Petition for Writ of Certiorari — Medical Society v. Robins

No. ae 2 Suprema

IN THE 991131 JAN 0 5 dung

Supreme Court of the nit Stodes

OCTOBER TERM, 1999

Be <a ee

THE MEDICAL SOCIETY OF NEW JERSEY; and W.C., M.D..,

Petitioners,

-——V.—

BERNARD ROBINS, M.D., individually and in his official capacity as

President of the New Jersey State Board of Medical Examiners;

ELEANOR BERNSTEIN, individually and in her official capacity as a

Deputy Attorney General of the State of New Jersey; THE NEW JERSEY

BOARD OF MEDICAL EXAMINERS; THE DIVISION OF CONSUMER

AFFAIRS OF THE NEW JERSEY DEPARTMENT OF LAW AND PUBLIC

SAFETY; THE DIVISION OF LAW OF THE NEW JERSEY DEPARTMENT OF

LAW AND PUBLIC SAFETY; THE NEW JERSEY DEPARTMENT OF LAW

AND PUBLIC SAFETY; THE STATE OF NEW JERSEY; and “JOHN & JANE

DOES 1-20”, whose real identities are at this time unknown to the

plaintiffs,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW JERSEY

PETITION FOR WRIT OF CERTIORARI

VINCENT A. MARESSA PAUL W. ARMSTRONG*

THE MEDICAL SOCIETY OF STEVEN I. KERN

NEW JERSEY ROBERT J. CONROY

Two Princess Road R. BRUCE CRELIN

Lawrenceville, New Jersey 08648 KERN AUGUSTINE CONROY

(609) 896-1766 & SCHOPPMANN, P.C.

1120 Route 22 East

Bridgewater, New Jersey 08807

(908) 704-8585

January 3, 2000 * Counsel of Record

*

1)

2)

3)

QUESTIONS PRESENTED

Did the New Jersey Supreme Court err by failing to

reverse the Appellate Division’s finding that the case

was moot?

Did the New Jersey Supreme Court err by failing to

hold N.J.S.A. 45:1-18 unconstitutional?

Did the New Jersey Supreme Court err in failing to

correct the Appellate Division’s application of the

wrong standard in analyzing the administrative

Demand for Inspection at issue in this case?

i

TABLE OF CONTENTS

PAGE

Ouestions PROUORIOG. . . soi io ccicicvdiscses ineaeeee nt i

Taube OF ROGROTTE is csccecsceraasbsgersaccameicnaears iV

Statement Of JUSISGICIOM 65. ob 6cs Ses ceesda ven doeb ete ss l

Statement of the Matter Involved...................... l

Errors Complained of, Reasons Why Certiorari Should

Be Granted and Comments Upon the Decision

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Point I—

The New Jersey Supreme Court Erred in

Failing to Reverse the Appellate Division’s

Holding that the Matter was Moot................ 10

Point II—

The New Jersey Supreme Court Erred

by Failing to Hold N.J.S.A. 45:1-18

UnCometietiONl 0c ks ncvdscisinaderabeeeeeawisie 12

Point IlI—

The New Jersey Supreme Court Erred in Failing

to Correct the Appellate Division’s Application

of the Incorrect Constitutional Standard in

Analyzing the Administrative Demand for

ENGMOCTION . . 2s cciensccvusiundsansendguvsdaenkds ctscl 14

Conclusion 5... idescivccsnvacerdassekscnaneusataninees 16

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PAGE

Appendix

Order of the New Jersey Supreme Court filed

ARN aie dh sas caveecesecicd js la

Order of the New Jersey Supreme Court filed

sees 8a da dR OR Na 3a

Opinion of the Superior Court of New Jersey,

Appellate Division filed ee iy tOee Sa

TABLE OF AUTHORITIES

Cases PAGE

Camera v. Municipal Court of the City and County

of San Francisco, 387 U.S. 523 (1967)........... 12-13

Colonnade Catering Corp. v. United States, 397 U.S.

