[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF THE UNITED STATES
[2] BARSKY
v.
[3] BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK
[4] No. 69
BLUE BOOK CITATION FORM: 1954.SCT.41 (http://www.versuslaw.com)
[5] Date Decided: April 26, 1954
[6] SYLLABUS
[7] Pursuant to §§ 6514 and 6515 of the New York State Education
Law, authorizing disciplinary action against any physician "convicted in
a court of competent jurisdiction, either within or without this state,
of a crime," appellant's license to practice as a physician was
suspended for six months, because he had been convicted in the United
States District Court for the District of Columbia, under 2 U. S. C. §
192, of failing to produce before a Congressional Committee certain
papers subpoenaed by that Committee. Held : The New York law, on its
face or as so construed and applied, does not violate the Due Process
Clause of the Fourteenth Amendment. Pp. 443-456.
[8] (a) The decision of the highest state court that a violation of
2 U. S. C. § 192, though not a crime under New York law, was a "crime"
within the meaning of § 6514-2 (b) of the State Education Law, is
conclusive here. P. 448.
[9] (b) Section 6514-2 (b) is not unconstitutionally vague. P. 448.
[10] (c) The subsequent designation of certain other contempts of
Congress as federal "crimes" (18 U. S. C. § 402) does not prevent a
violation of 2 U. S. C. § 192 from being a "crime" within the meaning of
the New York law. P. 449, n. 8.
[11] (d) The establishment and enforcement of standards of conduct
within its borders relative to the health of its people is a vital part
of a state's police power. P. 449.
[12] (e) The practice of medicine is a privilege granted by the State
under its substantially plenary power to fix the terms of admission. P.
451.
[13] (f) A state's legitimate concern for maintaining high standards
of professional conduct extends beyond initial licensing. P. 451.
[14] (g) The suspension of appellant's license because of his
conviction in a foreign jurisdiction, for an offense not involving moral
turpitude and not criminal under New York law, does not so far transcend
the State's legitimate concern in professional standards as to violate
the Fourteenth Amendment. Pp. 451-452.
[15] (h) The provisions of § 6515 of the State Education Law
prescribing the procedure for disciplinary action are, on their face,
reasonable and satisfy the requirements of due process. Pp. 452-453.
[16] (i) The record in this case does not support a conclusion that
the Board of Regents, in fixing the measure of discipline at a six
months' suspension of appellant's license as a physician, made an
arbitrary or capricious decision or relied upon irrelevant evidence.
Pp. 453-456.
[17] APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
[18] APPELLATE PANEL:
[19] Warren, Black, Reed, Frankfurter, Douglas, Jackson, Burton,
Clark, Minton
[20] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUSTICE BURTON
[21] The principal question here presented is whether the New York
State Education Law,*fn1 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.*fn2 For the reasons hereafter stated, we hold that it does
not.
[22] 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."*fn3 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."*fn4 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.
[23] 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, 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. In
1950, a rehearing was denied. Two Justices noted their dissents, and two
did not participate. 339 U.S. 971. Appellant served his sentence, being
actually confined five months.*fn5
[24] 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:
[25] "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:
[26] . . . .
[27] "(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 . . . ."
[28] 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 character. 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.*fn6 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.*fn7
[29] 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 279 App. Div. 447, 111 N. Y. S. 2d
393, and 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:
[30] "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.
[31] We noted probable jurisdiction, THE CHIEF JUSTICE not
participating at that time. 346 U.S. 807, 801.
[32] That appellant was convicted of a violation of R. S. § 102, as
amended, 2 U. S. C. § 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 § 6514-2 (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.
[33] He argues that § 6514-2 (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.
[34] A violation of R. S. § 102, as amended, 2 U. S. C. § 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.*fn8
[35] 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.
[36] Section 6514, as a whole,*fn9 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 6514-2 (b) is obvious. The real problem for the state
agencies is that of the appropriate disciplinary action to be applied.
[37] 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.
[38] 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.
[39] 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*fn10 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.
[40] 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.*fn11 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.
[41] 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. § 6515-2. 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 behalf, to cross-examine
witnesses, to 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. § 6515-7. "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." § 6515-5. 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.
[42] 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.
[43] 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.
[44] 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.*fn12 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.*fn13 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.
[45] 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:
[46] "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."
[47] 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 --
[48] "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), 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."
[49] 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.
[50] 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.
[51] The judgment of the Court of Appeals of the State of New York,
accordingly, is
[52] Affirmed.
[53] CASE RESOLUTION
[54] 305 N. Y. 89, 691, 111 N. E. 2d 222, 112 N. E. 2d 773, affirmed.
[55] MINORITY OPINION
[56] MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.
