VITTORIO M MORREALE V DEPARTMENT OF COMMUNITY HEALTH
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STATE OF MICHIGAN
COURT OF APPEALS
VITTORIO M. MORREALE,
FOR PUBLICATION
October 12, 2006
9:00 a.m.
Plaintiff-Appellant,
v
DEPARTMENT OF COMMUNITY HEALTH,
BUREAU OF HEALTH PROFESSIONS,
Defendant-Appellee.
No. 270350
Wayne Circuit Court
LC No. 05-523609-CZ
Official Reported Version
Before: Hoekstra, P.J., and Meter and Donofrio, JJ.
DONOFRIO, J.
Plaintiff, Vittorio M. Morreale, M.D., appeals as of right an order of the trial court
granting the motion for summary disposition of defendant, Department of Community Health,
Bureau of Health Professions, and denying plaintiff 's motion for summary disposition, ruling
that the application of the preponderance of the evidence standard in disciplinary proceedings
against physicians does not violate due process. Because the burden of proof in health
professional disciplinary proceedings against physicians is in fact by a preponderance of the
evidence, and because the application of that standard does not violate plaintiff 's due process
rights, we affirm.
Plaintiff is a neurosurgeon licensed by defendant to practice medicine in Michigan.
Defendant is the licensing and regulatory body responsible for the oversight of the practice of
medicine in Michigan pursuant to article 15 of the Public Health Code, MCL 333.16101 et seq.,
and the Administrative Procedures Act, MCL 24.201 et seq. Defendant filed an administrative
complaint against plaintiff in February 2005, alleging that plaintiff had violated the Public Health
Code in regard to four separate individuals. Defendant alleged in its complaint that plaintiff had
inappropriately touched four female patients during neurological examinations. In response,
plaintiff filed a motion before the Michigan Department of Community Health Administrative
Tribunal, seeking a ruling regarding the constitutionality of the preponderance of the evidence
standard applicable in health professional disciplinary proceedings against physicians. The
tribunal denied plaintiff 's motion, stating that as an administrative agency, it "must refuse to
address facial constitutional challenges raised in contested case proceedings." Plaintiff then filed
a complaint for a declaratory judgment in the trial court. Subsequently, both parties filed
motions for summary disposition. The trial court denied plaintiff 's motion for summary
disposition, but, in the same order, granted defendant's motion pursuant to MCR 2.116(C)(10)
and (I)(2), concluding that "the application of the preponderance-of-evidence standard to the
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disciplinary proceedings does not violate Plaintiff 's due process rights." It is from this order that
plaintiff now appeals as of right.
We review de novo the trial court's decision on a motion for summary disposition.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion brought under
MCR 2.116(C)(10) tests the factual support for the claim. Id. A trial court may grant summary
disposition under MCR 2.116(C)(10) when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Royal Prop Group, LLC v Prime Ins
Syndicate, Inc, 267 Mich App 708, 713; 706 NW2d 426 (2005). In ruling on a motion under
MCR 2.116(C)(10), the trial court must view the pleadings, affidavits, and other documentary
evidence in a light most favorable to the nonmoving party. Id. If a motion for summary
disposition also challenges the constitutionality of a statute, we also review de novo that question
of law. McDougall v Schanz, 461 Mich 15, 23; 597 NW2d 148 (1999).
Plaintiff argues on appeal that the preponderance of the evidence standard in health
professional disciplinary proceedings violates his due process rights. In particular, plaintiff
asserts that the burden of proof required in a government-initiated proceeding that could result in
punitive action against him requires a higher standard "because the potential consequence of the
action include[s] the taking of his medical license, fines, probation, community service, as well
as degradation of his reputation . . . ." Defendant responds by first pointing out that this Court
has twice declined to depart from the preponderance of the evidence standard and then further
argues that the current standard "amply satisfies the requirements of due process."
Defendant is correct; two prior panels of this Court have identified the correct standard in
health professional disciplinary proceedings as the preponderance of the evidence standard and
have specifically declined to alter it. In Rucker v Michigan Bd of Medicine, 138 Mich App 209,
211; 360 NW2d 154 (1984), a physician argued that due process required the application of the
heightened clear and convincing standard rather that the preponderance of the evidence standard
of proof in "license revocation hearings." Without analysis, this Court stated: "Petitioner is
wrong. [T]he quantum of proof necessary to meet the burden of persuasion in an administrative
disciplinary hearing against a medical physician is that of a preponderance of the evidence." Id.
Later, in Thangavelu v Dep't of Licensing & Regulation, 149 Mich App 546, 557; 386 NW2d
584 (1986), this Court rejected a similar claim relying on Rucker and stated as follows: "Last,
petitioner claims that constitutional due process requires that the "beyond a reasonable doubt"
standard be applied in license revocation hearings. . . . We are not persuaded that a change is
desirable."
Although these cases provide some guidance in this matter, neither panel offered an
analysis addressing the constitutional argument plaintiff asserts in the instant case.
