Clear and Convincing Standard

CLEAR AND CONVINCING STANDARD

In making findings and drawing conclusions, we keep foremost in mind the burden of proof in disciplinary proceedings. Before any disciplinary action may be taken by our Supreme Court, they must first find that an ethical violation has been established by clear and convincing evidence. See Matter of Chiovero, supra, 570 A.2d at 60; Matter of Sylvester, supra; Matter of Braig, supra; JIRB v. Snyder, 514 Pa. 142, 523 A.2d 294 (1987); see also Matter of Delassandro [Dalessandro], supra, 397 A.2d at 751 ("it was by no means clear and convincing that the respondent was intentionally exploiting his judicial position"); Matter of Johnson, supra, 395 A.2d at 1325 ("The evidence concerning respondent's manner during the above proceedings was sharply in conflict.... The evidence in this regard is not clear and convincing and is insufficient to sustain the imposition of an official reprimand."). Our Supreme Court has repeatedly explained that:

[t]he standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

[532 Pa. 333] Matter of Chiovero,supra, 570 A.2d at 60; Matter of Sylvester, supra, 555 A.2d at 1203-04; Matter of Braig, supra, 554 A.2d at 495; JIRB v. Snyder, supra, 523 A.2d at 299.

In order for a witness' testimony or other evidence to support a finding of clear and convincing evidence the witness must be credible and the evidence offered must be based upon distinct personal knowledge of the relevant facts, undecayed by time and untainted by the corrupting influences of bias or suggestion. See generally LaRocca Trust, 411 Pa. 633, 192 A.2d 409 (1963) (testimony was evasive and evinced both bias and a memory decayed by time); Carlin v. Pa. Power & Light Co., 363 Pa. 405, 70 A.2d 345 (1950) (evidence lacked statements of personal knowledge of critical facts, was neither clear nor precise, and one witness had obvious bias); Alliquipa [Aliquippa] Nat'l Bank v. Harvey, 340 Pa. 223, 16 A.2d 409 (1940) (evidence was contradictory, biased, and hardly credible, inconsistencies between statements and conduct noted); Matter of Jackson, 302 Pa.Super. 369, 448 A.2d 1087 (1982) (witnesses lacked personal knowledge of relevant facts).

The effects of conflicts in the evidence or corroboration of particular evidence will vary depending upon the credibility of the individuals involved, the degree of conflict or corroboration, and the importance of the point with respect to which the conflict or corroboration occurs. The existence of a conflict in the evidence with regard to a material fact, by itself, may preclude a finding that a charge has been sustained by clear and convincing evidence. See e.g. Matter of Johnson, supra. On the other hand, there is no mechanistic corroboration requirement; rather, a charge could be sustained on the basis of the uncorroborated testimony of a single credible witness in an appropriate case. In re McDonough, 296 N.W.2d 648, 692 (Minn.1980) ("no mechanistic corroboration requirement is necessary ... in fact, depending on its source, uncorroborated evidence may be more reliable than that remotely corroborated by a dubious source"), and In re Boyd, 308 So.2d 13, 21 (Fla.1975) ("evidence to sustain a charge of unprofessional conduct against a member of the bar, where in his testimony ... he has fully and completely denied the [532 Pa. 334] asserted wrongful act, must be clear and convincing, and that degree of evidence does not flow from testimony of one witness, unless such witness is corroborated to some extent by either facts or circumstances"). 1

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Likewise, in assessing the evidence, due consideration must be given to any character evidence offered on behalf of the respondent. See Matter of Sylvester, supra. The weight to be given character evidence will vary depending upon the circumstances. Compare Matter of Sylvester, supra; JIRB v. Snyder, supra, 523 A.2d at 304 (Papadakos, J., concurring and dissenting); and In re Dandridge, 462 Pa. 67, 70, 337 A.2d 885, 886 (1975). When there is slender evidence to sustain a charge or when the evidence is ambiguous, character evidence may dispel suspicions of impropriety a jaundiced eye might otherwise perceive; on the other hand, when proofs are credible, multiple, and incontrovertible, character evidence will be of little avail except in mitigation of the penalty. Compare Matter of Sylvester, supra; JIRB v. Snyder, supra; and In re Dandridge, supra. 2

In assessing the credibility of witnesses and the weight to be accorded their testimony, the need to identify and discount for the deleterious effects of personal animus and/or bias is obvious. Less clear, but equally, if not more important, is our responsibility to identify and discount for the effects of innocent "fallacies of testimony" which infect and distort the testimony of even the most forthright and well-intended of witnesses.

[532 Pa. 335] The venerable trial advocate Francis Wellman cogently observed long ago:

No one can frequent our courts of justice for any length of time without finding himself aghast at the daily spectacle presented by seemingly honest and intelligent men and women who array themselves upon opposite sides of a case and testify under oath to what appears to be absolutely contradictory.

Wellman, The Art of Cross-Examination, at 139-40 (Rev. ed. 1904).