Be ES ei | PRC ener ty Me nr aisg era egret ae 13

Donovan v. Dewey, 452 U.S. 594 (1981) .............. 13

Ker v. California, 374 U.S. 23 (1963) ......ccccccccess 12

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ...... 13

New York v. Burger, 482 U.S. 691 (1987) .......... 13, 14-15

See v. City of Seattle, 387 U.S. 541 (1967)............ 13

United States v. Biswell, 406 U.S. 311 (1972)......... 13

Constitutional Provisions

United States Constitution, Amendment IV...... ia ae ee

United States Constitution, Amendment XIV........ ee BE

Statutes and Administrative Regulations

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BO Ge Re OS OOD cca has p cnccees thannceeiuet nevsa rian < 1,n.1

Pe ee tie So Oe Be} BR epee eC Stan Empey per 1]

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STATEMENT OF JURISDICTION

judgment or decree! rendered by the Supreme Court of New

Jersey, the highest court of that State in which a decision

could be had, in which the validity of a statute of the State of

New Jersey is drawn into question on the grounds of its being

repugnant to the Constitution of the United States, and in

which a title, right, privilege or immunity is specially set up

or claimed under the Constitution of the United States.

N.J.S.A. 45:1-18 is unconstitutional, as it authorizes and

permits warrantless searches of physicians’ offices by admin-

istrative fiat, without Opportunity for prior judicial review.

The petitioner was Subjected to a warrantless search of

her medical office without Opportunity for prior judicial

review, and by being coerced into abandoning her Constitu-

tional rights by reczson of the State of New Jersey’s imposition

of its “duty to cooperate” regulation, in violation of her rights

under the Fourth and Fourteenth Amendments to the Consti-

tution.

STATEMENT OF THE MATTER INVOLVED

The petitioner, the Medical Society of New Jersey (“MSN3J”),

is our nation’s first state society of physicians. Founded in

1766, the MSNJ is the Primary organization of physicians in

New Jersey. Approximately nine thousand five hundred physi-

:' With respect to the serious Constitutional issues raised by this

Petition, the decree of the Supreme Court of New Jersey denying certi-

fication was a final judgment. In leaving the Appellate Division’s rulings

which the Appellate Division found “technically” remained pending,

while also pointing out “the limited ability to proceed against State offi-

Cials under § 1983.” See Appendix, Appellate Division opinion at 9-10.

i)

cians hold individual memberships in the MSNJ. For more

than 230 years, the Medical Society of New Jersey has been

the state’s leading voice in the health care field. The MSNJ’s

mission is to promote the quality of health care and health

services for all citizens of the state and to supply leadership

and assistance to its physician members. To fulfill this mis-

sion, the MSNJ regularly participates in important issues in

the judicial, legislative and regulatory arenas.

The MSNJ has played a leadership role concerning con-

temporary legal and ethical issues confronting modern med-

ical practice and has historically helped to shape and

implement landmark judicial and legislative initiatives con-

cerning the impact of juridical issues upon the practice of

medicine. Through its Committee on Biomedical Ethics, the

MSNJ has developed policies and positions addressing the

roles of physicians, patients and hospitals and their con-

comitant rights, duties and obligations to the larger society

physicians are privileged to serve.

The petitioner, W.C., M.D. (hereinafter, “W.C.”), is a physi-

cian duly licensed by the State of New Jersey to practice

medicine and surgery. She is a member of the MSNJ.

This petition invites this Court to reestablish the funda-

mental right of physicians and their patients to be free from

overbroad, unannounced, warrantless searches of physicians’

offices. The New Jersey Board of Medical Examiners (the

“Board”) and the Attorney General of New Jersey (the “AG”)

have conducted, and continue to conduct, such searches, with-

out prior judicial review, encompassing patient records,

books, private belongings, privileged materials and other doc-

uments. Such actions are in clear violation of the guarantees

embodied in the Fourth and Fourteenth Amendments to the

Constitution of the United States.

This case involves a warrantless search of the offices of the

petitioner, W.C., through the vehicle of a self-styled “Admin-

istrative Demand for Inspection.” W.C., upon advice of coun-

+p eee ee

* oll Oe (eae eee eee,

3

sel, initially objected to the scope of the inspection and

sought judicial review.

The relevant facts, in brief, are as follows. Sometime in

1995, an indigent patient complained to the Board that Dr.

W.C. had provided her with a free sample of medication

which had stamped on its package a precedent expiration date.

