, which was confined to argument on

the two motions, the hearing officer denied both of them.

He then set a new date for the hearing on the merits, with

the agreement of counsel, of December 23, 1976.

Petitioner filed his complaint in the district court on

December 14, 1976. It included a series of allegations, the

gist of which was that the statute was unconstitutional be-

cause it forced petitioner to defend himself in a discipli-

nary proceeding while a criminal indictment was pending.

After the filing of an agreed statement of facts on January

10, 1977, and a combined hearing on petitioner’s motion for

a preliminary injunction and the merits on January 20,

1977, the district court, on February 1, 1977, issued an

order enjoining respondents “from relying upon Mass. Gen.

Laws. ch. 112, § 63 in denying plaintiff’s request for a con-

tinuance of the Board’s proceedings pending resolution of

the criminal charges lodged against plaintiff in Middlesex

Superior Court . . .” (Appendix to Petition [Pet. App.] la).

The district court’s subsequent opinion concluded that

because Ҥ 63 does impermissibly force the plaintiff to

choose between his privilege against self-incrimination and

his right under the Due Process Clause to testify in defense

of his liberty and property interest in practicing medicine(, ]

[ijt is . . . unconstitutional” (Pet. App. 19a).

The circuit court reversed, holding that due process is not

offended by requiring a doctor to choose between (a) giving

testimony at the disciplinary hearing, a course that may

help the criminal process, and (b) keeping silent, a course

that may prompt the board to draw an adverse inference

about a doctor’s conduct.

5

Reasons for Denying the Writ.

I. Tue Petition SHOULD BE DeNtep BECAUSE PETITIONER'S

CLAIM HAS BECOME Moor.

The circuit court noted in its opinion that

[a]fter the appeal, but before this opinion issued, one

set of criminal charges went to trial. Plaintiff testified

at his trial and was acquitted. Other charges are

pending, and the board has not attempted to go for-

ward with its proceedings. (Pet. App. 23a.)

The criminal case which is finished charged the petitioner

with issuing prescriptions for controlled substances under

circumstances which violated M.G.L. c. 94C, § 19(a) (Pet.

App. 2a). See Attachment A to this brief. This is the same

conduct which prompted the board to commence discipli-

nary proceedings (Pet. App. 3a, n. 4). The indictments re-

maining to be tried contain conspiracy counts and do not

add substance to the charges before the board. They are

scheduled to go to trial in May, 1978. See Attachment B to

this brief.

Because petitioner has already testified in the criminal

case related to the board’s proceeding, the giving of testi-

mony before the board can no longer undermine his privi-

lege against self-incrimination. Petitioner, therefore, is now

free of the dilemma which triggered the lawsuit and which

led the district court to invalidate § 63 (Pet. App. 19a).

Because his dilemma is resolved, petitioner's claim is moot.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975). More-

over, no extenuating circumstances exist which might fend

off a finding of mootness. See id. This is not a class action,

6

see Sosna v. Iowa, 419 U.S. 393 (1975); the governmental

conduct in question is not “capable of repetition, yet evading

review,” and since petitioner has already completed testi-

fying in a criminal setting about the occurrences pertinent

to the board’s disciplinary proceeding, he will not again en-

counter the dilemma he posited below. Since the case is

moot, the Court should deny petitioner’s petition for certi-

orari.°

II. Cerrriornarnt SHOULD BE DENIED BECAUSE, IN UPHOLDING

THE CONSTITUTIONALITY OF THE STATUTE, THE CIRCUIT

Court CorrecTLy INTERPRETED AND APPLIED THIS CouRT’s

DECISIONS.

A. A Statute which Precludes the Pendency of a Crimi-

nal Action as the Exclusive Basis for an Indefinite Con-

tinuance of Disciplinary Proceedings does Not Neces-

sarily Offend Due Process.

The petitioner is a docto: “harged with conduct which, if

proved, would have both violated criminal statutes and

prompted disciplinary action designed to protect the health

and welfare of citizens. He claimed a constitutional right

to seek postponement of the disciplinary proceeding until

the trial on the criminal charges was over. The circuit

court took exception, at least under the facts before it, and

concluded:

Given the strong public interest in promptly disciplining

errant physicians taken as a class, we see no reason to

* Petitioner has not sought to vacate the circuit court’s judgment on

mootness grounds, as he might. In such circumstances the judgment of

the circuit court should stand. United States v. Munsingwear, Inc., 340

U.S. 36, 41 (1950). Cf. Weinstein v. Bradford, . spra, at 147-148.

7

hold that the board was or could be constitutionally re-

quired to stay its proceedings until the criminal pros-

ecutions against any particular doctor were over. (Pet.

