# Opposition Brief — Medical Society v. Robins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1004

## Text

No. 99-1131

In the Supreme Court, U.S,
Supreme Court of the United States * | 5 © YP
FEB 22 0

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

Pettttoners;s-——

Vs

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 a Writ of Certiorari to
The Supreme Court of The State of New Jersey

BRIEF IN OPPOSITION

JOHN J. FARMER, JR.

ATTORNEY GENERAL OF NEW JERSEY
Richard J. Hughes Justice Complex
P.O. Box 112

Trenton, New Jersey 08625

(973) 648-4730

ANDREA M. SILKOWITZ
ASSISTANT ATTORNEY GENERAL
Counsel of Record

DOUGLAS J. HARPER
DEPUTY ATTORNEY GENERAL
On the Brief

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i
THE QUESTION PRESENTED FOR REVIEW

WHETHER CERTIORARI SHOULD BE DENIED
WHERE THE APPELLATE DIVISION CONCLUDED ON
THE PRINCIPLES ENUNCIATED BY THIS COURT IN
NEW YORK V. BURGER THAT THE NEW JERSEY
BOARD OF MEDICAL EXAMINERS, AFTER A FULL
EVIDENTIARY HEARING AND ACTING PURSUANT TO
A COMPREHENSIVE REGULATORY SCHEME WHICH
CLOSELY REGULATES THE PRACTICE OF MEDICINE,
PROPERLY ORDERED THAT A WARRANTLESS
ADMINISTRATIVE INSPECTION BE MADE OF A
LICENSEE'S OFFICE, INCLUDING DRAWERS AND
CABINETS WHERE OUTDATED MEDICATIONS MIGHT
BE STORED AND WHERE, PRIOR TO THE ORDERED
INSPECTION, LIMITED JUDICIAL REVIEW WAS
AFFORDED BY WAY OF STAY APPLICATION AND NO
PROPERTY DEPRIVATION WAS VISITED UPON THE
LICENSEE BY THE BOARD'S ACTION.

ii

TABLE OF CONTENTS

THE QUESTION PRESENTED FOR REVIEW ...... i
COUNTERSTATEMENT OF THE CASE ........
REASONS FOR DENYING THE WRIT ..........

THE CENTRAL CONSTITUTIONAL ISSUE IN
THIS CASE INVOLVED NOTHING MORE
THAN THE APPLICATION OF WELL
ESTABLISHED FOURTH AMENDMENT
PRECEDENT OF THIS COURT HOLDING THAT
WARRANTLESS ADMINISTRATIVE SEARCHES
MAY BE AUTHORIZED IN CLOSELY
REGULATED COMMERCIAL ACTIVITY
AFFECTING THE PUBLIC INTEREST. SINCE
THE APPELLATE DIVISION CLEARLY
APPLIED THE STANDARDS ARTICULATED IN
NEW YORK V. BURGER CORRECTLY AND
GIVEN THE FACTS PRESENTED, FURTHER
REVIEW BY THIS COURT IS NOT
WINGERS 6 jo sk xe + URED OR

COMNL ELAM «060s ced eben eae ree ernest 14

iii

TABLE OF AUTHORITIES

CASES CITED Page
Barry v. Barchi, 443 U.S. 55 (1979) ............. 8
Crane v. Hahlo, 258 U.S. 142 (1922) ............ 7
Crowe v. DeGioia, 90 N.J. 126 (1982) ........... 7
Den et al. v. Hoboken Land and Improvement Co.,18
ty BBR ye et...) a cr arr 7
Donovan v. Dewey, 452 U.S. 594 (1981) .......... 8
F.D.I.C. v. Mallen, 486 U.S. 230 (1988) .......... 8
Gilbert v. Homar, 520 U.S. 924 (1997) ........... 8
Griffin v. Wisconsin, 483 8 36. x, rene 11
Katz v. United States, 389 U.S. 347 (1967)......... 8

~ Marshall v. Barlow's, Inc., 436 U.S. 307 (ivra? ..< 8, da

New York v. Burger, 482 U.S. 691 (1987) ...... passim
Parrat v. Taylor, 451 U.S. 527 (1981)............ 7
Sampson v. Murray, 415 U.S. 62 (1973) .......... 7

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602
RE a ws Pa Rien ee Se 11

iv

United States v. Ju Toy, 198 U.S. 253 (1905) ....... 7
Veronica School District 47 J. v. Acton, 515 U.S. 646