[57] Dr. Barsky has been a practicing physician and surgeon since his
graduation from the medical college of Columbia University in 1919,
except for time spent doing postgraduate work in Europe. Beginning with
his internship he has been almost continuously on the staff of Beth
Israel Hospital in New York, the city of his birth. During the Spanish
Civil War Dr. Barsky and others became actively concerned with the
medical needs of Loyalist soldiers. The doctor went over to Spain to
head an American hospital for the Loyalist wounded. Following his return
to practice in New York Dr. Barsky became chairman of the Joint
Anti-Fascist Refugee Committee, an organization founded in 1942 to help
with problems of Spanish refugees from the Franco government. In 1945
the House Committee on Un-American Activities began an investigation of
the Refugee Committee to see if it was spreading political propaganda.
Dr. Barsky and other members of the organization's executive board were
summoned before the congressional Committee and asked to produce the
records of contributions and disbursements of the Refugee Committee. Dr.
Barsky and the others refused, explaining that many contributors had
relatives in Spain whose lives might be endangered if the contributors'
names were given out publicly. Instead, the organization was willing to
give the required information to the President's War Relief Control
Board. In making his refusal, Dr. Barsky had the advice of attorneys
that his action was justified because the congressional Committee's
subpoena transcended its constitutional powers. Concededly this advice
was reasonable and in accord with the legal opinion of many lawyers and
jurists throughout the country.1 Moreover, the Refugee Committee was
advised that the only way to raise its constitutional claim and test the
subpoena's validity was for its executives to risk jail by refusing to
produce the requested papers. Dr. Barsky was sentenced to six months in
jail as punishment for his disobedience of the order to produce, and
the Court of Appeals affirmed his sentence, overruling his
constitutional arguments. This Court denied certiorari without
approving or disapproving the constitutional contentions. 334 U.S. 843.
[58] When Dr. Barsky was released from jail and ready to resume his
practice, an agent of the Board of Regents of the University of the
State of New York2 served him with a complaint demanding that his
license to practice medicine be revoked. This action was not based on
any alleged failing of Dr. Barsky in his abilities or conduct as a
physician or surgeon. The sole allegation was that he had been convicted
of a crime -- refusal to produce papers before Congress. New York law
authorizes revocation or suspension of a physician's license if he is
convicted of a crime. Hearings were held before a Grievance Committee of
physicians appointed by the Regents, and there was much testimony to the
effect that Dr. Barsky was both a skillful surgeon and a good citizen.
No witness testified to any conduct of Dr. Barsky which in any way
reflected on his personal or professional character. Nothing was proven
against him except that he had refused to produce papers. In reviewing
the findings of fact, pursuant to § 211 of the State's Education Law,
the Regents' Discipline Committee reported that Dr. Barsky's refusal to
produce the Refugee Committee's papers was shown to be due to a desire
to preserve the constitutional rights of his organization, that his
offense involved no moral turpitude whatever,3 and that he had already
been punished. The right to test the constitutional power of a Committee
is itself a constitutionally protected right in this country.4 But
despite all these things the Regents suspended Dr. Barsky's medical
license for six months, giving no reason for their action.
[59] I have no doubt that New York has broad power to regulate the
practice of medicine. But the right to practice is, as MR. JUSTICE
DOUGLAS shows, a very precious part of the liberty of an individual
physician or surgeon. It may mean more than any property. Such a right
is protected from arbitrary infringement by our Constitution, which
forbids any state to deprive a person of liberty or property without due
process of law. Accordingly, we brought this case here to determine if
New York's action against Dr. Barsky violates the requirements of the
Federal Constitution.
[60] This record reveals, in my opinion, that New York has
contravened the Constitution in at least one, and possibly two respects.
First, it has used in place of probative evidence against Dr. Barsky an
attainder published by the Attorney General of the United States in
violation of the Constitution. Second, it has permitted Dr. Barsky to be
tried by an agency vested with intermingled
legislative-executive-judicial powers so broad and so devoid of
legislative standards or guides that it is in effect not a tribunal
operating within the ordinary safeguards of law but an agency with
arbitrary power to decide, conceivably on the basis of suspicion, whim
or caprice, whether or not physicians shall lose their licenses.
[61] First. At the hearing before a subcommittee of the Medical
Grievance Committee, appointed by the Regents, the lawyer for the
Regents introduced evidence that the Refugee Committee headed by Dr.
