Brody v. Barasch

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-575


Barry Brody                                  Supreme Court

     v.                                      On Appeal from
                                             Rutland Superior Court
Robert Barasch and the Vermont
Board of Psychological Examiners             May Term, 1990


Arthur J. O'Dea, J.

William A. Hunter, Windsor, for plaintiff-appellant

John H. Chase, Office of the Secretary of State, Montpelier, for defendant-
   appellees


PRESENT:  Allen, C.J., Peck and Gibson, JJ.



     GIBSON, J.   Plaintiff appeals from a superior court judgment affirming
a decision of the Appeals Panel denying him a license to practice as a
psychologist in Vermont.  We affirm.
     In the fall of 1984, plaintiff applied to the Board of Psychological
Examiners (Board) for a license under 26 V.S.A. chapter 55 as a psycholo-
gist-doctorate.  The resume he submitted with the application incorrectly
stated that he held a Vermont license as a psychologist-master.  After an
investigation of his background, the Board denied his application on two
grounds: first, that he had failed to represent accurately his competence,
education, training and experience, and second, that he had improperly
attempted to establish a personal relationship with a client.
     Plaintiff took an appeal to the Appeals Panel. (FN1) In April of 1987, the
Panel affirmed the Board's denial on the basis of what it found to be six
misrepresentations in plaintiff's 1984 resume, but it was "unable to find"
that plaintiff had established a personal relationship with a client, and
vacated that portion of the Board's order.
     During the pendency of the appeal before the Panel, plaintiff
instituted the present action, requesting an order that he be seated for
the licensing examination, and seeking damages.  The Board stipulated that
he could sit for the examination pending results of the Panel hearing.
After the Panel's decision, he amended his complaint to include an appeal of
that decision.  The Superior Court affirmed the Panel's decision and granted
summary judgment to defendants on plaintiff's other claims for relief.  The
present appeal followed.
     Plaintiff contends first that the evidence before the Appeals Panel did
not warrant denial of his license on grounds that he was "morally unfit" to
practice psychology.  The argument on appeal is essentially identical to
the argument before the trial court -- that the denial may not be based on
Dr. Brody's past behavior, but only his present behavior.  Plaintiff goes on
to contend that in any case there had never been anything false in his
resume, and that when requested by the Board he was quick to "clear up any
confusion there might have been."
     Neither argument withstands analysis.  In its decision, the Superior
Court concluded that the 1984 resume "mischaracterized certain of appel-
lant's past experiences," noting that a majority of the Panel had concluded
that the misrepresentations were material and substantive and "that they
revealed a cavalier attitude about the truth and a serious problem in
judgment."  26 V.S.A. { 3011(2) provides that an applicant for a psychol-
ogist's license must demonstrate to the satisfaction of the Board that he
"is not engaged in unprofessional conduct."  Section 3016 defines "[u]npro-
fessional conduct" to include deception in the procurement of a license,
false reporting in the practice of psychology, and advertising that has a
tendency to deceive the public.  { 3016(1), (2) and (3).  In discussing this
statute, the court concluded:
          That the Board and Appeals Panel applied appellant's
          conduct against the moral fitness criterion of the
          statute does not negate the fact that the conduct
          offends against a fairly rooted conception of morality
          as well as the obvious spirit and intent of the statute.
          The state has a legitimate interest in regulating pro-
          fessions in Vermont and there is a rational  relation-
          ship between the profession of psychology and the
          regulation here in issue.

