SOKOLOFF v. BOARD OF MEDICAL, N09A-11-005 DCS (Del.Super. 8-25-2010)

iction cannot be the subject of a separate civil proceeding."

Id., at *5 (Sokoloff relied on In re Petition of State, 603 A.2d 814 (1992), in support of his argument, where the Delaware Supreme Court found an ex post facto violation of a law that involved an assessment that was added after the defendant's criminal conduct).

Id.

The Board, as a threshold matter, rejected Sokoloff's ex post facto argument concerning the applicability of 24 Del. C. § 1720(e)(4) to his petition for licensure. Relying on Hawker v. New York, the Board determined that the legislature's restriction on professional licensing requirements cannot violate the ex post facto clause because the purpose of such a restriction is regulatory, and not punitive. The Board did note, however, that "the majority of the Board members believed that Sokoloff could reapply after 1 year and the Board would then have discretion after evaluating his circumstances to grant him a license." The issue was reconciled by finding that § 1720(e)(4) was applicable to Sokoloff's case, because § 1720(e)(4) the Board was "legislatively mandated to apply the factors set forth in [§ 1720(e)(4)] before it [could] waive any of the disqualifications for a license set forth in 24 Del. C. § 1720(b)(4). . . ."

170 U.S. 189 (1898).

See Board Order, at *7-9.

Id., at *9.

Id.

The Board issued a decision on November 3, 2009, denying Sokoloff's application. On April 16, 2010, Sokoloff timely appealed the Board's decision to this Honorable court. The Board is represented by the State Deputy Attorney General on appeal. Briefing is complete, and the appeal is ripe for decision.

Id., at *10.

PARTIES' CONTENTIONS

Sokoloff contends that the Board committed legal error and violated his due process rights to a fair hearing before a fair tribunal when it permitted the State Deputy Attorney General to present argument and evidence at the Board Hearing. Sokoloff further argues that the Attorney General's simultaneous representation of the Board and the State at the hearing, and representation of the Board on appeal by the same Deputy Attorney General who participated in the Hearing presented a conflict of interest and was biased. In the alternative, Sokoloff asserts that the application of 24 Del. C. § 1720(e)(4) which he describes as a "five-year prohibition against practicing medicine" violated the ex post facto clause of the United States Constitution, specifically, because "assessments annexed to a criminal conviction cannot be the subject of a separate civil proceeding and are subject to an ex post facto restriction."

Id., at *4-5.

The State maintains that the representation of the Board by a Deputy Attorney General and the presentation of evidence at the same Board Hearing by a different Deputy Attorney General, absent evidence of collusion, was not a conflict of interest, and, therefore, did not violate Sokoloff's due process rights. In addition, the State argues that Sokoloff waived all procedural due process claims by failing to object to any perceived procedural irregularities at the time of the hearing. Further, the State avers that the Board's application of 24 Del. C. § 1720(e)(4) was appropriately applied to Sokoloff. Finally, the State contends that Sokoloff's ex post facto argument is without merit, and that the Board was correct in rejecting his argument with regard to the application of § 1720(e)(4).

DISCUSSION STANDARD OF REVIEW

The Superior Court has jurisdiction to review a decision of the Board on appeal pursuant to the Delaware Administrative Procedures Act. The duty of the reviewing Court is to examine the record of the proceedings below to determine if (1) there is substantial evidence to support the Board's findings and conclusions and (2) the Board's decision is free from legal error. In making its assessment, the Court is not authorized to make its own factual findings, assess credibility of witnesses or weigh the evidence. Substantial evidence is greater than a scintilla and less than a preponderance. If the Board's findings and conclusions are found to be based upon substantial evidence and there is no error of law, the Board's decision must be affirmed.

24 Del. C. § 1736(b) and 29 Del. C. § 10142.

Mooney v. Benson Mgmt. Co., 451 A.2d 839, 840 (Del. Super. 1982) (citing 29 Del. C. § 10142; Air Mod Corp. v. Newton, 215 A.2d 434, 438 (Del. 1965)); Bash v. Board of Med. Practice, 579 A.2d 1145, 1149 (Del. 1989).

Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Cross v. Califano, 475 F. Supp. 896, 898 (D. Fla. 1979)).

Mooney, 451 A.2d at 840 (citing 29 Del. C. § 10142; Air Mod Corp., 215 A.2d at 438); Bash, 579 A.2d at 1149.

DUE PROCESS CLAIMS

"[A] necessary element of any judicial review is that claims of unfairness in the administrative process be seriously addressed." In order to prevail on a procedural due process claim, a party must demonstrate the existence of a protected property interest and show the deprivation of that interest without notice and opportunity to be heard. This hearing must be conducted "at a meaningful time and in a meaningful manner." A professional license is considered property that is afforded protection under the due process clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has recognized that the due process protections of a fair trial before an unbiased tribunal apply to administrative adjudications as well as court proceedings.

Blinder, Robinson Co. v. Bruton, 552 A.2d 466, 472 (Del. Supr. 1989).

See Pravetz v. State Bd. of Med. Practice, No. 02A-09-014-RSG, 2003 WL 21203304, at *6 (citations omitted).

Slawik v. State, 480 A.2d 636, 645 (Del. 1984) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Villabona v. Board of Med. Practice of the State, No. 03A-09-007-WLW, 2004 WL 2827918, at *6 (Del. Super. 2004).

See Withrow v. Larkin, 421 U.S. 35 (1975); Carousel Studio v. Unemployment Ins. Appeals Bd., No. 89A-AU-7, 1990 WL 91108, at *1 (Del. Super. 1990) ("[A]dministrative hearings, like judicial proceedings, are governed by fundamental requirements of fairness which are the essence of due process, including fair notice of the scope of the proceedings and adherence of the agency to the stated scope of the proceedings.").

Sokoloff did not waive his due process rights at the Board Hearing

As a threshold matter, the Court must resolve the issue of fact concerning whether Sokoloff raised a timely objection to any procedural irregularities he perceived during the Board Hearing, thereby waiving his procedural due process rights.

Tuckman v. Aerosonic Corp., 394 A.2d 226, 230 (Del. Ch. 1978) (citing Michener v. Johnston, 141 F.2d 171, 175 (9th Cir. 1944) ("Waiver is a question of ultimate fact rather than of law.")).

The United States Supreme Court has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege." Waiver will not be implied based on silence or ambiguous acts. Specifically, the State argued that Sokoloff waived his procedural due process claims at the time of the Board Hearing by "arguing the merits of his claims without objecting to what he perceives to be procedural irregularities."

Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

Id. at *5 (citing Vechery v. Hartford Accident Indem. Ins. Co., 121 A.2d 681, 685 (Del. 1956) and Faill v. Faill, 303 A.2d 679, 682 (Del. Super. 1973) ("[A] party's silence is never sufficient to establish a waiver where the party had no duty to speak.")).

State Answering Brief, at *33.

In support of its contention that Sokoloff waived his procedural due process rights by arguing the merits of his claims, the State relies upon the Delaware Superior Court's decision of In re 244.5 Acres of Land. In 244.5 Acres of Land, the Court found that a plaintiff had waived its procedural due process claim "by showing up and arguing the merits of the cause without ever mentioning that they believed procedural irregularities existed. . . ." In this case, however, Sokoloff expressly contended, before presenting his ex post facto argument, that the State should not have been permitted to present argument regarding the application of 24 Del. C. § 1720(e)(4) to Sokoloff's case, particularly because the State failed to raise the issue during or immediately after the Board Revocation Hearing, and that § 1720(e)(4) should therefore not apply to Sokoloff's case.

2001 WL 1469155, at *5 (Del. Super 2001).

Id.

Board Hearing Transcript, at *11,14-15.

Because Sokoloff raised timely concerns about what he perceived to be procedural irregularities on the record at the Board Hearing, there can be no reasonable implication that Sokoloff intended to wholly waive any future procedural due process claims concerning the presentation of argument by the State. Accordingly, the merits of Sokoloff's claims are discussed below.