Barsky had been listed by the Attorney General of the United States as
subversive. Pages and pages of the record are devoted to this listing,
to arguments about its meaning and to other innuendoes of suspected
Communistic associations of Dr. Barsky without a single word of legal or
credible proof. Excerpts from the record are printed in the Appendix to
this opinion. The Grievance Committee made a formal finding of fact that
the Refugee Committee had been listed as subversive. This Court,
however, has held that the Attorney General's list was unlawful, Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123. My view was and
is that the list was the equivalent of a bill of attainder which the
Constitution expressly forbids. The Regents' own reviewing Committee on
Discipline recognized the illegality of the list and advised the Regents
that no weight should be given to it. This reviewing committee also
recommended that the Regents not accept the Grievance Committee's
recommendation of a six months' suspension but instead give no
suspension at all. The Regents, however, accepted and sustained the
determination of the Grievance Committee. Dr. Barsky sought review in
the Court of Appeals, but New York's highest court said it was without
power to review the use of the Attorney General's list. Our
responsibility is, however, broader. We must protect those who come
before us from unconstitutional deprivation of their rights, whether the
state court is empowered to do so or not. The record shows that the
Grievance Committee made a finding of fact that "Ever since 1947, the
[Refugee] Committee has been listed as subversive by the Attorney
General of the United States." It seems perfectly natural for the
Grievance Committee to rely on this list, for the Regents are charged
with the duty of making up their own list of "subversive" organizations
for the purpose of dismissing teachers, and New York law authorizes the
Regents to make use of the Attorney General's list.5 Dr. Barsky had a
constitutional right to be free of any imputations on account of this
illegal list. That reason alone should in my judgment require reversal
of this case.
[62] Second. Even if the evidence considered by the Regents and the
Grievance Committee had been proper, I would still have grave doubts
that Dr. Barsky was tried by procedures meeting constitutional
requirements. The Regents who tried and suspended him exercise
executive, legislative and judicial powers.6 The Regents have broad
supervisory and disciplinary controls over schools, school boards and
teachers. They also have powers over libraries and library books, and
they censor movies.7 Doctors, dentists, veterinarians, accountants,
surveyors, and other occupational groups are also subject to discipline
by the Regents and must obey their rules.8 For example the Department of
Education, headed by the Regents, has its own investigators, detectives
and lawyers to get evidence and develop cases against doctors.9 Persons
appointed by the Department prefer charges and testify against an
accused before a committee of doctors appointed by the Regents. This
committee after hearing evidence presented by departmental prosecutors
makes findings and recommendations which are reviewed by another
Regents' committee with power to make its own findings and
recommendations. Then the Regents themselves, apparently bound in no way
by the recommendations of either of their committees, make the final
decision as to doctors' professional fate.
[63] A doctor is subject to discipline by the Regents whenever he is
convicted of a "crime" within or without the State. Whether his "crime"
is the most debasing or the most trivial, the Regents have complete
discretion to impose any measure of discipline from mere reprimand to
full revocation of the doctor's license.10 No legislative standards
fetter the Regents in this respect. And no court in New York can review
the exercise of their "discretion," if it is shown that the Regents had
authority to impose any discipline at all.11 Should they see fit to let
a doctor repeatedly guilty of selling narcotics to his patients continue
to practice, they could do so and at the same time bar for life a doctor
guilty of a single minor infraction having no bearing whatever on his
moral or professional character. They need give no reasons. In deed the
Regents might discipline a doctor for wholly indefensible reasons, such
as his race, religion or suspected political beliefs, without any
effective checks on their decisions.
[64] In this case one can only guess why the Regents overruled their
Discipline Committee and suspended Dr. Barsky. Of course it may be
possible that the Regents thought that every doctor who refuses to
testify before a congressional committee should be suspended from
practice.12 But so far as we know the suspension may rest on the Board's
unproven suspicions that Dr. Barsky had associated with Communists. This
latter ground, if the basis of the Regents' action, would indicate that
in New York a doctor's right to practice rests on no more than the will
of the Regents. This Court, however, said many years ago that "the
nature and the theory of our institutions of government . . . do not
mean to leave room for the play and action of purely personal and
arbitrary power. . . . For, the very idea that one man may be compelled
to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails . . . ." Yick Wo
v. Hopkins, 118 U.S. 356, 369-370.13
[65] At the hearing before the Subcommittee of the Medical Grievance
Committee there was a great deal of testimony as to the nature and
purposes of the Joint Anti-Fascist Refugee Committee. Mr. Tartikoff,
Assistant Attorney General of New York, representing the Department of
Education, repeatedly attempted to show that the Committee had engaged
in "subversive" or "Un-American" activities. However, he presented no
probative evidence tending to prove this allegation. Finally, Mr.
Tartikoff sought to bring out that the Committee had been listed by the
Attorney General of the United States as "subversive." Excerpts from the
record of his questioning of Dr. Barsky on this point are quoted below.
[66] "MR. TARTIKOFF: resuming --
[67] "Q. Doctor, is it not a fact that on or about November 24, 1947,
the Attorney General of the United States, in pursuance of a directive
contained in an executive order of the President of the United States
listed and published a classification of organizations deemed to be
subversive and Un-American, and that included amongst those
organizations at that time by the Attorney General deemed to be
subversive and Un-American was the Joint Anti-Fascist Refugee
Committee?"
[68] At this point Mr. Fishbein, Dr. Barsky's attorney, objected to
the question. After a brief colloquy between counsel the record
continues:
[69] "MR. TARTIKOFF: I think this committee is entitled to know
whether this organization is listed by the Attorney General of the
United States as being subversive and Un-American, particularly in light
of Dr. Barsky's testimony that the activity of the organization since
its inception in 1942 down to and including all through 1950 has been
substantially the same during that period of time."
