In the Matter of Eric H. Weisman, D.C., License Number: 001600.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-450

 

In the Matter of Eric H. Weisman, D.C.,

License Number: 001600.

 

Filed December 22, 2003

Affirmed

Willis, Judge

 

Board of Chiropractic Examiners

 No. 11-0901-14478-2

 

Philip G. Villaume, Jeffrey D. Schiek, Philip G. Villaume and Associates, 5200 Willson Road, Suite 150, Edina, MN 55424 (for relator)

 

Mike Hatch, Attorney General, Susan E. Damon, Peter Krieser, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent Minnesota Board of Chiropractic Examiners)

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

 

Relator challenges respondent's revocation of his license to practice chiropractic, alleging that (1) respondent's decision was arbitrary and capricious, and (2) relator's due-process rights were violated because he was denied the effective assistance of counsel.  Because we conclude that the record supports respondent's decision and that relator had no constitutional right to the effective assistance of counsel in this civil proceeding, we affirm.

FACTS

In October 1979, respondent Minnesota Board of Chiropractic Examiners granted relator Eric H. Weisman a license to practice chiropractic in the state of Minnesota.  Between 1982 and 1997, the board disciplined Weisman on at least four occasions for inappropriate conduct, including deceptive advertising, providing unnecessary services, maintaining incomplete treatment records, and practicing beyond the scope of his license by treating animals.  In July 1997, the board issued a consent order based on its determination that Weisman continued to engage in unprofessional conduct.  The order placed Weisman on probation for five years under practice restrictions, imposed a civil penalty, and mandated that he perform 300 hours of community service by January 17, 1999. 

In December 1998 Weisman submitted a letter to the board from a licensed social worker who claimed that he had diagnosed Weisman with post-traumatic stress disorder ("PTSD") related to an incident in March 1998 when Weisman was assaulted in a bar.  The social worker stated that the PTSD caused Weisman to suffer from depression, anxiety, limited concentration, and low motivation, and as a result of these symptoms Weisman had been unable to complete the community-service requirement.  The social worker requested that the board grant Weisman an extension of time to complete the community service.  Board staff made several unsuccessful requests for additional documentation from the social worker to support the PTSD diagnosis.

  By January 1999, Weisman had completed only 55 hours of community service. On March 16, 1999, Weisman met with the board's complaint panel regarding his failure to complete the community-service requirement and regarding his ability to practice chiropractic, given the psychological difficulties that he claimed resulted from the assault.  At the panel's request, Weisman submitted to a neuropsychological evaluation at the University of Minnesota Medical School Department of Neurology.  The evaluator determined that Weisman's symptoms did not meet the criteria for a diagnosis of PTSD and found no evidence to suggest that there had been an overall decline in Weisman's cognitive and intellectual performance.  The test results did suggest diagnoses of "Post concussional syndrome, secondary to a head injury incurred in the March 1998 assault," "Personality Disorder NOS with passive-aggressive features," and "Attention Deficit/Hyperactivity Disorder . . . of developmental origin."  The evaluator also noted that Weisman suffered symptoms indicative of a "mild closed head injury related to the assault on March 8, 1998, including a very mild problem with his working memory." 

In September 1999, the board issued a supplemental consent order that required Weisman to complete the previously imposed community-service requirement and that imposed additional limitations on his practice.  But by December 2000, the board had learned that Weisman apparently was continuing to engage in conduct that violated the board's 1997 and 1999 orders and provisions of the statute relating to the practice of chiropractic (Minn. Stat. §§ 148.01 through 148.105).  As a result, in September 2001, the board's complaint panel initiated another inquiry into Weisman's practice, and, in May 2002, the panel filed a motion with an administrative law judge ("ALJ") for partial summary disposition and a recommendation for disciplinary action. 

A hearing before an ALJ was held on June 25, 2002.  The ALJ recommended that the board grant the complaint panel's motion for partial summary disposition by finding that Weisman committed certain acts alleged in the motion.  The board heard arguments on the ALJ's recommendation on October 24, 2002.  Counsel represented Weisman at both the June 25 and October 24 proceedings, but, despite Weisman's requests, on neither occasion did his attorney raise the issue of Weisman's head injury as a possible mitigating factor.

