Petition — Hoke v. Board of Medical Examiners

Supreme Court brief1979

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'f JUL 9 1979

IN THE LLRICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

No. 79-40. ;

HAROLD R. HOKE, M.D.,

Petitioner,

BOARD OF MEDICAL EXAMINERS OF THE STATE

OF NORTH CAROLINA; DR. JOSEPH W. HOOPER,

JR.; DR. BRYANT L. GALUSHA; DR. C.T. PARTRICK;

Dk. JACK POWELL; DR. CHARLES B. WILKERSON,

JR.; DR. FRANK EDMONDSON; DR. J. JEROME

PENCE; DR. DAVID S. CITRON; DR. E. WILSON

STAUB; DR. VERNON W. TAYLOR; their agents,

assigns, successors in interest, and those acting in

concert with them, all individually, and in their

official capacities,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FOURTH CIRCUIT

WILLIAM H. ELAM

2007 Commonwealth Avenue

Charlotte, North Carolina

28205

EARL C. DUDLEY, JR.

1901 L Street Northwest

Washington, D.C. 20036

Counsel for Petitioners

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

INDEX

Page

Ue ee ee a ao a's wwe es » 5.09 ii

i ciao a's is 6 0808 6

eG re ek es ones eeseencs 2

a 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

i gE ae ts cistk sp cee 80 t>.v noes e's 4

a re 4

REASONS FOR GRANTING THE WRIT.............. 11

1. The Decision Below Is In Conflict With Ap-

plicable Decisions Of This Court, Or At A

Minimum Presents Major Questions Concer-

ning The Interpretation Of A Decision Of

This Court Significantly Affecting The

ee aay aw,klb bc 0 0s 11

2. There Is A Conflict In The Decisions Of The

Lower Federal Courts On The Question Of

Immunity From Damage Liability In These

Circumstances, Which Should Be Resolved

I ES i ieg bons de det waves 15

3. Summary Judgment Was Plainly Inappropri-

ate In The Circumstances Of This Case..... 18

Re nie Cra EL Uisle Gis a bab do es be eseese 19

a ice cbd st cacseces la

Opinion of the United States District Court for the

Western District of North Carolina (three-judge

eee ee ae wtt ey kbs bevels eds eceee la

Opinion of the United States District for the Western

District of North Carolina (single judge court) ... 12a

Opinion of the United States Court of Appeals for the

EE a a 23a

N.C. Gen. Stats. §90-14 (Supp. 1971) ..+........ .. 26a

CITATIONS

Cases Cited Page

Association of National Advertisers v. FTC, 460

Fa PO LRP AOTINS cnoie ee wacdectetes be 13

Bates v. State Bar of Arizona, 433 U.S. 350(1977).... 14

Bivens v. Six Unknown Named Agents, 403 U.S. 388

NO Sak ea Ce Ei akg daraniog Heb eu w Nee ky shes 17

Briggs v. Goodwin, 569 F.2d 10(D.C. Cir. 1977)...... 18

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir.

PN cates pov ade Peete sees’ eae eek 15, 17,19

Goldfarb v. Virginia State Bar, 421 U.S. 773

SN oy Cdk F's 5 BAe ee cae hine eat be ko west 14

Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974).... 18

Hoke v. Board of Medical Examiners, 395 F.Supp. 357

SOE eR TE RTI 5 5 2k SRE pine badan ds ve bench 2,5,8

Hoke v. Board of Medical Examiners, 445 F.Supp.

SOUR ee res ASOD oss vinden citric on daws passim

Hoke v. Board of Medical Examiners, 595 F.2d 1217

SRA ARON is Fen bee coy ab er bs bk abe a eee’ 2,9

Huber Pontiac, Inc. v. Allphin, 431 F.Supp. 1168 (S.D.

Rg a, Team at agit aD ROI uot a ees A 2 vue NPE aN og 13

Imbler v. Pachtman, 424 U.S. 409 (1976) ...... 15, 17,18

Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977).... 18

National Rifle Association v. United States Postal

Service, 407 F.Supp. 88 (D.D.C. 1976) .......... 13

Pierson v. Ray, 386 U.S. 547 (1967). ............... 18

Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965).... 18

Roe v. Wade, 410 U.S. 113 (1973). .............200% 13

Rizzo v. Goode, 423 U.S. 362 (1976)................ 15

Roach v. Kligman, 412 F.Supp. 521 (E.D. Pa.

Pa ite Grae ett ect keg ae De lo cae » 15,16

ili

Page

Safeguard Mutual Ins. Co. v. Miller, 456 F.Supp. 682

RS OR 5: Seay nears wre ar pine Carer 19

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 .

CRI a hisck hah as eae OE ORK ARR Ra aie 19

Scheuer v. Rhodes, 415 U.S, 232 (1974)............. 18

Shifrin v. Wilson, 412 F.Supp. 1282 (D.D.C.

SOE ova tiecadas teas eh ree Cbe ena ieee Fs 15, 16

Virginia Pharmacy Board v. Virginia Consumer Coun-

re RIN BE los, SaaS arr one we ree 14

Withrow v. Larkin, 421 U.S. 35

Clee n chs cae ek a soe ee 2,8, 9,11, 12,13

Wood v. Strickland, 420 U.S. 308 (1975) ............ 18

CONSTITUTIONAL PROVISIONS AND STATUTES CITED

Amendment XIV, Constitution of the United States . 4,8

Tt RO oso ok es apt e 2

WAC a eke iawevna ue 4,8

N.C. Gen. Stats. §90-14 (Supp. 1971)............... 4,8

IN THE :

Supreme Court of the United States

OCTOBE R TERM, 1978

No.

HAROLD R. HOKE, M.D.,

Petitioner,

BOARD OF MEDICAL EXAMINERS OF THE STATE

OF NORTH CAROLINA; DR. JOSEPH W. HOOPER,

JR.; DR. BRYANT L. GALUSHA; DR. C.T. PARTRICK;

DR. JACK POWELL; DR. CHARLES B. WILKERSON,

JR.; DR. FRANK EDMONDSON; DR. J. JEROME

PENCE; DR. DAVID S. CITRON; DR. E. WILSON

STAUB; DR. VERNON W. TAYLOR; their agents,

assigns, successors in interest, and those acting in

concert with them, all individually, and in their

official capacities,

Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FOURTH CIRCUIT

The Petitioner, Harold R. Hoke, M.D., respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered in this pro-

ceeding on April 10, 1979.

OPINIONS BELOW

The decision of the three-judge panel of the United

States District Court for the Western District of

North Carolina remanding the case for decision by a

single judge, rendered June 6, 1975, appears at 395

F.Supp. 357. It is reprinted in the Appendix to this

Petition at la. The decision of a single judge of the

same court granting respondents’ motion for sum-

mary judgment, on February 23, 1978, appears at 445

F.Supp. 1313. It is reprinted in the Appendix at 12a.

The United States Court of Appeals for the Fourth

Circuit, affirming the judgment of the District Court

on April 10, 1979, wrote no opinion. Its decision ap-

pears at 595 F.2d 1217, and is reprinted in the Ap-

pendix at 23a.

JURISDICTION

The judgment of the Court of Appeals for the

Fourth Circuit was entered on April 10, 1979. This

petition is filed within 90 days of that judgment. Ju-

risdiction of this Court is invoked pursuant to 28

U.S.C.§ 1254(1).

QUESTIONS PRESENTED

1. Whether the risk of unfairness in combining in-

vestigative, prosecutorial and adjudicative powers in

a single agency is ‘‘intolerably high,’’ Withrow v. Lar-

kin, 421 U.S. 35, 58 (1975), in a medical licensure

revocation proceeding where

(a) the state Board of Medical Examiners del-

egated the investigation entirely to its attorney

and no physicians participated;

(b) that attorney's law firm was representing

a client in litigation against the physician;

voted to prosecute the physician was affiliated

with a hospital engaged in litigation against him;

(d) no current or former patients or medical

colleagues of the physician were interviewed;

(e) the investigation leading to the preferment

of charges was limited to reading newspaper clip-

pings, interviewing former employees of the phy-

sician and reviewing litigation files in other cases

involving the physician; and

(f) the investigator stated that he was under

no duty to be fair and impartial.

2. Whether members of a state Board of Medical

Examiners are immune from damage liability for

pressing professional charges against a physician on

the basis of a bad faith ‘‘investigation’’ performed at

their direction by a non-medical investigator, where

they made no independent inquiry, beyond reading

articles in the lay press, to determine the medical

validity of the charges, and where at least one partic-

ipating member of the Board was affiliated with a

hospital engaged in litigation with the physician.

3. Whether summary judgment was proper in the

circumstances of this case, notwithstanding the pres-

ence of issues concerning the credibility of witnesses,

the impartiality of members of the Board of Medical

Examiners and the good faith of the Board members

in acting on the recommendation of their investigator.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .,

Amendment XIV, Constitution of the United

States, reads in pertinent part, as follows:

{N] or shall any State deprive any person of

life, liberty, or property, without due process of

* » *

42 U.S.C. $1983 reads as follows:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any state or

territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

* * *

N.C. Gen. Stats. § 90-14 (Supp. 1971) is reprinted

in the Appendix at 25a.

