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In re Polk

Decided: July 30, 1982.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 178 N.J. Super. 191 (1981).

For modification and remandment -- Justices Schreiber, Handler, Pollock and O'Hern. Dissenting in part, concurring in part -- Justices Pashman and Clifford. The opinion of the Court was delivered by Handler, J. Pashman, J., concurring in part and dissenting in part. Justice Clifford joins in this dissent.


[90 NJ Page 557] This appeal involves the revocation of a medical doctor's license by the State Board of Medical Examiners for violations of New Jersey statutes regulating the practice of medicine. The primary question presented is whether such violations must be established by clear and convincing evidence rather than by a preponderance of the evidence. The doctor whose license was revoked contends that the use of the lesser burden of proof in medical license revocation proceedings is contrary to the due process and equal protection guarantees of the federal and State Constitutions. Other claims relate to the validity of the statutory standards, the sufficiency of the evidence, the lack of procedural fairness in the manner by which the Board reached its

final determination, and the excessiveness of the ultimate sanction of license revocation.


These proceedings commenced with the filing of a seven-count complaint with the State Board of Medical Examiners (Board) against Irwin J. Polk, M.D., a Lincroft allergist, charging him with sexual abuse of five juvenile female patients. The complaint alleged that Polk was guilty of "gross malpractice" under N.J.S.A. 45:9-16(h) and N.J.S.A. 45:1-21c; repeated acts of malpractice within the meaning of N.J.S.A. 45:1-21d; professional misconduct under N.J.S.A. 45:1-21e, as well as a lack of good moral character under N.J.S.A. 45:9-6; and an inability to act "consistent with the public's health, safety and welfare," as required under N.J.S.A. 45:1-21i.

The complaining juveniles testified against Polk at a hearing before a panel designated by the Board. The witnesses were adolescent females who were patients of Polk, in some instances for many years. Although there were individual variations among the stories, they shared a common core of factual allegations. All of the girls testified that, over the period of time covered by the complaints, Polk had embraced and kissed them, attempted to touch their pubic areas, fondled and kissed their breasts and made sexually suggestive remarks. Some of the juveniles testified that they were extremely upset and distraught as a result of these episodes. In one case, the girl's family filed a police complaint against Polk which apparently was not pursued.

The defense case consisted of the testimony of 34 witnesses. Over three days, the Board heard several doctors testify regarding both the need to touch female breasts during stethoscope exams and to palpate the abdomen during checks for ulcers. They further testified as to the heightened sensitivity of adolescent females to inadvertent or innocent touching during physical examinations. Witnesses included three past presidents of the

Monmouth County Medical Society, each of whom testified to Polk's good reputation. Other character witnesses included two State assemblymen, a mayor, two ministers, a rabbi, the editor and publisher of the local newspaper and former patients. Ten present and former members of the doctor's staff testified, as did his office associate. All confirmed his personal style, which included physical gestures of affection for staff, friends and patients alike.

Polk also testified. He denied having behaved improperly toward any of the complaining witnesses or, indeed, toward any of his patients. For example, as to one of the complaining witnesses, C.D., he conceded that he might have patted her on the rear and complimented her on her body, but only as gestures of affection. He also said that he did not deliberately touch her breasts, except as might have been necessary for the stethoscope exam. He defended his actions as those of a physician trying to develop a rapport with a patient who was having a difficult time at home. He also denied trying to kiss any of his patients intimately and that if he had kissed anyone it would have been on the cheek only.

The three-member panel found that the complaining witnesses were credible. With the exception of two witnesses whose stories were not supported by sufficient evidence, the panel believed all of the complaining witnesses and determined that Polk had engaged in the particular acts charged for lascivious, not medical, reasons. It concluded that his conduct was "reprehensible." It further found the acts to have been committed "in a knowing manner" since there was "no evidence of mental or emotional incompetence," although Polk had sought and been granted additional time to prepare a psychiatric defense. It recommended that Polk's medical license be revoked.

Its findings were presented to the full Board of Medical Examiners, which by unanimous vote accepted the report's recommendations, including the penalty of revocation. Polk then filed an appeal. The Appellate Division reversed, holding:

It is our considered conviction that, quite aside from a violation of any constitutional prohibitions, considerations of fundamental fairness alone demand that disciplinary proceedings against physicians (essentially no different in purpose and no less crucial in effect upon the physicians than upon the lawyers) be subject to the clear-and-convincing standard of proof. In each instance, the protection of the public interest is the paramount concern, and "the dire consequences which may flow from an adverse finding" are identical. In short, we are unable to perceive any justifiable basis for the lawyer to receive the advantage of the more favorable standard of quantum of proof in disciplinary proceedings, while denying the benefit of the same standard to the physician similarly situated. [ In Re Polk License Revocation, 178 N.J. Super. 191, 194 (App.Div.1981)]

The Board of Medical Examiners filed a petition for certification which was granted. 87 N.J. 398 (1981).


The first issue is whether the State Board of Medical Examiners could constitutionally revoke Dr. Polk's license to practice medicine using the preponderance of the evidence burden of proof as opposed to clear and convincing evidence. Polk asserts that due process under the Fourteenth Amendment, as well as under the State's Constitution, requires application of the higher clear and convincing burden of proof.

This jurisdiction has long recognized that the usual burden of proof for establishing claims before state agencies in contested administrative adjudications is a fair preponderance of the evidence. In Atkinson v. Parsekian, 37 N.J. 143, 149 (1962), we observed that: "In proceedings before an administrative agency, . . . it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." See In re Suspension or Revoc. License of Kerlin, 151 N.J. Super. 179, 184 n.2 (App.Div.1977) ("Where disciplinary proceedings with respect to a profession or occupation are vested in an administrative agency in the first instance, the charges must be established by a fair preponderance of the believable evidence").