We have reached various findings of fact and conclusions of law which implicitly or explicitly reject certain testimony as not credible. In doing so, we emphasize the numerous sources of innocent fallacies of testimony. See generally Wellman, supra, at 139-53. Our rejection of an individual's testimony in whole or in part is not intended to imply perjurious or corrupt motivation. To the contrary, the witnesses in these proceedings appeared generally forthright and sincere despite the various conflicts in their recollections of the relevant events.

We note that we are well aware of the potential for manipulation of the JIRB disciplinary process for personal and/or political motives. Cf. Matter of Chiovero, supra, 570 A.2d at 61. All proceedings before the JIRB are privileged from liability for defamation, even if allegations are false and made with actual malice. Pa. Const. Art. V, sec. 17(h); 42 Pa.C.S.A. § 3332(c); JIRB Rule 21. While statements regarding JIRB proceedings or the substance of allegations made outside JIRB proceedings are not covered by that privilege, 3 sanctions for violations of confidentiality and/or liability for defamation are still quite limited. First Amendment Coalition v. JIRB, 784 F.2d 467 (3rd Cir.1986); Office of Disciplinary Counsel v. Surrick, supra; Larsen v. Philadelphia Newspapers, 375 Pa.Super. 66, 543 A.2d 883 [1181] (1988); cf. Matter of Dalessandro, 483 Pa. 431, 465, 397 A.2d 743, 760 (1979). Consequently, there is a very real risk [532 Pa. 336] that JIRB proceedings may be misused and manipulated for political and/or personal motives entirely unrelated to the maintenance of a just and ethical judiciary. See First Amendment Coalition v. JIRB,

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784 F.2d 467, 475-77 (3rd Cir.1986) (collecting authorities); cf. Matter of Chiovero, supra, 570 A.2d at 67 (Nix, C.J.; dissenting, Flaherty, J., joins).

We recognize too, that it is our solemn responsibility to ensure that the authority of the JIRB is exercised carefully so as to promote the independence as well as the integrity of our judiciary. Matter of Chiovero, supra, 570 A.2d at 67 (Nix, C.J., dissenting, Flaherty, J., joins); cf. Matter of XYP, supra. We have kept in mind Justice Hugo Black's ominous warning that unless discipline of the judiciary is carefully controlled, "the hope for an independent judiciary will prove to have been no more than an evanescent dream." Chandler v. Judicial Council, 398 U.S. 74, 143, 90 S.Ct. 1648, 1683, 26 L.Ed.2d 100, 141 (1970) (Black, J., dissenting).

The burden of proof in these proceedings is proof by clear and convincing evidence. We therefore restrict our conclusions to whether the alleged misconduct was established by clear and convincing evidence. In this context, the concepts of proof by probable cause, preponderance, reasonable suspicion or mere suspicion are simply not relevant. We are neither authorized nor inclined to offer any opinion as to the degree by which an allegation may have failed of insufficient proof, nor do we offer any opinion as to the ethics of the conduct of the parties beyond that required to determine the specific charges of misconduct presented through proper procedures for review. Cf. Matter of XYP, supra. The provisions of the Code of Judicial Conduct, rather than our personal views of propriety, have been our measure in this matter. Cf. Matter of Chiovero, supra, 570 A.2d at 60-61.

Above from Larsen, Matter of, 616 A.2d 529, 532 Pa. 326 (Pa., 1992)

Below from

“In addressing Polk's constitutional argument, we find the balancing test articulated Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), to be relevant and instructive. 2 This analytical approach, as applied most recently by the Supreme Court in Santosky v. Kramer, 455 U.S. 745, 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, 455 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, 358 A.2d 797 (1976). Accord, Lane Distributors Inc. v. Tilton, 7 N.J. 349, 362, 81 A.2d 786 (1951); Kravis v. Hock, 136 N.J.L. 161, 164, 54 A.2d 778 (E. & A. 1947). See also Schireson v. State Board of Medical Examiners, 130 N.J.L.

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570, 575, 33 A.2d 911 (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, 374 A.2d 1259 (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[449 A.2d 14] 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. 455 U.S. at ----, 102 S.Ct. at 1397, 71 L.Ed.2d at 610, protected by the Page 564

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. 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. 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 constitutional liberty interest at stake in a proceeding to revoke a license to pursue a profession or occupation, and hence found no due process entitlement to a burden of proof greater than a fair preponderance. In addition to the nature of the private interest involved, the extent of the loss or impairment of that interest is relevant to the due process inquiry. The permanency of the loss of a substantial private interest is clearly a factor militating in favor of greater protection. Santosky, ---U.S. at ----, 102 S.Ct. at 1397, 71 L.Ed.2d at 610. Here, while the proceedings have resulted in license revocation, the revocation under the operative statute apparently is not permanent. Under N.J.S.A. 45:9-16, a medical physician whose license has been revoked may apply to the Board for reinstatement at a later date. Furthermore, we recognize that the State Board of Medical Examiners, as a State administrative agency, has a certain range of discretion in meting out sanctions against licensees. Discipline can be imposed which falls short of a permanent loss of licensure.