App. 26a-27a.)

Since there existed on this record no constitutional basis

for ordering a stay of proceedings, the court held that the

district court had erred in using this occasion to enjoin

M.G.L. c. 112, § 63, the statute which precluded such

stays. It might be that, in other applications § 63 would

raise constitutional problems. However, the circuit court

found no such problem here, and declared that invalidating

§ 63 on the basis of speculation about other contexts was in-

appropriate (Pet. App. 27a).

The circuit court’s decision was correct. The allegations,

taken as true by the court, assumed that the board would

draw an adverse inference from petitioner's determination

to remain silent at the disciplinary hearing.’ Petitioner

claimed that requiring him to defend with silence and suffer

an adverse inference deprived him of his opportunity to be

heard under the Due Process Clause of the Fourteenth

Amendment. This Court, however, has made plain that an

*Section 63 reads as follows:

Said boards [of registration] shall not defer action upon any

charge before them until the conviction of the person accused, nor

shall the pendency of any charge before any of said boards act as a

continuance or ground for delay in a criminal action.

’ There was no evidence on the record that the board would, in fact,

draw a negative inference on account of petitioner's silence. Petitioner's

constitutional claim therefore was not ripe for adjudication. See Part

Ill, infra.

8

adverse inference such as this, in an administrative pro-

ceeding, is constitutionally permissible. Baxter v. Palmi-

giano, 425 U.S. 308, 318 (1976). To be sure, the state

must take care not to attach an automatic penalty to an

individual’s determination to remain silent before the agen-

cy: Citizens must not be “forced to incriminate themselves

because it serves a governmental need.” Lefkowitz v.

Cunningham, ____ U.S. ___., 97 S. Ct. 2132, 2137 (1977).

However, this Court has drawn a decisive distinction be-

tween the improper coercion inherent in an automatic

penalty and the fair use of inferences in administrative de-

cision-making. In Lefkowitz v. Cunningham, supra, the

Court struck down a statute automatically ejecting from

office a political party executive for refusing to testify about

his official conduct. By way of distinction, the Court, inter

alia, stated as follows:

Baxter v. Palmigiano ... is not to the contrary.

That case involved an administrative disciplinary pro-

ceeding in which the respondent was advised that he

was not required to testify, but that if he chose to re-

main silent his silence could be considered against him.

Baxter did no more than permit an inference to be

drawn in a civil case from a party’s refusal to testify.

Respondent’s silence in Baxter was only one of a num-

ber of factors to be considered by the finder of fact in

assessing a penalty, and was given no more probative

value than the facts of the case warranted; here, refusal

to waive the Fifth Amendment privilege leads auto-

*It is noteworthy that in Baxter this Court reversed the First Circuit

on the very proposition which petitioner now advances and the First

Circuit refuses to accept. The circuit court has thus paid heed to this

Court's rejection of the adverse inference line of attack, but petitioner

has not.

9

matically and without more to imposition of sanctions.

97 S.Ct. at 2138, n. 5.

The circuit court applied this same distinction in rejecting

petitioner's due process claim. The district court had failed

to see it. The petitioner, in his petition for certiorari, has

failed even to address the above footnote in Lefkowitz v.

Cunningham (see Petition at 10, 14, n. 7), despite the fact

that it is a new decision, issued subsequent to oral argument

below, and cited approvingly in the circuit court’s opinion.*

The petitioner instead relies on Silver v. McCamey, 221

F.2d 873 (D.C. Cir. 1955), as his only direct support. This

case has seldom been cited, even in its own circuit. In

Silver the court found constitutional infirmity in the holding

of a taxi license revocation hearing to consider charges of

sexual assault so long as the licensee was also subject to

pending criminal prosecution for the same alleged conduct.

The court’s decision there turned upon contextual considera-

tions of criminal discovery and the availability to the ad-

ministrative tribunal of sanctions less severe than license

revocation. The court below properly rejected petitioner's

argument that Silver was dispositive of the issues presented

here; it found United States v. Kordel, 397 U.S. 1 (1970),

more to the point. In Kordel, this Court held that no

*The petitioner, while neglecting Lefkowitz v. Cunningham, does

attempt to distinguish Baxter by pointing to the differences between

“the exigencies of prison discipline” and the efforts of medical boards to

proceed against errant physicians, which he maintains has had lesser im-

portance, and, ex proprio vigore, more constraints attached. Petitioner's

order of values, while not surprising, is supported nowhere in the law.