This burden of proof is not found explicitly in any general statute governing proceedings in contested cases before State

administrative agencies, nor is it found in any of the provisions of Title 45, which defines the regulatory authority of the State Board of Medical Examiners and governs the practice of medicine in this jurisdiction. Nevertheless, this particular standard of proof -- a preponderance of the evidence -- has been consistently applied in agency adjudications for many years.*fn1 See Malone v. Fender, 80 N.J. 129 (1979).

Despite this settled practice, Polk contends that application of the preponderance of the evidence burden of proof in the proceedings to revoke his license to practice medicine constitutes a denial of substantive due process.

Several jurisdictions that have expressly considered this issue have held that a preponderance of the evidence burden of proof is adequate to protect the interest involved in professional licensure. Ferguson v. Hamrick, 388 So. 2d 981, 983 (Ala.1980); Sherman v. Commission on Licensure to Practice the Healing Art, 407 A.2d 595, 601 (D.C.App.1979); In re Wilkins, 294 N.C. 528, 242 S.E. 2d 829, 842 (1978). Cf. Matter of Robinson, 575 P. 2d 771, 776-77 (Alaska 1978) (holding that due process does not require a higher standard than a preponderance of the evidence for disbarment of an attorney). But see Fallon v. State Bd. of Medical Examiners, 441 P. 2d 322, 326 (Wyo.1968). Other decisions that apply a greater burden of proof suggest that this may be desirable as a matter of legislative policy, but it is not constitutionally mandated. Cf. Woodby v. INS, 385 U.S. 276, 87

S. Ct. 483, 17 L. Ed. 2d 362 (1966) (deportation proceeding); Nishikawa v. Dulles, 356 U.S. 129, 78 S. Ct. 612, 2 L. Ed. 2d 659 (1958) (naturalization proceedings).

In addressing Polk's constitutional argument, we find the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), to be relevant and instructive.*fn2 This analytical approach, as applied most recently by the Supreme Court in Santosky v. Kramer, U.S. , 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), requires an examination and balancing of three factors: (1) the nature of the private interest affected by the proceeding; (2) the countervailing governmental interest to be furthered by the proceeding; and (3) the risk of error in the ultimate determination created by the use of the particular burden of proof. Santosky, U.S. at , 102 S. Ct. at 1394, 71 L. Ed. 2d at 607.

Turning first to the private interest involved -- the license to practice the profession of medicine -- we examine the nature of that interest and the extent of the loss or curtailment threatened by the proceedings. In this jurisdiction, we have long considered an occupational license to be in the nature of a property right, "always subject to reasonable regulation in the public interest." Jeselsohn Inc. v. Atlantic City, 70 N.J. 238, 242 (1976). Accord, Lane Distributors Inc. v. Tilton, 7 N.J. 349, 362 (1951); Kravis v. Hock, 136 N.J.L. 161, 164 (E. & A. 1947). See also Schireson v. State Board of Medical Examiners, 130 N.J.L. 570, 575

(E. & A. 1943) (the license is "a property right . . . derived from the state or society generally, and society is entitled to be protected from practitioners found to be unfit"); Frazier v. Liberty Mutual Ins. Co., 150 N.J. Super. 123, 135 (Law Div.1977) (the right to make a living is not a fundamental right).

From a constitutional standpoint, the clear and convincing standard has been found to be required as a matter of due process when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding in the sense that it takes away liberty or permanently deprives individuals of interests that are clearly fundamental or significant to personal welfare. Thus, in Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1978), relied upon by Polk in this case, the Supreme Court, in upholding the use of the clear and convincing standard in a case involving the potential loss of liberty through civil proceedings, emphasized that "civil commitment for any purpose constitutes a significant deprivation of liberty" and that the "adverse social consequences" engendered by involuntary commitment to a mental hospital "can have a very significant impact on the individual." Id. at 425, 99 S. Ct. at 1809, 60 L. Ed. 2d at 330-31. Most recently, the Supreme Court in Santosky recognized that an intermediate standard of proof -- clear and convincing evidence -- is mandated "when the individual interests at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money' . . ." Santosky, U.S. at , 102 S. Ct. at 1396, 71 L. Ed. 2d at 608, quoting Addington, 441 U.S. at 424, 99 S. Ct. at 1808, 60 L. Ed. 2d at 330. It noted that the Court "has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with 'a significant deprivation of liberty' or 'stigma.'" Id. There the interest of natural parents in the care, custody and management of their child was considered a "fundamental liberty interest," id. U.S. at , 102 S. Ct. at 1397, 71 L. Ed. 2d at 610, protected by the

Fourteenth Amendment and subject to the higher burden of proof of clear and convincing evidence.

In contrast, other individual interests not rising to the level of fundamental right are not entitled to protection by a standard of proof greater than a fair preponderance. In Vance v. Terrazas, 444 U.S. 252, 100 S. Ct. 540, 62 L. Ed. 2d 461, reh. den. 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980), the Supreme Court recognized that due process requires a higher degree of proof only in cases involving a loss of liberty and that Congress was free to require a lesser burden of proof, such as a preponderance of the evidence, in expatriation proceedings. Id. at 266-67, 100 S. Ct. at 548, 62 L. Ed. 2d at 473-72. In Steadman v. SEC, 450 U.S. 91, 101 S. Ct. 999, 67 L. Ed. 2d 69, reh. den. 451 U.S. 933, 101 S. Ct. 2008, 68 L. Ed. 2d 318 (1981), the Supreme Court implicitly and without discussion concluded that there was no fundamental ...

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