[70] After further discussion:
[71] "MR. TARTIKOFF: You have introduced document after document to
show this is one of the finest organizations in the world. I think I am
entitled to counter that with evidence that the Attorney General of the
United States reviewed the activities of this organization in whatever
fashion he is supposed to review it and has come to an opposite
conclusion."
[72] Shortly after, Dr. Shearer, the subcommittee chairman, overruled
Mr. Fishbein's objection, and the hearing proceeded as follows:
[73] "MR. TARTIKOFF: resuming --
[74] "Q. Was it so listed, Dr. Barsky?
[75] "A. Mr. Tartikoff, the attorney --
[76] "Q. Question: Was it so listed? That can take a 'yes' or 'no'
answer.
[77] "A. I just would like to bring up --
[78] "MR. TARTIKOFF:
[79] "I ask the committee to direct him to answer that question 'yes'
or 'no.'
[80] "CHAIRMAN SHEARER: 'Yes' or 'no,' Doctor Barsky.
[81] "A. If I may for a moment, -- off the record --
[82] "Q. Doctor, will you please answer the question?
[83] "A. The answer to the question is 'yes.'
[84] "Q. And was it not again so listed by the Attorney General of
the United States in a release made on May 27, 1948?
[85] "A. The answer is I really don't know. You have the statement.
[86] "Q. If I tell you that the statement so indicates, would you
dispute it?
[87] "A. I certainly would not, Mr. Tartikoff.
[88] "Q. And isn't it a fact that it was again so listed on April 21,
1949, July 20, 1949, September 26, 1949, August 24, 1950, and September
5, 1950?
[89] "A. I think you brought out the same list, Mr. Tartikoff.
[90] "Q. Well, there may have been additional ones added, for your
information.
[91] "A. I really don't remember.
[92] "Q. And doctor, didn't you as chairman of the Joint Anti-Fascist
Refugee bring a proceeding against the Attorney General in the United
States courts?
[93] "A. Yes, sir.
[94] "Q. To restrain him from listing your organization as
subversive?
[95] "A. Yes, sir.
[96] "Q. And isn't it a fact that the Circuit Court ruled against you
on that on August 11, 1949?
[97] "A. Yes, sir."
[98] Later, after Dr. Barsky had asked the subcommittee not to "lay
too much stress on the fact that this list was made," Mr. Tartikoff
asked him these questions:
[99] "Q. Wasn't there also an investigation in California by a
Committee on Un-American Activities?
[100] "A. The House Committee?
[101] " Q. The Legislative Committee in California. A Legislative
Committee of the State of California, and didn't they likewise list your
organization as Communistic?
[102] "A. What do you mean?
[103] "Q. The California Committee on Un-American Activities, that's
the Tenney Committee, did they list your organization as Communistic?
[104] "A. I really don't know. If you have the record -- "
[105] MR. JUSTICE FRANKFURTER, dissenting.
[106] While in substantial agreement with what is said in the Court's
opinion, I am constrained to dissent because of what is left unsaid.
[107] Appellant's suspension from the practice of medicine grew out of
his conviction for refusing to turn over to the House Un-American
Activities Committee documents of the Joint Anti-Fascist Refugee
Committee, an organization of which appellant was Chairman. The Medical
Subcommittee on Grievances of the New York Board of Regents, which held
the original hearing in the disciplinary proceeding now before us,
allowed counsel for the Regents to introduce evidence that this Joint
Anti-Fascist Refugee Committee was in 1947 listed by the Attorney
General of the United States as a subversive organization, and the
Subcommittee accordingly made a specific finding to this effect in its
report. This evidence was obviously irrelevant to the issue before the
Committee -- whether appellant had been convicted of a crime -- and was
also obviously extremely prejudicial to appellant. The Regents'
Committee on Discipline, reviewing the Grievance Committee, commented as
follows on this matter:
[108] "There is, it should be noted, evidence in the record, and
reliance on that evidence in the findings of the Medical Committee on
Grievances, that the Refugee Committee had been listed as Communist in
the list furnished by the Attorney General of the United States . . . .
In view of [the decision in Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123], no evidentiary weight can be given in the
present proceeding to the listing by the Attorney General."
[109] The Committee on Discipline concluded that appellant should not
be suspended for six months, as the Grievance Committee had recommended,
but should only be reprimanded. In face of this recommendation, the
Board of Regents, without stating any reasons, accepted the decision of
the Grievance Committee and ordered appellant suspended for a period of
six months from his right to practice medicine.
[110] When this question came before the New York Court of Appeals,
that Court disposed of the issue as follows:
[111] "As to the assertions, by appellants . . . that the Regents, in
deciding on punishment, ignored weighty considerations and acted on
matters not proper for consideration, it is enough to say that we are
wholly without jurisdiction to review such questions . . . ." 305 N. Y.
