Opposition Brief — Pour v. Mississippi Medical Licensure Board

Supreme Court, U.S,

7, | FILED

-NO. 90-650 | Noy 3 a”

JOBEPH F. SPANIOL, UR.

In The Supreme Court of the

October Term, 1990

DR. EZZAT MAJD POUR

PETITIONER

VERSUS

MISSISSIPPI MEDICAL LICENSURE BOARD

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF iN OPPOSITION

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPP|

MARVIN L. WHITE. JR

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

OF COUNSEL

“™ SARA E DELOACH

SPECIAL ASSISTANT ATTORNEY GENERAL

ALICE D WISE

SPECIAL ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

POST OFFICE BOX 220

JACKSON MISSISSIPPI 39205

TELEPHONE: (601) 359 3680

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

il. Whether reinstatement of a

medical doctor's license following

suspension of the license by a state board

of medical licensure renders a

constitutional challenge to the board's

suspension of the license moot.

ye Whether due process requires

extension of the "clear and convincing"

standard of proof to state medical

licensing board decisions.

3. Whether due process prohibits

suspension of a medical license by a state

board of medical licensure when there is

evidence in the _ record to support a

finding by the board that the doctor was

unable to practice medicine with

reasonable skill and safety to patients

because of mental illness.

TABLE NTENT

QUESTIONS PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOKED

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

B. FACTUAL HISTORY

REASONS FOR DENYING THE WRIT

ARGUMENT

THE WRIT SHOULD BE DENIED

BECAUSE DR. MAJD'S LICENSE HAS

BEEN REINSTATED AND THE CASE IS

THEREFORE MOOT. ‘6° * *

THE WRIT SHOULD BE DENIED

BECAUSE DUE PROCESS DOES NOT

REQUIRE A STATE BOARD OF MEDICAL

LICENSURE TO ADOPT A STANDARD OF

CLEAR AND CONVINCING EVIDENCE IN

DECISIONS AFFECTING LICENSES OF

PROFESSIONALS.

THE WRIT SHOULD BE DENIED

BECAUSE DUE PROCESS REQUIRES

ONLY THAT A FEDERAL COURT OF

REVIEW FIND "SOME EVIDENCE" IN

ii

16

21

———

THE RECORD TO SUPPORT A DECISION

OF A STATE AGENCY a oe oe ee es

CEMEaeaumem © © we we he ete eel hl ml tl lCU

iii

T F T

CASES PAGE

v , 441 U.S. 418

7a Fe

Aetna Life Ins. Co. v. Haworth, 300 U.S.

aay (a9s7) «ce oe Pevevececrevecnvne |

Vv. ited tates, 364 U.S. 350

(a9GG) ce weve svvesevececs &

DeFunis v. Oaegeard, 416 U.S. 312

(1973) es sees «© & « © oabecan

Garner v. Louisiana, 368 U.S. 157

(39G2) « ee ve eceevseee se cbt

Konigsberg v. State Bar of California,

353 U.S. 252 (1957) . ~ © ee « « 2

Liner v. Jafco eee 319 U8. 301,

me 3 (39G6) - we we ee ove e eo o

North Carolina v. Rice, 404 U.S. 244

(1971) «© «© es © © w wo eo eo ow we © @ JB

Powe Vv. ° ck, 395 U.S. 486,

me 7 (1969) . «© «© ee eevevee oe

Regents o niversit of Michiga Vv.