Sokoloff's right to a fair hearing was not violated.

Sokoloff alleges that the Board committed legal error in permitting the State to present evidence about 24 Del. C. § 1720(e)(4) at the October 6, 2009 Board Hearing. Specifically, Sokoloff argues that the State's presentation at the Board Hearing was improper in that it "wholly changed the Board's learned judgment that Sokoloff be issued his medical license."

Sokoloff Opening Brief, at *13.

Licensing board hearings are governed by the Delaware Administrative Procedures Act ("DAPA"). Pursuant to 29 Del. C. § 10125, the Board, "[i]n connection with such hearings . . . may be empowered to . . . [i]ssue subpoenas for witnesses and other sources of evidence, either on the agency's initiative or at the request of any party." The Board also has the power to exclude evidence it deems to be "plainly irrelevant, immaterial, insubstantial, cumulative and . . . privileged."

29 Del. C. § 10161(a)(4).

29 Del. C. § 10125(b)(1).

29 Del. C. § 10125(b)(3).

Licensing board hearings are also controlled by constitutional due process requirements. "[A]dministrative hearings, like judicial proceedings, are governed by fundamental requirements of fairness which are the essence of due process, including fair notice of the scope of the proceedings and adherence of the agency to the stated scope of the proceedings."

Carousel Studio v. Unemployment Ins. Appeals Bd., 1990 WL 91108, at *1 (Del. Super 1990).

Id.

The Board was thus entitled to consider any evidence it determined to be relevant, material, substantial, non-cumulative and non-privileged in deciding whether to grant Sokoloff's petition for a medical license. The relevancy of the application of the five-year licensing restriction to Sokoloff is not disputed by the parties. Thus, the Board acted within its discretion to allow legal argument concerning the applicability of the five-year ban during the October 6, 2009 Board Hearing.

Sokoloff also complains that the Board was unfairly persuaded by the State. Without presenting evidence to establish that the Board had initially decided to grant his application, Sokoloff concluded that the Board completely relied on the State's interpretation of Delaware law as "the law of the case and as tying the Board's hands." As this Court is not permitted to weigh evidence, determine credibility of witnesses or make its own factual findings or conclusions, it must defer to the Board's judgment if as there is satisfactory proof to support the Board's factual findings. Here, Sokoloff's contention is belied by the fact that the Board initially proposed to deny Sokoloff's application because "he could not submit a sworn statement that he has not been convicted of . . . a crime substantially related to medicine." So too, it is uncontested that the State, having presented evidence at Sokoloff's evidentiary hearings in early 2007, adamantly sought out and argued for permanent revocation of Sokoloff's medical license, which the Panel and Board rejected. Indeed, such rejection indicates that the Board was not unduly persuaded or overwhelmed by the presentation of the State. Furthermore, the Board acknowledged and clarified that legal questions were to be directed to the Board Deputy Attorney General, not the State Deputy Attorney General presenting argument.

Id.

See Johnson v. Chrysler, 213 A.2d 64, 66-67 (Del. 1965).

Board Order, at *1 (quoting 24 Del. C. § 1720(b)(4)).

See Transcript of Propose to Deny Hearing, at *25-26.

Because this Court finds that there is substantial evidence on the record to support the Board's ultimate decision to deny Sokoloff's application for a certificate to practice medicine, the Board's decision must be affirmed.

Sokoloff's due process challenge of commingling of roles within an administrative agency hearing fails to overcome the presumption of honesty and integrity of the Board.

Sokoloff questions the propriety of conducting a hearing where a Deputy Attorney General represents the Board and another Deputy Attorney General presents evidence.

As a practical matter, it is not unusual for administrative agencies which perform both investigative and adjudicative functions to commingle roles. An administrative agency may sometimes act as "litigant, lawyer and judge in the initial determination of the matter before it [and advocate in support of its own decision] before the reviewing court . . ."