89, 99, 111 N. E. 2d 222, 226.
[112] Thus the highest court of the State of New York tells us, in
effect, "Yes, it may be that the Regents arbitrarily deprived a doctor
of his license to practice medicine, but the courts of New York can do
nothing about it." Such a rule of law, by denying all relief from
arbitrary action, implicitly sanctions it; and deprivation of interests
that are part of a man's liberty and property, when based on such
arbitrary grounds, contravenes the Due Process Clause of the Fourteenth
Amendment.
[113] Of course a State must have the widest leeway in dealing with an
interest so basic to its well-being as the health of its people. This
includes the setting of standards, no matter how high, for medical
practitioners, and the laying down of procedures for enforcement, no
matter how strict. The granting of licenses to practice medicine and the
curtailment or revocation of such licenses may naturally be entrusted to
the sound discretion of an administrative agency. And while ordinary
considerations of fairness and good sense may make it desirable for a
State to require that the revocation or temporary suspension of a
medical license be justified by stated reasons, the Due Process Clause
of the Fourteenth Amendment does not lay upon the States the duty of
explaining presumably conscientious action by appropriate State
authorities. Douglas v. Noble, 261 U.S. 165, 169-170. Reliance on the
good faith of a State agency entrusted with the enforcement of
appropriate standards for the practice of medicine is not in itself an
investiture of arbitrary power offensive to due process. Likewise there
is nothing in the United States Constitution which requires a State to
provide for judicial review of the action of such agencies. Finally,
when a State does establish some sort of judicial review, it can
certainly provide that there be no review of an agency's discretion, so
long as that discretion was exercised within the gamut of choices,
however extensive, relevant to the purpose of the power given the
administrative agency. So far as concerns the power to grant or revoke a
medical license, that means that the exercise of the authority must have
some rational relation to the qualifications required of a practitioner
in that profession.
[114] It is one thing thus to recognize the freedom which the
Constitution wisely leaves to the States in regulating the professions.
It is quite another thing, however, to sanction a State's deprivation or
partial destruction of a man's professional life on grounds having no
possible relation to fitness, intellectual or moral, to pursue his
profession. Implicit in the grant of discretion to a State's medical
board is the qualification that it must not exercise its supervisory
powers on arbitrary, whimsical or irrational considerations. A license
cannot be revoked because a man is redheaded or because he was divorced,
except for a calling, if such there be, for which redheadedness or an
unbroken marriage may have some rational bearing. If a State licensing
agency lays bare its arbitrary action, or if the State law explicitly
allows it to act arbitrarily, that is precisely the kind of State action
which the Due Process Clause forbids. See Perkins v. Elg, 307 U.S. 325,
349-350; also Rex v. Northumberland Compensation Appeal Tribunal, [1951]
1 K. B. 711. The limitation against arbitrary action restricts the power
of a State "no matter by what organ it acts." Missouri v. Dockery, 191
U.S. 165, 171.
[115] If the Regents had explicitly stated that they suspended
appellant's license or lengthened the time of the suspension because he
was a member of an organization on the so-called Attorney General's
list, and the New York Court of Appeals had declared that New York law
allows such action, it is not too much to believe that this Court would
have felt compelled to hold that the Due Process Clause disallows it.
See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 104
F.Supp. 567. Yet that is precisely what we may have here. It bears
repeating that the Court of Appeals, the ultimate voice of New York law,
found itself impotent to give relief on appellant's claim that the
Regents "in deciding on punishment, ignored weighty considerations and
acted on matters not proper for consideration." 305 N. Y. 89, 99, 111 N.
E. 2d 222, 226. At the very least, for all that appears, the Court of
Appeals assumed that the Regents relied "on matters not proper for
consideration." Thus the appellant may have been deprived of the
liberty to practice his profession and of his property interests in his
profession in contravention of due process. This is not a merely
abstract possibility. The "punishment" -- the Court of Appeals so
characterized it -- recommended by the Grievance Committee rested
certainly in part on arbitrary considerations, and the Board of Regents
appears to have adopted this tainted "determination." Since the decision
below may rest on a constitutionally inadmissible ground, the judgment
should not stand. Stromberg v. California, 283 U.S. 359, 368; Williams
v. North Carolina, 317 U.S. 287, 292.
[116] I would return this case to the New York authorities for
reconsideration in light of the views here expressed.
[117] MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
[118] Mr. Justice Holmes, while a member of the Supreme Judicial Court
of Massachusetts, coined a dictum that has pernicious implications. "The
petitioner may have a constitutional right to talk politics," he said,
"but he has no constitutional right to be a policeman." See McAuliffe v.
New Bedford, 155 Mass. 216, 220, 29 N. E. 517. By the same reasoning a
man has no constitutional right to teach, to work in a filling station,
to be a grocery clerk, to mine coal, to tend a furnace, or to be on the
assembly line. By that reasoning a man has no constitutional right to
work.