The record amply supports the court's conclusion that there was a sufficient
connection between plaintiff's misrepresentations and his professional fit-
ness for the Appeals Panel to have concluded as it did.  See Board of
Medical Practice v. Perry-Hooker, 143 Vt. 268, 270, 465 A.2d 291, 292
(1983).
     As to plaintiff's argument that the misstatements went at most to "past
character," the court stated that "[i]t is difficult to imagine what could
be more current than the application itself."  We agree.  Plaintiff's
interpretation of past and present would relegate to the past virtually any
conduct that does not occur in the Board's presence.  Such a limitation is
not contemplated by the statute.  In re Monaghan, 126 Vt. 53, 222 A.2d 665
(1966) does not support plaintiff's position.  In that case, the applicant
for admission to the Vermont Bar had stopped his excessive drinking, and
several years had passed without conduct that was criminal or morally
reprehensible, thus showing there had been an improvement in character.  Id.
at 65-66, 222 A.2d  at 675.  In the present case, the misstatements occurred
in plaintiff's current application, and he only corrected the record after
the misstatements in his resume had been uncovered during the Board's
investigation.  Again, the record supports the court's conclusion.
     Plaintiff next contends that his due process rights were violated
because of a lack of notice of charges against him, and because the Appeals
Panel was a "body with a flawed structure."  Plaintiff applies his notice
argument to both the Board's initial decision and to the hearing before the
Appeals Panel.  His argument that he was not notified or allowed to appear
at the meeting of the Board at which his application was initially denied is
without legal support.  The psychologists' licensing statute, 26 V.S.A.
chapter 55, like other licensing provisions in Vermont, (FN2) does not provide
for notice or an opportunity to appear before the licensing board prior to
the board's initial decision on licensure.  This statutory process is in
accord with constitutional principles; an applicant's due process rights are
protected if he has due notice of the Board's decision and an opportunity to
appeal.  See Charry v. Hall, 709 F.2d 139, 146 (2d Cir. 1983) (applicant for
psychologist's license was not entitled to evidentiary hearing as part of
the state's administrative review of his application);  Lock v. New York
State Educ. Dep't, 102 A.D.2d 979, 980, 477 N.Y.S.2d 783, 786 (1984) (mem.)
(no due process right to appear before the review committee or have an
evidentiary hearing in connection with license application; review procedure
provided complied with criteria for constitutionality where applicant had
ample opportunity to submit written proof of his qualifications), appeal
denied, 64 N.Y.2d 604, 485 N.Y.S.2d 1029 (1985); see also Mathews v.
Eldridge, 424 U.S. 319, 343 (1976) ("ordinary principle, established by our
decisions, [is] that something less than an evidentiary hearing is suffi-
cient prior to adverse administrative action").  See generally Friendly,
"Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1295-1304 (1975).  Ample
opportunity for administrative and judicial review after the initial
decision is provided under 3 V.S.A. { 114a(d) and (g), the Administrative
Procedure Act (3 V.S.A. ch. 25), and the Vermont Rules of Civil Procedure.
This review process is adequate to satisfy the demands of due process.
     As to his procedural rights before the Appeals Panel, the Board wrote
plaintiff on March 7, 1986, notifying him of the denial of his application
and the reasons therefor. (FN3) The record is clear that both plaintiff and his
attorney understood the issues prior to consideration by the Appeals Panel
and could have presented any witnesses they felt would be relevant and
helpful.  Plaintiff's attorney stated at the commencement of the June 20,
1986 hearing:
          Well, as, I think we -- I mentioned some of the issues
          last time and apparently everyone agreed that it is
          going to be a de novo hearing on the licensing issue,
          whether [plaintiff] is in fact entitled to his license
          or not.  I think that [the attorney for the Board] and I
          have come to some sort of understanding, at least, on
          what issues we are going to be talking about here today.