GOOG aa RAE I ee Ce ee 11
Virginia Petroleum Jobbers Association v. Federal Power

Commission, 259 F.2d 921 (D.C. Cir. 1958) ..... 7
Withrow v. Larkin, 421 U.S. 35 (1975) ........... 13

STATUTES CITED

02 UL Bie bos viv Ce eA a ae ei 4,5
UD As MEE ba 1A ko ee a »
Shs SA 5 6 Ee wes ee erg 11, 12
ON. al 5 is ee ae 11
ee ee a re ere a oars a ee 2, Oy 43
EF ee os 4 Sete Na ee ae ee 3
eas GUD. daa oak eee Saree 9
IEF es CI 9 55 i co eke bos Cas Sa 13
Ree Re | rer pre re fe en ea 13

Boe,
ADMINISTRATIVE REGULATIONS CITED

Pines See WN Sa hie ee 10

COUNTERSTATEMENT OF THE CASE

On June 26, 1997, the New Jersey State Board of Medical
Examiners (hereinafter "Board") directed that an inspection of
the office of W.C., a physician licensed by the Board, be
performed following its receipt and review of a patient
complaint which alleged that W.C. had dispensed outdated
prescription legend drug medications and had also failed to
issue a detailed report. For that conduct the Board issued.a
private letter cautioning that W.C.'s staff may be dispensing
outdated medications. (Ra3)!

On October 30, 1997, Board investigators went to W.C. 's
office during regular business hours, presented her with a
Demand for Inspection signed by a Deputy Attorney General
and began an inspection of the receptionist area After

. “Ra” refers to the appendix filed in the Superior Court,
Appellate Division, the proceeding below, on behalf of the respondents.

: The New Jersey Statutory provision upon which the Board's
inspection was predicated states in pertinent part:

Whenever it shall appear to any board, the director or the
Attorney General that a person has engaged in, or is engaging
in any act or practice declared unlawful by a statute or
regulation administered by such board, or when the board, the
director or the Attorney General shall deem it to be in the
public interest to inquire whether any such violation may exist,
the board or the director through the Attorney General, or the
Attorney General acting independently, may exercise any of the
following investigative powers:

™« ” ”
¢. Inspect any premises from which a licensed profession or
occupation is conducted:
d. Examine any goods, ware or item used in the rendition of
any professional or occupational service;

¢. Examine any record, book, document, account or paper
maintained by or for any professional or occupational

2

2

opening a single cabinet door, the investigator was told by
W.C. that, on advice of her counsel, cabinet doors and
drawers could not be opened. The door to the cabinet was
immediately closed by the investigator without observation as
to its contents. (Ra26, fn 11, 29) Upon advising W.C. that
the inspection could not be performed without access to
cabinets and drawers, W.C. telephoned her attorney who
advised the investigator that any inspection must be limited to
that which was in plain view within the office. The
investigators then performed a brief walk-through of the office
during which two (2) bottles of topical antiseptics or
Sterilizing solutions, Betadine and Cidex, containing
expiration dates of 1982 and September 1997 respectively,
were observed. (Ra29) No observations of patient files or
other office records were attempted or made. (Ra30)

On November 3, 1997, the Board, on the Attorney
General's complaint, ordered W.C. to show cause why she
should not be disciplined for failing to cooperate in the
Board's inspection. The complaint alleged that W.C.'s "plain
view" limitation and prohibition of full access to her office
violated a Board regulation requiring licensees to cooperate in
investigations by making their premises, records and related
goods available for inspection.

licensee in the regular course of practicing such profession
or engaging in such occupation .... [N.J.S.A. 45:1-18].

: The uniform regulation, adopted by all professional licensing
boards within the New Jersey Division of Consumer Affairs, provides in
pertinent part:

A licensee shall cooperate in any inquiry, inspection or
investigation conducted by, or on behalf of, a board ... into a
licensee's conduct .... A licensee's failure to cooperate, absent
good cause or bona fide claim of a privilege not identified in
N.J.A.C. 13:45C-1.5 as unavailable, may be deemed by the
board ... to constitute professional or occupational misconduct
within the meaning of N.J.S.A. 45:1-21(e) ... and thus subject