STATEMENT OF THE CASE

On September 20, 1974, the North Carolina Board

of Medical Examiners issued nineteen charges against

petitioner, a licensed physician, and noticed a hearing

to determine whether his license should be revoked. '

‘N.C. Gen. Stats. § 90-14 (Supp. 1971) empowers the Board to

investigate, prosecute and adjudicate charges against physicians

and to revoke licenses to practice medicine. The charges against

petitioner, in substance, were that he had performed abortions

negligently and without adequate pregnancy tests; that he had

knowingly performed ‘‘spurious”’ abortions; that he had solicited

patients for his clinic by means of a brochure containing false

The charges were the product of an investigation

conducted by the Board’s General Counsel, John An-

derson. The Board directed Anderson to investigate

petitioner following a flurry of adverse newspaper

publicity concerning him.’ No physician participated

in the investigation, even though the charges alleged

negligent and improper medical treatment.*

At least one member of the seven-person Board

which ordered the investigation and preferred the

charges was affiliated with Charlotte Memorial Hos-

pital, which was then engaged in litigation with peti-

tioner.‘ In addition, Anderson's law firm was defend-

ing a client in separate litigation brought by petition-

er and frequently represented the insurance company

representations; and that his mental condition rendered him unfit

to practice medicine. See Hoke v. Board of Medical Examiners,

395 F.Supp. 357, 358 n.1 (W.D.N.C. 1975) (3 judge court). (App.

2a.) (Citations to ‘(App. __..)"" are to the Appendix to this

petition.)

? Following the newspaper reports, the Board requested An-

derson ‘‘to ‘find out whatever he could’ about the statements

made in the press.” Hoke v. Board of Medical Examiners, 445

F.Supp. 1313, 1315 (W.D.N.C. 1978). (App. 15a.)

* Anderson admitted that he conducted the investigation with-

out the participation of any doctor and indeed without even

consulting a specialist in petitioner's field. (J. A. 118) (Citations

to “(J.A.____.)"" are to the Joint Appendix in the Court of Ap-

peals.) Moreover, the District Court found ‘‘no evidence . . . which

suggests that individual Board members [all physicians] partic-

ipated in che investigation other than by reading the original

articles which appeared in the newspapers.’ 445 F.Supp. at 1315.

(App. 16a.)

‘Two members of the Board at present are employed by Char-

lotte Memorial Hospital. The record reflects that one of them

was a member of the Board when the charges were issued. The

record is unclear as to whether the other was a member at that

time.

which covered both Charlotte Memorial Hospital and

Presbyterian Hospital, which was also in litigation

against petitioner. Prior to the commencement of the

investigation, petitioner’s attorney had been threat-

ened by the attorney for Presbyterian Hospital that

persistence in the litigation could lead to proceedings

to revoke petitioner’s medical license.

Pursuant to the Board's directive, attorney Ander-

son conducted an investigation limited, as the District

Court. found, to ‘‘newspaper reports, conversations

with former employees of [petitioner] and an exami-

nation of affidavits and documents in a suit involving

Charlotte Memorial Hospital.’’* Anderson did not in-

terview petitioner, or any current or former patients

of petitioner, or any member of the medical commu-

nity favorable to petitioner. Nor did he consult any

physician specializing in petitioner’s field, obstetrics

and gynecology.

The charges recommended by Anderson, and adopt-

ed by the Board, included an allegation that petitioner

had performed ‘spurious’ abortions on “‘various”’

women who were not pregnant. No such women were

named, and Anderson had admittedly not interviewed

or obtained the records of any of petitioner’s pa-

tients.°®

* 445 F.Supp. at 1315. (App. 15a.)

* Anderson testified on deposition that his investigation was

limited to what the written record revealed. (J. A. 121.) He then

testified:

. ... The Board had brought charges against Dr. Hoke

allegedly for es an abortion on someone who was

not pregnant when, in fact, there was no investigation for

the records and from your responses to see whether or not

in fact she was pregnant.

A. Mr. Elam, I am not here to explain that. I don’t explain

it.

(J.A. 128.)

In performing his investigation, Anderson later tes-

tified, he did not consider that he had any duty to be

fair, unbiased or impartial.’ While admitting to the

limited scope of his investigation in petitioner's case,

Anderson refused under oath to answer any questions

concerning any guidelines or procedures cf the Board

for the conduct of investigations generally or to tes-

tify concerning the procedures followed in other in-

vestigations during his twenty years as counsel to the

Board.

Acting exclusively on Anderson’s recommendation

and without any independent inquiry of its own, the

Board, including the employee of the hospital peti-

tioner had sued, issued the charges against petition-

er.* No formal vote was ever taken on the charges,

which were drafted by Anderson and one Board mem-

ber.®

Petitioner brought suit in the United States Dis-

trict Court for the Western District of North Carolina

under 42 U.S.C. § 198., seeking (a) declaration that

N.C. Gen. Stats. § 90-14 (Supp. 1971), which empow-

ered the Board to investigate, prosecute and adjudi-

cate the charges, contravened the due process clause

’ As Anderson put it at his deposition:

Q. Don’t you have a duty to be fair, unbiased and not

prejudicial?

A. No.

Q. You don’t?

A. No.

(J. A. 121.)

* Anderson refused to state whether he had made any recom-

mendation to the Board. (J.A. 144-46). However, the District

Court found on the basis of the deposition testimony and affi-

davits of the Board members that they “relied entirely on the

report by Anderson and on charges made in the press.”’ 445

F.Supp. at 1315. (App. 16a.)

* 445 F.Supp. 1316. (App. 16a.)

of the Fourteenth Amendment, and (b) an injunction

against holding the licensure revocation hearing. A

three-judge court was convened and heard argument.

While the matter was pending before the three-

judge court, this Court handed down its decision in

Withrow v. Larkin, 421 U.S. 35 (1975), holding that

a similar statute did not constitute a denial of due

process on its face merely because the investigative,

prosecutorial and adjudicative functions were com-

bined in a single agency. The Court expressly recog-

nized, however, that in ‘‘special facts and circumstan-

ces’’ such a combination of functions might present

an “‘intolerably high”’ risk of unfairness. 421 U.S. at

58.

In light of Withrow the three-judge court declined

to hold § 90-14 unconstitutional. However, it remand-

ed the case to a single District Judge, granting peti-

tioner leave to amend his complaint to allege ‘‘special

facts and circumstances.’’ Hoke v. Board of Medical

Examiners, 395 F.Supp. 357, 362 (W.D.N.C. 1975)

(App. 10a.)

Petitioner amended his complaint to allege ‘‘special

facts and circumstances”’ and to add a claim for dam-

ages against the Board and its individual members.

Following discovery the District Court granted the

defendants’ motion for summary judgment on both

the injunctive and damage claims. Hoke v. Board of

Medical Examiners, 445 F.Supp. 1313 (W.D.N.C.

1978) (App. 12a.) It held that petitioner had failed as

a matter of law to make out “‘special facts and circum-

stances”’ justifying an injunction against the Board

».

proceeding to hear its own charges against petition-

er.'!° 445 F.Supp. at 1317-18 (App. 19a-21la.) It also

held that the Board, as an agency of the State of

North Carolina, could not be sued for damages and

that the individual members of the Board were im-

mune from suit as a matter of law in the circumstan-

ces of this case. On the latter question, the District

Court concluded that the Board members were enti-

tled only to a qualified good-faith immunity, but re-

fused to hold them responsible for the manner in

which Anderson conducted the investigation in their

name or for adopting his recommendations without

independent inquiry of their own. 445 F.Supp. at

1316-17. (App. 17a-18a.)

Petitioner appealed to the United States Court of

Appeals for the Fourth Circuit, which affirmed with-

out opinion. Hoke v. Board of Medical Examiners,

595 F.2d 1217 (4th Cir. 1979). (App. 23a.)

Petitioner seeks a writ of certiorari to review (1) the

holding below that petitioner failed to demonstrate

‘special facts and circumstances’’ under Withrow v.

Larkin justifying the conclusion that the risk of un-

fairness in the Board’s adjudicatory proceedings is

‘“intolerably high’’; (2) the scope of immunity from

damage liability to which members of a state agency

In so ruling, the District Court relied heavily on affidavits

to the effect that the two Board members associated with the

hospital sued by petitioner would not participate in the hearing

and that three other Board members had been appointed after

the charges against petitioner were filed. 445 F.Supp. at 1317.

(App. 20a.) It also relied on self-serving, conclusory affidavits

from the Board members that they could give petitioner a fair

hearing. Jd. at 1317-18. (App. 20a)

combining investigative, prosecutorial and adjudica-

tive functions are entitled; and (3) the propriety of

summary judgment in this case, given the obvious

need for a trier of fact to weigh the credibility of

witnesses, the impartiality of the Board members and

the good faith of the Board members in their reliance

upon Anderson’s “‘investigation”’ of petitioner.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Is in Conflict With

Applicable Decisions of this Court, or at

a Minimum Presents Major Questions

Concerning the Interpretation of a Deci-

sion of this Court Significantly Affecting

the Quality of Justice in Administrative

Proceedings.