The board found that Weisman had violated numerous statutes, regulations, and board orders in his practice of chiropractic,[1] and, on November 5, the board issued an order revoking Weisman's license and imposing a civil penalty of $40,131.25, representing Office of Administrative Hearings fees, court-reporter fees, expert-witness fees, reproduction of the record, staff time, and partial reimbursement for legal services provided by the Attorney General's office.  The board's order incorporated the ALJ's summary-disposition recommendation in its entirety.    

On November 15, 2002, Weisman submitted a pro se request for reconsideration, alleging that side effects of his March 1998 head injury had caused him to commit the misconduct in question.  He also alleged that he had repeatedly asked his counsel to explain the effects of his head injury to the board, but counsel had not done so.  The board held a hearing on Weisman's request on February 13, 2003, at which Weisman appeared pro se.  On April 2, the board issued an order denying Weisman's request for reconsideration and reaffirming the order of November 5, 2002.  This appeal follows.

D E C I S I O N

1.         Arbitrary and Capricious

 Agency decisions are presumed correct, and courts give deference to the agencies' expertise and their special knowledge in the field of their technical training, education, and experience.  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).  An agency decision will be reversed only when it reflects an error of law or when the findings are arbitrary and capricious or unsupported by substantial evidence. In re Hutchinson, 440 N.W.2d 171, 176 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989).  An agency's conclusions are not arbitrary and capricious if a rational connection between the facts found and the choice made has been articulated.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001).  Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  Nat'l Audubon Soc'y v. Minn. Pollution Control Agency, 569 N.W.2d 211, 215 (Minn.  App. 1997), review denied (Minn. Dec. 16, 1997). 

Weisman claims that the board arbitrarily and capriciously revoked his chiropractic license because it failed to consider his 1998 "brain injury" as a factor that mitigated his failure to comply with the board's consent orders and his continued unprofessional conduct.  At the time the board issued its order it was aware of Weisman's head injury and the results of the neuropsychological evaluation conducted in March 1999.  The order does not indicate whether the board considered the possible effects of the injury when it reached its decision, but we conclude that such consideration, or the absence thereof, is immaterial.  Wholly apart from any possible effects of Weisman's head injury on his conduct, the record contains sufficient evidence to support the board's decision to revoke Weisman's license.  The board noted that Weisman had been the subject of five disciplinary actions, four of which occurred before his head injury, that he continued to engage in prohibited activities in violation of consent orders of the board, and that the prohibited activities he engaged in posed a "serious danger to the public."  The board concluded that Weisman's "extensive disciplinary history, his failure to rehabilitate himself and his serious misconduct" made revocation of his license "warranted and necessary to protect the public." 

Moreover, in his November 15, 2002 request for reconsideration, Weisman claimed that "it took about 3 to 4 years for (the) injury to completely resolve itself."  But in its order denying Weisman's request the board noted that Weisman's misconduct began before his head injury and continued at least into April 2002, which was more than four years after the date of the injury.  Therefore, the misconduct predated the injury, continued during the time Weisman's conduct allegedly was affected by the injury, and did not cease after the injury had resolved itself.  The record supports the board's conclusions, and the board has articulateda rational connection between the facts it found and its final determination.  Therefore, the board's conclusions are supported by substantial evidence, and the board did not act arbitrarily and capriciously in revoking Weisman's license.

2.         Effective Assistance of Counsel

There is no federal constitutional right to the effective assistance of counsel in a civil proceeding.  Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980).  The constitutional right under the federal constitution to legal representation attaches only in a criminal proceeding.  United States v. Gouveia, 467 U.S. 180, 187-89, 104 S. Ct. 2292, 2297-98 (1984) (Sixth Amendment right to counsel attaches only "at or after the initiation of adversary judicial proceedings against the defendant").  See also McDonnell v. Comm'r of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991) ("Without question, the right to counsel guaranteed by the [S]ixth [A]mendment . . . does not attach until formal charges are initiated.").

Weisman cites no case, and we find none, that concludes that there is a right under the Minnesota Constitution to the effective assistance of counsel in a civil case.  But he argues that because the revocation of a professional license is the taking of a property or liberty interest, he is entitled to due process, including the effective assistance of counsel, in all proceedings that relate to such a revocation.  He then argues that he received ineffective assistance of counsel because his attorney failed to raise his head injury as a factor mitigating his admitted misconduct and that the board would not have imposed such harsh sanctions if it had been fully informed of the severity and effects of his injury. 