Indeed, in Lefkowitz v. Cunningham, this Court cited no such “exigen-

cies” in its treatment of Baxter, although such a factor, did it exist,

would have been pertinent in advancing the distinction actually drawn

by the Court. See Lefkowitz v. Cunningham, supra.

10

denial of due process arose from permitting a civil pro-

ceeding or civil pre-trial discovery prior to a criminal trial

on related charges. In rejecting the petitioner's due process

claims, the Kordel Court noted:

It would stultify enforcement of federal law to require

a governmental agency . . . invariably to choose either

to forgo recommendation of a criminal prosecution

once it seeks civil relief, or to defer civil proceedings

pending the ultimate outcome of a criminal trial. Id.

at 11.

Similarly, the circuit court here found no reason to under-

mine the legitimate interest of the Commonwealth in prompt

civil action designed to serve important health and welfare

goals. Because its holding is in harmony with this Court’s

views, the petition for certiorari should be denied.

B. In Rejecting Petitioner’s Broad Attack on § 63, the

Circuit Court Applied the Limits which this Court has

Set as Prudent Guides for Constitutional Adjudication.

The circuit court limited its analysis of § 63 to physicians

who, like petitioner, face simultaneous criminal and civil

charges. The court determined that the “strong public

interest in promptly disciplining errant physicians” (Pet.

App. 26a) precluded a finding that § 63 was unconstitu-

tional.

The petitioner has argued in his petition that the court

lacked the power to find the statute constitutional “as ap-

plied” to physicians. Rather, he suggests that the court

should have considered the constitutionality of § 63 solely

on its face, without special regard to the record before it.

ll

This argument contradicts the principles of self-restraint

governing federal court analysis of state statutes.

This Court has long recognized that when a court is con-

sidering a facial challenge it should proceed with caution so

as to avoid unnecessarily interfering with a state regulatory

program. Erznoznik v. City of Jacksonville, 422 U.S. 205,

217 (1975). In accordance with this rule, courts should not

entertain claims that a statute is facially unconstitutional if

it is constitutional with regard to the person making the

claim. Young v. American Mini Theatres, 427 U.S. 50, 61

(1976); Broadrick v. Oklahoma, 413 U.S. 600, 611 (1973).

See United States v. National Dairy Products Corp., 372

U.S. 29, 33 (1963). Thus, the circuit court was not required

to find § 63 constitutional in all its possible applications in

order to uphold its constitutionality as applied to petitioner.

Griffin v. Breckenridge, 403 U.S. 88, 104 (1971). Once

the court decided that the operation of § 63 would not de-

prive petitioner of liberty or property without due process,

there was no lorzer a basis for facial analysis. The court

could not properiy consider whether the statute would be

unconstitutional in a different case, at another time or with

regard to another person. United States v. Raines, 362

U.S. 17, 20-23 (1960); cf. Yazoo & Miss. R.R. Co. v. Jack-

son Vinegar Co., 226 U.S. 217, 220 (1912). Furthermore,

by limiting its decision to the context of this case, the court

below strictly adhered to the rule frequently reiterated by

this Court that a court should never formulate a rule of

constitutional law broader than is required by the precise

facts to which it is to be applied. United States v. Raines,

supra, at 21; Alabama State Federation of Labor v. Mc-

Adory, 325 U.S. 450, 461 (1945).

Finally, petitioner’s argument that the court was without

sufficient facts to find § 63 constitutional “as applied” is

specious. The court made its decision with regard to physi-

12

cians as a class. Its view that errant physicians present a

grave danger to the public safety and that the state has a

legitimate interest in quickly disciplining them does not re-

quire adjudicative proof. In this sphere of “legislative facts”

the members of the circuit court are not required to ignore

as judges what they know as men. The court’s approach

was proper and well-grounded in the record.

Ill. As INDEPENDENT GaouNDS FOR DECISION, THE COURT

SHOULD Deny Certio 1Rn! Because PETITIONER'S UNDER-

LYING CLaim ts (A) Not Ripe ror ADJUDICATION AND (B)

PRECLUDED BY PRINCIPLES OF ABSTENTION.

The respondents argued to the circuit court that the

federal courts lacked jurisdiction over this claim under Arti-

cle III because it was not ripe for adjudication. Further,

they argued that basic principles of federalism call for per-

mitting the state court to address the underlying issues prior

to federal court intervention. The circuit court resisted

these grounds because they had not been discussed in the

district court, and it decided the case on the merits (Pet.

App. 23a, n. 2).

Nonetheless, these considerations of jurisdiction and feder-

alism constitute further reasons why granting petitioner's

petition would be inappropriate.’