In Withrow v. Larkin, supra, this Court reversed a

holding by a three-judge District Court that a state

medical licensure board could not, consistent with due

process, engage in the investigation, prosecution and

adjudication of charges against a physician. The

Court concluded that any such contention ‘‘must

overcome a presumption of honesty and integrity in

those serving as adjudicators.’’ 421 U.S. at 47. It held

that in light of this presumption and prior decisions

of this Court any per se rule against the combination

of prosecutorial and adjudicative functions in the

same agency would be inappropriate.

The Court was clearly sensitive, however, to the

inherent potential for unfairness in a situation where

the same individual or group conducts an investiga-

tion, reviews the files for “‘_probable cause’ and orders

a prosecution, and ultimately sits in judgment on the

conflict between the prosecutorial presentation of its

staff (which it authorized) and the defers> presented

by the object of its prior attentions. The Uvsurt fo-

cused on

a realistic appraisal of psychological tendencies

and human weaknessses, [in determining wheth-

er] conferring investigative and adjudicative

powers on the same individuals poses such a risk

of actual bias or prejudgment that the practice

must be forbidden if the guarantee of due process

is to be adequately implemented.

421 U.S. at 47.

In light of this sensitivity the Court concluded:

That the combination of investigative and adju-

dicatory functions does not, without more, con-

stitute a due process violation, does not, of

course, preclude a court from determining from

the special facts and circumstances present in

the case before it that the risk of unfairness is

intolerably high.

Id. at 58."

It is difficult to conceive a stronger set of ‘special

facts and circumstances”’ than the present case. Both

the investigator and the Board were permeated by

obvious conflicts of interest. No meaningful investi-

gation was performed. No physician participated in

the investigation. The lawyer who ran it merely read

some newspaper clippings and a court litigation file

'' Without limiting in any way the scope of ‘special facts and

circumstances,"’ the Court in Withrow noted that

various situations have been identified in which experience

teaches that the probability of actual bias on the part of the

judge or decisionmaker is too high to be constitutionally

tolerable. Among these cases are those in which the adju-

dicator has a pecuniary interest in the outcome and in which

he has been the target of personal abuse or criticism from

the party before him.

421 U.S. at 47 (footnotes omitted).

While neither Anderson nor any member of the Board ap-

pears to have had a ‘“‘pecuniary interest in the outcome, ” there

was at least a strong professional interest in discrediting the

man who was litigating against Anderson’s firm's client and the

employer of at least one member of the Board.

oe a i

and interviewed some ex-employees of petitioner. No

patients of petitioner or physicians were interviewed.

And the investigator himself arrogantly declared his

liberation from any duty of fairness or impartiality.

Yet on the basis of this incredible excuse for an

‘“investigation,’’ the Board decided without formal

vote to bring professional charges against a practi-

er of an unpopular (though constitutionally protected,

Roe v. Wade, 410 U.S. 113 (1973) ), specialty, who

was then in litigation against a client of the investi-

gator and the employer of at least one member of the

Board. The notion that this physician can obtain a

fair and impartial hearing before his accusers is pre-

posterous; it plainly flies in the face of ‘‘a realistic

appraisal of psychological tendencies and human

weaknesses.’ Withrow v. Larkin, supra, at 47.

The significance of this case, however, transcends

the fact that the courts below plainly misapplied the

decision in Withrow.'* This Court in Withrow recog-

nized the enormous and growing impact of the admin-

istrative process in the resolution of disputes at every

level of the state and federe! governments. See 421

U.S. at 51-53. Thus the articulation of guidelines for

what constitute “‘special facts and circumstances’”’ re-

quiring the separation of prosecutorial and adjudica-

tive functions is vital to the administration of justice

in the broad range of personal and economic disputes

committed to resolution outside the courts.

'* The decision below contrasts starkly with the decisions of

other lower federal courts applying the “special facts and circum-

stances’’ test of Withrow. See Association of National Advertis-

ers v. FTC, 460 F.Supp. 996 (D.D.C. 1978); Huber Pontiac, Inc.

v. Allphin, 431 F.Supp 1168 (S.D. Ill. 1977); National Rifle As-

sociation v. United States Postal Service, 407 F.Supp. 88 (D.D.C.

1976).

Moreover, this Court has in recent years displayed

an increasing awareness of and concern with the con-

stitutional and other legal implications of the tradi-

tionally closed procedures by which the ‘learned

professions’ have regulated themselves. See, e.g.,

Bates v. State Bar of Arizona, 433 U.S. 350 (1977);

Virginia Pharmacy Bd. v. Virginia Consumer Council,

425 U.S. 748 (1976); Goldfarb v. Virginia State Bar,

421 U.S. 773 (1975).

The North Carolina Board of Medical Examiners is

both an agency of the State and an arm of the private

medical profession. Its actions have a vital dual im-

port—the protection of the public against unqualified

practitioners and the control of the membership of

the profession. In cases like the present one, what is

at stake is nothing less than a person’s right to pursue

his chosen livelihood.

The Board’s total contro! over petitioner's ability

to pursue his profession is instinct with the danger of

unfairness, the prospect that an unpopular person will

be hounded from the ranks, not. for reasons truly re-

lated to his competence but because other private

practitioners simply do not like him or the way he

conducts himself. That danger of unfairness becomes

‘‘intolerably high’ where, as here, neither the statu-

tory scheme nor those charged with administering it

provide any mechanism for insulating the accused

from investigators and prosecutors burdened with

gross conflicts of interest or from slipshod, unprofes-

sional and biased investigative methods.

The importance of this case to the administration

of state professional licensing schemes and to the ad-

ministrative process in general is, we submit, clear.

2. There Is a Conflict in the Decisions of the

Lower Federal Courts on the Question of

Immunity from Damage Liability in these

Circumstances, Which Should Be Re-

solved by this Court.

In Imbler v. Pachtman, 424 U.S. 409 (1976), this

Court held that a prosecutor acting strictly within the

confines of the duties of his office is absolutely im-

mune from tort liability for the performance of his

official functions. The Court recognized, however,

that a lower level of protection might be appropriate

where the prosecutor steps outside the narrow con-

fines of his prosecutorial role. Jd. at. 430-31 & n.33.

The District Court here assumed without deciding

‘that Anderson's investigative activities would be

subject to a qualified immunity only,”’ 445 F. Supp.

at 1316 (App. 17a.), and cast the issue as ‘“‘whether

the individual Board members should be held liable

under the principle of respondeat superior for possible

misconduct by the Board’s investigator.” /d.

On this issue the District Court recognized a con-

flict among the lower courts in the wake of this

Court's decision in Rizzo v. Goode, 423 U.S. 362

(1976). See 445 F. Supp. at 1316. (App. 17a-18a) Com-

pare Roach v. Kligman, 412 F. Supp. 521, 528 (E.D.

Pa. 1976) (‘‘actual participation” or ‘“‘actual knowl-

edge’ of principal required), with Shifrin v.Wilson,

412 F. Supp. 1282, 1301 n. 22 (D.D.C. 1976) (negli-

gence or failure to act by principal is sufficient). See

also Duchesne v. Sugarman, 566 F.2d 817, 830(2d Cir.

1977).

The District Court concluded:

In this case all the evidence assembled to date

shows that individual Board members had no

knowledge or awareness of any of the acts com-

lained of by plaintiff. Furthermore, given the

ong relationship between Anderson and the

Board, it cannot be said that the Board members

were negligent in not suspecting in this particu-

lar instance that Anderson’s investigation might

be inadequate or biased. For these reasons the

court is unwilling to conclude that the Board

members could be held liable solely because An-

derson acted as agent or employee of the Board.

445 F. Supp. at 1316. (App. 17a-18a)

We submit the District Court was clearly in error

and that the Board members were not immune under

either standard. Even if they were unaware of Ander-

son's conflict of interest, they could not have been

unaware of the total inadequacy of his investigation.

By failing to satisfy themselves on this score or to

conduct any independent inquiry into the facts un-

derlying the charges, the Board clearly acted negli-

gently, Shifrin v. Wilson, supra, and by accepting an

investigator's report which contained no evidence of

medical records, interviews of patients or consulta-

tions with experts in the field, the Board actually and

knowingly ratified a patently inadequate and un-

professional job, Roach v. Kligman, supra.

Moreover, we submit, this case cannot properly be

analyzed under the rubric of respondeat superior. The

statute commits the entire conduct of licensure revo-

cation proceedings to the Board, which has no au-

thority to delegate any portion of its responsibilities.

Like any public authority, it may make use of its staff

in carrying out its duties, but it is inconceivable that

the physicians on the Board can delegate the inves-

tigative function with respect to medical practices to

a lay investigator.'* Anderson was acting in their

name in gathering facts, but the investigation was—

and had to be—their act. The Board members were

responsible under the statute for the charges issued

in their name and for the adequacy of the factual

investigation justifying the issuance of the charges.