[119] The right to work, I had assumed, was the most precious liberty
that man possesses. Man has indeed as much right to work as he has to
live, to be free, to own property. The American ideal was stated by
Emerson in his essay on Politics, "A man has a right to be employed, to
be trusted, to be loved, to be revered." It does many men little good
to stay alive and free and propertied, if they cannot work. To work
means to eat. It also means to live. For many it would be better to work
in jail, than to sit idle on the curb. The great values of freedom are
in the opportunities afforded man to press to new horizons, to pit his
strength against the forces of nature, to match skills with his fellow
man.
[120] The dictum of Holmes gives a distortion to the Bill of Rights.
It is not an instrument of dispensation but one of deterrents. Certainly
a man has no affirmative right to any particular job or skill or
occupation. The Bill of Rights does not say who shall be doctors or
lawyers or policemen. But it does say that certain rights are protected,
that certain things shall not be done. And so the question here is not
what government must give, but rather what it may not take away.
[121] The Bill of Rights prevents a person from being denied
employment as a teacher who though a member of a "subversive"
organization is wholly innocent of any unlawful purpose or activity.
Wieman v. Updegraff, 344 U.S. 183. It prevents a teacher from being put
in a lower salary scale than white teachers solely because he is a
Negro. Alston v. School Board, 112 F.2d 992. Those cases illustrate the
real significance of our Bill of Rights.1a
[122] So far as we can tell on the present record, Dr. Barsky's
license to practice medicine has been suspended, not because he was a
criminal, not because he was a Communist, not because he was a
"subversive," but because he had certain unpopular ideas and belonged to
and was an officer of the Joint Anti-Fascist Refugee Committee, which
was included in the Attorney General's "list." If, for the same reason,
New York had attempted to put Dr. Barsky to death or to put him in jail
or to take his property, there would be a flagrant violation of due
process. I do not understand the reasoning which holds that the State
may not do these things, but may nevertheless suspend Dr. Barsky's power
to practice his profession. I repeat, it does a man little good to stay
alive and free and propertied, if he cannot work.
[123] The distinction between the State's power to license doctors and
to license street vendors is one of degree. The fact that a doctor needs
a good knowledge of biology is no excuse for suspending his license
because he has little or no knowledge of constitutional law. In this
case it is admitted that Dr. Barsky's "crime" consisted of no more than
a justifiable mistake concerning his constitutional rights.2a Such
conduct is no constitutional ground for taking away a man's right to
work. The error is compounded where, as here, the suspension of the
right to practice has been based on Dr. Barsky's unpopular beliefs and
associations. As Judge Fuld, dissenting in the New York Court of
Appeals, makes clear, this record is "barren of evidence reflecting upon
appellant as a man or a citizen, much less on his professional capacity
or his past or anticipated conduct toward his patients." 305 N. Y. 89,
at 102, 111 N. E. 2d 222, at 228-229.
[124] Neither the security of the State nor the well-being of her
citizens justifies this infringement of fundamental rights. So far as I
know, nothing in a man's political beliefs disables him from setting
broken bones or removing ruptured appendixes, safely and efficiently. A
practicing surgeon is unlikely to uncover many state secrets in the
course of his professional activities. When a doctor cannot save lives
in America because he is opposed to Franco in Spain, it is time to call
a halt and look critically at the neurosis that has possessed us.
***** BEGIN FOOTNOTEHERE *****
[125] *fn1 McKinney's N. Y. Laws, Education Law, §§ 6514, 6515.
[126] *fn2 The conviction was for violating R. S. § 102, as amended,
52 Stat. 942, 2 U. S. C. § 192:
[127] "SEC. 102. Every person who having been summoned as a witness by
the authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House, or any
joint committee established by a joint or concurrent resolution of the
two Houses of Congress, or any committee of either House of Congress,
willfully makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry, shall be deemed guilty
of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less
than $ 100 and imprisonment in a common jail for not less than one month
nor more than twelve months."
[128] *fn3 "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 origin 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.
[129] *fn4 United States v. Bryan, 72 F.Supp. 58, 60.
[130] *fn5 For related litigation, see United States v. Bryan, 339
U.S. 323; United States v. Fleischman, 339 U.S. 349; Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123.
[131] *fn6 The committee said:
[132] "Since violation of the Federal statute which Respondent has
been convicted of violating involves inherently no moral turpitude, and
since there has been no impeachment by evidence of Respondent's
explanation (sufficient if unimpeached) of his failure to produce the
subpoenaed documents, we find in the record no valid basis for
discipline beyond the statutory minimum of censure and reprimand; and we
therefore recommend that Respondent's license be not suspended, as the
Medical Committee on Grievances has recommended, but that he be censured
and reprimanded."
[133] *fn7 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.
