Appeal of Grimm

692 A.2d 508, 141 N.H. 719, 1997 N.H. LEXIS 36
CourtSupreme Court of New Hampshire
DecidedApril 11, 1997
DocketNo. 95-427
StatusPublished
Cited by4 cases

This text of 692 A.2d 508 (Appeal of Grimm) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Grimm, 692 A.2d 508, 141 N.H. 719, 1997 N.H. LEXIS 36 (N.H. 1997).

Opinion

Johnson, J.

The petitioner, Ruediger H. Grimm, Ph.D., appeals the decision of the New Hampshire Board of Examiners of Psychology and Mental Health Practice (board) revoking his psychologist [720]*720certificate. See RSA 330-A:14, III(c), :15-b, VII (1995); RSA 541:6 (1974). The board unanimously revoked his certificate based on a finding that he engaged in sexual relations with a client (the complainant) in violation of RSA 330-A:14, II(c) and (d) (1995). See RSA 330-A:24 (1995). The board’s decision followed a successful first appeal by Dr. Grimm to this court from an earlier, similar decision. See Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993) (Grimm I). In the present appeal, Dr. Grimm argues that the board’s latest decision is unlawful and unreasonable because: (1) the second hearing panel contained two members of the original panel which had voted to revoke Dr. Grimm’s license; and (2) “the board failed to properly assess credibility, ignored certain undisputed facts and relied on information not contained in the record.” We affirm.

The facts which gave rise to the complaint against Dr. Grimm were set forth in Grimm I, 138 N.H. at 45-46, 635 A.2d at 458-59, and will be recounted only to the extent that they are pertinent to the issues raised in this appeal.

I. Bias of the Board of Examiners

Dr. Grimm first argues that the board’s ruling was unlawful and unreasonable because two of the five members of the panel that presided over the second hearing were members of the original panel which had voted to revoke Dr. Grimm’s license. Dr. Grimm argues that he was denied his right to a fair and impartial hearing as guaranteed by the due process clauses of both the State and Federal Constitutions because these two members had prejudged the issue in controversy and were thus biased against him. See N.H. Const. pt. I, art. 35; U.S. Const. amend. V, XIV We address Dr. Grimm’s State constitutional claim first, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law solely to aid in our analysis. See State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). “Because we conclude that federal law is not more favorable to the petitioner, we make no separate federal analysis.” Appeal of Dell, 140 N.H. 484, 492, 668 A.2d 1024, 1031 (1995) (quotation omitted); see Withrow v. Larkin, 421 U.S. 35 (1974). We have previously determined that Dr. Grimm has a protected property interest in his license entitling him to the safeguards of due process. See Grimm I, 138 N.H. at 46, 635 A.2d at 459.

Our constitution provides that “[i]t is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.” N.H. Const. pt. I, art. 35. This mandate applies to both trial judges and members of administrative boards acting in a quasi-judicial capacity. See Winslow v. Holderness Planning Board, [721]*721125 N.H. 262, 267, 480 A.2d 114, 116 (1984). “Administrative officials that must serve in an adjudicatory capacity are presumed to be of conscience and capable of reaching a just and fair result. The burden is upon the party alleging bias to present sufficient evidence to rebut this presumption.” Appeal of Maddox a/k/a Cookish, 133 N.H. 180, 182, 575 A.2d 1, 3 (1990) (citation omitted).

A per se rule of disqualification due to the probability of unfairness, applies when the trier has pecuniary interests in the outcome, . . . has become personally embroiled in criticism from a party before him, or when he has heard evidence in secret at a prior proceeding, or when he is related to a party.

Plaistow Bank & Trust Co. v. Webster, 121 N.H. 751, 754, 433 A.2d 1332, 1334 (1981) (quotations omitted). If none of the factors justifying per se recusal exist, then a trier may be disqualified if the party presents “facts from which a sane and reasonable mind might fairly infer personal bias or prejudice on the part of the judge.” State v. Fennelly, 123 N.H. 378, 384, 461 A.2d 1090, 1092 (1983) (quotation omitted). Thus, whether we examine the issue of bias under a per se rule or under a reasonableness standard, Dr. Grimm “must show the existence of bias, or such likelihood of bias, or an appearance of bias that the [fact-finder] is unable to hold the balance between vindicating the interests of the [board] and the interests of the accused.” Id. at 384, 461 A.2d at 1093 (quotation omitted). Such a showing is dependent on the particular circumstances of each case. See Appeal of Hurst, 139 N.H. 702, 704, 660 A.2d 1143, 1145 (1995). We conclude that based on the facts of this case, Dr. Grimm has failed to meet this burden.

Dr. Grimm’s claim of bias arises from the fact that two board members participated in both revocation proceedings against him. As evidence of bias, Dr. Grimm refers to the board’s decision in the first proceeding, which stated in part: “Each Board member has, however, reached the critical factual conclusions in this case [unhesitatingly] and with a clear conviction of their truth.” It is true that we have invalidated rulings of administrative boards when one member has been found to have prejudged the particular facts of the controversy before the board. See Winslow, 125 N.H. at 267-68, 480 A.2d at 116-17. It is equally the case, however, that absent a statutory mandate, members of an administrative tribunal will not be disqualified simply because “they ruled strongly against a party in the first hearing.” Labor Board v. Donnelly Co., 330 U.S. 219, 236-37 (1947); cf. United States v. Kelley, 712 F.2d 884, 890 (1st Cir. [722]*7221983) (even when fact-finder has made a negative determination with respect to party’s credibility, recusal is not required).

For an alleged bias to be disqualifying, it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the factfinder learned from [official] participation in the [same proceeding].” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). The critical distinction between the circumstances in Winslow and this case is that in Winslow, 125 N.H. at 265, 480 A.2d at 115, the board member’s prejudgment arose from information and beliefs developed outside his duties as decision maker. Here, the two board members reached their conclusion in Grimm I in their quasi-judicial capacity.

Furthermore, in Grimm I,

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692 A.2d 508, 141 N.H. 719, 1997 N.H. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-grimm-nh-1997.