See Blinder, Robinson Co. v. Bruton, 552 A.2d 466, 472 (Del. 1989).

Id. (quoting Application of Wilm. Suburban Water Corp., 211 A.2d 602, 605 (Del. 1965)).

The United States Supreme Court squarely addressed the issue of the commingling of functions within an administrative agency in Withrow v. Larkin. In Withrow, the Court validated the decision of a state examining board which had investigated and eventually decided to revoke a physician's license because of his professional misconduct. The Court pointed out that the mere possibility of some bias on the part of an adjudicator is not sufficient to raise a constitutional violation. Instead, the party alleging bias must "convince that, under a realistic appraisal of psychological tendencies and human weakness, 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. 36 (1975).

Id. at 38-42.

See Blinder, 552 A.2d 466 at 473.

Id. (quoting Withrow, 421 U.S. at 47) (emphasis supplied).

The Court went on to note that a constitutionally unacceptable risk exists in situations where the adjudicator "has a pecuniary interest in the outcome" and in cases where the adjudicator "has been the target of personal abuse or criticism from the party before him." The party alleging unconstitutional bias in a case where an administrative agency acts in both an investigative and adjudicative role must "overcome a presumption of honesty and integrity in those serving as adjudicators."

Withrow, 421 U.S. at 47 (citations omitted).

Id.

The Delaware Supreme Court adopted this holding in Blinder Robinson Co. v. Bruton. In Blinder, two different representatives of the Delaware Department of Justice both prosecuted and adjudicated a violation of the Delaware Securities Act. The Court found that absent specific evidence of bias, "the mere prosecution of a case by one Deputy Attorney General, before another Deputy Attorney General acting in an adjudicative capacity, is not sufficient to overcome the strong presumption set forth in Withrow."

552 A.2d 466 (Del. 1989).

6 Del. C. §§ 7301-28.

Id. at 473.

The Withrow presumption of honesty and integrity has not been overcome here. Sokoloff's allegations that the State's involvement in this matter "simply appears questionable," resulting in a "rampant appearance of impropriety that offends traditional notions of due process" are not supported by the record. There is no indication in the record that the Board Deputy Attorney General "advised [the Board] that revocation of Sokoloff's license with permissible reapplication in one year was the best procedural course of action," as alleged in Sokoloff's Opening Brief. The implication that the State and Board then colluded to withhold information from the Board with respect to the newly-enacted five-year waiver bar until after Sokoloff submitted his application for a new medical license, absent any support, cannot stand.

Sokoloff Opening Brief, at *14-15 n. 6.

Id.

Moreover, Sokoloff's reliance upon Texaco Refining Marketing., Inc. v. Assessment Board of Appeals of the City of Delaware City, in support of his position that the Delaware State Bar Association Committee on Professional Ethics has interpreted Delaware's Professional Conduct Rules to prohibit one office from representing the State while simultaneously acting as advisor to an appeals board, is misplaced. In Texaco, the court found that two attorneys employed by the office of the City Solicitor acting as both city solicitor and the appellate board's own retained attorney in a property tax assessment appeal thereby denying a property owner the right to a fair hearing before that board. The City, represented by the Board, had a direct pecuniary interest in a higher property tax assessment. In the instant case, the Board of Medical Practice in a disciplinary proceeding has no such interest and derives no pecuniary benefit from imposing sanctions in the form of a license revocation.

579 A.2d 1137 (Del. Super 1989).

See Sokoloff Opening Brief, at *15-17.

Id.

Because Sokoloff has failed to establish evidence tending to suggest that the Board had any improper motive in denying Sokoloff's application for licensure, he is unable to overcome the Withrow presumption of honesty and integrity. Accordingly, Sokoloff's due process claim must fail.

EX POST FACTO CLAIM

This Court is also being asked to determine whether the Board was bound by the five-year disqualification period in 24 Del. C. § 1720(e)(4). The Board concluded that 24 Del. C. § 1720(e)(4) was applicable to Dr. Sokoloff and that he was required to establish that five years had elapsed since he had fully discharged of all his imposed sentences before the Board could issue a waiver for a license under § 1720(e).