Thus, the record does not sustain plaintiff's contention about a lack of
notice.  See Application of Matthews, 94 N.J. 59, 74, 462 A.2d 165, 172
(1983) (claim by applicant for bar admission that he lacked notice of
grounds on which his fitness was to be reviewed was harmless where counsel
conceded that he was aware of issues in dispute).  Moreover, plaintiff never
raised the issue of inadequacy of notice at trial and hence waived that
issue.  Hinckley v. Town of Jericho, 149 Vt. 345, 346, 543 A.2d 260, 261
(1988) (objections about notice of the hearing and procedures followed were
not made before administrative body and were thus waived).
     Plaintiff also assails the makeup of the Appeals Panel as unconstitut-
ional.  The Panel is composed of five members: three permanent and two ad
hoc.  One of the permanent members is the secretary of state or his
designee; the other two permanent members are appointed from the public by
the governor.  The two ad hoc members are "appointed by a board chairman to
sit when matters pertaining to . . . licenses . . . within the initial
jurisdiction of his board are being considered by the panel."  3 V.S.A. {
114a(a).
     Plaintiff claims that the appointment of the two ad hoc members by the
chair of the Board violates his constitutional protections.  It is plain-
tiff's burden to show by clear and convincing evidence that the challenged
statute is unconstitutional.  Heaton Hosp., Inc. v. Emrich, 128 Vt. 405,
408-09, 264 A.2d 806, 809 (1970); State v. Auclair, 110 Vt. 147, 156, 4 A.2d 107, 111 (1939).  In order to sustain his argument, plaintiff must overcome
a presumption in favor of the honesty and integrity of the panel members.
See Withrow v. Larkin, 421 U.S. 35, 47 (1975).  Indeed, this Court presumes
that actions of an administrative body are valid, unless shown by clear and
convincing evidence to be otherwise.  In re Young, 134 Vt. 569, 570-71, 367 A.2d 665, 666 (1976).  Further, there is a presumption that government offi-
cials will decide a controversy conscientiously and fairly, even though they
may have been previously involved in an earlier stage of the proceeding.
Boston v. Webb, 783 F.2d 1163, 1166 (4th Cir. 1986).  See State Dep't of
Taxes v. Tri-State Industrial Laundries, Inc, 138 Vt. 292, 296, 415 A.2d 216, 219 (1980) (although due process imposes some limits on multiplicity of
functions by individuals in contested case, it does not limit multiplicity
of functions by agency in toto).  At the same time, we recognize that "to
perform its high function in the best way 'justice must satisfy the
appearance of justice.'"  In re Murchison, 349 U.S. 133, 136 (1955) (quoting
Offutt v. United States, 348 U.S. 11, 14 (1954)); see Richard v. Richard,
146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985) (disqualification of a judge is
required "whenever a doubt of impartiality would exist in the mind of a
reasonable, disinterested observer").  Nevertheless, the burden of estab-
lishing disqualification rests with the challenging party.  Schweiker v.
McClure, 456 U.S. 188, 196 (1982).
     Plaintiff has not shown the ad hoc members of the Board to have an
institutional bias -- that is, that they had participated in an earlier
stage of the proceeding or had served the Board in any capacity.  Further,
there is no suggestion by plaintiff that the Board itself was biased against
him.  Rather, plaintiff makes general assertions that because they were
appointed by the Board's chair, the ad hoc members would be reluctant to
disagree with the decision of the Board, and thus disposed to rule against
him.  Plaintiff offers no proof in support of his assertions.  Such
assertions, by themselves, do not provide a sufficient basis on which to
invalidate the statute.  See Schweiker, 456 U.S.  at 196 n.10.
     Nor has plaintiff made any showing of actual bias or prejudgment on the
part of the ad hoc members.  Although plaintiff claims that a remark made by
one of the ad hoc members during the hearing demonstrated bias, plaintiff's
motion to disqualify the member was denied.  The superior court addressed
this issue in detail, concluding that the remark derived from the evidence
before the Panel and that plaintiff had not established bias or prejudice on
the part of the member.  Plaintiff has taken no appeal from this ruling, and
presents no grounds on which to overcome the presumption of honesty and
integrity that attaches to the actions of the panel members as adjudicators.
His due process claim must be rejected.  Withrow v. Larkin, 421 U.S.  at 47,
52; Boston v. Webb, 783 F.2d  at 1166; Smith v. Sorensen, 748 F.2d 427, 436
(8th Cir. 1984).
     Plaintiff next contends that the statutory prohibition against "moral
unfitness to practice psychology" (26 V.S.A. { 3016(10)) is unconstitu-
tionally vague.  It is a basic principle of due process that a statute is
void for vagueness if its prohibitions are not clearly defined.  Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972).  A statute must be sufficiently
clear to give a person of ordinary intelligence a reasonable opportunity to
know what is proscribed.  Id.; State v. DeLaBruere, 1 Vt.L.W. 166, 176
(April 27, 1990); State v. Cantrell, 151 Vt. 130, 133, 558 A.2d 639, 641
(1989).  Although the term "moral unfitness" is undefined, this does not
necessarily render it unconstitutionally vague.  To make a statute
sufficiently certain to comply with constitutional requirements, it is not
necessary that it detail each and every act or conduct that is prohibited.
Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881, 884
(Fla. 1972).  Thus, any board or body whose duty it is to pass upon the
qualifications of licensees of the various professions -- law, medicine,
psychology, or others -- must do so by applying some broad and necessarily
general standards.  Statutory language that conveys a definite warning as to
proscribed conduct when measured by common understanding and practices will
satisfy due process.  Id.
     The Board found that plaintiff's failure to represent accurately his
competence, education, training and experience failed to meet the statutory
standard.  The Appeals Panel concluded that plaintiff's submission of mis-
leading, exaggerated and misrepresentative statements about his career and
background amounted to moral unfitness, because they revealed "a cavalier
attitude to the truth and a serious problem in judgment."  Honesty and
integrity are essential attributes of good character, see In re Monaghan,
126 Vt. 53, 66, 222 A.2d 665, 675 (1966), particularly in a profession such
as psychology where truth is a necessary ingredient in the providing of
service to the consumer.  We conclude that the statute is sufficiently clear
to inform the ordinary person that honesty and truthfulness are required
attributes of one who desires to be licensed as a psychologist.  The
statute is not unconstitutionally vague.
     Plaintiff raises on appeal for the first time the issue that the trial
court relied on and referred to a transcript of the Board's March 15, 1985
meeting, which had not been provided to plaintiff.  A decision of the trial
court was entered on July 31, 1988, and plaintiff filed a notice of appeal.
The appeal was premature, since the July 31, 1988 order was interlocutory
only, and the appeal was dismissed.  But the decision referred to did
provide plaintiff with notice of the transcript to which he now objects, and
after the dismissal of his appeal the case remained on the docket of the
Rutland Superior Court for approximately nine months.  During that time two
conferences were held, and defendants' motion for summary judgment was filed
and granted.  At no time did plaintiff bring the asserted irregularity to
the attention of the court.  He thus waived the issue and may not now raise
it for the first time on appeal.
     Affirmed.



                                        FOR THE COURT:



                                        ________________________________
                                        Associate Justice





FN1.        The Appeals Panel is established under 3 V.S.A. { 114a to serve all
Vermont licensing boards and commissions.

FN2.    See, e.g., 26 V.S.A. ch. 3 (architects), ch. 13 (dentists), ch. 20
 (engineers).

FN3.    The notifying letter was not introduced into evidence, but plaintiff
does not take issue with the State's representation of its contents.