DEPT OF CONSUMER/INDUSTRY SERV V GABRIEL SAGUN ORZAME
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STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF CONSUMER AND
INDUSTRY SERVICES,
UNPUBLISHED
November 30, 2001
Plaintiff-Appellee,
V
No. 223676
Board of Medicine
LC No. 98-000346
GABRIEL SAGUN ORZAME, M.D.,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant appeals by right the Board of Medicine’s revocation of defendant’s license to
practice medicine. Defendant’s sole issues on appeal are four constitutional questions generally
raised before yet unreviewable by the Board of Medicine. We affirm.
Defendant first claims that revocation of his license placed him in double jeopardy
because revocation, together with his previous misdemeanor conviction, constituted multiple
punishments. Constitutional questions are reviewed de novo. Kuhn v Secretary of State, 228
Mich App 319, 324; 579 NW2d 101 (1998). De novo is the proper standard because defendant
is not disputing the agency’s findings of fact. See In the Matter of Estes, 392 Mich 645, 649;
221 NW2d 322 (1974). Further, the administrative tribunal did not consider any constitutional
issues, likely because it did not have jurisdiction over them. Womack-Scott v Dep’t of
Corrections, 246 Mich App 70, 81; 630 NW2d 650 (2001). We may review the board’s ultimate
legal decision revoking defendant’s license to determine whether it was constitutionally
authorized by law and, though supported by substantial evidence, whether it is based on a
substantial and material error of law. Const 1963, art 6, § 28; MCL 24.306(1)(f); Adrian School
Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d
767 (1998).
Federal double jeopardy protection ensures that one punishment be fully credited in
imposing a second punishment for the same offense. US Const, Am V; People v Whiteside, 437
Mich 188, 198-199; 468 NW2d 504 (1991), cert den 502 US 889; 112 S Ct 249; 116 L Ed 2d
204 (1991). In general, administering criminal and civil penalties for the same act is not a
violation, unless the civil penalties are disproportionate to the offense when added to the criminal
sanctions. People v Hellis, 211 Mich App 634, 640, 644 (O’Connell, J.), 651 (Jansen, J.), 658
(Holbrook, Jr., P.J.); 536 NW2d 587 (1995). However, an administrative action may be violative
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of double jeopardy if it is equivalent to a criminal proceeding because the penalty or forfeiture is
so punitive in purpose or effect that it is rendered a criminal punishment. People v Duranseau,
221 Mich App 204, 206-207; 561 NW2d 111 (1997). This is determined by ascertaining the
Legislature’s intent. Id. at 207.
We have held that administrative license revocation proceedings are not criminal, and the
purpose of license revocation is not to render punishment, comporting with the double jeopardy
prohibition. Thangavelu v Dep’t of Licensing and Regulation, 149 Mich App 546, 555-556; 386
NW2d 584 (1986). Rather, the purpose is to maintain sound, professional standards of conduct
to protect the public and the standing of the medical profession in the eye of the public. Id.; see,
also, Consumer & Industry Services v Greenberg, 231 Mich App 466, 470-471; 586 NW2d 560
(1998). The Board of Medicine’s decision revoking defendant’s license for his misdemeanor
falsification of a medical record conviction is clearly mandated by the Public Health Code,
evidencing the Legislature’s intent. MCL 750.492a; MCL 333.16221; MCL 333.16226;
Duranseau, supra at 207. Therefore, because the board’s decision was authorized by law and
was not a legal error, defendant’s double jeopardy argument is without merit. MCL
24.306(1)(f); Adrian School Dist, supra at 332.
Second, defendant argues that license revocation is an unconstitutionally cruel or unusual
punishment. US Const, Am VIII; Const 1963, art 1, § 16. Defendant’s argument and case law
supporting application of Michigan’s more protective cruel “or” unusual punishment doctrine, in
addition to the federal standard, allows this Court to look to state case law to expand Eighth
Amendment protection for defendant. Carlton v Dep’t of Corrections, 215 Mich App 490, 505506; 546 NW2d 671 (1996). Similar to part of the double jeopardy analysis, whether a civil
sanction is a punishment is the threshold question here. See People v Chapman, 301 Mich 584,
608; 4 NW2d 18 (1942); Smith v Wayne Probate Judge, 231 Mich 409, 416; 204 NW 140
(1925); see also, e.g., In the Matter of Estes, supra at 645. As a mechanism for protecting the
public from the licensee’s failings, this Court has already concluded that the Legislature intended
as nonpunitive the general civil sanction of license revocation following a criminal conviction
for the same conduct. Duranseau, supra at 206-207; see, also, Thangavelu, supra at 555-556.
Thus, the cruel or unusual punishment inquiry ends here, even under state case law expanding
cruel or unusual punishment protection to state defendants under the principle of proportionate
punishments. MCL 333.16221; MCL 750.492a(1)(b); Duranseau, supra at 207; Greenberg,
supra at 470-471.