See Duchesne v. Sugarman, supra, 566 F. 2d at 830-

33.

Viewed in this light, there is still conflict and un-

certainty over the scope of the immunity, if any, to

which the Board members are entitled, and the deci-

sion below is clearly contrary to the weight of au-

thority.

The performance of the investigative function has

not traditionally been cloaked with the same broad

immunity as the purely prosecutorial or judical func-

tions. See Imbler v. Pachtman, supra, 424 U.S. at

430-31 & n.33; cf. Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971). The decision below con-

flicts with decisions in other circuits according much

'’ There is no legal foundation for the statement by the District

Court that ‘the function performed by Anderson was one sepa-

rate and distinct from that reserved by the Board members to

themselves."’ 445 F.Supp. at 1316. (App. 18a.) Indeed, the court

went on to reveal the bootstrap character of this argument by

saying:

The only way to preserve the immunity to which Board

members are entitled when preferring or hearing charges is

to respect the separation of roles between the Board and

a which had been worked out over a long relation-

ship.

Id. at 1317. (App. 18a.)

This, of course, begs the question, which is whether such

immunity cught to be “‘preserved’’ in the investigative sphere.

Moreover, the statute cannot be read to carve out the ‘separation

of roles’’ on which the court relied.

narrower protection to prosecuting officers engaged

in performance of investigative functions, see, e.g.,

Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977); Jen-

nings v. Shuman, 567 F. 2d 1213 (3rd Cir. 1977); Guer-

ro v. Mulhearn, 498 F. 2d 1249 (1st Cir. 1974); Robi-

chaud v. Ronan, 351 F. 2d 533 (9th Cir. 1965), and it

was expressly left open in Jmbler, see 424 U.S. at

430-31.

In view of the widespread confusion among the

lower federal courts as to the existence or scope of

immunity in the investigative area and the evident

importance of the question, witnessed by the series of

decisions by this Court in recent years on a range of

immunity issues, see Imbler v. Pachtman, supra;

Wood vy. Strickland, 420 U.S. 308 (1975); Scheuer v.

Rhodes, 415 U.S. 232 (1974); Pierson v. Ray, 386 U.S.

547 (1967), this Court should grant the writ to resolve

the question.

3. Summary Judgment Was Plainly Inap-

propriate in the Circumstances of this’

Case.

We need not belabor the point with citations, but

under the Federal Rules and the Constitution, sum-

mary judgment is appropriate only if there are no

genuine factual disputes to resolve.

In this case summary judgment was granted, even

though the parties were in sharp dispute over the

existence of ‘‘special facts and circumstances’’ ren-

dering the Board’s proceeding dangerously unfair and

over the question of the Board members’ good faith

in acting on Anderson's report for purposes of invok-

ing immunity.

—ee a -

Wiis. ns

“Special facts and circumstances’’ and ‘good

faith’’ are preeminently factual issues requiring a fully

developed record before an impartial trier of fact pre-

pared to resolve, among other things, issues of credi-

bility."

The grant of summary judgment was plainly in

conflict with applicable decisions of this Court. See

Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620

(1944).

CONCLUSION

For the reasons stated, it is respectfully prayed

that a writ of certiorari should issue to review the

judgment of the United States Court of Appeals for

the Fourth Circuit.

Respectfully submitted,

WILLIAM H. ELAM

2007 Commonwealth Ave.

Charlotte, North Carolina

28205

EARL C. DUDLEY, JR.

1901 L Street, N.W.

Washington, D.C. 20036

‘* The impropriety of summary judgment in this case is high-

lighted by the District Court’s heavy reliance on conclusory, self-

serving affidavits from Board members to the effect that they

could weigh the charges against petitioner impartially. 445

F.Supp. at 1317-18. (App. 20a.) But see, e.g., Duchesne v. Sug-

arman, supra, 566 F.2d at 832-33; Safeguard Mutual Ins. Co. v.

Miller, 456 F.Supp. 682, 694 (E.D. Pa. 1978).

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the fore-

going Petition for a Writ of Certiorari were served on

each of the following: John H. Anderson, Esquire,

Smith, Anderson, Blount and Mitchell, First Union

National Bank Building, Raleigh, North Carolina,

27602; and H.C. Hewson, Esquire, Jones, Hewson,

and Woolard, 1000 Law Building, Charlotte, North

Carolina, 28202 by depositing true copies thereof in

the United States mail, first-class, postage prepaid,

on this 9th day of July, 1979.

EARL C. DUDLEY, JR.

APPENDIX

HAROLD R. HOKE, Plaintiff,

BOARD OF MEDICAL EXAMINERS OF the STATE

OF NORTH CAROLINA et al.,

Defendants.

No. C-C-75-01.

United States District Court,

W.D. North Carolina

Charlotte Division.

June 6, 1975.

Before CRAVEN, Circuit Judge, JONES, Chief District

Judge, and MCMILLAN, District Judge.

CRAVEN, Circuit Judge:

This three-judge court was convened to consider a doc-

tor’s attack on certain aspects of the procedure pursuant

to which the state’s Board of Medical Examiners (the

Board) revokes a license to practice medicine. Sought, inter

alia, is permanent injunctive and declaratory relief against

provisions allegedly defective under the fourteenth amend-

ment’s due process clause.

The plaintiff, Dr. Harold Hoke, has since November

1973 operated Hailmark Clinic, a private abortion clinic in

Charlotte, North Carolina. On September 20, 1974, the

Board noticed in writing nineteen ‘‘Charges and Allega-

tions,’ all of which, as paragraph 19 itself alleged, showed

that Dr. Hoke had “engaged in dishonorable and unprofes-

sional conduct unworthy of and affecting”’ his practice and

that therefore grounds existed for revocation of his li-

cense.'

The complaint? sets out two levels of attack on the

Board’s move to revoke Hoke’s license. As to the revoca-

tion procedure: (a) the Board’s combined role under the

statute® as investigator, prosecutor, and judge renders it

inherently biased; (b) the statutory standard—‘‘unprofes-

sional or dishonorable conduct unworthy of, and affecting,

the practice of his profession’’—is vague and overbroad;

‘The numbered charges, with varying degrees of specificity,

alleged in substance that Hoke had negligently handled patients

undergoing abortion; had performed abortions without adequate

pregnancy tests; had knowingly performed spurious abortions;

had solicited false accusations against other doctors in disputes

arising in Charlotte and Cartersville, Georgia, where Hoke had

previously practiced; had solicited medical practice through a

brochure describing Hallmark Clinic, which contained false rep-

resentations; and finally that his mental condition rendered him

unable safely to practice medicine.

The complaint informed Hoke that a public hearing to deter-

mine the truth of the charges would be held on October 30, 1974,

at which time he could appear with counsel, cross-examine wit-

nesses, and present his own evidence. He was also invited to file

a written response to the charges. The hearing was later post-

poned until February 10, 1975.

* Filed January 2, 1975, the complaint also requested a tem-

porary restraining order against the proposed Board hearing on

February 10, 1975. It was not necessary to enter such an order,

however, since the Board agreed to postpone the hearing at least

until this court had rendered a decision.

* N.C.Gen.Stats. § 90—14 (Supp.1971) provides:

The Board shall have the power to revoke and rescind any

license granted by it, when, after due notice and hearing, it

shall find that any physician licensed by it has been guilty

of grossly immoral conduct, or of producing or attempting’

to produce a criminal abortion, or, by false and fraudulent

representations, has obtained or attempted to obtain, prac-

tice in his profession, or is habitually addicted to the use of

morphine, cocaine or other narcotic drugs, or is habitually

addicted to the use of marijuana, barbiturates, demerol or

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and (c) since, assertedly, his former patients could consti-

tutionaily refuse to appear at a “‘public’’* hearing—claim-

ing infringement of their right of privacy under Roe v.

Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147

(1973)—his right to present witnesses in his own behalf

any other habit-forming drug or derivative of such drug, or

has by false and fraudulent representations of his profes-

sional skill obtained, or attempted to obtain, money or an-

ything of value, or has advertised or held himself out under

a name other than his own, or has advertised or publicly

professed to treat human ailments under a system or school

of treatment or practice other than that for which he holds

an earned diploma or degree, or is guilty of any fraud or

deceit by which he was admitted to practice, or has been

guilty of any unprofessional or dishonorable conduct un-

worthy of, and affecting, the practice of his profession, or

has been convicted in any court, state or federal, of any

felony or other criminal offense involving moral turpitude,

or has been adjudicated a mental incompetent or whose

mental condition renders him unable safely to practice med-

icine. Upon the hearing before said Board of any charge

involving a conviction of such felony or other criminal of-

fense, a transcript of the record thereof certified by the clerk

of the court in which such conviction is had, shall be suffi-

cient evidence to justify the revocation or rescinding of such

license. And, for any of the above reasons, the said Board

of Medical Examiners may refuse to issue a license to an

applicant. The findings and actions of the Board of Medical

Examiners in revoking or rescinding and refusing to issue

licenses under this section, shall be subject to review upon

appeal to the superior court, as hereinafter provided in this

article. The Board of Medical Examiners may, in its discre-

tion, and upon such terms and conditions and for such period

of time as it may prescribe, restore a license so revoked and

rescinded.