3

Following a full evidentiary hearing before the Roard in
which the petitioners advanced various constitutional and State
Statutory defenses, the Board issued a Final Decision and
Order dated December 25, 1997.4 The Board found that
W.C.'s refusal to permit inspection of her office records and
goods, including items contained in cabinets and drawers,
constituted a failure to permit an inspection and examination
Of premises, goods and records maintained in the regular
course of the practice of medicine and surgery, and, as such,
violated the Duty to Cooperate regulation and constituted
professional misconduct under State law. (N.J.S.A. 45:1-
21(e)). (Ra30) Based upon these findings the Board ordered

a licensee to disciplinary action pursuant to N.J.S.A. 45: 1-2] (h)

And further:

(a) The following conduct by a licensee may be deemed a
failure to cooperate and, therefore, professional or occupational
misconduct or other good cause or grounds for suspension or
revocation of licensure:

4. The failure ... to provide access to any premises from
which a licensed profession or occupation is conducted.
included within this paragraph shall be the failure to ... permit
the examination of any goods, ware or item used in the
rendition of the professional or occupational service and the
failure to grant access to records, books or other documents
utilized in the practice of the occupation or profession.
(N.J.A.C. 13:45C-1.3(a)4].

Violation of a Board regulation may subject a licensee to disciplinary
action under New Jersey's Uniform Enforcement Act (N.J.S.A. 45:1-
21(h)).

* Petitioner, Medical Society of New Jersey was permitted to
intervene and present limited legal arguments challenging the complaint.

4

a new inspection to be conducted not later than January 8 and ~
directed W.C. to fully cooperate in the inspection by
permitting access to:

. the books, records, documents, equipment and other
items in her office maintained for the practice of
medicine. The inspection shali include but not be
limited to items located in her drawers and cabinets of
the office. (emphasis added)

The Board's order further provided that items deemed
"personal" or which were subject to a good faith belief as
being within an attorney-client privilege could be withheld
upon identification to the Board. (Ra31) A civil penalty of
$1,000 was also imposed, payment of which was stayed
conditioned upon W.C.'s compliance with the ordered access.
No suspension of licensure was ordered, and the Board's
action was not reported to the National Practitioner's Data
Bank. (Ra30-31)

Prior to the date of the ordered inspection, petitioner
attacked the Board's order by filing a complaint in a State trial
court alleging violation of 42 U.S.C. §1983. (Pb7) On
transfer of that action to the Superior Court, Appellate
Division, petitioners sought a stay of the Board's order.
Within that application petitioners filed a brief in which
essentially the same constitutional arguments advanced here
were asserted and rejected by the Court. (Pbrf., Ral36, 7)
Interlocutory review of that decision was denied in the
Supreme Court of New Jersey.° A 20 minute inspection was
thereafter conducted on February 6, 1998 which disclosed no
additional outdated medications. (Pa6-7)

On June 2, 1999, the Superior Court, Appellate Division,
dismissed petitioners' appeal as moot for want of disciplinary
sanctions or civil penalty exaction given W.C.'s ultimate

* The District Court dismissed petitioners’ complaint for want of
jurisdiction.

5

compliance with the Board ordered inspection and the Board's
adoption of a new regulation prohibiting the maintenance of
outdated medications by licensees.° The Court also remanded
the matter to the trial court for further proceedings on
petitioners’ 42 U.S.C. §1983 complaint. In so holding, the
Court rejected the petitioners' central legal argument that the
Board's warrantless administrative inspection violated the
Fourth Amendment. It further concluded that the New Jersey
statutory provision, N.J.S.A. 45:1-18, in expressly
authorizing such inspections, when applied to the practice of
medicine, satisfied well established precedents of both this
Court and New Jersey courts, holding that in settings
involving closely regulated commercial activity, substantially
diminished privacy expectations are present such that given
compliance with the tests articulated by New York v. Burger,
482 U.S. 691 (1987), a judicial warrant is not required for
administrative inspections of closely regulated activities.

* The regulation was not in effect at the time of the inspection
(Pa3, fn3). The Board in its decision found that maintaining and
dispensing substantially outdated medications deviated from appropriate
standards of medical care. (Ral8, fn)

6

REASONS FOR DENYING THE WRIT

THE CENTRAL CONSTITUTIONAL ISSUE IN THIS
CASE INVOLVED NOTHING MORE THAN THE
APPLICATION OF WELL ESTABLISHED FOURTH
AMENDMENT PRECEDENT OF THIS COURT
HOLDING THAT WARRANTLESS ADMINISTRATIVE
SEARCHES MAY BE AUTHORIZED IN CLOSELY
REGULATED COMMERCIAL ACTIVITY AFFECTING
THE PUBLIC INTEREST. SINCE THE APPELLATE
DIVISION CLEARLY APPLIED THE STANDARDS
ARTICULATED IN NEW YORK VY. BURGER
CORRECTLY AND GIVEN THE FACTS PRESENTED,
FURTHER REVIEW BY THIS COURT IS NOT
WARRANTED. ;