Ewing, 474 U.S. 214 (1985) “eee

Santosky v. RESmax. 455 U.S. 745

(1982) .. o 0 8 6 6 « s © enanene

Schneiderman v. United States, 320

U.S. 116 (1943) . ~ «© «eee e ce 2

iv

ee

Sibron v. New York, 392 U.S. 40,

n. 8 (1968) . 2 18

Superintendent, Massachusetts

Correctional Institution v. Hill,

472 U.S. 445 (1985) .s eae

Thompson v. City of Leusavilie, 362

U.S. 199 (1960) sna 4 27

United States ex rel. Tisi v. Tod,

264 U.S. 131 (1924) . 28

Weinstein v. Bradford, 423 U.S. 147

(1975). ‘ Wee! Fae ‘ 20

woodby by INS, 385 U.S. 276

(1966) . oe =e 23,234

STATUTES PAGE

ae - @ebeGe BOGGIOR 1294 2. © ws es eo whe bt 4B

ee 2 ee | ee a ee ae ee er ee ce

Miss. Code Ann. § 73-25-27 13, if, ahe

22

Miss. Code Ann. § 73-25-29(8) (d) 10,

14

Miss. Code Ann. § 73-25-51 through

- eeeneenr «+s au ££ ee 0 ee es SS

Miss. Code Ann. § 73-25-53 i@, is

Miss. Code Ann. § 73-43-3 21

Miss. Code Ann. § 73-43-11 21

Vv

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

DR. EZZAT MAJD POUR,

Petitioner

Vv.

MISSISSIPPI MEDICAL LICENSURE BOARD,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

Respondent, Mississippi Medical

Licensure Board, respectfully prays that

the petition for Writ of Certiorari to the

United States Court of Appeals tor the

Fifth Circuit be denied in this case.

OPINION BELOW

The unreported opinion of the United

States Court of Appeals for the Fifth

Circuit is attached as an appendix to the

petition for certiorari.

JURISDICTION

Petitioner seeks to invoke the

jurisdiction of this Court by way ofa

Petition for Writ of Certiorari under 28

U.S.C. Section 1254. He fails to do so.

CONSTITUTIONAL PROVISION INVOKED

Petitioner seeks to invoke United

States Constitutional Amendment Fourteen.

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

On July 23, 1987, the Petitioner Dr.

Ezzat Majd Pour filed suit against the

Mississippi State Board of Medical

Licensure ("the Board") under 42 U.S.C. §

1983 in the district court for the

southern district of Mississippi, alleging

the Board violated the Fourteenth

Amendment to the United States

Constitution when it suspended his medical

license. He sought monetary damages,

declaratory and injunctive relief. On

2

October 7, 1988, Dr. Majd filed an Amended

Complaint against the Board and its

members seeking declaratory and injunctive

relief. The Board moved to dismiss or, in

the alternative, for summary judgment.

The court referred the case to the United

States District Magistrate, John Countiss,

III, who conducted a hearing on August 18,

1989, September 11, 1989 and September 15,

1989. The Magistrate found that there was

substantial evidence in the record to

Support the Board's finding that Dr. Majd

suffered from a mental illness which

compromised his ability to practice

medicine with reasonable skill and safety

to patients. The magistrate dismissed the

action with prejudice, finding no due

process violations.

Dr. Majd appealed to the Fifth

Circuit Court of Appeals, alleging that

the Board's actions violated his right to

3

VT

substantive due process under the

Fourteenth Amendment for three reasons:

(1) the Board suspended his license

without any substantial evidence that he

was unable to practice medicine with

reasonable skill or safety to patients by

reason of mental illness; (2) the Board

failed to adopt a "clear and convincing

evidence" standard; and (3) the Board

acted arbitrarily and capriciously. The

Fifth Circuit found that the record

contained evidence to support the

conclusions upon which the Board based its

decision to suspend Dr. Majd's license and

held that there were no due process

violations. From the unpublished opinion

of the Fifth Circuit affirming the

judgment of the magistrate, Dr. Majd

brings this petition for certiorari.

ee

B. FACTUAL HISTORY

Dr. Majd was licensed to practice

medicine in Mississippi in 1981 and began

practicing medicine in Tunica,

Mississippi, in 1985. In response to a

complaint filed in 1986 and pursuant to

statutory procedures set forth in Miss.