[134] At about the same time, the board fixed at three months the
suspension of the license of another doctor who was a member of the
executive board of the Refugee Committee and who had been convicted with
appellant. It also directed that a third doctor, who was a member of the
same board, be censured and reprimanded. Each such determination was
confirmed by the New York courts simultaneously with the confirmations
relating to appellant. See 279 App. Div. 447, 111 N. Y. S. 2d 393; 279
App. Div. 1101, 112 N. Y. S. 2d 780, 781; 279 App. Div. 1117, 112 N. Y.
S. 2d 778; and 305 N. Y. 89, 111 N. E. 2d 222.
[135] *fn8 The subsequent designation of certain other contempts of
Congress as federal "crimes" (18 U. S. C. § 402) does not prevent this
misdemeanor from being a crime within the meaning of the New York
statute.
[136] *fn9 "§ 6514. Revocation of certificates; annulment of
registrations
[137] "1. Whenever any practitioner of medicine, osteopathy or
physiotherapy shall be convicted of a felony, as defined in section
sixty-five hundred two of this article, the registration of the person
so convicted may be annulled and his license revoked by the department.
It shall be the duty of the clerk of the court wherein such conviction
takes place to transmit a certificate of such conviction to the
department. Upon reversal of such judgment by a court having
jurisdiction, the department, upon receipt of a certified copy of such
judgment or order of reversal, shall vacate its order of revocation or
annulment.
[138] "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:
[139] "(a) That a physician, osteopath or physiotherapist is guilty of
fraud or deceit in the practice of medicine, osteopathy or physiotherapy
or in his admission to the practice of medicine, osteopathy or
physiotherapy; or
[140] "(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
[141] "(c) That a physician, osteopath or physiotherapist is an
habitual drunkard, or is or has been addicted to the use of morphine,
cocaine or other drugs having similar effect, or has become insane; or
[142] "(d) That a physician, osteopath or physiotherapist offered,
undertook or agreed to cure or treat disease by a secret method,
procedure, treatment or medicine or that he can treat, operate and
prescribe for any human condition by a method, means or procedure which
he refuses to divulge upon demand to the committee on grievances; or
that he has advertised for patronage by means of handbills, posters,
circulars, letters, stereopticon slides, motion pictures, radio, or
magazines; or
[143] "(e) That a physician, osteopath or physiotherapist did
undertake or engage in any manner or by any ways or means whatsoever to
perform any criminal abortion or to procure the performance of the same
by another or to violate section eleven hundred forty-two of the penal
law, or did give information as to where or by whom such a criminal
abortion might be performed or procured.
[144] "(f) That a physician, osteopath or physiotherapist has directly
or indirectly requested, received or participated in the division,
transference, assignment, rebate, splitting or refunding of a fee for,
or has directly or indirectly requested, received or profited by means
of a credit or other valuable consideration as a commission, discount or
gratuity in connection with the furnishing of medical, surgical or
dental care, diagnosis or treatment or service, including x-ray
examination and treatment, or for or in connection with the sale,
rental, supplying or furnishing of clinical laboratory services or
supplies, x-ray laboratory services or supplies, inhalation therapy
service or equipment, ambulance service, hospital or medical supplies,
physiotherapy or other therapeutic service or equipment, artificial
limbs, teeth or eyes, orthopedic or surgical appliances or supplies,
optical appliances, supplies or equipment, devices for aid of hearing,
drugs, medication or medical supplies or any other goods, services or
supplies prescribed for medical diagnosis, care or treatment under this
chapter, except payment, not to exceed thirty-three and one-third per
centum of any fee received for x-ray examination, diagnosis or
treatment, to any hospital furnishing facilities for such examination,
diagnosis or treatment. . . ."
[145] *fn10 See Sinclair v. United States, 279 U.S. 263, 299.
[146] *fn11 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, § 6613-12, as to
dentists; and McKinney's N. Y. Laws, Judiciary Law, § 90-4, as to
attorneys. Cf. § 6514-1, note 9, supra, as to physicians. See In re
Raab, 156 Ohio St. 158, 101 N. E. 2d 294.
[147] *fn12 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123.
[148] *fn13 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 programs
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.
[149] MINORITY OPINIONFOOTNOTES
[150] *fn1 And certainly since our recent holding in United States v.
Rumely, 345 U.S. 41, it cannot be said that it is "fanciful or
factitious" to claim that the First Amendment bars congressional
committees from seeking the names of contributors to an organization
alleged to be engaged in "political propaganda."
[151] *fn2 The University of the State of New York is the historic
name of the corporate body which the Regents make up. It has no faculty
or students of its own. See McKinney's N. Y. Laws, Education Law, § 201
et seq.
[152] *fn3 This Court has authoritatively construed the federal
offense of refusing to comply with a congressional subpoena as involving
no moral turpitude. Sinclair v. United States, 279 U.S. 263, 299.
[153] *fn4 See Ex parte Young, 209 U.S. 123, 148, and Oklahoma
Operating Co. v. Love, 252 U.S. 331, 335-338.