The board contends that the Watson rule applies here and cites authority from other jurisdictions for the proposition that a party involved in an administrative proceeding has no right to the effective assistance of counsel.  See, e.g., Father & Sons Lumber & Bldg. Supplies, Inc. v. N.L.R.B., 931 F.2d 1093 (6th Cir. 1991) (holding that there is no right to effective counsel in labor-relations proceeding); Sasson v. Comm'r of Educ., N.Y.S.2d 696 (N.Y. App. Div. 1987) (holding that right to effective assistance of counsel does not extend to civil proceeding to revoke physician's license); Rosenthal v. Com. State Bd. of Pharmacy, 457 A.2d 243 (Pa. Commw. Ct. 1983) (holding that right to effective assistance of counsel does not apply to disciplinary proceedings before Pennsylvania State Board of Pharmacy); White v. Bd. of Med. Quality Assurance, 180 Cal. Rptr. 516 (Cal. Ct. App. 1982) (holding that right to effective assistance of counsel does not apply in physician disciplinary proceeding).

After Weisman filed his brief in this appeal, this court also addressed the issue of the right to the effective assistance of counsel in an administrative proceeding.  See Maietta v. Comm'r Pub. Safety, 663 N.W.2d 595 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  We held that, because an implied-consent proceeding is civil in nature, there was no constitutional right to the effective assistance of counsel in that proceeding.  Id. at 600.  We conclude that Weisman had no constitutional right to the effective assistance of counsel in this proceeding.[2]  We need not address, therefore, the issue of whether Weisman received ineffective assistance.

Finally, Weisman asks that if this court finds the board's action was not arbitrary and capricious and finds that he is not entitled to a new hearing because of the ineffective assistance of counsel, then, as an alternative remedy, we should reduce the penalties imposed by the board.  An administrative agency's assessment of penalties is an exercise of its discretionary power and a reviewing court may not interfere with the penalties imposed by an agency decision absent a clear abuse of discretion.  Matter of Henry Youth Hockey Ass'n, License No. 02795, 511 N.W.2d 452, 456 (Minn. App. 1994), review granted in part, modified, 559 N.W.2d 410 (Minn. 1994).  When discipline is imposed on a professional for unprofessional conduct, appropriate discipline is best determined by fellow professionals.  Padilla v. Minn. State Bd. of Med. Exam'rs, 382 N.W.2d 876, 887 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986). 

Minn. Stat. § 148.10, subd. 1(a) (2002), provides 21 grounds for revocation of a chiropractor's license.  Here, the board found that Weisman had violated four provisions of Minn. Stat. § 148.10, subd. 1(a), as well as having violated various regulations and requirements of the board's orders.  Revocation of Weisman's license was not an abuse of discretion.  Additionally, Minn. Stat. § 148.10, subd. 3 (2002), allows the board to impose monetary penalties to recover the costs of investigations and proceedings that result in disciplinary action.  Based on the board's itemization of costs, we find that it did not abuse its discretion in imposing the civil monetary penalty. 

Affirmed.

[1] Specifically, the Board concluded that Weisman had violated Minn. Stat. § 148.10, subds. 1(a)(1), (10), (11), (20), and (e) (2000); Minn. R. 2500.0400 and 2500.3000; and numerous requirements of the Board's 1997 consent order.  

 

[2]We recognize that there are Minnesota statutes that either explicitly provide the right to effective assistance of counsel in certain civil proceedings or have been judicially interpreted to provide that right.  See, e.g., Minn. Stat. § 260C.163, subd. 3(a) (2002) (explicitly granting right to effective assistance of counsel in child-protection proceedings); In re Cordie, 372 N.W.2d 24, 28 (Minn. App. 1985), review denied (Sept. 26, 1985) (holding that the standard employed to evaluate the adequacy of counsel in criminal cases also applies to counsel appointed under the right-to-counsel provision of the Civil Commitment Act).  But there is no statute granting the right to effective assistance of counsel in the proceedings at issue here.