‘©The fact that these arguments were not made in the district court

should not preclude this Court’s consideration of them now. The ripe-

ness argument addresses the question whether there is in fact a “case or

controversy” within the scope of Article III. Such an issue can, and

indeed must, be raised at any time. See Golden v. Zwickler, 394 U.S.

103, 110 (1969). Abstention is an equitable doctrine grounded in notions

13

A. The Record in this Case was Devoid of Evidence to

Demonstrate the Existence of a Case or Controversy

Ripe for Judicial Intervention.

Speculation about future events affords an inadequate

and unsafe foundation for litigation in the federal courts.

Traditionally, this Court has held such speculative questions

to be outside the scope of federal jurisdiction. See, e.g.,

Laird v. Tatum, 408 U.S. 1, 13-14 (1972); United Public

Workers v. Mitchell, 330 U.S. 75, 89 (1947). This is such

a case. The record before the lower courts was devoid of

evidence establishing that the board had done anything

other than commence a disciplinary proceeding. Petitioner's

claim about negative inferences was hypothetical; resolution

of the question demanded that the courts intuit both pe-

titioner’s defensive strategy in the disciplinary proceeding

and the board’s likely reaction to it. In particular, pe-

titioner failed to show that the board or its hearing officer

would, in fact, draw a negative inference should he refuse

to testify in the course of the adjudicatory hearing.

Instead, petitioner’s claim required a series of assumptions.

First, one had to assume that the board’s prosecuting counsel

would present a prima facie case before the hearing officer,

and that petitioner, who would normally wish to testify on

his own behalf as to some matters, would decline to testify

here in order to protect his Fifth Amendment privilege. It

was then necessary to assume that the hearing officer would

draw a negative inference from petitioner’s refusal to testify,

conclude that this inference and the board’s evidence es-

of self-restraint fundamental to the principled exercise of federal power.

Absent a showing of injury to a party's rights, there is no reason for an

appellate court to decline to consider a request for abstention. “Indeed,

it would appear that abstention may be raised by the court sua sponte.”

Bellotti v. Baird, 428 U.S. 132, 144, n. 10 (1976).

14

tablished its case, and file a decision recommending a sanc-

tion."'

Because petitioner's claim was brought prematurely, it

presents an inchoate record, lacking the concreteness essen-

tial for constitutional adjudication. Petitioner's request for

further review should therefore be denied.

B. This Court Should Deny Review Because Principles

of Comity Preclude Federal Court Intervention in this

Case.

This Court has held that, where the state has initiated

proceedings against an individual and those proceedings are

adequate to respond to the legal claims the individual brings

to federal court, a federal court may not use its equity

power to intrude upon the state proceeding, but must exer-

cise self-discipline in deference to the constraints of the

federal system. Trainor v. Hernandez, ___. U.S. ___, 97

S. Ct. 1911 (1977); Juidice v. Vail, _. U.S. ___., 97

S. Ct. 1211 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592

(1975); Younger v. Harris, 401 U.S. 37 (1971). This doc-

trine applies to both civil and criminal proceedings. Juidice,

supra, 97 S. Ct. at 1216-1217. This principle of federalism

and equity jurisprudence applies with full force to this case.

‘Even if one were to assume for the sake of argument that all these

things would occur, petitioner would have yet to suffer any legally cog-

nizable injury. He would still have an opportunity to file his objections

to the hearing officer's recommended decision and argue his case before

the board. M.G.L. c. 30A, § 11(7). A principal component of any

such argument would, under state law, center on whether substantial

evidence existed in the record to support the hearing officer's findings.

If such evidence did not exist, the decision could be challenged in the

Supreme Judicial Court as unlawful. M.G.L. c. 30A, § 14(7); M.G.L.

c. 112, § 64.

15

Petitioner requested the district court to inject itself into a

state civil licensure proceeding which remains in its early

stages of development. The proceeding was commenced

pursuant to a comprehensive legislative scheme designed to

regulate professional practice through the use of expert

administrative agencies and well-established administrative

law procedures. Two principal components of the state’s

administrative process are the availability of judicial review

to a person aggrieved by final agency action, and the statu-

tory requirement that a reviewing court set aside unlawful

agency decisions. See M.G.L. c. 30A, § 14(7) (West 1966).

Petitioner did not and could not argue that state judicial re-

view under the state APA is inadequate to redress any errors

of law which the board might commit.'* Because judicial

review is part and parcel of the disciplinary framework set

forth in state law, petitioner's constitutional rights were fully

protected by the proceeding already underway which he

was seeking to enjoin. Federal court intervention was there-

fore improper, and any further review of the merits would

simply revive the intrusion.

C. This Court Should Deny Review Because Petitioner

is Seeking to Overturn an Ambiguous State Statute

Never Interpreted by the Courts of Massachusetts.