The drug was Voltarin®, a non-scheduled, non-controlled drug

Similar to the over-the-counter pain relievers Aleve® and

Advil®.

In 1997, the Board of Medical Examiners determined

to take no disciplinary action against W.C. for providing

this free sample to an impecunious patient. Indeed, at that

time, there was no Prohibition against Providing outdated

samples, and the scientific literature is replete with articles

suggesting that most medications are safe and effective for as

many as ten years beyond their manufacturer-stated €xpiration

dates.

Despite these facts, the Board ordered its Enforcement

Bureau to conduct “an unannounced cost effective inspec-

tion of W.C.’s office to check for outdated medications.”

This action was, by definition, without probable cause, as

the Board had already determined that Dr. W.C. had not

violated the Medical Practices Act or other law. Moreover,

ration date.

Compounding the Board’s improper action, the Enforce-

ment Bureau investigators determined that they would not

follow the Board’s express directive limiting the search to “a

cost effective inspection of outdated medications.” Rather,

pursuant to an “unwritten policy,” investigators from the

Enforcement Bureau discussed the matter with one of the less

senior Deputy Attorneys General assigned to the Board,

Eleanor Bernstein, Esq.

They had Ms. Bernstein execute a “standard” form Admin-

istrative Demand for Inspection of Professional Premises that

they use “most of the time.” This was done with the under-

standing that the investigator was to perform a complete

inspection of every item in the doctor’s office, even though

the Board specifically directed that the search be limited to

“outdated medications.”

An analysis of the Demand signed by DAG Bernstein

demonstrates that it provided for a search of everything con-

tained within W.C.’s offices, with one exception—outdated

medications. Specifically, the Demand for Inspection provided

that:

PETER VERNIERO, Attorney General of New Jersey,

by Eleanor G. Bernstein, Deputy Attorney General,

hereby demands to inspect, videotape, and photograph

the premises and to inspect the licenses of all licensed

personnel, job descriptions of all employees, the records,

books, appointment books, documents, and billing

records, and equipment maintained in the regular course

of the licensed practice at the identified location.

The search was initially to be conducted immediately upon

service, without prior notice or opportunity to object. No lim-

itations, whatsoever, were placed upon the investigators’ dis-

cretion. By admission, there was no reason why the Demand

for Inspection could not have been limited to an inspection of

all medications maintained at the premises. *

The over-breadth of the Demand and total lack of any lim-

itation on the search was conceded by the investigator who

was to conduct the search. She testified that she understood

that she was authorized to search all equipment and that she

interpreted the word “equipment” to be so broad as to encom-

pass all books, records, and anything else used in the regular

course of the practice of medicine.

2

W.C. never objected to an inspection of the medications she

maintains on her premises.

When the defendants’ investigators arrived, W.C. gave

them total freedom to inspect the entirety of her office

premises and everything within the offices that was in plain

view, including her equipment. The inspectors never asked

W.C. for permission to inspect the medications she main-

tained. The investigators were able to inspect the overall

appearance of the premises, medications, cleaning agents, the

manner in which patient records were stored and maintained,

and the equipment used by the physician. W.C. did, however,

on the advice of counsel, resist the investigators’ demand to

rummage through her personal effects and rifle through her

desk, cabinets, files and patient records.

The deputy attorney general who signed the Demand for

Inspection took exception to this reasonable limitation

imposed upon her investigators. However, instead of seeking

judicial review and enforcement of her Demand before seek-

ing to impose disciplinary sanctions, as mandated by the

United States Supreme Court, she sought “an end-run” around

W.C.’s constitutionally mandated right to prior judicial review

by seeking enforcement and Sanctions directly from the

Board. She did so by bringing an Order to Show Cause before

the defendant Board, asking it to take disciplinary action

against W.C. on the grounds she had refused, upon advice of

counsel, to comply immediately with the deputy’s facially

unconstitutional Demand for Inspection. The deputy also

asked the Board to impose not only punitive sanctions for

W.C.’s initial refusal to fully comply with the deputy’s unlaw-

ful demand, but continuing sanctions, including license sus-

pension, until W.C. agreed to succumb to that Demand.