Dr. Sokoloff asserts that the application of 24 Del. C. § 1720(e)(4) is impermissible under the ex post facto clause of the United States Constitution. Sokoloff contends that § 1720(e)(4) violates ex post facto because the law is retroactive and triggered only by a criminal conviction. Moreover, Sokoloff maintains that the Board cannot now deny his application based on a statutory time restriction forbidding waiver of certification requirements for five years because the Board, State, Sokoloff, and Sokoloff's retained attorney were seemingly unaware that § 1720(e)(4) had been in effect for approximately two years (June 2006) when they sanctioned Sokoloff in 2008.

Art. I. § 9 cl. 3.

An ex post facto or retroactive law is one that imposes punishment for acts committed at a time when such acts were not punishable, or one that adds a new punishment to that then prescribed. However, retroactive laws which are not substantively criminal in nature, specifically those laws outlining changes in procedural and administrative regulations, are not considered to violate the ex post facto doctrine.

Ex Parte Garland, 71 U.S. 333 (1866).

In re Petition of State, 603 A.2d 814, 816 (Del. 1992) (citations omitted).

"Legislation which simply defines the qualifications of one who attempts to practice medicine is a proper exercise of [the police power of that State]." The State legislature has authority to prescribe "regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance, and incapacity as well as of deception and fraud."

Hawker v. People of New York, 170 U.S. 189, 194-200 (1898).

Id. at 194 (quoting Dent v. West Virginia, 129 U.S. 114, 122 (1889).

Furthermore, the United States Supreme Court has upheld the right of State legislatures to set out qualifications which must be met by physicians before entering the medical practice. In Meffert v. State Board of Medical Registration Examination, the Court responded to an ex post facto challenge brought by a physician whose license was revoked by the Kansas State Board of Medical Examiners for acts that he committed prior to the enactment of a statute that created the Board itself. The Court affirmed the revocation, noting that "[t]he revocation of a license to practice medicine for any of the reasons mentioned in the statute was not intended to be, nor does it operate as, a punishment, but as a protection to the citizens of the state."

See Meffert v. State Bd. of Med. Registration Examination, 72 P. 247, 251 (1903), aff'd, 195 U.S. 625 (1904).

Id. 72 P. at 248 (emphasis added).

Id. at 251.

The Delaware Superior Court implemented this rationale in Bash v. Board of Med. Practice. Bash involved an ex post facto challenge, brought by a psychiatrist, against the application of an amendment to the Board's rules and regulations to incidents that occurred five years before the enactment of the new statute. In Bash, a psychiatrist's license was temporarily suspended pursuant to a statute specifically prohibiting "exploitation of the doctor/patient privilege for personal gain or sexual gratification" The Court held that "dishonorable, unethical or professional conduct [constitutes] grounds to suspend or revoke a licensee's privilege to practice medicine." In support of this holding, the Court relied on the Meffert principle that the revocation or withholding of a medical license pursuant to a law requiring a "certain standard of morals of the physician" is in no sense a "punishment."

579 A.2d 1145, 1153 (Del. Super. 1989).

Id. at 1153.

Bash v. Board of Med. Practice, 579 A.2d 1145, 1147 (Del. Super. 1989).

Id. (citing 52 Del. Laws, Ch. 323, § 5).

Id. (citing Meffert, 72 P. at 251).

Similarly, in Galena v. Commonwealth of Pennsylvania, a physician argued that the application of a law that provided for an automatic ten-year license suspension that was enacted after his convictions was an additional punishment prohibited by the ex post facto clause. The Galena Court, citing Hawker, rejected this argument and upheld the applicability of the statute because it was the intent of the legislature to protect its citizens through regulation of professional qualifications, not to punish the offender.

551 A.2d 676 (Pa. Commw. Ct. 1988).

Id.

Id. at 679.

