# Barsky v. Board of Regents of University of the State of New York/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Frankfurter Douglas
United States Supreme Court
347 U.S. 442
Barsky v. Board of Regents of University of the State of New York
Argued: Jan. 4, 1954. --- Decided: April 26, 1954
The principal question here presented is whether the New York State Education Law, on its face or as here construed and applied, violates the Constitution of the United States by authorizing the suspension from practice, for six months, of a physician because he has been convicted, in the United States District Court for the District of Columbia, of failing to produce, before a Committee of the United States House of Representatives, certain papers subpoenaed by that committee. For the reasons hereafter stated, we hold that it does not.
In 1945, the Committee of the United States House of Representatives, known as the Committee on Un-American Activities, was authorized to make investigations of 'the extent, character, and objects of un-American propaganda activities in the United States.' In 1946, in the course of that investigation, the committee subpoenaed Dr. Edward K. Barsky, appellant herein, who was then the national chairman and a member of the executive board of the Joint Anti-Fascist Refugee Committee, to produce "all books, ledgers, records and papers relating to the receipt and disbursement of money by or on account of the Joint Anti-Fascist Refugee Committee or any subsidiary or any subcommittee thereof, together with all correspondence and memoranda of communications by any means whatsoever with persons in foreign countries for the period from January 1, 1945, to March 29, 1946." Similar subpoenas were served on the executive secretary and the other members of the executive board of the Refugee Committee. Appellant appeared before the Congressional Committee but, pursuant to advice of counsel and the action of his executive board, he and the other officers of the Refugee Committee failed and refused to produce the subpoenaed papers.
In 1947, appellant, the executive secretary and several members of the executive board of the Refugee Committee were convicted by a jury, in the United States District Court for the District of Columbia, of violating R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, by failing to produce the subpoenaed papers. Appellant was sentenced to serve six months in jail and pay $500. See United States v. Bryan, 72 F.Supp. 58; United States v. Barsky, 72 F.Supp. 165. In 1948, this judgment was affirmed by the Court of Appeals, Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and certiorari was denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767. In 1950, a rehearing was denied. Two Justices noted their dissents, and two did not participate. 339 U.S. 971, 70 S.Ct. 1001, 94 L.Ed. 1379. Appellant served his sentence, being actually confined five months.
Appellant was a physician who practiced his profession in New York under a license issued in 1919. However, in 1948, following the affirmance of his above-mentioned conviction, charges were filed against him with the Department of Education of the State of New York by an inspector of that department. This was done under § 6515 of the Education Law, seeking disciplinary action pursuant to subdivision 2(b) of § 6514 of that law:
'2. The license or registration of a practitioner of medicine, osteopathy or physiotherapy may be revoked, suspended or annulled or such practitioner reprimanded or disciplined in accordance with the provisions and procedure of this article upon decision after due hearing in any of the following cases: '(b) That a physician, osteopath or physiotherapist has been convicted in a court of competent jurisdiction, either within or without this state, of a crime; or * * *.'
In 1951, after filing an amended answer, appellant was given an extended hearing before a subcommittee of the Department's Medical Committee on Grievances. The three doctors constituting the subcommittee made a written report of their findings, determination and recommendation, expressly taking into consideration the five months during which appellant had been separated from his practice while confined in jail, and also the testimony and letters submitted in support of his charcter. They recommended finding him guilty as charged and suspending him from practice for three months. The ten doctors constituting the full Grievance Committee unanimously found appellant guilty as charged. They also adopted the findings, determination and recommendation of their subcommittee, except that, by a vote of six to four, they fixed appellant's suspension at six months. Promptly thereafter, the Committee on Discipline of the Board of Regents of the University of the State of New York held a further hearing at which appellant appeared in person and by counsel. This committee consisted of two lawyers and one doctor. After reviewing the facts and issues, it filed a detailed report recommending that, while appellant was guilty as charged, his license be not suspended and that he merely be censured and reprimanded. The Board of Regents, however, returned to and sustained the determination of the Medical Committee on Grievances, and suspended appellant's license for six months.