Notwithstanding petitioners’ assertions to the contrary, a
review of the decision below discloses two simple and straight
forward holdings: (1) on the facts presented the matter was
moot under State law principles given the absence of any
license suspension or other property deprivation; and (2) the
Board's ordered inspection was constitutionally compliant
with this Court's holding in New York v. Burger, 482 U.S.
691 (1987). As to the former, the issue certainly is not one
for further review by this Court, and as to the latter, there
simply is no question concerning the correctness of the
Appellate Division's application of the controlling law as
announced in Burger.

It should be noted preliminarily that, contrary to the
repeated assertions that W.C. was unconstitutionally deprived
of a judicial hearing prior to the inspection of her office, the
facts plainly show that, on advice of counsel, she initially
restricted the inspection to open areas and items in "plain
view". Except for a fleeting momentary look which was
terminated on W.C.'s direction, no further inspection of
drawers or cabinets was undertaken until after the holding of

an evidentiary hearing by the Board and preliminary review
by the Appellate Division and the Supreme Court of New

7

Jersey by way of applications to Stay the Board's ordered
inspection.’

It is long established that due process is not necessarily
judicial process and that administrative proceedings may
afford the same due process as judicial proceedings. United
States v. Ju Toy, 198 U.S. 253 (1905); Crane v. Hahlo, 258
U.S. 142 (1922); Den et al. y. Hoboken Land and
Improvement Co., 18 How aa, 15 L.Ed. 372 (1856).
Accordingly, the assertion that a hearing was denied before an
opportunity to challenge the inspection is both factually and
legally devoid of merit.

More fundamentally, however, this Court has repeatedly
held that due process does not always require a predeprivation
hearing. Thus:

It is now well established that "'[dJue process,’ unlike
some legal rules, is not a technical conception with a
fixed content unrelated to time, place and
circumstances." (auth. omitted) "[D]ue process is
flexible and calls for such procedural protections as the
particular situation demands. (auth. omitted) This

i . 4
. (auth. omitted) Indeed, in Parrat
v. Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct.

” Within those applications petitioners submitted a brief asserting
essentially the sarne constitutional arguments asserted here The well-
established test for a stay requires that an application demonstrate (1) a
likelihood of success on the merits, (2) irreparable injury absent a stay, (3)
the probability of harm to others will not be greater than the harm the
movant will suffer absent a stay and (4) the public interest will not be
adversely affected by a stay. Sampson v. Murray, 415 U.S. 62 (1973);
Virginia Petroleum Jobbers Association v. Federal Power Commission,
259 F.2d 921 (D.C. Cir. 1958); Crowe v. DeGioia, 90 N.J. 126 (1982).

8

1908 (1981), ... we specifically noted that "we have
rejected the proposition that [due process] always
saul he S vid iaaal
initial deprivation of property. (auth. omitted) [Gilbert
v. Homar, 520 U.S. 924 (1997)}]

And see also F.D.I.C. v. Mallen, 486 U.S. 230 (1988); Barry
v. Barchi, 443 U.S. 55 (1979). Obviously, where acts or
practices within a physician's office imperil patient safety (as
here) or otherwise implicate important public health, safety or
welfare issues, the long established principle as restated in
Gilbert becomes operative. Accordingly, nothing novel or
important exists within the context of this case to justify
further review by this Court as to any claimed right as to a
predeprivation hearing.

Similarly, the conclusory assertion, without elaboration,
that the Appellate Division erred in applying Burger, affords
no basis for review. Initially, as noted by the court below,
this Court, for Fourth Amendment purposes, has explicitly
recognized a reduced expectation of privacy by the owner of
commercial premises in a closely regulated industry. Thus:

An expectation of privacy in commercial premises,
however, is different from, and indeed less than, a
similar expectation in an individual's home. See
Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct.
2534, 2537-38, 69 L.Ed.2d 262, 268-69 (1981). This

expectation is particularly attenuated in commercial

The Court observed in Marshall v. Barlow's, Inc.:
"Certain industries have such a history of government
oversight that no reasonable expectations of privacy, see
Katz v. United States, 389 U.S. 347, 351-52, [88 S.Ct.
507, 511-12, 19 L.Ed.2d 576] (1967), could exist for a
proprietor over the stock of such an enterprise." 436
U.S. 307, 313, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305,
312 (1978).