The Board, of course, is not a judicial body, but rather an

administrative agency within and under the direction of the

Department of Law and Public Safety, as part of the Division

of Consumer Affairs. The Department of Law and Public

Safety is headed by the Attorney General of New Jersey. It is

that same Attorney General who, through his deputy, issued

the original Demand for Inspection, and then attempted to

6

enforce it through his field investigators, working in the

Enforcement Bureau. The Enforcement Bureau is also under

the Attorney General’s jurisdiction as part of the Division of

Consumer Affairs.

The Attorney General then sought enforcement and sanc-

tions before the Board, which is, likewise, within his control

and jurisdiction, and to which he provides legal counsel and

advice. As such, the only review of this matter has been by

way of a demand by the Attorney General that an adminis-

trative Board, under the direct contro! and influence of his

Office, enforce his Office’s own abusive investigative

scheme, and sanction the physician for her failure to abide his

Office’s arbitrary and capricious demands.’

During a hearing on the Attorney General’s Order to Show

Cause before the Board, the clear overreaching of the Demand

for Investigation was confirmed by the supervisor of inves-

tigations who admitted that there was no nexus between

books, records, appointment books, documents and billing

records, and outdated medication; no nexus between the

licenses to be inspected and outdated medications; no nexus

between job descriptions and outdated medications; and

no nexus between maintenance of equipment and outdated

medications. Nor could the defendants enunciate any public

policy which precludes a physician from maintaining on

premises outdated samples of medication.

On December 10, 1997 the Board rubber-stamped the Attor-

ney General’s demands. In light of the Board’s prior direction

that the inspection be a “cost effective” inspection limited to

outdated medications, the Board determined that it had, in

fact, previously authorized the scope of the search set forth in

The defendant Board is a sub-component of the defendant Divi-

sion of Consumer Affairs; the defendant Division of Consumer Affairs

is a sub-component of defendant Department of Law and Public Safety;

and the Attorney General is the cabinet level head of the Department of

Law and Public Safety and to bring it full circle, the prosecutor of W.C.

before the defendant Board.

7

the Attorney General’s Demand for Inspection of W.C.’s

office. The “Board Order” further “found” that W.C.’s failure

to permit a full inspection of the equipment and records in her

office, including but not limited to medications and records

maintained in drawers and cabinets in her office, violated its

“duty to cooperate” regulation, N.J.A.C. 13:45-C-] er

The Board ordered W.C. to cooperate fully with an inspec-

tion no later than January 8, 1998. The Board ordered that the

inspection would include items located in the drawers and

cabinets in her office. The Board also directed W.C. to Paya

monetary penalty of $1,000 for her prior violation of her duty

to cooperate, but ordered that penalty stayed if the inspection

were permitted by January 8, 1998.

The Board’s findings are contained in a “Final Decision and

Order” purportedly executed by the President of the Board on

Christmas Day, December 25, 1997. This “Final Decision and

Order” is twenty-three pages in length. Its language and

contents are that of the deputy Attorney General who com-

posed it. It was never seen or approved by the Board, before

its filing. As such, the “Final Order” is nothing more than a

document prepared by the very party Seeking the constitu-

tionally prohibited Power to compel, through threat of license

Suspension, warrantless administrative searches, without the

Constitutionally guaranteed right to prior judicial review.

The plaintiffs then made application to the Superior Court

of New Jersey, Chancery Division, for an order enjoining the

Board’s unlawful search demand. The Chancery Division, at

the urging of the defendants, without adjudicating the rea-

sonableness of the Demand for Inspection before enforce-

ment, determined that jurisdiction was in the Appellate

Division of the Superior Court and transferred jurisdiction.

. All adverse findings by the Board are reported, by law, to the

National Practitioner Data Bank. Any adverse action report, even a

Stayed fine, can result in the inability of a physician to obtain or main-

tain hospital privileges or managed care contracts. As such, serious reper-

cussions can be anticipated from even “stayed” actions.

The Appellate Division, again with the urging of the defen-

dants, refused to provide emergent relief, thus refusing to

adjudicate the reasonableness of the Board’s search demand.

The plaintiffs then sought review by the Supreme Court of

New Jersey. That Court, yet again with the urging of the

defendants, similarly refused to adjudicate the reasonableness

of the Board’s search demand.