Appellant sought a review of this determination, under § 6515 of the Education Law, supra, and Article 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Civ.Prac., Vol. 6B, 1944, §§ 1283 1306. The proceeding was instituted in the Supreme Court for the County of Albany and transferred to the Appellate Division, Third Department. That court confirmed the order of the Board of Regents. In re Barsky, 279 App.Div. 1117, 112 N.Y.S.2d 778, and see Miller v. Board of Regents of University of State of N.Y., 279 App.Div. 447, 111 N.Y.S.2d 393, and Auslander v. Board of Regents of University of N.Y., 279 App.Div. 1101, 112 N.Y.S.2d 780, 781. The Court of Appeals, with one judge dissenting, affirmed. 305 N.Y. 89, 111 N.E.2d 222. That court allowed an appeal to this Court and amended its remittitur by adding the following:
'Upon the appeals herein there were presented and necessarily passed upon questions under the Federal Constitution, viz., whether sections 6514 and 6515 of the Education Law, * * * as construed and applied here, are violative of the due process clause of the Fourteenth Amendment. (The Court of Appeals) held that the rights of the petitioners under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied.' 305 N.Y. 691, 112 N.E.2d 773.
We noted probable jurisdiction, the Chief Justice not participating at that time. 346 U.S. 807, 74 S.Ct. 23.
That appellant was convicted of a violation of R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, in a court of competent jurisdiction is settled. In the New York courts, appellant argued that a violation of that section of the federal statutes was not a crime under the law of New York and that, accordingly, it was not a 'crime' within the meaning of § 6514, subd. 2(b) of the New York Education Law. He argued that his conviction, therefore, did not afford the New York Board of Regents the required basis for suspending his license. That issue was settled adversely to him by the Court of Appeals of New York and that court's interpretation of the state statute is conclusive here.
He argues that § 6514, subd. 2(b) is unconstitutionally vague. As interpreted by the New York courts, the provision is extremely broad in that it includes convictions for any crime in any court of competent jurisdiction within or without New York State. This may be stringent and harsh but it is not vague. The professional standard is clear. The discretion left to enforcing officers is not one of defining the offense. It is merely that of matching the measure of the discipline to the specific case.
A violation of R.S. § 102, as amended, 2 U.S.C. § 192, 2 U.S.C.A. § 192, is expressly declared by Congress to be a misdemeanor. It is punishable by a fine of not more than $1,000 nor less than $100 and imprisonment for not less than one month nor more than twelve months. See note 2, supra. For its violation appellant received a sentence of one-half the maximum and served five months in jail. There can be no doubt that appellant was convicted in a court of competent jurisdiction of a crime within the meaning of the New York statute.
It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a state's police power. The state's discretion in that field extends naturally to the regulation of all professions concerned with health. In Title VIII of its Education Law, the State of New York regulates many fields of professional practice, including medicine, osteopathy, physiotherapy, dentistry, veterinary medicine, pharmacy, nursing, podiatry and optometry. New York has had long experience with the supervision of standards of medical practice by representatives of that profession exercising wide discretion as to the discipline to be applied. It has established detailed procedures for investigations, hearings and reviews with ample opportunity for the accused practitioner to have his case thoroughly considered and reviewed.
Section 6514, as a whole, demonstrates the broad field of professional conduct supervised by the Medical Committee on Grievances of the Department of Education and the Board of Regents of the University of the State of New York. In the present instance, the violation of § 6514, subd. 2(b) is obvious. The real problem for the state agencies is that of the appropriate disciplinary action to be applied.
The practice of medicine in New York is lawfully prohibited by the State except upon the conditions it imposes. Such practice is a privilege granted by the State under its substantially plenary power to fix the terms of admission. The issue is not before us but it has not been questioned that the State could make it a condition of admission to practice that applicants shall not have been convicted of a crime in a court of competent jurisdiction either within or without the State of New York. It could at least require a disclosure of such convictions as a condition of admission and leave it to a competent board to determine, after opportunity for a fair hearing, whether the convictions, if any, were of such a date and nature as to justify denial of admission to practice in the light of all material circumstances before the board.
It is equally clear that a state's legitimate concern for maintaining high standards of professional conduct extends beyond initial licensing. Without continuing supervision, initial examinations afford little protection. Appellant contends, however, that the standard which New York has adopted exceeds reasonable supervision and deprives him of property rights in his license and his established practice, without due process of law in violation of the Fourteenth Amendment.