*N.C.Gen.Stats. § 90—14.2 (1965) directs the Board to hold a

public hearing on the charges. The Charlotte Observer, in con-

nection with Hoke’s case, sued the Board in state court to enjoin

the Board’s apparent practice of conducting the hearing in pri-

vate when the doctor requested it. The court found § 90—14.2’s

language mandatory and entered an injunction in favor of the

newspaper. The Board apparently did not appeal.

will be substantially impaired. Secondly, many of the spe-

cific substantive charges would, if revocation were based

at least in part thereon, infringe his constitutional rights

under the first, fifth, and fourteenth amendments.‘

Hoke’s prayer for relief is specific: a permanent injunc-

tion prohibiting the Board from proceeding against him

under the September 1974 charges;*® a declaratory judg-

ment that § 90—14 violates the due process clause for the

aforementioned reasons; an order requiring any Board

hearing to be held in camera; and declaratory relief (and in

two instances injunctions) against the constitutionally de-

fective charges.

As a three-judge court, in the present posture of this

case, we need reach only the claim that § 90—14, the un-

derlying authority for the proceeding against Hoke, is it-

self violative of the due process clause. Whether a subse-

quent revocation based wholly or in part upon charges

implicating Hoke’s constitutional rights would be void is

a question which, assuming ripeness at this stage, would

*E.g., Hoke asserts that 4s 6 and 8 are unconstitutionally

vague because they accuse him of performing spurious abortions

on ‘‘various’’ females, without specifying names, dates, or other

particular circumstances; that { 16 charging unethical advertis-

ing and solicitation simply by distribution of a pamphlet describ-

ing Hallmark’s services is void under the first amendment. Many

of the charges of inadequate and unprofessional testing and op-

erating procedures are challendged both as subjecting Hoke to

standards that have never been applied to other doctors and as

interfering with the freedom of discretion, in the doctor-patient

relationship, that is necessarily protected by Roe v. Wade, 416

U.S. 113, 163, 93 S.Ct. 705, 35 L.Ed.2d 147 § 973).

° Two more charges were brought and noticed to Hoke in De-

cember 1974, one alleging unnecessary surgery and the other

relating to a misdemeanor charge in Georgia. The present record

does not reveal the wording of these latest charges.

Neate iin

DW IO ES hg TES DARL Ah, EI CE NLR TE BS he

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not turn on the unconstitutionality of a state statute,’ i.e.,

§ 90—14. Any injunctive relief prohibiting the Board

from basing revocation, say, on Hoke’s distribution of a

brochure, as protected by the first amendment, could be

granted by a single judge without reaching § 90—14.

Whether an order requiring an in camera hearing—contra-

ry to § 90—14.2 as construed by the state court—can or

should issue is a question which, assuming it touches upon

the constitutionality of § 90—14.2 as applied, is not, as we

view the record, ripe for adjudication at this stage.* Hoke’s

728 U.S.C. § 2281 provides:

An interlocutory or permanent injunction restraining the

enforcement, operation or execution of any State statute by

restraining the action of any officer of such State in the

enforcement or execution of such statute or of an order made

by an administrative board or commission acting under

State statutes, shall not be granted by any district court or

judge thereof upon the ground of the unconstitutionality of

such statute unless the application therefor is heard and

determined by a district court of three judges under section

2284 of this title.

The distinction set out in Ex parte Bransford, 310 U.S. 354, 60

S.Ct. 947, 84 L.Ed. 1249 (1940), is applicable here:

It is necessary to distinguish between a petition for in-

junction on the ground of the unconstitutionality of a stat-

ute as applied, which requires a three-judge court, and a

petition which seeks an injunction on the ground of the

unconstitutionality of the result obtained by the use of a

statute which is not attacked as unconstitutional. The latter

petition does not require a three-judge court. In such a case

the attack is aimed at an allegedly erroneous administrative

action.

310 U.S. at 361, 60 S.Ct. at 951 (footnotes omitted). See also

Steffel v. Thompson, 415 U.S. 452, 457, n. 7, 94 S.Ct. 1209, 39

L.Ed.2d 505 (1974); H. M. Hart & H. Wechsler, The Federal

Courts and the Federal System 968-70 (2d ed. 1973).

* See, e.g., Golden v. Zwickler, 394 U.S. 103, 108—10, 89 S.Ct.

956, 22 L.Ed.2d 113 (1969).

claim that he will be deprived of the right to present evi-

dence on his behalf depends at least on: the nature of the

evidence presented against him; the extent to which that

evidence could be arguably rebutted by his former pa-

tients; whether and to what extent those patients have a

privilege of refusing to testify or even appear; and the

extent to which that privilege, if recognized, is asserted.

The most Hoke can assert at this stage is that it is con-

ceivable that on review of a then-completed public revo-

cation hearing a court could conclude that Hoke’s defense

was so materially disabled as to deny him due process. The

question is presently wholly speculative, and we decline to

consider it.

Thus, reaching the twin charge that § 90—14 impermis-

sibly co-mingles investigatory, prosecutorial, and adjudi-

catory functions and grounds revocation upon a vague and

overbroad standard, for reasons which follow we deny the

requested injunctive relief and remand to the single-judge

court for its resolution of those particularized claims not

requiring our attention under 28 U.S.C. § 2281.

Hoke alleges that, according to standard practice, each

member of the Board to some degree participated in the

preceding months in the investigation and development of

the facts which ultimately led to the September 1974

charges;* that each member after this review voted to pre-

* In light of the subsequent deposition of the Board's retained

attorney, John Anderson, that he performed most of the inves-

tigative groundwork and thereafter presented the results to the

Board, Hoke in his supplemental memorandum has softened his

initial allegation somewhat. But while there might be a dispute

on the facts, we deem it immaterial for purposes of our analysis.

See Withrow v. Larkin, 421 U.S. 35, 54 n. 20, 95 S.Ct. 1456, 43

L.Ed.2d 712 (1975), discussed infra. We also note that the Board

has recently hired a fu!l-time investigator, but that change, if

induced by Hoke’s action does not affect our decision. Jd., 421

U.S. at 46 n. 13, 95 S.Ct. 1456.

ee es

fer charges; and that each member of the seven-man Board

plans to sit in judgment on the validity of the charges. In

exposing the Board to one side of the facts and implicitly

requiring it to make a kind of probable cause determina-

tion, this procedure, in his view, creates an inherent bias

towards vindicating the Board's initial judgment when it

sits as final adjudicator. The Board’s procedure under $90-

14, therefore, deprives an accused physician of the due

process right to have disputed facts weighed and evaluated

by an impartial hearing body.

Hoke’s position rested primarily on Larkin v. Withrow,

368 F.Supp. 796 (E. D.Wis.1973) (three-judge court).'® The

Wisconsin scheme authorized the state’s medical hearing

board to ‘investigate, hear and act upon practices’’ by

doctors and order temporary suspensions."' Since the stat-

ute co-mingled the three functions the doctor stood to lose

his liberty or property without ‘‘the intervention of an

independent, neutral and detached decision maker.’’ 368

F.Supp. at 797. Finding imminent irreparable injury and

a high likelihood of success on the merits, the court entered

a preliminary injunction against further procedures under

the challenged statute. Hoke has vigorously asserted that

his case is identical with, if not stronger than, Larkin v.

Withrow, supra, since here the Board can revoke and not

simply suspend.

But how we might have applied the reasoning of the

Wisconsin district court is irrelevant, for the Supreme

Court has unequivocally and unanimously reversed. With-

row v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712

(1975). The Court noted previous cases in which ‘‘the ad-

judicator has a pecuniary interest in the outcome” or “has

'© See also Larkin v. Withrow, 368 F.Supp. 793 (E.D.Wis.1973)

(convening three-judge court).

''The Wisconsin board was required to initiate proceedings

through a district attorney in state court in order to effect a

permanent revocation. 368 F.Supp. at 797.

been the target of personal abuse or criticism from the

party before him, “saying of them: ‘‘In [endeavoring to

prevent even the probability of unfairness], various situa-

tions have been identified in which experience teaches that

the probability of actual bias on the part of the judge or

decision-maker is too high to be constitutionally tolerable.”’

Id., 421 U.S. at 47, 95 S.Ct. at 1464. Distinguishing the

Wisconsin doctor’s argument, the Court stated:

The contention that the combination of investiga-

tive and adjudicative functions necessarily creates an

unconstitutional risk of bias in administrative adju-

dication has a much more difficult burden of persua-

sion to carry. It must overcome a presumption of

honesty and integrity in those serving as adjudica-

tors; and it must convince that, under a realistic ap-

praisal of psychological tendencies and human weak-

ness, conferring investigative and adjudicative pow-

ers on the same individuals poses such a risk of actual

bias or prejudgment that the practice must be forbid-

den if the guarantee of due process is to be adequately

implemented.