Code Ann. § 73-25-51 through § 73-25-67,

Frank J. Morgan, Jr., M.D., Executive

Officer of the Mississippi State Board of

Medical Licensure, referred Dr. Majd to

the Examining Committee of the Mississippi

State Board of Medical Licensure to

determine nis fitness to practice medicine

with reasonable skill and safety to

patients.

Dr. Majd appeared before the

Executive Committee, which consisted of

three medical doctors, Arthur Derrick,

M.D., Bruce Atkinson, M.D., and George

Hamilton, M.D., on September 18, 1986. As

5

rr

requested by the committee, Dr. Majd

submitted to psychiatric/psychological

examinations by a psychiatrist and a

psychologist. Dr. Majd chose Rodrigo

Galvez, M.D., a psychiatrist, and James E.

Stary, Ph.D., a psychologist, and the

Board approved both choices. The

examinations were conducted on October 6,

8, and 10, 1986. The examiners concluded

that Dr. Majd was suffering from a major

thought disorder and paranoid state and

that he was incompetent, not responsible

and was in need of immediate medical

treatment. In its final recommendation

dated October 16, 1986, the Executive

Committee found that Dr. Majd was’ in need

of immediate medical treatment and that

his continued practice of medicine

constituted an imminent danger to public

health and safety.

—V———

A hearing was conducted on March 19-

20, 1987, before eight of the nine members

of the Board. Dr. Majd was present with

his attorney. The evidence showed that in

1974 Dr. Majd was diagnosed as suffering

from depression and a mild schizoid

personality with a final diagnosis of

hyperthyroidism, postural hypotension,

anxiety depressive reaction and

Situational stress reaction. There was

evidence that Dr. Majd had accused the

hospital staff of stealing and killing

patients and plotting to murder him and

that he had accused a nurse of "being a

prostitute" and "turning into a vampire at

night," all without any basis in fact.

Additional evidence showed that Dr. Majd

carried a .38 caliber pistol and had

trightened one of his staff with it.

There was also evidence that Dr. Majd had

scheduled a mastectomy of a patient to be

7

performed under local anesthesia, but the

procedure was cancelled by a supervising

physician because it was contrary to sound

medical practice. Two Board certified

psychiatrists, Rodrigo M. Galvez, M.D. and

George Hamilton, M.D., testified that in

their opinion Dr. Majd suffered from

mental illness that affected his ability

to practice medicine and could lead to

danger in caring for patients. Dr.

Galvez, who had completed a three day

comprehensive psychiatric/psychological

examination, stated that Dr. Majd was in

need ot medical treatment and that his

continued practice of medicine would

create havoc to the public.

Dr. Majd introduced evidence of

independent evaluations by four physicians

and psychologists, each of whom found that

he was not suffering from any psychiatric

disorder. However, these examiners

qualified several of their reports by

stating that their conclusions were based

on information and * patient history

provided by Dr. Majd which may have been

inaccurate and/or incomplete. Dr. Majd

also introduced evidence of an evaluation

by a psychologist, William M. Kallman,

Ph.D., who described Dr. Majd's conduct as

not indicative of "delusional" behavior,

but merely "angry exaggerations." Dr.

Kallman also found, however, that Dr. Majd

might have suffered on one occasion from

an "acute paranoid disorder."

The Board, by a 7-0 vote with one

abstention, found that Dr. Majd had

committed "unprofessional conduct, "

including "dishonorable or unethical

conduct likely to deceive, defraud or harm

the public," which is a ground for

revocation or suspension of a physician's

license pursuant to Miss. Code Ann. § 73-

9

el

25-29(8)(d). By a 6-1 vote with one

abstention the Board also found that Dr.

Majd was unable to practice medicine with

reasonable skill and safety to patients by

reason of mental illness, which is a

ground for revocation or suspension of a

physician's license pursuant to Miss. Code

Ann., § 73-25-53. The Board then ordered

that Dr. Majd's license be suspended for

three years but provided for a stay of the

suspension if, within sixty days, Dr. Majd

(1) obtained a physical examination by a

Board-approved physician, (2) obtained a

psychiatric and psychological work-up with

treatment and care by a Board-approved

psychiatrist; and (3) provided the Board

with monthly progress reports.

