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Schireson v. State Board of Medical Examiners of New Jersey

Decided: September 24, 1943.

HENRY J. SCHIRESON, PROSECUTOR-APPELLANT,
v.
STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY AND EARL S. HALLINGER, RESPONDENTS-APPELLEES



On appeal from the Supreme Court, whose opinion is reported in 129 N.J.L. 203.

For the prosecutor-appellant, Samuel P. Orlando.

For the respondents-appellees, David T. Wilentz, Attorney-General of New Jersey (Joseph A. Murphy, of counsel).

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. By this appeal prosecutor-appellant, a medical doctor, brings up a judgment of the Supreme Court under which an order of the State Board of Medical Examiners, revoking the appellant's license to practice medicine, was affirmed. The argument in support of a reversal of the judgment challenges the validity of the statute (R.S. 45:9-16, as amended by Pamph. L. 1939, ch. 115, p. 415, ยง 26) under which the action of the State Board of Medical Examiners was accomplished; disputes the legal sufficiency of the evidence before the Board to sustain its order, and claims that the Board's refusal to grant further adjournment of the hearing was arbitrary and unreasonable

under the circumstances. And for these reasons, it is said, the appellant was denied the due process of law guaranteed the individual by our federal constitution.

The statute, supra, provides:

"The board may refuse to grant or may suspend or revoke a license or the registration of a certificate or diploma to practice medicine and surgery filed in the office of any county clerk in this State under any act of the Legislature, upon proof to the satisfaction of the board that the holder of such license (a) has been adjudicated insane, or (b) habitually uses drugs or intoxicants, or (c) has practiced criminal abortion, or been convicted of the crime of criminal abortion, or has been convicted of crime involving moral turpitude, or (d) has advertised fraudulently, (e) becomes employed by any physician, surgeon, homeopath, eclectic, osteopath, chiropractor, or doctor who advertises fraudulently, or (f) shall have presented to the board any diploma, license or certificate that shall have been illegally obtained or shall have been signed or issued unlawfully or under fraudulent representations, or obtains or shall have obtained a license to practice in this State through fraud of any kind, or (g) has been guilty of employing unlicensed persons to perform work which, under this chapter (45:9-1, et seq.) can legally be done only by persons licensed to practice medicine in this State, or (h) has been convicted of a violation of any Federal or State law relating to narcotic drugs. Before any license, or registration of a certificate or diploma to practice medicine or surgery filed in the office of any county clerk of this State under any act of the Legislature, shall be suspended or revoked, except in the case of convictions of criminal abortions or convictions of a crime involving moral turpitude or conviction of violations of any Federal or State law relating to narcotic drugs, the accused person shall be furnished with a copy of the complaint and be given a hearing before said board in person or by attorney, and any person whose license shall be suspended or revoked in accordance with this section shall be deemed an unlicensed person during the period of such suspension or revocation, and as such shall be subject to the penalties hereinafter prescribed for persons who practice

medicine and/or surgery, without first having obtained a license so to do. Any person whose license, or registration of a certificate or diploma to practice medicine and/or surgery filed in the office of any county clerk of this State under any act of the Legislature, shall be suspended or revoked under the authority of this chapter (45:9-1, et seq.) may, in the discretion of the board, be relicensed at any time to practice without an examination, or have his registration of a certificate or diploma, as aforesaid, reinstated, on application being made to the board." (N.J.S.A. 45:9-16.)

The facts in this case are that the appellant was indicted by a federal grand jury in the State of Pennsylvania on three charges -- (1) unlawfully concealing assets from a trustee in bankruptcy; (2) making false oath in bankruptcy proceedings, and (3) perjury. He entered a plea of nolo contendere to the first two charges and non-vult to the last. Thereupon he was sentenced to prison. Thereafter the State Board of Medical Examiners, on the complaint of its secretary, sent written notice to the appellant, then in prison, that at a given time and place the Board would meet to consider the matter of the suspension or revocation of his license to practice medicine and surgery. The notice and complaint apprised the appellant of the basis of the disciplinary hearing before the Board, namely, his conviction of crimes involving moral turpitude, outlining them, and the prayer of the complaint was that the prosecutor's license be suspended or revoked. These papers were received by the appellant at the Lewisburg prison, in Pennsylvania, on or about January 23d, 1942. His one year prison sentence was started on September 29th, 1941. The Board's hearing was fixed for the 18th day of February, 1942, at Trenton, New Jersey. Counsel for the prosecutor obtained two adjournments, the first to March 18th, 1942, the second to April 14th of the same year. Further postponement until the ...


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