Joseph v. Guam Board of Allied Health Examiners
Opinion
3 IN THE SUPERIOR COURT OF GUAM 4 DR. JOEL JOSEPH, ) CIVIL CASE NO. SP0073-li 5 )
6 Petitioner, )
) DECISION AND ORDER MOTION 7 vs. ) FOR PEREMPTORYWRIT )
8 GUAM BOARD OF ALLIED HEALTH )
9 EXAMINERS, )
)
10 Respondent. )
II )
12 INTRODUCTION 13 This matter came before the Honorable Alberto C. Lamorena III on June 10, 14 2013 on Petitioner's Motion for Peremptory Writ. Petitioner Dr. Joel Joseph was 15 represented by Attorney Mitchell F. Thompson. Respondent Guam Board of Allied 16 Health Examiners ("Board") was represented by Assistant Attorney General 17 Benjamin M. Abrams. The Court now issues its Decision and Order.
18 BACKGROUND 19 On April 22, 2011, Dr. Joseph filed his Petition for Judicial Review/Writ of 20 Mandate with this Court, alleging, inter alia, Respondent Board's disciplinary 21 actions against him were void for vagueness/overbreadth and that he was denied a 22 fair hearing for Board's failure to provide access to all x-ray films of the dog which 23 was the subject of the second charge against him. On April 12, 2013, Petitioner 24 filed his Motion for Peremptory Writ. His argument in favor of the writ is based on 25 the vagueness/overbreadth of 10 G.C.A. § 12811(y) as well as the failure to produce 26 the x-ray films.
27 Board filed its Opposition on May 10, 2013. Board argues the statute should 28 not be struck down as impermissibly vague and that Petitioner is precluded from I
Decision and Order Case No. SP0073-ll
arguing on the x-ray films due to his failure to raise the objection below. For the 2 reasons set forth below, this Court shall grant Plaintiffs motion in part and deny in 3 part. 4 DISCUSSION 5 The peremptory writ must command the party to whom it is directed, 6 immediately after the receipt of the writ, or at some other specified time, to do an
7 act required to be performed. See 7 G.C.A. § 31204. It may be issued by any court
8 to any inferior tribunal to compel the admission of a party to the use and enjoyment
9 of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal. See 7 G.C.A. § 31202. The writ must be issued in all 10 cases where there is not a plain, speedy, and adequate remedy in the ordinary II course of law. 7 G.C.A. § 31203. The Board, having already made a finding against 12 Petitioner, offers no other recourse for Petitioner in this matter. Petitioner 13 appropriately seeks the writ in this Court.
14 A. Due Process Argument.
15 Petitioner is entitled to the opportunity for a fair and impartial hearing 16 before the Board. See 10 G.C.A. § 12821(c). Petitioner argues that Board used 17 certain x-ray films as evidence in its findings against him, yet did not provide him 18 with opportunity to inspect the films. In its Opposition, Board argues the following:
19 Petitioner urges that the production by Board Counsel of some but not 20 all of twelve x-rays justifies the setting aside of its findings of fact and conclusions of law, and its Order, since having most, but not all of the 21 dozen x-rays deprived him of a fair trial. But Petitioner did not raise 22 this objection at the hearing and it should not be allowed to be presented for the first time on appeal. Moreover, there was never a 23 factual showing that the other two or three x-rays would have made a material difference in the defense of the charges by Petitioner.
24
25 Memo in Opposition p.4 (internal quotations omitted).
26 Board's argument is problematic for several reasons. As a matter of law, Petitioner was not required to raise the objection below. "The right to petition shall 27 not be affected by the failure to seek reconsideration before the agency." 5 G.C.A. § 28 9241. In any event, the record before this Court shows Petitioner did, in fact, seek
Decision and Order Case No. SP0073-Il
for Board counsel to produce the films and objected to its non-production. See Reply 2 Appendix 3. 3 Lastly, Board's assertion that "there was never a factual showing that the 4 other two or three x-rays would have made a material difference" misses the point 5 entirely. That we are ignorant as to what the films show is precisely the problem.
6 Those films could have provided exculpatory evidence which would have benefitted
7 Petitioner. To deny him the right to inspect and, if necessary, rebut evidence used
8 against him denied Petitioner of a fair hearing below. On these grounds, the writ
9 shall issue.
B. Vagueness/Overbreadth Argument IO Section 12811 of Title 10 G.C.A. lists examples of unprofessional conduct II which may result in discipline which includes any other acts, as determined by the I2 Board, to be unprofessional conduct. See 10 G.C.A. § 12811(y). Board sanctioned I3 Petitioner for violation of§ 12811(y) in that he "made a telephone call to Dr. Velma I4 Harper and stated to her that he would bring her down." See Motion Ex.3, at 2 ,[ 1 I5 (internal quotations omitted). After making such a finding, the Board made the I6 legal conclusion that "in so doing he intimidated and offended fellow veterinarian 17 Dr. Velma Harper." Id. ~ 8.
18 Petitioner now asks this Court to issue a writ on the grounds that the statute I9 is impermissibly vague and overbroad. He cites to U.S. v. Wunschl and other cases 20 in which a regulation was found to be vague. "A statute is void for vagueness when 2I it does not sufficiently identify the conduct that is prohibited." Wunsch, 84 F.3d 22 1110, 1119 (9th Cir. 1996). In Wunsch, the 9th Circuit struck down as 23 unconstitutionally vague a California statute which banned attorneys from 24 engaging in "offensive personality." See Id. There, the Court found the body of law
25 did not provide adequate narrowing of California's interpretation of the statute
26 which would thereby pass constitutional muster. See Id.
27
28 1 U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996).
Decision and Order Case No. SP0073-ll
Here, subsection (y) allows the Board to sanction behavior which "includes, 2 but is not limited to, acts... as determined by the Board, to be unprofessional 3 conduct." 10 G.C.A. § 12811(y). Petitioner argues this language is impermissively 4 vague. This Court declines to make such a finding. Subsection (y) must be read in 5 conjunction with the premise of section 12811. "A licensee shall neither act, nor aid 6 or abet another to act, in any manner which is reprehensible, immoral, illegal,
7 against the public interest, policy or safety, or which tends to degrade, destroy or
8 bring discredit upon the licensee, the community or the profession." In the view of
9 this Court, such language provides adequate guidance to the Board in its functions.
The Board is tasked with "protect[ing] the public against unprofessional, 10 improper, incompetent, unlawful, fraudulent or deceptive practices by persons who 11 practice the healing art." 10 G.C.A. § 12801(b). Section 12801 et. seq. provides "for 12 the proper guidelines, such as education requirements, continuing education 13 requirements, licensing and renewal procedures, professional conduct and any other 14 matter, which the Board deems appropriate in serving the interests of the 15 community." Id.
16 The Court declines to strike down as vague or overbroad subsection (y). The 17 Board's enabling statutes are written so as to not require overly precise and 18 enumerated examples of sanctionable conduct. The Board has determined that 19 threats and harassment of a fellow health professional is unprofessional and 20 improper. It is the view of this Court that Petitioner's peers are the best judges of 21 professionalism among the profession's members. Moreover, it is in this Court's 22 view that subsection (y), when read in conjunction with the rest of section 12811 23 and the Board's enabling statute, allows reasonable minds to know what is 24 impermissible conduct. For these reasons, the writ shall not issue on these 25 grounds.
26 CONCLUSION
27 Although this Court does not find 10 G.C.A. § 12811(y) unconstitutionally
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