Dr. Majd then obtained independent

evaluations from a physician, three

psychiatrists, and two psychologists, all

of whom found that Dr. Majd was not

10

suffering from any psychiatric disorder.

Some of the reports, however, were

qualified as being based upon information

provided by Dr. Majd, the accuracy of

which had not been independently verified.

After receiving these additional reports,

the Board refused to reinstate Dr. Majd's

license, stating that the physician and

the psychiatrists had not been approved by

the Board prior to their examinations of

Dr. Majd and that the evaluations were not

in compliance with other conditions

specified in its earlier order. The Board

gave Dr. Majd an additional sixty days to

satisfy the conditions of its earlier

order.

After Dr. Majd filed suit in the

district court for the southern district

Of Mississippi, the magistrate referred

him to Dr. Thomasina Blissard for a

psychiatric evaluation. Dr. Blissard

ll

»

examined Dr. Majd on June 8, 1989, and

concluded that he was "without diagnosable

mental illness or disorder and in good

mental and emotional health." On June 28,

1939, Dr. Majd applied to the Board for

reinstatement of his license. On July 20,

1989, the Board conducted a hearing on Dr.

Majd's request. Dr. Blissard testified

before the Board and qualified her earlier

report based upon materials and

information given to her at the hearing

which she had not’ seen previously. Dr.

Blissard testified that she could not

recommend reinstatement of Dr. Majd's

license without the benefit of

interviewing him over a period of weeks in

different settings. The Board denied Dr.

Majd's request for reinstatement. Upon

the expiration of Dr. Majd's three-year

Suspension in March, 1990, Dr. Majd's

12

| irc

license became valid pursuant to Miss.

Code Ann. § 73-25-27.

REASONS FOR DENYING THE WRIT

Miss. Code Ann. § 73-25-53 sets forth

several conditions under which the Board

of Medical Licensure is authorized to

restrict, suspend or revoke the license of

a physician:

The license of any physician to

practice medicine in this state

shall be subject to restriction,

Suspension, or revocation, as

hereinafter provided, in case of

inability of the licensee to

practice medicine with

reasonable skill or safety to

patients by reason of one or

more of the following:

(a) Mental illness;

(b) Physical illness, including

but not limited to deterioration

through the aging process, or

loss of motor skill;

(c) Excessive use or abuse of

drugs, including alcohol.

Dr. Majd's petition focuses exclusively on

the Board's finding that he was “unable to

practice medicine with reasonable skill

and safety to patients by reason of mental

13

Ee

nn

illness." The Board's decision to suspend

Dr. Majd's license was also based upon its

finding that Dr. Majd had engaged in

"unprofessional conduct, including

dishonorable or unethical conduct likely

to deceive, defraud or harm the public," a

ground for revocation or suspension of a

physician's license pursuant to Miss. Code

Ann. § 73=-25-29(8)(d) which provides:

The grounds for which a license

may be suspended or revoked are:

(8) Unprofessional conduct,

which includes:

(d) Being guilty of any

dishonorable or unethical

conduct likely to deceive,

defraud or harm the public.

Dr. Majd does not challenge that finding

or the evidence in support of it in his

petition for certiorari.

Dr. Majd's license was reinstated at

the end of the three year suspension

period in March, 1990. Because he has

received his requested remedy of

14

ls

declaratory and injunctive relief, his

constitutional challenge to the Board's

action of suspending his license is moot.