Id., 421 U.S. at 47, 95 S.Ct. at 1464. The Court rejected

the doctor’s attempt to show inherent bias, noting that,

for example, the pretrial involvement of a judge in proba-

ble cause determinations has never been seen as a barrier

to that judge's presiding over a later trial or even sitting as

the trier of fact. Also, administrative agencies typically

rece:ve the results of investigations, file charges, and sit

at the subsequent hearing, all in conformity with the due

process clause. /d., 421 U.S. at 56, 95 S.Ct. 1456.

We are of course bound by the holding that the combi-

nation in an agency of investigative and adjudicatory func-

tions does not itself violate due process, and we deem it

controlling in this case. The only material difference in

North Carolina’s procedure is that the Board itself is em-

powered to revoke, whereas in Wisconsin the medical

board could revoke only by instituting a quasi-criminal

ee arene

et aaa

action.'? But there is no suggestion in the Court’s opinion

that the combination of functions in Wisconsin’s board

presented less risk of actual bias because it could order

only a temporary suspension, and that therefore combined

functions in a board with permanent revocation power

might be more vulnerable. The generality of the holding is

in the opposite direction. ‘The initial charge or determi-

nation of probable cause and the ultimate adjudication

have different bases and purposes. The fact that the same

agency makes them in tandem and that they relate to the

same issues does not result in a procedural due process

violation.”’ Jd., 421 U.S. at 58, 95 S.Ct. at 1470 (emphasis

added). In other words, whether a medical board’s ultimate

decision results in temporary or permanent revocation, the

due process analysis is the same.

Although we hold § 90-14 on its face and as generally

applied to physicians does not deny due process under

Withrow, we note the Court’s caveat:

That the combination of investigative and adjudi-

catory functions does not, without more, constitute a

due process violation, does not, of course, preclude a

court from determining from the special facts and

circumstances present in the case before it that the

risk of unfairness is intolerably high. Findings of that

kind made by judges with special insights into local

realities are entitled to respect. ...

Id., 421 U.S. 58, 95 S.Ct. 1470. Hoke’s complaint and

supporting papers allude to the possibility that certain

past and present members of the Board might be preju-

diced against him because of prior litigation involving

Charlotte Memorial Hosital,'* of whose Executive Com-

'? See n. 11 supra.

'8 See Poe v. Charlotte Memorial Hospital, Inc., 374 F.Supp.

1302 (W.D.N.C.1974); cf. Hallmark Clinic v. North Carolina

Dept. of Human Resources, 380 F.Supp. 1153 (E.D.N.C.1974)

(three-judge court).

10a

mittee of the Visiting Staff’’ (sic) they are ex officio mem-

bers. Hoke states that charges brought against him by the

hospital in moving to deny him staff privileges ‘‘overlap

almost 100% with the charges brought by the Board,”’

thus raising the inference of a vendetta. We of course

express no opinion on the ultimate validity of these asser-

tions. But since the Supreme Court’s reversal in Withrow

of Hoke’s primary authority has occurred so recently, it is

understandable that Hoke’s complaint and supporting

memoranda do not address themselves to the theory of

relief expressed in the caveat. And, in the present posture

of this case, no facts have been found which would bear on

the existence or non-existence of actual bias by certain

Board members against Hoke.

For these reasons, on the remand to the single-judge

court, Hoke should be given an opportunity to file, in good

faith, amended pleadings directed to any ‘‘special facts

and circumstances present in [this] case,"’ from which the

court might conclude, after finding the facts, that “‘the

risk of unfairness [to Hoke] is intolerably high.’’ Jd., 58

U.S. at ___, 95 S.Ct. at 1470. Since any relief Hoke might

secure on this exception to Withrow’s broad holding would

not require injunctive relief against the Board on the basis

that § 90-14 was unconstitutional, the single judge is em-

powered to adjudicate this claim, if raised.

Il.

Hoke's claim that § 90-14’s standard for revocation is

unconstitutionally vague and overbroad merits little dis-

cussion. In Jones v. Penny, 387 F.Supp. 383

(M.D.N.C.1974) (Craven, J.), a three-judge court consid-

ered a vagueness attack on a motor vehicle code licensing

provision applicable to those whose mental competency

was suspect. The language ‘“‘competent to operate a motor

vehicle with safety to persons and property’’ was held

sufficiently informative under the due process clause. /d.,

lla

387 F.Supp. at 392. Cited as controlling were recent Su-

preme Court decisions upholding, against contentions of

vagueness, ‘‘for such cause as will promote the efficiency

of the service,’’ Arnett v. Kennedy, 416 U.S. 134, 158, 94

S.Ct. 1633, 1646, 40 L.Ed.2d 15 (1974), and conduct ‘“‘un-

becoming an officer and a gentleman,”’ Parker v. Levy, 417

U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974).

Likewise, we find that § 90-14’s language itself and in con-

junction with established medical ethics sufficiently in-

forms physicians of the standards by which they are to

conduct themselves and their practice, and we so hold. As

for overbreadth, Hoke’s attack on § 90-14 only marginally

raises first amendment claims. The charges against Hoke

relate almost exclusively to his conduct. “Thus, even if

there are marginal applications in which a statute would

infringe on First Amendment values, facial invalidation is

inappropriate if the ‘remainder of the statute .. . covers a

whole range of easily identifiable and constituionally pros-

cribable ... conduct ....’ United States Civil Service

Comm'n v. National Association of Letter Carriers, 413

U.S. 548, 580-581, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).”

Parker v. Levy, supra, at 760, 94 S.Ct. at 2563. We there-

fore decline to invalidate § 90-14 as overbroad.

Accordingly, to the extent that Hoke’s complaint rests

on an attack on § 90-14 as violative of the due process

clause, we deny the requested injunctive and declaratory

relief. We otherwise remand to the single-judge court for

further proceedings consistent with this opinion, namely

consideration of the claims that several of the specific

charges, if revocation were predicated thereon, would deny

Hoke’s constitutional rights. Hoke should also be given

the opportunity to amend his complaint to allege facts

relevant to the caveat expressed in Withrow.

An appropriate judgment will be entered.

12a

HAROLD R. HOKE, M.D. Plaintiff,

Vv.

BOARD OF MEDICAL EXAMINERS

OF THE STATE OF

NORTH CAROLINA, Dr. Joseph W. Hooper, Jr., Dr.

Bryant L. Galusha, Dr. C. T. Partick, Dr. Jack Powell,

Dr. Charles B. Wiikerson, Jr., Bryant D. Paris, Jr., Dr.

Frank Edmondson, Dr. J. Jerome Pence, Dr. David S.

Citron, Dr. E. Wilson Staub, Dr. Vernon W. Taylor, Jr.,

their agents, assigns, successors in interest, and those

acting in concert with them, all Individually and in their

official capacities,

Defendants

No. C-C-75-001.

United States District Court,

W.D. North Carolina,

Charlotte Division

Feb. 23, 1978.

ORDER

McMILLAN, District Judge.

This case is before the court on defendants’ motion for

dismissal of all damages claims and for summary judg-

ment on the remaining portions of the complaint which

seek injunctive and declaratory relief. A hearing was con-

ducted on December 13, 1977, and the parties were given

until January 20, 1978, to file such further briefs or evi-

dence as they wished. The motions are now ready for de-

cision.

A. THE DAMAGES CLAIMS

The Board of Medical Examiners is an agency of the

State of North Carolina. See N.C.G.S. §$ 90—1 et seq.

Defendants correctly contend, therefore, that the Board is

il ea a ERS De Ore nee ee SR Ee Se

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-”

not a “‘person”’ within the meaning of 42 U.S.C. § 1983 and

cannot be subject to a suit for damages. Huntley v. North

Carolina State Board of Education, 493 F.2d 1016 (4th

Cir. 1974); Alabama Optometric Association v. Alabama

State Board of Health, 379 F.Supp. 1332 (M.D. Ala. 1974)

cf. Mazzuco v. State Board of Medical Examiners, 31

N.C.App. 47, 228 S.E.2d 529 (1976), cert. denied, 291 N.C.

323, 230 S.E.2d 676 (1977). Although plaintiff alternative-

ly seeks to sue the Board directly under the Fourteenth

Amendment, see Bivens v. Six Unknown Named Agents,

403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), this

claim must also fail. Such a suit is barred by the Eleventh

Amendment. Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.

1976), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d

1083, 45 U.S.L.W. 3822 (1977); Mauclet v. Nyquist, 406

F.Supp. 1233 (W.D.N.Y. and E.D.N.Y. 1976) (three-judge

court), aff'd 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63

(1977); ef. Hallmark Clinic v. North Carolina Dept. of Hu-

man Resources, 519 F.2d 1315, 1318 (4th Cir. 1975). The

Board has not waived its immunity. Accordingly, the dam-

ages claim against the Board itself will be dismissed.

As to the claim of immunity from damages made by the

individual Board members, both parties agree that there

is no basis for distinguishing between an action brought

under 42 U.S.C. § 1983 and one grounded directly on the

Fourteenth Amendment. The immunity from suit of judi-

cial and quasi-judicial officers derives from the common

law; it is not something peculiar to § 1983 or to any other

consitutional, statutory or common law cause of action.

Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971).

Where the parties vigorously disagree is on the entitle-

ment of the individual Board members to invoke a judicial

or quasi-judicial immunity. Such a claim of immunity de-

pends not on the title of the officer but on whether the

alleged conduct which gives rise to the complaint involved

the performance of a judicial or quasi-judicial function.

l4a

Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47

L.Ed.2d 128 (1976); McCray v. Maryland, 456 F.2d 1 (4th

Cir. 1972); cf. Pope v. Chew, 521 F.2d 400 (4th Cir. 1975)

(state parole board members have quasi-judicial immunity

in considering parole applications); Ginger v. Circuit Court

for the County of Wayne, 372 F.2d 621 (6th Cir. 1967)

(members of state bar grievance committee and state

judges have immunity for actions taken in disciplinary

proceedings); Moity v. Louisiana State Bar Association,

414 F.Supp. 180, 184 n.17 (E.D.La.), aff'd 537 F.2d 1141

(5th Cir. 1976) (state bar association entitled to quasi-ju-

dicial immunity when passing upon applications for ad-

mission to the bar). Plaintiff's contention that only ‘“‘tra-

ditional officers of the court,’’ such as judges, prosecutors

and grand jurors, can invoke the immunity must be re-

jected.

In disciplinary actions under N.C.G.S. § 90-14 the Board

of Medical Examiners performs a tripartite function as

investigator, prosecutor and adjudicator. Plaintiff's con-

tention that the combination of these three functions in a

single body deprives him of due process of law has been

rejected by the decision of the three-judge panel in this

case. Hoke v. Board of Medical Examiners, 395

F.Supp.357 (W.D.N.C. 1975), relying on Withrow v. Lar

kin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975).

Although this merger of roles has been held not to offend

due process, it does complicate the decision of defendants’

immunity claims.

In Imbler v. Pachtman the Court recognized that there

would be some circumstances where a prosecutor acting in

an administrative or investigative capacity would not be

entitled to the absolute immunity which attaches to his

performance of more strictly prosecutorial duties. 424 U.S.

430, 431 n. 33, 96 S.Ct. 984, 47 L.Ed. 2d 128; see also

Helstoski v. Goldstein, 552 F.2d 564 (3d. Cir. 1977); Briggs

v. Goodwin, 186 U.S. App.D.C. ____, 569 F.2d 10 (1977);

Weathers v. Ebert 505 F.2d 514, 517 (4th Cir. 1974).

SEs cs Kio i

15a

The Court recognized that drawing a line between pro-

tected and non-protected activities would be difficult, but

it left no doubt that the decision to initiate a prosecution

was clearly within the scope of the prosecutor’s role as a

quasi-judicial officers.

Plaintiff bases his liability claim against the individual

Board members on the following sequence of events. The

court has drawn upon plaintiff’s own version of the story

as stated in briefs and oral argument on the present mo-

tion.

In response to newspaper reports in the Charloite Ob-

server, Dr. Joseph Hooper, then president of the Board,

and possibly also Dr. Frank Edmondson, then secretary of

the Board, requested on behalf of the full Board that Mr.

John H. Anderson, the Board’s attorney, undertake an

investigation to determine whether charges should be

brought against plaintiff. Mr. Anderson had served as the

Board’s attorney for over twenty years and had frequently

conducted preliminary investigations on information re-

ceived by the Board. The request made was a general one:

Anderson was to “‘find out whatever he could’’ about the

statements made in the press. At the time the newspaper

articles appeared plaintiff had two suits pending in this

court, one against Presbyterian Hospital of Charlotte and

the other against Charlotte Memorial Hospital.

It is plaintiff's claim that Anderson conducted a biased

and one-sided investigation, ignoring or refusing to inquire

into the existence of evidence which would rebut charges

made against plaintiff. Plaintiff complains that Anderson

made no effort to speak with him or make a first-hand

investigation of his clinic. The investigation was primarily

based on newspaper reports, conversations with former

employees of plaintiff, and an examination of affidavits

and documents filed in the suit involving Charlotte Mem-

orial Hospital.

16a

Discovery has turned up no evidence to date which sug-

gests that individual Board members participated in the

investigation other than by reading the original articles

which appeared in the newspapers. The members of the

Board relied entirely on the report by Anderson and on

charges made in the press. Several of them stated in dep-

osition that they had always had full confidence in Ander-

son and had seen no reason to doubt his word in the case

involving plaintiff.

Sometime in the late summer of 1974, on the basis of

Anderson’s oral report to the Board, the Board voted to

prefer charges covering all the alleged incidents about

which Anderson had gathered information. Formal charges

were drafted by Anderson and by Dr. Hooper and were

served on plaintiff; no formal vote was taken on the final

draft as a whole or on specific charges. An additional

charge was added in the fall of 1974 based on a subsequent

report from Anderson concerning a pending misdemeanor

prosecution against plaintiff.

It is alleged that the decision to investigate was in part

prompted by a letter from the president of the Mecklen-

burg County Medical Soceity to the Board’s executive sec-

retary concerning plaintiff's fitness to practice medicine.

One Board member (Dr. Galusha) recalled this letter, but

several others did not. Plaintiff also contends that his

attorney in the case agaist Presbyterian Hospital was in-

formed by the hospital’s lawyer that if he persisted with

the suit he would probably have his license revoked by the

Board. Again, however, discovery has failed to turn up

any evidence that this statement emanated from or reflect-

ed the views of any of the Board members themselves. The

attorney for the hospital had no formal association with

the Board, and there is no evidence that he had discussed

the Presbyterian case with any individual Board members.

Finally, plaintiff ‘claims that Anderson's investigation

was necessarily suspect because his law firm was contem-

17a

poraneously representing a defendant in another lawsuit

filed by plaintiff in the Eastern District of North Carolina

and because Anderson’s firm also occasionally represented

clients at the request of the insurance company which

provided coverage for Presbyterian and Charlotte Memo-

rial Hospitals. None of the Board members examined in

deposition confessed any knowledge of Anderson’s sup-

posed conflicts.

The Board’s decision to prefer charges is indistinguish-

able from a prosecutor’s decision to initiate a criminal

proceeding or a grand jury’s decision to return a criminal

indictment. For this reason the court concludes that the

individual Board members are not answerable in damages

for their decision to bring charges against plaintiff.

This determination does not end the matter. Even

though the Board members had no personal involvement

in the investigation, Anderson did act as the Board’s

agent. Assuming, but not deciding, that Anderson’s in-

vestigative activities would be subject to a qualified im-

munity only, there is a question whether the individual

Board members should be held liable under the principle

of respondeat superior for possible misconduct by the

Board’s investigator. If so, then damages could be recover-

able against Board members if it were found that the in-

vestigation was not conducted in good faith and in some

way offended a right secured by the Constitution or by

federal statute.

The status of respondeat superior in actions under 42

U.S.C. § 1983 (and presumably also under Bivens) has been

somewhat clouded by the decision in Rizzo v. Goode, 423

U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Compare

Roach v. Kligman, 412 F.Supp. 521, 528 (E.D.Pa.1976)

(plaintiff must show ‘‘actual participation’’ or ‘‘actual

knowledge”’ of unlawful conduct) with Shifrin v. Wilson,

412 F.Supp. 1282, 1301 n. 22 (D.D.C.1976) (negligence or

failure to act by supervisor can support liability). In this

18a

case all the evidence assembled to date shows that indi-

vidual Board members had no knowledge or awareness of

any of the acts complained of by plaintiff. Furthermore,

given the long relationship between Anderson and the

Board, it cannot be said that the Board members were

negligent in not suspecting in this particular instance that

Anderson’s investigation might be inadequate or biased.

For these reasons the court is unwilling to conclude that

the Board members could be held liable solely because

Anderson acted as agent or employee of the Board.

More important is the fact that the function performed

by Anderson was one separate and distinct from that re-

served by the Board members to themselves. If the Board

members can be held liable for the investigative acts of

their agent, then they face the prospect of suit in every

disciplinary proceeding where it can be alleged that the

preliminary investigation was deliberately biased. The

Board members would effectively lose the immunity that

protects them when performing their quasi-judicial or ju-

dicial duties. The only way to preserve the immunity to

which Board members are entitled when preferring or hear-

ing charges is to respect the separation of roles between

the Board and Anderson which had been worked out over

a long relationship. For these reasons the court finds that

the Board members are not answerable for any damages

arising out of the investigation conducted by John Ander-

son.

As a final item the court notes that the Board’s execu-

tive secretary, Bryant D. Paris, Jr., is named as a defend-

ant in this suit. While it does not appear that Paris would

be entitled to the protection of any absolute or qualified

immunity, a review of the record also leaves the court

unclear as to just what Paris’ involvement is alleged to

have been and on what basis damages against him are

sought. The parties are invited to provide enlightenment

on these questions. The ruling concerning defendants’ mo-

tion to dismiss the damages claims will, for now, cover

19a

only the claims against the Board itself and against the

individual Board members.