The Public Health Code, in MCL 333.16237(4), states that a disciplinary subcommittee
shall impose an appropriate sanction on a licensee when an alleged violation is established by a
preponderance of the evidence. Further, the applicable portion of the Administrative Code
provides that "[t]he complaining party shall have the burden of proving, by a preponderance of
the evidence, that grounds exist for the imposition of a sanction on a licensee, registrant, or
applicant." 1999 AC, R 338.1624(1).
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Plaintiff states in his brief on appeal that he challenges only the trial court's finding that
the preponderance of the evidence standard promulgated in 1999 AC, R 338.1624(1) does not
deny his constitutional right of due process. Plaintiff 's argument on appeal is that because the
potential consequences of a health professional disciplinary proceeding—a state action—include
the loss of his medical license, fines, probation, community service, and a negative effect on his
reputation, due process requires a higher burden of proof in such proceedings. Given these
possible results, plaintiff does not believe that the preponderance of the evidence standard
adequately protects his due process rights even when weighing them against the state interest in
protecting patients from possible victimization.
A person's right to due process of law when facing certain kinds of adverse action at the
hands of the state or one of its subdivisions is guaranteed by both the federal and state
constitutions. US Const, Am XIV, § 1; Const 1963, art 1, § 17. If a party challenges a
classification affecting a fundamental right or involving a suspect classification, strict scrutiny
applies and a compelling state interest is required to uphold it. People v Sleet, 193 Mich App
604, 605; 484 NW2d 757 (1992). However, if the classification neither affects a fundamental
right nor involves a suspect classification, the rational basis test applies. Id. at 606; Plyler v Doe,
457 US 202, 216; 102 S Ct 2382; 72 L Ed 2d 786 (1982). "Under the rational basis test, the
legislation is presumed to be constitutional and the party challenging the statute has the burden
of proving that the legislation is arbitrary and thus irrational." People v Pitts, 222 Mich App
260, 273; 564 NW2d 93 (1997). "A rational basis shall be found to exist if any set of facts
reasonably can be conceived to justify the alleged discrimination." Syntex Laboratories v Dep't
of Treasury, 233 Mich App 286, 290; 590 NW2d 612 (1998).
Suspect classifications include race, alienage, ethnicity, and national origin. Proctor v
White Lake Twp Police Dep't, 248 Mich App 457, 469; 639 NW2d 332 (2001). Plaintiff does
not argue, and we do not conclude, that the preponderance of the evidence standard promulgated
in 1999 AC, R 338.1624(1) involves any suspect classification. It is therefore subject to the
rational basis test, which requires the Legislature's judgment to be supported by "'any state of
facts either known or which could reasonably be assumed,' although such facts may be
'debatable' . . . ." Shavers v Attorney General, 402 Mich 554, 614; 267 NW2d 72 (1978) (citation
omitted). The applicable test is whether the legislation bears a reasonable relation to a
permissible legislative objective. Id. at 612. The classification is presumed constitutional, and
the party challenging it bears a heavy burden of rebutting the presumption. Id. at 613-615.
Plaintiff bears a heavy burden, and he has not articulated a sufficient basis to rebut the
presumption of constitutionality. In fact he has not articulated any basis, other than assertions
that he and others similarly situated "need enhanced protection from certain claims and
allegations in the form of a higher standard of proof." Although his argument amounts to
nothing more than bare assertions, the import of his pleas are not lost on this Court. Clearly, his
right to due process must be adequately protected when facing certain kinds of adverse action at
the hands of the state or one of its subdivisions. US Const, Am XIV, § 1; Const 1963, art 1, §
17.
But, at the same time, many obvious reasons exist to support the legislation at issue,
namely protecting citizens from possible harm at the hands of state-licensed physicians. Plaintiff
himself writes as follows in his brief on appeal:
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There is without a doubt the need to protect the citizens of this state from
physicians who lack such moral character so as to victimize their patients, commit
fraud, steal from insurance companies, deal drugs or commit other unacceptable
acts. We do not want physicians who are mentally or otherwise incompetent
practicing.
Plaintiff has artfully articulated for us the exact reasoning supporting the Legislature's judgment,
thus satisfying the rational basis test. Shavers, supra at 614. And he has explained how the
legislation at issue bears a reasonable relation to a permissible legislative objective. Id. at 612.
Again, plaintiff bears a heavy burden, and he has not articulated a sufficient basis to rebut the
presumption of constitutionality, nor has he shown that the legislation is "arbitrary and thus
irrational." Pitts, supra at 273.
We also note that plaintiff asserts that because a health professional disciplinary
proceeding is carried out in a regulatory action, evidentiary rules are "loose" and the
preponderance of the evidence standard is not sufficient to protect his constitutional rights.
However, Const 1963, art 6, § 28 provides him specific protections. It states in part:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record. [Const 1963, art 6, § 28.]
Therefore, all final rulings of an administrative body are directly reviewable by the courts of this
state. Plaintiff has not established that his due process rights have been violated.
Affirmed.
/s/ Pat M. Donofrio
/s/ Joel P. Hoekstra
/s/ Patrick M. Meter
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