The Board of Medical Licensure

afforded Dr. Majd procedural due process,

notice and a hearing at which he was

represented by counsel; subsequent to that

hearing the Board acted with sufficient

evidence in suspending his license to

comply with the requirements of

substantive due process. The action of

the Board was a considered professional

judgment by physicians charged with the

responsibility to assure minimum standards

of care in the practice of medicine in

Mississippi and to protect the consumers

of rural Mississippi. The district court

found there was substantial evidence in

the record to support the Board's decision

that Dr. Majd suffered from a mental

illness which comnromised his ability to

15

practice medicine with reasonable skill

and safety to patients. The Fifth Circuit

in its unpublished opinion stated, "We

conclude, based upon our review of the

record, that the Board's actions are the

result of carefully considered

professional judgments, which are

Supported by record evidence." The court

therefore held that the decision of the

Board to suspend Dr. Majd's license did

not violate the requirements of the

fourteenth amendment. Dr. Majd presents

no cognizable claim under the Constitution

or statutes of Mississippi, and therefore

certiorari should be denied.

ARGUMENT

THE WRIT SHOULD BE DENIED

BECAUSE DR. MAJD'S LICENSE HAS

BEEN REINSTATED AND THE CASE IS

THEREFORE MOOT.

Dr. Majd brought suit on behalf of

himself alone and not

16

as the representative of any class against

the Mississippi State Board of Medical

Licensure and its members. Upon

expiration of the three year suspension of

Dr. Majd's license in March, 1990, his

license became valid pursuant to Miss.

Code Ann. § 73-25-27 which provides in

relevant part:

Unless the court otherwise

decrees, a license that has been

suspended by the Board of

Medical Licensure for a stated

period of time shall automati-

cally become valid on the

expiration of that period and a

license that has been suspended

for an indefinite period shall

become again valid if and when

the board so orders, which it

may do on its own motion or on

the petition of the respondent.

A fundamental principle of

jurisdiction is that "federal courts are

without power to decide questions that

cannot affect the rights of litigants in

the case before them." North Carolina v.

17

a |

a

Rice, 404 U.S. 244, 246 (1971). The

absence of jurisdiction of the Supreme

Court "to review moot cases derives from

the requirements of Art. III of the

Constitution under which the exercise of

judicial power depends upon the existence

of a case or controversy." Liner v.

Jatco,. Inc., 375 U.S. 301, 306 an. 3

(1964); Ww v. Mc k, 395 U.S. 486,

496 n. 7 (1969); Sibron v. New York, 392

u¥.8. 40, 50 on. 8 (1968). When a

petitioner has obtained his requested

remedy, the controversy between the

parties is no longer "definite and

concrete" and no longer "“touch[es] the

legal relations of parties having adverse

legal interests." Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240-241 (1937).

In DeFunis v. Odegaard, 416 U.S. 312

(1973), the petitioner brought suit

against a state law schoo] for injunctive

18

relief after he was denied admission.

The Court held that the case was moot

because the petitioner- was in his final

term of law school when the case reached

the Court and would complete law school

regardless of any decision the Court might

reach on the constitutional issues. As in

DeFunis, the petitioner seeks a

professional status rather than damages

and challenges state procedures under

which he has been unable to obtain a

license to practice a profession. Dr.

Majd requests only declaratory and

injunctive relief. Because the Board has

already reinstated his license, the case

is moot. As in DeFunis, any stigma

associated with failure to achieve a

professional status does not save the case

from mootness.

This case is not "capable of

repetition, yet evading review" as that

19

|

term has been used in cases dealing with

mootness. In the absence of a class

action, two elements are required to

establish that a case is capable of

repetition yet evading review:

(1) the challenged action was in

its duration too short’ to be

fully litigated prior to its

cessation or expiration, and (2)

there was a reasonable

expectation that the same

complaining party would be

subjected to the same action

again.

Weinstein v. Bradford, 423 U.S. 147, 149

(1975). This case clearly does not

satisfy the second element. Dr. Majd has

not demonstrated that the possibility that

he will come before the Board again for

his future practice of medicine is an

immediate reality. There is no longer a

controversy between the parties arising

from the facts of this case.