[154] *fn5 Education Law, § 3022. See Adler v. Board of Education of
the City of New York, 342 U.S. 485.
[155] *fn6 The New York Constitution, Art. V, § 4, makes the Regents
head of the Department of Education with power to appoint and remove at
pleasure a Commissioner of Education who is the Department's chief
administrative officer. These nonsalaried Regents are almost entirely
independent of the Governor, being elected on joint ballot of the two
houses of the Legislature for thirteen-year terms. Education Law, § 202.
Executive power over the State's educational system is vested in the
Regents by 101 of the Education Law. Section 207 provides that "the
regents shall exercise legislative functions concerning the educational
system of the state, determine its educational policies, and, except, as
to the judicial functions of the commissioner of education, establish
rules for carrying into effect the laws and policies of the state . . .
."
[156] *fn7 See Education Law, §§ 120 et seq., 214, 215, 216, 219, 224,
245 et seq., 704, 801 et seq. On motion picture censorship by the
Regents see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495.
[157] *fn8 Education Law, §§ 211, 6501-7506. The professions of
pharmacy, optometry, podiatry, nursing, shorthand reporting,
architecture and engineering are also under the Regents' jurisdiction.
[158] *fn9 For examples of entrapment of doctors by the Regents'
investigators and the narrowness of judicial review afforded accused
doctors see Weinstein v. Board of Regents, 267 App. Div. 4, 44 N. Y. S.
2d 917, reversed, 292 N. Y. 682, 56 N. E. 2d 104; Epstein v. Board of
Regents, 267 App. Div. 27, 44 N. Y. S. 2d 921, reversed, 295 N. Y. 154,
65 N. E. 2d 756.
[159] *fn10 Barsky v. Board of Regents, 305 N. Y. 89, 99, 111 N. E. 2d
222, 226.
[160] *fn11 The Regents, with their many law-enforcement duties, are
plainly not a judicial body in the ordinary sense, yet court review is
virtually precluded. Whether due process of law can be satisfied in this
type of case by procedures from which effective review by the regular
judicial branch of the government is barred is certainly not wholly
clear. Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287,
Ng Fung Ho v. White, 259 U.S. 276 and St. Joseph Stock Yards Co. v.
United States, 298 U.S. 38, with Yakus v. United States, 321 U.S. 414.
[161] *fn12 But see note 7 of the Court's opinion.
[162] *fn13 See Davis v. Schnell, 81 F.Supp. 872, where in an opinion
by Mullins, D. J., a three-judge district court, following Yick Wo v.
Hopkins, struck down a state constitutional provision limiting voters to
those who could "understand and explain" the Constitution. County Boards
of Registrars were by statute given discretion to determine whether
persons seeking to vote had satisfied the constitutional provision.
Judge Mullins said:
[163] "The words 'understand and explain' do not provide a reasonable
standard. A simple test may be given one applicant; a long, tedious,
complex one to another; one applicant may be examined on one article of
the Constitution; another may be called upon to 'understand and explain'
every article and provision of the entire instrument.
[164] "To state it plainly, the sole test is: Has the applicant by
oral examination or otherwise understood and explained the Constitution
to the satisfaction of the particular board? To state it more plainly,
the board has a right to reject one applicant and accept another,
depending solely upon whether it likes or dislikes the understanding and
explanation offered. To state it even more plainly, the board, by the
use of the words 'understand and explain,' is given the arbitrary power
to accept or reject any prospective elector that may apply . . . . Such
arbitrary power amounts to a denial of equal protection of the law
within the meaning of the Fourteenth Amendment . . . ." 81 F.Supp., at
878. This Court affirmed without writing an opinion of its own. 336 U.S.
933.
[165] 1a As to the right to work, see also Cummings v. Missouri, 4
Wall. 277; Ex parte Garland, 4 Wall. 333; Yick Wo v. Hopkins, 118 U.S.
356; Truax v. Raich, 239 U.S. 33; Takahashi v. Fish and Game Commission,
334 U.S. 410.
[166] 2a Dr. Barsky was convicted for failure to produce certain
documents subpoenaed by a congressional committee. At a hearing before
the Regents' Committee on Discipline, the Assistant Attorney General
representing the State conceded that Dr. Barsky had acted on the advice
of counsel. He conceded that "the advice given to Dr. Barsky by the
attorney, Mr. Wolf, was not an opinion which he held alone; nor was it
at that time an unreasonable construction of law on his part." The
advice given was that the subpoenas were unconstitutionally issued and
that Dr. Barsky was not legally required to respond. The Assistant
Attorney General admitted that this opinion was held by many lawyers and
by some judges. The Committee on Discipline pointed out that refusal to
produce the subpoenaed records was "the only method by which the legal
objections to the Congressional Committee's course could be judicially
determined."
***** END FOOTNOTEHERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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1954.SCT.41