On January 28, 1998, the Board issued an “Order Amend-

ing Date” ordering a search of identical scope as that origi-

nally demanded, to be conducted on or before February 6,

1998.

Efforts to obtain judicial review by the United States Dis-

trict Court for the District of New Jersey were then made on

February 4, 1998. The Federal Court, on that date, refused to

address the merits of the case, accepting the argument of the

defendants that it lacked subject matter jurisdiction because

the Superior Court, Appellate Division, could have decided

the merits of this case upon its review.

On February 6, 1998, three agents of the defendants con-

ducted a search of W.C.’s office, opening virtually every door,

drawer and cabinet of her office, including her desk drawers,

and otherwise inspecting her offices and equipment, includ-

ing her kitchen sink, thus invading her Constitutional rights

and the privacy rights of her patients, in the process.

That inspection was videotaped by both the petitioners and

defendants. The defendants have strenuously objected to

having a court view the videotapes, which demonstrate the

nature and extent of the invasion upon W.C. and her office.

The very fact that the defendants have collectively determined

to prevent any court review of the videotapes speaks volumes.

Were the Court provided the opportunity to view these tapes,

it would, no doubt, be offended by the breach of privacy and

overreaching of the defendants.

9

In a decision issued and filed on June 1, 1999, Sa, the

Appellate Division ruled that W.C.’s action was moot, on the

grounds that she had complied with the demand and that the

defendant Board had, therefore, agreed to impose no sanc-

tions. Despite its finding of mootness, the Appellate Divi-

sion nevertheless saw fit to opine upon the merits of the Case.

In its rationale, however, the Appellate Division failed to

address the central issues in the appeal; the overbreadth of

N.J.S.A. 45:1-18 and the fact that there is still no recourse to

obtain judicial review of an overbroad administrative Demand

for Inspection.

By way of petition for certification, the MSNJ and W.C.

sought review of the Appellate Division’s decision by

the Supreme Court of New Jersey. The defendants, as well,

filed a cross-petition for certification. By Orders dated Octo-

ber 6, 1999, the Supreme Court of New Jersey denied both

petitions. la-4a.

10

ERRORS COMPLAINED OF, REASONS WHY

CERTIORARI SHOULD BE GRANTED AND

COMMENTS UPON THE DECISION BELOW.

POINT I

THE NEW JERSEY SUPREME COURT ERRED IN

FAILING TO REVERSE THE APPELLATE DIVI-

SION’S HOLDING THAT THE MATTER WAS MOOT.

Based upon the fact that Dr. W.C. had allowed the over-

broad search of her office to go forward, and upon a finding

that the Board had therefore decided to not impose sanctions

against her, the Appellate Division ruled that the appeal was

moot. 6a-7a. This decision ignored fundamental constitutional

concerns raised by the plaintiffs. The inaction on the part of

the New Jersey Supreme Court simply leaves the Appellate

Division’s infirm ruling in place.

The Appellate Division did not even address the unconsti-

tutional, strong-arm tactics employed by the defendants. The

search in question went forward not on the basis of any vol-

untary consent given by Dr. W.C. Instead, she was given an

ultimatum; either permit the search on or before February 6,

1998, or lose her license to practice medicine on the basis of

her “failure to cooperate.” Despite repeated pleas for court

intervention to rule upon the permissible limits of any search,

she was denied any relief and was forced to make a Hobson’s

choice of submitting to an illegal search or possibly losing her

livelihood.

In analyzing this issue, it is important to recall the cir-

cumstances surrounding the administrative Demand for

Inspection. At the time the Demand was issued, there was no

prohibition against a physician dispensing, or maintaining,

free samples of drugs which had passed their expiration dates.

The Board had, in fact, specifically found that Dr. W.C.’s

actions in this regard did not violate the Medical Practices

11

Act or in any way constitute wrongful conduct. Furthermore,

the oppressive and overbroad administrative Demand for

Inspection authorized the search of Dr. W.C.’s office for any-

thing and everything except outdated or expired drugs. The

Appellate Division sidestepped these deep constitutional con-

cerns with a ruling which essentially amounts to “no harm, no

foul.”