B. MOTION FOR SUMMARY JUDGMENT

On June 6, 1975, the three-judge court which was con-

vened to consider Plaintiiff’s facial challenges to N.C.G.S.

§ 90-14 ruled adversely to plaintiff on the claims for relief

contained in paragraphs 83(1) and 83(2) of the complaint

and did not address the claim made in paragraph 83(4),

holding that it was not ripe for decision. The case was

remanded to this court for further proceedings, including

an opportunity for plaintiff to demonstrate the existence

of specific bias by the Board members which would entitle

him to an injunction against further action by the Board,

See Withrow v. Larkin, 421 U.S. 35, 58, 95 S.Ct. 1456, 45

L.Ed.2d 712 (1975). On November 3, 1975, plaintiff amend-

ed his complaint to allege the existence of specific bias

resulting from (a) his instituting litigation against Char-

lotte Memorial Hospital, (b) the one-sided investigation

conducted by John Anderson, (c) the fact that present or

past members of the Board are or have been on the staff

of Charlotte Memorial Hospital, and (d) the existence of

adverse publicity against plaintiff.

On August 16, 1977, defendants moved for summary

judgment on the issue of specific bias. They also moved

for summary judgment on the claim by plaintiff that he is

disabled from presenting witnesses in his behalf at the

Board hearing in view of the requirement of N.C.G.S. § 90-

14.2 that such hearing be open to the public and in view

of the fact that some of his former patients may be un-

willing to testify at a public hearing. These two issues will

be disposed of in reverse order.

On June 30, 1977, the North Carolina legislature amend-

ed N.C.G.S. § 90-16 to permit the Board to take testimony

in executive session concerning the treatment of patients

who have not consented to public disclosure of such treat-

ment. The amendment further provided that records of

20a

such testimony would not be considered public records.

The amendment was to be effective immediately upon rat-

ification. In view of this action by the iegislature, plain-

tiff’s claim set out in paragraph 83(4) is moot and will be

dismissed. See 1977 North Carolina Session Laws ch. 838.

In support of their motion for summary judgment on

the issue of bias defendants have offered affidavits from

the two present members of the Board who are associated

with Charlotte Memorial Hospital stating that they will

not participate in the hearing of charges against plaintiff.

Defendants have also shown by affidavit that two mem-

bers of the Board became members after November 1,

1976, and that one member did not join the Board until

after the original charges were preferred (but before the

amendment adding the charge involving plaintiff's shop-

lifting prosecution). Defendants have also tendered affi-

davits from the two remaining Board members who were

on the Board in 1974 at the time charges were preferred;

both state under oath that they will be able to afford

plaintiff a fair hearing.

While the burden of showing entitlement to summary

judgment is on the defendants, once they have offered

evidence in support of the motion plaintiff cannot rest

upon the bare allegations of his complaint. Aside from the

allegations of the amended complaint, plaintiff has pro-

duced nothing to substantiate his claim that the pending

suit against Charlotte Memorial Hospital will irrevocably

prejudice the minds of the Board members against him.

The withdrawal of the two present Board members having

an association with the hospital is evidence of the Board’s

good faith and its intention of affording plaintiff a fair

hearing. The affidavit from plaintiff's attorney in the Pres-

byterian Hospital case is not relevant to the issue of pres-

ent bias. That litigation was long ago terminated adversely

to plaintiff. Furthermore, there is no evidence of any ad-

verse publicity involving plaintiff since the original flurry

of articles some three or four years ago.

2la

The real substance of plaintiff's amended complaint is

the contention that the minds of the Board members have

become so fixed by the events of 1974 and by the inves-

tigative report of John Anderson that they cannot now

afford him a fair hearing. Such a claim certainly cannot be

made as to the two members of the Board who joined in

1976; it is only slightly less implausible with regard to the

one member who joined the Board after the original

charges were preferred in 1974. The caveat in Withrow is

a narrow one; it requires a showing that there are “‘special

facts and circumstances” which make the risk of unfair-

ness “‘intolerably high.’’ 421 U.S. at 58, 95 S.Ct. 1456, 45

L.Ed.2d 712. In the court’s judgment plaintiff's amended

complaint has progressed very little, if at all, beyond the

original claim that the Board cannot grant a fair hearing

because it also receives investigative reports and decides

to prefer charges. In view of the substantial evidence of

good faith presented by the affidavits of Drs. Galusha and

Citron and in view of the change in composition of the

Board since charges were originally preferred, the court

concludes that defendants are entitled to summary judg-

ment on the issue of ‘‘special facts and circumstances’

constituting bias or prejudice.

C. PROSPECT

This case is now more than three years old. In light of

the ruling of the three-judge court and the decisions made

in this order, it appears to the court that the only matters

remaining for decision are plaintiff's claims that he may

not constitutionally be disciplined on the basis of some of

the specific charges brought against him. The parties are

requested to confer and attempt to draw a “roadmap”

setting out the remaining issues in the case and whether

they can be disposed of without trial. If a trial will be

necessary, the court reaffirms its intention, expressed in

the memorandum of August 16, 1976, of trying Hoke v.

Charlotte Memorial Hospital, No. C-C-74-44), first.

22a

It Is THEREFORE ORDERED:

1. Defendants’ motion to dismiss the damages claims

against the Board and against the individual Board mem-

bers is allowed, with the caveat stated above as to Mr.

Bryant Paris, Jr.

2. The claim set out in paragraph 83(4) of the complaint

is dismissed as moot.

3. Defendants’ motion for summary judgment on the

issue of specific bias is allowed. It is understood that this

ruling disposes of the claim set out in paragraph 83(1) of

the complaint.

4. The parties will advise the court by March 15, 1978,

of whatever progress they have made in mapping out the

remaining issues for decision.

——

ES SE EE ee,

23a

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1436

Harold R. Hoke, M.D.,

Appellant,

Board of Medical Examiners of the State of North Caro-

lina, Joseph W. Hooper, Jr., Bryant L. Galusha, C.T. Par-

trick, Jack Poweil, Charles B. Wilkerson, Frank Edmond-

son, J. Jerome Pence, David S. Citron, E. Wilson Staub,

Vernon W. Taylor, their agents, assigns, successors in in-

terest and those acting in concert with them, all individ-

ually and in their official capacities,

Appellees.

Appeal from the United States District Court for the West-

ern District of North Carolina, at Charlotte. James B.

McMillan, District Judge.

Argued April 2, 1979 Decided April 10, 1979

Before WINTER, HALL and PHILLIPS,

Circuit Judges.

24a

PER CURIAM:

Plaintiff, a physician licensed by the defendant Board of

Medical Examiners, appeals from summary judgment en-

tered for defendants, entered after the district court ruled

that the defendants, as an administrative agency of the

State of North Carolina and as individual members, are

immune to plaintiff's claim for damages and that plaintiff

failed to show ‘“‘special facts and circumstances’”’ consti-

tuting bias or prejudice on the part of certain of the indi-

vidual defendants which should disqualify them from par-

ticipating in a hearing of the charges alleged against plain-

tiff by the Board.

From our consideration of the record and the arguments,

both oral and written, we perceive no error.

AFFIRMED.

25a

N.C.Gen.Stats. § 90-14 (Supp. 1971) provides:

The Board shall have the power to revoke and

rescind any license granted by it, when, after due

notice and hearing, it shall find that any physician

licensed by it has been guilty of grossly immoral con-

duct, or of producing or attempting to produce a crim-

inal abortion, or, by false and fraudulent representa-

tions, has obtained or attempted to obtain, practice

in his profession, or is habitually addicted to the use

of morphine, cocaine or other narcotic drugs, or is

habitually addicted to the use of marijuana, barbitu-

rates, demerol or any other habit-forming drug or de-

rivative of such drug, or has by false and fraudulent

representations of his professional skill obtained, or

attempted to obtain, money or anything of value, or

has advertised or held himself out under a name other

than his own, or has advertised or publicly professed

to treat human ailments under a system or school of

treatment or practice other than that for which he

holds an earned diploma or degree, or is guilty of any

fraud or deceit by which he was admitted to practice,

or has been guilty of any unprofessional or dishonor-

able conduct unworthy of, and affecting, the practice

of his profession, or has been convicted in any court,

state or federal, of any felony or other criminal offense

involving moral turpitude, or has been adjudicated a

mental incompe*>*nt or whose mental condition ren-

ders him unable safely to practice medicine. Upon the

hearing before said Board of any charge involving a

conviction of such felony or other criminal offense, a

transcript of the record thereof certified by the clerk

of the court in which such conviction is had, shall be

sufficient evidence to justify the revocation or res-

cinding of such license. And, for any of the above

reasons, the said Board of Medical Examiners may

refuse to issue a license to an applicant. The findings

and actions of the Board of Medical Examiners in

26a

revoking or rescinding and refusing to issue licenses

under this section, shall be subject to review upon

appeal to the superior court, as hereinafter provided

in this article. The Board of Medical Examiners may,

in its discretion, and upon such terms and conditions

and for such period of time as it may prescribe, restore

a license so revoked and rescinded.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.