He argues that New York's suspension of his license because of his conviction in a foreign jurisdiction, for an offense not involving moral turpitude and not criminal under the law of New York, so far transcends that State's legitimate concern in professional standards as to violate the Fourteenth Amendment. We disagree and hold that New York's governmental discretion is not so restricted.
This statute is readily distinguishable from one which would require the automatic termination of a professional license because of some criminal conviction of its holder. Realizing the importance of high standards of character and law observance on the part of practicing physicians, the State has adopted a flexible procedure to protect the public against the practice of medicine by those convicted of many more kinds and degrees of crime than it can well list specifically. It accordingly has sought to attain its justifiable end by making the conviction of any crime a violation of its professional medical standards, and then leaving it to a qualified board of doctors to determine initially the measure of discipline to be applied to the offending practitioner.
Section 6515 of the New York Education Law thus meets the charge of unreasonableness. All charges are passed upon by a Committee on Grievances of the department. That committee consists of ten licensed physicians, appointed by the Board of Regents. The term of each member is five years. They serve without compensation. Three are 'members of conspicuous professional standing' appointed upon the board's own nomination. § 6515, subd. 2. The others are appointed from lists of nominees submitted respectively by the New York State Medical, homeopathic and Osteopathic Societies. Charges must be filed in writing and a subcommittee of three or more members hears and reports on them. At least ten days' notice of a hearing is required and opportunity is afforded the accused to appear personally, or by counsel, with the right to produce witnesses and evidence on his own programs in which the committee participated examine evidence produced against him and to have subpoenas issued by the committee. The subcommittee transmits its report, findings and recommendation, together with a transcript of evidence, to the Committee on Grievances. That committee may take further testimony. It determines the merit of the charges and, if the practitioner is found guilty by a unanimous verdict, the record, together with the findings and determination of the committee, is transmitted to the Board of Regents. That board, 'after due hearing,' may accept or modify the committee's recommendation, or find the practitioner not guilty and dismiss the charges. § 6515, subd. 7. 'The committee on grievances shall not be bound by the laws of evidence in the conduct of its proceedings, but the determination shall be founded upon sufficient legal evidence to sustain the same.' § 6515, subd. 5. If the accused is found guilty, he may institute proceedings for review under Article 78 of the Civil Practice Act, returnable before the Appellate Division of the Third Judicial Department.
The above provisions, on their face, are well within the degree of reasonableness required to constitute due process of law in a field so permeated with public responsibility as that of health.
The statutory procedure as above outlined has been meticulously followed in this case and no objection is made on that score. Appellant, nevertheless, complains that, as construed and applied by the Medical Committee on Grievances and its subcommittee, his hearing violated the due process of law required by the Fourteenth Amendment. He contends that evidence was introduced which was immaterial and prejudicial and that the committee based its determination upon that evidence. He contends, in effect, that the committee reached its determination without 'sufficient legal evidence to sustain the same', thus exceeding its statutory authority. He claims further that the committee acted capriciously and arbitrarily upon immaterial and prejudicial evidence, thus not only exceeding its statutory authority but depriving him of his property without due process of law.
The state courts have determined that the hearing did not violate the statute and, accordingly, we are concerned only with the constitutional question. The claim is that immaterial and prejudicial evidence of the alleged subversive activities of the Refugee Committee was introduced and relied upon. Emphasis is given to evidence that the Refugee Committee had been placed on the Attorney General's list of subversive or Communistic organizations. To emphasize the prejudicial character of this testimony, appellant refers to the fact that, at the time of the subcommittee hearing, litigation involving such list was pending in the courts and had resulted in a decision adverse to appellant, whereas that decision subsequently was set aside by this Court. The State's answer to these claims is that such testimony was invited by appellant's own testimony as to the activities of the Refugee Committee. The State shows also that while such evidence was not necessary to establish appellant's violation of the federal statute as to the subpoenaed papers, it was material and admissible to assist the Committee on Grievances and the other agencies in determining the appropriate disciplinary measures to be applied to appellant under the state law. Appellant recognized this materiality by endeavoring to use evidence as to the Refugee Committee's charitable activities to justify and excuse his failure to produce the subpoenaed papers.
