In re Grimm

635 A.2d 456, 138 N.H. 42
CourtSupreme Court of New Hampshire
DecidedDecember 17, 1993
DocketNo. 92-012
StatusPublished
Cited by56 cases

This text of 635 A.2d 456 (In re 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
In re Grimm, 635 A.2d 456, 138 N.H. 42 (N.H. 1993).

Opinion

HORTON, J.

Ruediger H. Grimm, Ph.D., brings this petition for writ of certiorari seeking to vacate a decision of the New Hampshire Board of Examiners of Psychologists (board) revoking his psychologist certificate. The board’s decision was based on findings that Dr. Grimm violated the American Psychological Association Ethical Principles, and thereby acted unprofessionally within the meaning of RSA 330-A:14, 11(d), by engaging in sexual relations with the complainant. Dr. Grimm argues that: (1) the board violated his due process rights because not all the hearing panel members were present for all the parties’ testimony; (2) the board’s decision is unsupported by the record; (3) the full board did not participate in the hearings in violation of RSA 330-A:15; (4) the board’s application of the “preponderance of the evidence” standard violated the due process and equal protection guarantees of the New Hampshire Constitution; (5) the board members were biased; (6) the board relied on data not made part of the record; and (7) the board’s evidentiary rulings were improper. We vacate and remand.

From September 1984 through January 5, 1988, the complainant visited Dr. Grimm, a certified psychologist in New Hampshire, for weekly psychotherapy sessions. In March 1990, she filed a letter of complaint with the board which alleged that she and Dr. Grimm had engaged in sexual contact beginning in July 1985, and that they had intercourse on December 9, 1986, November 24, 1987, and October 24, 1989. Dr. Grimm denied all the allegations set forth in the complaint.

After reviewing the complaint, the board appointed Sybille Carlson, Ph.D., to investigate and report on the allegations. Dr. Carlson submitted her report to the board in August 1990, and based on her findings, the board initiated disciplinary proceedings against Dr. Grimm.

Upon receipt of the complaint, Dr. Grimm filed a number of motions with the board, including: a motion to strike, or in the alternative, to exclude Dr. Carlson’s report; a request for voir dire of the board; a request for recusal of board members; a request for a hearing in front of the full board; motions to exclude the testimony of the complainant; and a request to admit the results of a polygraph examination taken by Dr. Grimm. The board granted the doctor’s motion to exclude Dr. Carlson’s report and her expert testimony, and after discovering that board member Daniel C. Williams, Ph.D. shared office space and expenses with Dr. Carlson, it also recused Dr. Williams. The board rejected Dr. Grimm’s argument that the conduct of another board member, Dennis Forgue, who had previously recused [46]*46himself because he was the complainant’s ex-son-in-law, biased the other panel members. All of Dr. Grimm’s other requests were also denied. Finally, the board denied a motion by the complainant to amend her complaint to include new allegations, but it ruled that the evidence of the new allegations would be admitted where relevant to the original charges of sexual contact.

The board held hearings on eight days from December 1990 through February 1991. Five members of the seven-member board participated in the hearings. On September 20, 1991, the board revoked Dr. Grimm’s psychologist certificate, finding that Dr. Grimm had violated the American Psychological Association Ethical Principles, and thereby acted unprofessionally within the meaning of RSA 330-A: 14, 11(d), by engaging in sexual relations with a client.

I. Due Process Claim

Dr. Grimm argues that the failure of every member of the hearing panel, acting in a fact-finding capacity, to attend all of his and the complainant’s testimony violated his right to due process under the State and Federal Constitutions. We agree.

We address Dr. Grimm’s State constitutional claim first, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only if it aids our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because we find a constitutional violation under this analysis and vacate, we need not analyze his federal constitutional claim.

We have held that a “doctor has a legally protected property right in his license to practice medicine and thus is entitled to procedural due process.” Appeal of Plantier, 126 N.H. 500, 506, 494 A.2d 270, 273 (1985). Likewise, a registered psychologist has a legally protected property interest in his psychologist’s certificate. The due process requirements binding administrative procedure are quite different from those binding judicial procedure, Roy v. Water Supply Comm’n, 112 N.H. 87, 92, 289 A.2d 650, 654 (1972), and we note that the general rule in administrative proceedings is that an administrative officer “may act on a written record of testimony by witnesses whom he has not personally seen or heard.” Appeal of Seacoast Anti-Pollution League, 125 N.H. 708, 716, 484 A.2d 1196, 1202 (1984) (quotations omitted).

This general rule, however, gives way to an exception where the board elects to make factual determinations as a hearing panel and the record does not provide a reasonable basis for evaluat[47]*47ing the kind of testimony in question. Id.; see also Opinion of the Justices, 117 N.H. 390, 393, 373 A.2d 642, 644 (1977). Such is precisely the case where, as here, “the disposition turns on the credibility of the witnesses’ testimony. Resolution of the matter boils down to the question of ‘who do you believe.’” Appeal of Plantier, 126 N.H. at 507, 494 A.2d at 274. According to the board itself, the only direct evidence it received concerning the alleged sexual contact was the testimony of the complainant and Dr. Grimm. The decision and order of the board then rested on its conclusion that the complainant’s testimony was more credible than Dr. Grimm’s. We hold that, in cases such as this, due process requires all panel members deciding the case to be in attendance for all of the parties’ testimony, plus any other testimony on the issue of credibility, in order to effectively assess the issue of credibility. Because the record indicates that this was not the case, we vacate.

There were eight days of hearings conducted by the board over a period of four months. Five members listed their names on the decision to revoke Dr. Grimm’s certificate. On the second and third days of the hearings, only four panel members were present for the direct and cross-examination of Dr. Grimm. On the fourth hearing date, only three members were present for the entire day of direct and cross-examination of Dr. Grimm, while a fourth member was present for only a portion of the testimony. On the fifth hearing date, only four members were present for all of the complainant’s direct testimony. On the sixth hearing date, two of the panel were present for the full day of the complainant’s cross-examination, while a third member was present only in the morning. The fifth member of the panel was not present for any of the parties’ testimony although he is cited as participating in the final decision of the board. In sum, the record indicates that only one of the five members was present for all the parties’ testimony. Significantly, only two members were present for the entire cross-examination of the complainant.

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Bluebook (online)
635 A.2d 456, 138 N.H. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grimm-nh-1993.