The Appellate Division §0€s on to state that this problem

will not arise in the future, as a new regulation, N.J.A.C.

13:35- 7.5(b), now specifically provides that a “practitioner

shall not maintain” outdated medication, and that N.J.S.A.

45:1-18 expressly authorizes administrative searches based

upon violations of specific regulations. 7a-8a. Of course, such

Provision in no way protects against a reoccurrence of the

abusive conduct which took place in this case.

There still remains no avenue for judicial review of an

administrative Demand for Inspection which, as in this case,

goes far beyond the bounds permitted by regulation, statute or

constitutional law. Under the Appellate Division’s ruling, the

defendants remain free to use their extortionate tactics to

force compliance with demands for illegal searches, not sub-

ject to any form of prior judicial review.

The Appellate Division’s holding of mootness also ignores

the serious impact which even “stayed” administrative penal-

ties, or a “temporarily” suspended license, may have on a

medical practitioner’s career. Any adverse action report, even

a stayed fine, can result in the inability of a physician to

obtain or maintain hospital privileges or managed care con-

tracts. As such, serious repercussions can be anticipated from

even “stayed” or “temporary” actions. Moreover, W.C. is now

considered by the Board to be a “first offender.” Were she to

engage in any further wrongdoing, she would be subject to

enhanced penalties as a “repeat offender.”

Under the Appellate Division’s handling of this case, the

judicial system stood idly by while the government engaged

12

in the worst sort of coercion of a private citizen, and then

declared the case “moot” after the citizen caved in to irre-

sistible governmental pressure. This is patently unfair. While

the Government may seek to invoke the aid of the court in

enforcing its considerable powers against a citizen, the citi-

zen is deprived of a concomitant right to seek the court’s pro-

tection from an overreaching government. This cannot be the

present state of the law.

POINT II

THE NEW JERSEY SUPREME COURT ERRED

BY FAILING TO HOLD N.J.S.A. 45:1-18

UNCONSTITUTIONAL.

The Board’s statutory authority to conduct investigations,

either directly or through the Attorney General, is set forth at

N.J.S.A. 45:1-18. Pursuant to N.J.S.A. 45:1-15, that statute is

applicable not only to the Board, but to all boards and all pro-

fessions or occupations regulated throughout New Jersey,

including cosmetologists, morticians and plumbers. None of

these Boards, including the Board of Medical Examiners, has

promulgated any rules governing the frequency or timing of

warrantless inspections or the procedures that inspectors must

follow in order to conduct a warrantless inspection. The

Fourth Amendment to the Constitution of the United States

restricts the ability to conduct legislatively authorized war-

rantless inspections to carefully defined classes of cases, in

accordance with clearly delineated rules. These restrictions

are applicable to the States through the Fourteenth Amend-

ment. Ker v. California, 374 U.S. 23, 30 (1963).

This Court has considered the constitutionality of war-

rantless inspections. In Camera v. Municipal Court of the City

and County of San Francisco, 387 U.S. 523 (1967), the Court

found that a governing principle of the fundamental purpose

of the Fourth Amendment, justified by both history and by

13

—

current experience, is that “except in certain carefully defined

Classes of cases, a search of Private property without proper

consent is ‘unreasonable’ unless it has been authorized by a

valid search warrant.” 387 U.S. at 528-29.

In Camera’s companion case, See vy. City of Seattle, 387

U.S. 541 (1967), the Court stated that in order to Satisfy the

requirements of the Fourth Amendment, an administrative

subpoena must be sufficiently specific and limited in scope to

a relevant purpose, and a subpoenaed party is entitled to judi-

cial review of the subpoena prior to being subject to penalties

for failure to comply. 387 U.S. at 545-6.

The United States Supreme Court has recognized narrow

circumstances where warrantless searches are permissible in

connection with a narrowly drawn legislative scheme target-

ing specific industries. See Colonnade Catering Corp. y.

United States, 397 U.S. 72 (1970) (liquor dealers); United

States v. Biswell, 406 U.S. 311 (1972) (firearms dealers);

Donovan vy. Dewey, 452 U.S. 594 (1981) (mining industry);

New York vy. Burger, 482 U.S. 691 (1987) (automobile dis-

mantlers). In Marshall v. Barlow ’s, Inc., 436 U.S. 307 (1978)

the Court struck down as unconstitutional a legislative inspec-

tion scheme in OSHA, which is nearly identical to the regu-

latory scheme set out at N.J.S.A. 45:1-18.