We find nothing sufficient to sustain a conclusion that the Board of Regents or the recommending committees made an arbitrary or capricious decision or relied upon irrelevant evidence. The report made by the original subcommittee of three that heard the evidence indicates that it was not influenced by the character of the Refugee Committee. It said:
'We do not feel that we are now concerned, nor would we be able to determine, whether the books and records of that Committee would disclose whether the Committee was completely philanthropic in character, or whether it was engaged in subversive activities.'
The painstaking complete review of the evidence and the issues by the Committee on Discipline of the Board of Regents demonstrates a high degree of unbiased objectivity. Before the final action of the Board of Regents, the Committee on Discipline in its report to that board noted that-
'After the hearing below and the determination of the Medical Committee on Grievances, the Supreme Court of the United States reversed an order of the District Court dismissing a complaint by the Refugee Committee in an action by it for declaratory and injunctive relief, Joint Anti-Fascist Refugee Committee v. McGrath, Attorney General, 341 U.S. 123, 71 S.Ct. 624, some of the majority justices going on the ground that a determination of this kind could not constitutionally be made without a hearing and opportunity to offer proof and disproof. In view of this decision, no evidentiary weight can be given in the present proceeding to the listing by the Attorney General.'
That committee thus recognized the existence of a valid basis for disciplinary action but found 'no valid basis for discipline beyond the statutory minimum of censure and reprimand.' With this recommendation before the Board of Regents, we see no reason to conclude that the board disregarded it or acted arbitrarily, capriciously or through prejudice and deprived appellant of due process of law. The board made no specific findings. It accepted and sustained the unanimous determination of the Medical Committee on Grievances, which was that appellant was guilty. Then, in compliance with the recommendation of that committee, it fixed the measure of discipline at a six months' suspension of appellant's registration as a physician.
The Court has considered the other points raised by appellant but finds no substantial federal constitutional objection in them, even assuming that they are before us as having been considered by the Court of Appeals, although not mentioned in its opinion or the amendment to its remittitur.
The judgment of the Court of Appeals of the State of New York, accordingly, is affirmed.
Affirmed.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.

## Notes

* ↑ McKinney's N.Y.Consol.Laws, c. 16, Education Law, §§ 6514, 6515.
* ↑ The conviction was for violating R.S. § 102, as amended, 52 Stat. 942, 2 U.S.C. § 192, 2 U.S.C.A. § 192:
* ↑ 'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic orgin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' 91 Cong.Rec. 10, 15. This was carried into the Rules of the House as Rule XI (q)(2), 60 Stat. 823, 828.
* ↑ United States v. Bryan, D.C., 72 F.Supp. 58, 60.
* ↑ For related litigation, see United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884; United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817.
* ↑ The committee said:
* ↑ The order suspending appellant's license was issued by the Commissioner of Education in 1951, but its effect was stayed by the New York Court of Appeals, pending an appeal to this Court. 305 N.Y. 691, 112 N.E.2d 773.
* ↑ The subsequent designation of certain other contempts of Congress as federal 'crimes' 18 U.S.C. § 402, 18 U.S.C.A. § 402, does not prevent this misdemeanor from being a crime within the meaning of the New York statute.
* ↑ '§ 6514. Revocation of certificates; annulment of registrations
* ↑ See Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692.
* ↑ A conviction for a crime which, under the law of New York, would amount to a felony has been given such an automatic effect in some instances. See McKinney's N.Y. Laws, Education Law, § 6613, subd. 12, as to dentists and McKinney's N.Y. Laws, Judiciary Law, Consol.Laws, c. 30, § 90, subd. 4, as to attorneys. Cf. § 6514, subd. 1, note 9, supra, as to physicians. See In re Raab, 156 Ohio St. 158, 101 N.E.2d 294.
* ↑ Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624.
* ↑ The character of the activities of the Joint Anti-Fascist Refugee Committee was placed in issue by appellant's amended answer. He volunteered much testimony as to the benevolent and charitable in which the committee participated and he introduced many exhibits on the same subject. Reference to the Attorney General's list of subversives developed naturally during the resulting cross-examination of appellant.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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