So too, the Court in Hawker v. People of New York further addressed the issue of reformation and re-licensure, deciding that it is within the legislature's powers to regulate:

[O]ne who has violated the criminal law may thereafter reform, and become in fact possessed of a good moral character. But the legislature has power . . . to make a rule of universal application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule made the absolute test does or does not exist.

170 U.S. 189 (1898).

Thus, State legislatures may add, alter or eliminate professional licensing requirements based "upon the judgment of the [legislature] as to [the law's] necessity." The discretion in setting out the nature and extent of the qualifications lies with the legislature, and not with the Courts.

Id. at 195.

Id. (emphasis added).

It should also be noted that waiver under § 1720(e)(4) is discretionary. The language used in subsection (e) is permissive in effect: "The Board, by the affirmative vote of 12 of its members, may waive any of the requirements . . . of this section. . . ." However, subsection (e) continues with the caveat " if [the Board finds the following by clear and convincing evidence: . . . (4) For waiver of a crime substantially related to the practice of medicine, more than 5 years have elapsed since the applicant has fully discharged of all imposed sentences."

24 Del. C. § 1720(e)(4).

24 Del. C. § 1720 (e) (emphasis added).

Id.

Furthermore, the Board's Order specifically stated that Sokoloff was permitted to apply in accordance with the requirements then in place. By including, "then in place," the Board's Order clearly intended to abide by the licensing requirements in effect at the time Sokoloff reapplies for licensure. Had the Board instead written "Sokoloff is permitted to reapply pursuant to the requirements currently in place," or " now in effect," the result would be no different. Because subsection (e)(4) had been in effect for almost two years before Sokoloff's license revocation, coupled with the fact that subsection (e)(4) has remained in effect and is still in effect today, there is no reasonable interpretation that the Board's Revocation Order would omit or was an attempt to circumvent the applicability of subsection (e)(4).

Board Order, at *34.

Finally, Sokoloff is correct in pointing out that 24 Del. C. § 1720(e)(4) is a retroactive law. In effect, all qualifications are retroactive. For instance, to receive a certificate to practice medicine in the State of Delaware, a person must, among other requirements, "[h]ave a working ability to read, write, speak, understand, and be understood in the English language," have a legally sufficient medical degree from an accredited institution, and must have had "satisfactorily completed an internship or equivalent training in an institution," prior to being issued a certificate to practice medicine. Further, once an individual is qualified, "he must live up to that rule which qualified him [in the first instance]."

Ex Parte Garland, 71 U.S. 333, 353 (1866).

24 Del. C. § 1720(b)(1).

24 Del. C. § 1720(b)(2).

24 Del. C. § 1720(b)(3).

Garland, 71 U.S. at 353.

An increased restriction on licensure requirements for individuals convicted of crimes substantially related to medicine clearly encompasses inquiry into and regulation of the character of individuals licensed to practice medicine. Sokoloff has been unable to establish that subsection 24 Del. C. § 1720(e)(4) carries with it a punitive effect. Absent evidence tending to show that subsection (e)(4) actually inflicts punishment, rather than merely sets out another qualification, Sokoloff's ex post facto claim must fail. The Court is thus in agreement with the decision of the Board to reject Sokoloff's ex post facto claim.

Board Order, at *9.

Furthermore, notwithstanding the foregoing, the Board would still have been required to deny Sokoloff's application for licensure based on the fact that Sokoloff applied for licensure less than "one (1) year from the date of the [Public Order of the Board] or the expiration of Dr. Sokoloff's period of probation for his criminal convictions, whichever occurs last" and the fact that "Dr. Sokoloff is prohibited from re-applying for licensure during the period of revocation." Sokoloff's argument that the Board's Public Order sanctioned him to only a one-year license revocation is not sufficient to support a finding of legal error.

Id.

Id.

CONCLUSION

Based on a careful review of the record below, this Court finds that the Board did not commit legal error and that its decision is supported by substantial evidence. The decision of the Board of Medical Practice is AFFIRMED.

It is So ORDERED.