The Supreme Judicial Court of Massachusetts has never

construed § 63. Lacking an authoritative state construction,

the district court developed its own interpretation and,

upon that basis, struck the statute down. The circuit court

'*Cf. Boehning v. Indiana State Employees Association, Inc., 423

U.S. 6 (1975) (individual state statute must be read in conjunction with

state administrative procedure act; court of appeals incorrectly concluded

that abstention to permit state court construction of entire legislative

scheme was unnecessary).

16

found the issue of interpretation irrelevant, by upholding

the constitutionality of § 63 under the more restrictive

reading. While this result was a welcome one, the lower

courts could have avoided considering the invalidation of a

legitimate state regulatory program altogether if they had

abstained. The statute is ambiguous, and if a serious con-

stitutional problem were to exist, deference to state court

interpretation, under the rule of Railroad Commission of

Texas v. Pullman Co., 312 U.S. 496 (1941), would be called

for.

Section 63 is the third of four statutes generally applicable

to boards of registration which appear in Mass. Gen. Laws

Ann. c. 112 (West 1971).'* On its face, it is straightfor-

ward. Its first clause is the only portion applicable to this

' The caption to these four sections, as amended by St. 1963, c. 241,

§ 1, reads as follows: “General provisions relative to each board of regi-

stration or examination in the division of registration of the department

of civil service and registration.” Section 61 authorizes the boards of

registration to hold adjudicatory disciplinary hearings and sanction li-

censed professionals who, after hearing, are found to have behaved in a

seriously improper manner. Section 62 preserves the constitutional due

process rights of registrants and authorizes the boards to issue subpoenas.

Section 63 provides that “[s]aid boards shall not defer action upon any

charge before them until the conviction of the person accused, nor shall

the pendency of any charge before any of said boards act as a continu-

ance or ground for delay in a criminal action.” Finally, § 64 grants the

Supreme Judicial Court jurisdiction of complaints for judicial review and

bars the court from staying orders of suspension, revocation, or cancella-

tion of a certificate of registration. Properly viewed, then, § 63 is an

important component of a comprehensive legislative scheme designed to

protect the public from harm at the hands of incompetent, unethical, or

untrustworthy professionals. Its importance to this scheme is readily

apparent when one recognizes that, in its absence, disciplinary pro-

ceedings might be postponed indefinitely were the boards permitted to

await the outcome of related criminal cases. The legislature determined

sixty years ago that such delay would be harmful to the public interest,

and the statute has served since 1917 to preclude untoward postpone-

ment of complaints against professionals.

17

case and simply prohibits the boards of registration from

“defer[ring] action upon any charge before them until the

conviction of the person accused ....” In the board's view,

this statute does not erase normal scheduling discretion, but

simply precludes it from regarding the pendency of criminal

charges as an exclusive, dispositive basis for the postponing

of agency action. Thus it may not decline to commence an

adjudicatory hearing solely because the registrant com-

plained of is subject of a pending criminal charge. How-

ever, the statute should not be read to prohibit the board

from exercising prosecutorial discretion, scheduling cases to

meet the constraints of its own capabilities or the situations

of individual defendants, or, once the board has commenced

an investigation, from making any decisions which its regu-

lations, the statutes of the Commonwealth, or the state or

federal constitution require. Thus, the board views the

statute as a narrow one designed to meet a particular legis-

lative concern, but obviously to be construed in a manner

which avoids constitutional difficulties, see Baird v. Attor-

ney General, ___. Mass. ____, Mass. Adv. Sh. (1977) 96,

100, and one which preserves to the board the discretion it

requires to perform its professional disciplinary functions.

Whether the state court would adopt this reading — and

then construe in such a way to permit continuances in pe-

titioner’s situation — is a matter of conjecture. Accordingly,

abstention rather than consideration of the merits would be

the proper course here. Cf. Boehning v. Indiana State Em-

ployees Association, Inc., 423 U.S. 6, 8 (1975).

The circuit court has resolved the case by upholding the

statute, thereby making abstention unnecessary. The cor-

rectness of its views of the merits, coupled with the presence

of these ancillary issues which further review of the merits

would inevitably revive, militates for denial of certiorari.

18

Conclusion.

For the reasons set forth above this Court should deny the

petition for certiorari.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

S. STEPHEN ROSENFELD,

Assistant Attorney General,

Chief, Government Bureau,

One Ashburton Place,

Boston, Massachus:tts 02108.

(617) 727-1021

On the Brief:

GERALD J. CARUSO,

Legal Intern.

Dated: December 16, 1977.