20

ll

THE WRIT SHOULD BE DENIED

BECAUSE DUE PROCESS DOES NOT

REQUIRE A STATE BOARD OF MEDICAL

LICENSURE TO ADOPT A STANDARD OF

CLEAR AND CONVINCING EVIDENCE IN

DECISIONS AFFECTING LICENSES OF

PROFESSIONALS.

The Mississippi Board of Medical

Licensure is composed of nine physicians

who have been practicing medicine for at

least six years and who are appointed by

the governor from nominations submitted by

the Mississippi State Mecical Association.

Miss. Code Ann. § 73-43-3. The Board has

the responsibility of setting professional

standards for the practice of medicine and

protecting the public from physicians who

may endanger public health and safety

through their. practice of medicine. Miss.

Code Ann. § 73-43-11.

Miss. Code Ann. § 73-25-27 gives a

physician the right to notice and a

hearing before a license can be revoked by

ye |

ieee aan

the Board. A physician whose license has

been suspended has a right of appeal to

chancery court pursuant to Miss. Code Ann.

§ 73-25-27. The statutory procedures thus

guarantee that physicians are afforded

procedural due process in licensing

decisions by the Board.

The Supreme Court has stated that the

purpose of formulating a standard of proof

is to assist the factfinder by setting

forth the quantum of evidence mandated by

the guarantee of due process:

The function of a standard of

proof, as that concept is

embodied in the Due Process

Clause and in the realm of

factfinding, is to instruct the

factfinder concerning the degree

of confidence our society thinks

he should have in the

correctness of factual

conclusions for a particular

type of adjudication."

Addington v. Texas, 441 U.S. 418, 423

(1979). The Court has' further stated

that:

22

Addington teaches that, in any

given proceeding, the minimum

standard of proof tolerated by

the due process requirement

reflects not only the weight of

the private and public interests

affected, but also a societal

judgment about how the risk of

error should be distributed

between the litigants.

Santosky v. Kramer, 455 U.S. 745, 750

(1982). The Court has noted that a

standard of proof is a judicial creation:

"The degree of proof required in a

particular type of proceeding is the kind

of question which has traditionally been

left to the judiciary to resolve." Woodby

by INS, 385 U.S. 276, 284 (1966).

Although the Supreme Court has held

that a "clear and convincing evidence"

standard of proof is required "when the

individual interest at stake in a

proceeding is of particular importance and

more substantial than mere loss of money,"

the Court has limited the application of

23

a. Aa eee GE ee

that standard to proceedings involving

termination of parental rights,

involuntary commitment of the mentally

iil, deportation of aliens, and

denaturalization. Santosky v. Kramer, 445

U.S. 745 (1982) (parental rights) ;

Addington Vv. Texas, 441 U.s. 418

(1979) (involuntary commitment of the

mentally ill); Woodby v. INS, 385 U.S. 276

(1966) (deportation) ; Chaunt v. United

States, 364 U.S. 350

(1960) (denaturalization); Schneiderman v.

United States, 320 8. 118

(1943) (denaturalization).

Regulation of the health care

professions is left to the states asa

‘proper exercise of their police power in

protecting the health, safety and welfare

of their citizens. The Supreme Court has

not chosen to extend the "clear and

convincing" standard of proof to state

24

medical licensing board decisions and

should not do so now. The physicians on

the State Board of Medical Licensure must

make carefully considered professional

judgments when evaluating whether the

practice of medicine of a particular

physician conforms to minimum standards of

care of the profession. The Constitu-

tional guarantee of due process should not

mandate that they formally adopt a

standard of clear and convincing evidence.

THE WRIT SHOULD BE DENIED

BECAUSE DUE PROCESS REQUIRES

ONLY THAT A FEDERAL COURT OF

REVIEW FIND “SOME EVIDENCE” IN

THE RECORD TO SUPPORT A DECISION

OF A STATE AGENCY

This Court held in Superintendent,

Massachusetts Correctional Institution v.