9

[New York v. Burger, supra, 482 U.S. at 700 (emphasis
added)]

Significantly, petitioners do not assert that the Burger
threshold prerequisite of a "closely regulated" activity is not
Satisfied. As the court below found, there can be no doubt
that the medical profession is highly regulated by virtue of
licensure, education and a plethora of other State regulatory
requirements. Moreover, there is nothing constitutionally
unique (nor do petitioners so assert) about a physician's office
for the purpose of applying the Burger test.*

Similarly, the three Prong test of Burger, given this
Satisfaction of the threshold requirement, is plainly met.°

* To the extent that patient confidentiality interests arise, the New
Jersey statutory scheme accommodates the same by affording
confidentiality to all information obtained during an investigation prior to
the filing of an administrative complaint. N.J.S.A. 45:9-19.3.

Given the presence of pervasively regulated activity, the Burger
test requires:

First, there must be a ‘substantial’ government
interest that informs the regulatory scheme pursuant
to which the inspection is made....

Second, the warrantless inspections must be
‘necessary to further (the) regulatory scheme’...

Finally, ‘the statute's inspection program, in terms
of the certainty and regularity of its application
[must] providfe] a constitutionally adequate
substitute for a warrant.’ (auth. omitted) In other
words, the regulatory statute must perform the two
basic functions of a warrant: it must advise the
owner of the commercial premises that a search is
being made pursuant to the law and has a properly
defined scope, and it must limit the discretion of the
inspecting officers. (auth. omitted) To perform this
function, the statute must be ‘sufficiently

10

Thus, there can be no question that the State has a substantial
governmental interest in regulating physicians to ensure the
providing of lawful, safe, proper and effective medical
services to the public. The State's "paramount" obligation to
protect the public's general health, is clear. Similarly, a
warrantless inspection is both necessary and rationally related
to the effective implementation of the regulatory scheme.
Prompt and unfettered office inspections and visitations are
obviously necessary to investigate complaints; to determine
cleanliness and safe operation (including the providing of
medications and the use of medical solutions within
presumptively safe and effective periods following
manufacture); to determine whether individuals are properly
licensed to provide regulated health care services; and to
determine whether any of a myriad of other unlawful acts
have occurred or may occur which directly implicate the
public's health, safety and welfare.

A warrant requirement would foreseeably impair prompt
investigative responses thereby inhibiting effective
enforcement activity. Given such considerations, and where,
as here, the protection afforded by a warrant would be
"negligible," this Court has held the Fourth Amendment's
warrant requirement to be inapplicable. New York v. Burger,
supra 482 U.S. at 710.

Finally, the statutory scheme as implemented by the
Board's Duty to Cooperate regulation (N.J.A.C. 13:45C 1.2,
1.3(a)(4)) and in this case, its Final Decision and Order,
clearly constitute an adequate substitute for a warrant. Thus,

comprehensive and defined that the owner of
commercial property cannot help but be aware that
his property will be subject to periodic inspections
undertaken for specific purposes. (auth. omitted) In
addition, in defining how a statute limits the
discretion of the inspectors ... it must be ‘carefully
limited in time, place, and scope.’ (auth. omitted)
[New York v. Burger, supra, 482 U.S. at 702-703]

1]

N.J.S.A. 45:1-18(c), (d) and (e) and the Board's regulation
put licensees on clear notice that State investigation by
inspection of premises and the examination of goods and
records used in the course of Practicing the licensed activity
may be expected where a violation of a statute or regulation
has occurred or where it may be in the public interest to
inquire whether such an unlawful act may exist. Since the
Statute when read on its face and, as applied by the Court
below, plainly passes constitutional muster under Burger and
given the absence of any articulated reason by petitioner to the
contrary, the decision below requires no further review by
this Court.

within the proceedings below. Most Clearly in this regard is
the assertion that the only setting in which the Constitution
does not compel a warrant is where Congress has determined

concomitantly heightened. New York v. Burger, supra 482
U.S. at 702. See also Veronica School District 47 J v.
Acton, 515 U.S. 646 (1995) (student drug testing as condition
for participation in athletics held "special need"): Skinner y.
Railway Labor Executives’ Ass n, 489 U.S. 602 (drug testing
for federal railroad employees held "special need") (1989):
Griffin v. Wisconsin, 483 U.S. 868 (1987) (search of
probationer's home authorized by state agency regulation held
"special need"). So too here. New Jersey's long established
regulatory scheme for the practice of medicine adopted by
Statute and administrative regulations implicate highly
regulated activity centered in licensure and ongoing oversight
in order to protect the public's health, safety and welfare.