In conclusion, the only time the Constitution does not com-

pel a warrant is when Congress or the State Legislature has

reasonably determined that warrantless searches are necessary

to further a regulatory scheme involving an inherently noto-

rious industry. Then, and only then, government may impose

warrantless searches but only if its regulatory presence is suf-

ficiently comprehensive and defined that the owner of com-

mercial property cannot help but be aware that his property

will be subject to periodic inspections undertaken for specific

Purposes and where safeguards exist to challenge the

attempted search prior to enforcement.

14

In blatant contravention of these requirements, the Attorney

General demanded the opportunity to immediately inspect the

entire contents of Dr. W.C.’s office, with no right to obtain

prior judicial review of the reasonableness of that demand. It

then fined W.C. for refusing to comply, while simultaneously

and aggressively thwarting any opportunity for judicial

review. The Appellate Division erred in failing to find

N.J.S.A. 45:1-18 unconstitutional, and the New Jersey

Supreme Court erred in failing to grant certification and

remedy the intermediate appellate court’s error.

POINT III

THE NEW JERSEY SUPREME COURT ERRED

IN FAILING TO CORRECT THE APPELLATE

DIVISION’S APPLICATION OF THE INCORRECT

CONSTITUTIONAL STANDARD IN ANALYZING

THE ADMINISTRATIVE DEMAND

FOR INSPECTION.

Finally, the New Jersey Supreme Court erred in upholding

the Appellate Division’s misconstruction of this Court’s cases

dealing with “closely regulated” industries. In so doing, the

courts below engaged in circular reasoning:

We read nothing in Burger [New York v. Burger, 482

U.S. 691 (1987)] or the other United States Supreme

Court cases which prohibit the legislature from dele-

gating to an administrative agency the authority to adopt

regulations which satisfy the constitutional three prong

test announced in Burger.

lla. While this is no doubt true, as far as it goes, it begs the

question at issue in this case.

Of course, if the administrative Demand for Inspection in

this case did, in fact, satisfy the “constitutional three prong

test announced in Burger,” this action would have been

15

unnecessary, and the defendants would not have resisted so

strenuously the plaintiffs’ efforts to have it considered by a

court.

The problem in this case was that the administrative

Demand for Inspection did not satisfy the “constitutional three

prong test announced in Burger.” Under the Appellate Divi-

sion’s ruling, as endorsed, sub silentio, by the New Jersey

Supreme Court, no court can pass on the question of whether

a Demand does so Satisfy the test mandated by the this Court.

Under the Appellate Division’s conceptualization, since the

legislature enacted the enabling statutes and the Attorney

General issued his Demand pursuant to those statutes, each

and every demand must be presumptively, irrebuttably and

per se constitutional and valid.

This, of course, cannot be so. The undisputed facts of this

case show that this is not so. Governmental enforcement

agencies do make mistakes, do overreach and do act improp-

erly and coercively. When this happens, it is the sacred

responsibility and duty of the courts to intervene and protect

the constitutional rights of individual citizens, before those

citizens are forced to chose between forfeiture of their con-

stitutional rights or potential destruction of their professional

careers.

16

CONCLUSION

For the foregoing reasons, The Medical Society of New Jer-

sey and Dr. W.C. respectfully urge that this Court grant cer-

tiorari and correct the decision of the New Jersey Supreme

Court by reversing the Superior Court of New Jersey, Appel-

late Division.

Respectfully submitted,

PAUL W. ARMSTRONG*

STEVEN I. KERN

ROBERT J. CONROY

R. BRUCE CRELIN

KERN AUGUSTINE CONROY

& SCHOPPMANN, P.C.

1120 Route 22 East

Bridgewater, New Jersey 08807

(908) 704-8585

VINCENT A. MARESSA

THE MEDICAL SOCIETY OF

NEW JERSEY

Two Princess Road

Lawrenceville, New Jersey 08648

(609) 896-1766

* Counsel of Record

Dated: Bridgewater, New Jersey

January 3, 2000