Hill, 472 U.S. 445, 454 (1985) that the

constitutional guarantee of substantive

due process requires only that a decision

25

Orit

by a state administrative agency be

Supported by "some evidence" in the

record. Stating that "we decline to adopt

a more stringent evidentiary standard as a

constitutional requirement, " Justice

O'Connor, writing for the Court,

articulated a standard of "some evidence"

that is less strict than the substantial

evidence test set forth previously to

require evidence sufficient as a matter of

law:

Requiring a modicum of evidence

to support a decision. . . will

help to prevent arbitrary

deprivations without threatening.

institutional interests or

imposing undue administrative

burdens. In a variety of

contexts, the Court has

recognized that a governmental

decision resulting in the loss

of an important liberty interest

violates due process if the

decision is not supported by any

evidence.

Id. at 455. The Court emphasized that the

"Some evidence" test does not authorize a

26

court to inquire into the sufficiency of

the evidence to sustain the finding:

Ascertaining whether this

standard is satisfied does not

require examination of the

entire record, independent

assessment of the credibility of

witnesses, or weighing of the

evidence. Instead, the relevant

question is whether there is any

evidence in the record that

could support the conclusion

reached by the disciplinary

board.

Id. at 455-56. See also, Regents of

University of Michigan v. Ewing, 474 U.S.

214 (1985) (no due process violation

because there was evidence to support

decision of university in dismissing

medical student); Garner v. Louisiana,

368 U.S. 157, 163 (1961)("some evidence"

test does not authorize court to inquire

into sufficiency of evidence to sustain

finding); Thompson v. City of Louisville,

362 U.S. 199, 199 (1960)(same); Konigsberg

v. State Bar of California, 353 U.S. 252,

27

262 (1957) (due process requires some

evidence in the record to support board's

decision); United States ex rel. Tisi v.

Tod, 264 U.S. 131, 133 (1924) (same).

Clearly, the constitutional

guarantee of substantive due process

requires only that a federal court of

review must find that a state licensing

board acted with some evidence in the

record in suspending the license of a

physician or other professional. The

district court found there was substantial

evidence in the record to support the

decision of the Board. The Fifth Circuit

also found no due process violation

because there was evidence in the record

to support the decision of the Board. It

is not the function of the Supreme Court

to be the court ot last resort for

everyone who is dissatisfied with the

decisions of state agencies. The role of

28

a er ened

Sa BaP ABR 6 2 BRO HS

the Supreme Court in this case is not to

reevaluate the evidence to determine

whether the Board made the correct

findings of fact or to second-guess the

Board's decisions. The Supreme Court must

determine only whether there was some

evidence in the record to support the

Board's decision so that the action was

not arbitrary, capricious or irrational.

Hill, 472 U.S. at 454. In this case the

Board clearly acted with sufficient

evidence to meet the requirements of

substantive due process.

29

CONCLUSION

For the above and foregoing reasons

the petition for writ of certiorari should

be denied.

Respectfully submitted,

MIKE MOORE

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE, JR.

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

Of Counsel:

SARA E. DELOACH

SPECIAL ASSISTANT ATTORNEY GENERAL

ALICE D. WISE

SPECIAL ASSISTANT ATTORNEY GENERAL

ws Mga Wiad A

aise L. WHITE, JR. J

Office of the Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3680

30

CERTIFICATE

I, Marvin L. White, Jr., Assistant

Attorney General for the State of

Mississippi, do hereby certify that I have

this day caused to be mailed , via United

States Postal Service, first-class postage

prepaid, three (3) true and correct copies

of the foregoing Brief in Opposition to

the following:

Jim Waide, Esquire

111 South Broadway

Post Office Box 1357

Tupelo, Mississippi 38802

Lh

A

This the 7 <—— day of November,

1990.

Xara S Mein

fom L. WHITE, JR.

31