Third, defendant advances a primarily Fourteenth Amendment procedural due process
argument, essentially contending that the license revocation statute is unconstitutional as applied
to him because it is disproportionate to the seriousness of his misdemeanor offense conviction.
US Const, Am XIV. The Fourteenth Amendment provides that no person may be deprived of
life, liberty, or property without due process of law. St Louis v MUSTFA Policy Bd, 215 Mich
App 69, 74; 544 NW2d 705 (1996). Normally, Michigan’s due process clause is construed no
more broadly than the federal guarantee. Syntex Laboratories v Dep’t of Treasury, 233 Mich
App 286, 292; 590 NW2d 612 (1998). In general, procedural due process must be afforded to
any adjudication of important rights. Dobrzenski v Dobrzenski, 208 Mich App 514, 515; 528
NW2d 827 (1995). The threshold consideration concerns whether the state has deprived a
person of a life, liberty, or property interest to which the person has a legitimate entitlement. St
Louis, supra at 74-75. A person’s means of livelihood is commonly considered a protectable
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property interest requiring procedural due process. Mollett v City of Taylor, 197 Mich App 328,
343; 494 NW2d 832 (1992). The basic protections of procedural due process apply to medical
license revocation proceedings. Milford v People’s Community Hospital Authority, 380 Mich
49, 56-63; 155 NW2d 835 (1968).
Defendant’s relatively novel due process claim is that the statutory scheme unfairly
mandates license revocation for all record falsification offenses, even reckless (unintentional)
misdemeanors.1 Defendant points out that ostensibly more serious offenses including murder
and other offenses of moral turpitude are subjected to a disciplinary scheme affording the board
discretion to administer a penalty less than license revocation. MCL 333.16221; MCL
333.16226. This claim requires us to determine whether the penalty is irrational in light of the
scheme. Hudson v United States, 522 US 93, 103-104; 118 S Ct 488; 139 L Ed 2d 450 (1997);
Alvarez v Straub, 64 F Supp 2d 686, 698 (ED Mich, 1999). Defendant acknowledges that the
inquiry is commonly known as the rational basis test for legislation founded in the police power,
including the one at issue under the Public Health Code. Katt v Ins Bureau, 200 Mich App 648,
652-653; 505 NW2d 37 (1993); Hecht v Niles Twp, 173 Mich App 453, 460; 434 NW2d 156
(1988).
In fact, protection of the public affords the reasonable basis required for license
revocation, which is rationally related to that legitimate goal. Greenberg, supra at 470-471;
Thangavelu, supra at 555-556.
[A]s a simple administrative matter the legislature could, and indeed had to,
choose some time at which persons serving life sentences become eligible for
parole. That this scheme may at times result in the anomalous result of a person
being convicted of a more serious crime being eligible for parole sooner than
someone convicted of a less serious crime does not render the scheme irrational.
[Alvarez, supra at 698.]
Defendant’s fourth and final claim, equal protection, Const 1963, art 1, § 2; US Const
Am XIV, fails for similar reasons. First, defendant’s “as-applied” equal protection claim
requires only that similarly situated classes be treated alike. Crego v Coleman, 463 Mich 248,
261-262, 269; 615 NW2d 218 (2000), cert den 531 US 1074; 121 S Ct 767; 148 LEd 2d 667
(2001). We find that defendant’s class of MCL 750.492a misdemeanor criminals, compared to
other felony criminals, are not sufficiently similarly situated to invoke equal protection. Crego,
supra at 264, 273, 277. Dishonesty in medical record keeping is a discrete concern of the
Legislature demonstrated in the presumptively valid statute’s language, and the policy
discouraging it is distinct from the one underlying other crimes. MCL 750.492a; Vargo v Sauer,
457 Mich 49, 60-61; 576 NW2d 656 (1998); Greenberg, supra at 470-471. Further, promotion
of accurate record keeping, both for the individual patient’s welfare and the public’s protection,
is a reasonable basis for revoking a medical license. Revocation, in turn, is rationally related to
1
Defendant suggests that he never received a proper hearing in either the administrative matter
or for his nolo contendere plea in the criminal matter. The record belies this assertion on both
counts, and only the administrative matter is before this Court. Dow v State, 396 Mich 192, 205;
240 NW2d 450 (1976) (due process requires a hearing).
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the accuracy goal. Greenberg, supra at 470-471; Thangavelu, supra at 555-556. Therefore, the
disparity in discipline afforded to the two classes is not irrational. Alvarez, supra at 698. Thus,
the Board of Medicine’s decision was authorized by law and not based on a substantial and
material error of law under an irrational statute. MCL 24.306(1)(f); Thangavelu, supra at 555556; Alvarez, supra at 698.
We affirm.
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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