12

The court's decision below in applying Burger recognizes this
principle and is completely consistent with the decisions of
this Court which have sustained warrantless searches.

Similarly, petitioners’ assertion that the holding in
Marshail v. Barlow's, Inc., 436 U.S. 307 (1978) dealt with a
"nearly identical" regulatory scheme to that involved here is
patently erroneous. In Marshall, unlike the focused statutory
enactment here which operates only within discreet regulated
professions and occupations, the federal act (OSHA) provided
for warrantless inspections of all businesses engaged in
interstate commerce. Further, pursuant to administrative
regulation, field inspections were authorized with local
inspectors empowered to determine what businesses were to
be inspected and when. The federal act did not, as here,
involve a single pervasively regulated industry, and
warrantless searches were found unreasonable primarily due
to the unbridled discretion vested in the field inspector.

No such parallel exists here. The New Jersey regulatory
scheme and the facts presented here reflect a statutory
requirement that reasonable suspicion be found by high level
state officials as a predicate for any inspection of a licensee's
premises (N.J.S.A. 45:1-18(c)). That is precisely what
occurred here, for when all is said and done, the primary
operative facts involve nothing more than the State's licensing
agency directing an inspection of a licensee's office after
receipt of a patient complaint indicating the dispensing of
outdated medications, later buttressed by investigator "plain
view" observations of two additional outdated antiseptic
substances in the licensee's office. This setting, as held by
the court below, entails precisely the type of special need
which this Court in Burger and its progeny have recognized
in sustaining warrantless administrative searches against
Fourth Amendment challenges. Accordingly, the narrow
exception urged by petitioners provides no basis for further
review by this Court.

Equally unavailing is the assertion of impropriety arising
from the Attorney General's performing both a prosecutorial

OO

13

and counseling function in the Board's disciplinary
proceeding. Initially, petitioner fails to point out that under
New Jersey statutes, the Attorney General is required to act
as the sole legal adviser to State administrative agencies and
to provide legal services in relation to litigation involving
such agencies. N.J.S.A. 52:17A-4(c), (e). Further,
petitioners neglect to advise the Court that separate deputy
attorneys general performed the counseling and advisory
functions in the Board proceeding and are subject to separate
and distinct supervisory lines of authority with internal
administrative safeguards in place to ensure independence and
separation in the performance of the respective functions.
Finally, of course, it is long established that the merger of
functions within State administrative agencies, absent a
showing of impropriety, does not per se effect a due process
deprivation and that State licensing boards are entitled to a
presumption of good faith when engaged in administrative
decision-making in disciplinary proceedings. Withrow v.
Larkin, 421 U.S. 35, 43, 55 L.Ed.2d 712, 728, 95 S.Ct.
1456, 1468 (1975). Nothing in the facts of this case or the
law established to date by this Court supports any claim of
impropriety sounding in merger of functions so as to warrant
further review here.

The assertion that the Board's directed and ordered
inspections were overbroad is also plainly without merit.
Each element of both the initial Demand for Inspection and
the Board's Final Order therefor was rationally related to a
legitimate investigative need. Thus, licenses on W.C.'s
premises would permit a determination of whether individuals
dispensing medications, outdated or otherwise, were properly
authorized by law to do so; records would identify who may
have received outdated medications, when, and why, and
what, if any, charges therefor were made; and access to
equipment maintained in the office would disclose where
outdated medications may have been stored. Petitioners’
assertions notwithstanding, the Board's Final Order explicitly
excepted from inspection any documents deemed confidential
or privileged and subjected such documents to further Board

14
scrutiny, (Ra31) which ultimately was unnecessary given the
brief and uneventful final inspection. In short, the claimed
overbreadth urged by petitioners as a basis for further review,
wholly apart from the absence of any cited prior authority of
this Court indicating Fourth Amendment impropriety, is

simply without factual support in the record below.
Accordingly, review by this Court is not warranted.

CONCLUSION

For the above stated reasons, it is respectfully submitted
that the petition for certiorari should be denied.

Respectfully submitted,

John J. Farmer, Jr.
Attorney General of New Jersey
Attorney for Respondents

By: Andrea M. Silkowitz
Assistant Attorney General

Dated: February 2, 2000

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0821%3A3. Public record. Not legal advice.