-: SJC-12817 in the matter of an impounded case.
(papers shuffling)
-: Mr. Tower, good morning.
-: Morning your honor, good morning Chief Justice Gants,
Associate Justices, may it please the court.
My name is Michael Tower here on behalf
of the appellant Dr. Doe.
There are two primary issues that the court is called upon
to consider in the context of this case.
The first is whether the Board of Registration in Medicine
is permitted to use a criminal record
that's been judicially sealed
pursuant to NGL-276, section 100C,
to discipline a physician.
The second related question is
if this court deems that that the board
is in fact authorized to use that sealed criminal record,
does that necessarily mean that
the board is authorized to disclose the contents
of that sealed criminal record?
Now, Dr. Doe submits that this court
should answer no to both of those questions
and that this court's doing so
will in no way hamper the board's ability
to fulfill its statutory mission.
Justice Lenk: Could you clarify, cause I think
that the board makes the argument that, you know,
he had already disclosed a lot of stuff
before the record was sealed, so what about that stuff?
Tower: Your honor, it's our position in this case
that those disclosures were compelled
by the board's regulations.
It is undisputed, it's in the joint facts,
that Dr. Doe would've been required
to disclose the existence of this underlying matter
in connection with his application.
And it is also one of the enumerated bases
for board discipline
that if a physician fails to respond
to information requests from the board.
So it would be our position--
Justice Lenk: But that was before
the record was sealed, right?
Tower: Yes, Your Honor, it was.
Justice Lenk: So that would, does that make a difference?
-: I think it does make a difference,
because it will always be the case when a record is sealed
that the court is, in effect, taking information
that was available to the public
and removing it from public purview.
And so in a situation like this,
where the only information
that the Board of Registration has was compelled
by the mere existence of the underlying criminal matter
as opposed to the underlying conduct itself,
we think that the effect of the board's sealing,
is to remove that from the board's purview,
purely for disciplinary purposes.
-: Let me ask you a question then.
Tower: Yes, ma'am. -: Would it made a difference
if the record had been sealed before?
Before disciplinary proceedings had begun.
Tower: So--
-: In the sense that, y'know,
if they had only the sealed record,
would he have had to disclose anything?
-: At the time of his application,
the statute had not yet been amended,
so he would have been--
Justice Lenk: Even though it was sealed?
-: He would not at that point have been permitted
to respond "No record" in response to that,
that was a change that the legislature made in 2018,
authorizing "No record" in the face of a request
by a licensing board.
-: Okay, so now if it was somebody in the same situation
who had the record sealed,
that person could answer "No record"?
-: Yes, Your Honor.
And it's our position that that's really one
of the determining factors.
Today, this information would never have come
to the board's attention unless there were
some independent report to the board
that caught its attention.
And I think one way to--
-: When you say "this information,"
do you mean the incident itself
or do you mean the fact of a record?
-: Well, either one, Your Honor.
-: Because he self--
wouldn't he still been required to self-report?
Even if there had, wouldn't he still be have been
require to self-report to the board?
-: Once the record was sealed, he was--
-: No, before the record was sealed.
Tower: Oh.
-: Before there was--
When he reported, which was appropriate, wasn't it?
-: He would've been required to report
on his next application.
That's correct.
At that point, he would've been required
to disclose the information.
-: Okay, but at the time that he disclosed the information,
wasn't he required to disclose the information?
Tower: Yes.
-: Okay, so with that in mind, the board has the information.
Tower: Yes.
-: And they can use whatever they know, apart,
in your argument, apart from what was sealed,
is that correct?
-: It is our position that if the only information
that the board receives is the existence
of a criminal matter, that is subsequently
or even previously sealed,
that that is not a sufficient basis for attorney discipline.
That does not mean, however,
that we are asking for any limitations
on the board's investigatory power
nor are we submitting that the board could not
independently reprimand a physician
based on independent conduct.
And I think actually one of the hypotheticals (fuzz)
pardon me,
in the board's brief really makes that point nicely.
The board posits a physician who makes a report
to the Board of Medicine that the physician's,
that the patient's physician, pardon me,
a patient makes a report to the Board of Medicine
that the patient's physician committed an indecent assault.
Now in the board's hypothetical,
that, the concomitant criminal matter is dismissed
and subsequently sealed.
Now, without attempting to fight the hypothetical,
I think it's important to remember that under 100C,
that sealing only happens after
an individualized judicial inquiry
taking into account all of the factors
that this court laid out in Pon,
with the full participation of the commonwealth
through the DA and all the associate appellate rights.
But assuming in that hypothetical that it was sealed,
the board would nevertheless have an independent basis
to investigate and discipline the underlying conduct
that is the report of the patient.
And if the board subsequently was going
to publish the results of its investigation or its order,
it could recite its entire basis for discipline
without ever even referencing
the underlying criminal matter.
-: But are you saying that they could not do that
based on self-reporting?
-: I think to create a scenario where the statute,
where the legislature clearly,
the legislature clearly contemplated
that there would be applicants with sealed criminal records.
That's baked into the statute,
otherwise there would be no reason for the court,
for the legislature to have authorized
the "No record" response.
So it's our position that if the only information
that the board has relates to the existence
in and of itself of the sealed criminal matter,
and any concomitant compelled disclosures
to the board of that matter, once it's sealed,
that becomes off-limits.
So in this case, nothing in the record suggests
that the board has independently developed
any information aside from these compelled reports.
I think it also points to another concern
that we have with the board's
statutory construction scheme.
That is we do not believe that it properly harmonizes
the statutes or comports with legislative intent.
-: But what do you do with the board's argument
that 100C doesn't prohibit its use
and we have the language in 100A and 100B?
It's more specific.
-: Well I think that there are,
there are a few problems with that argument
that could lead to absurd results.
So baked into the board's argument is the notion
that people that travel under 100A
are somehow worthier of enhanced protections
than those under 100C.
And we think that that runs counter to legislative intent
when you look at both the substantive and procedural
tenets built into the statute.
-: But let me follow up on that point for a minute.
With 100A and 100B, the language is basically the same
with regard to not using it,
somebody not using the information that's sealed.
It's basically two sentences.
But when you get to 100C, it is permitted
for some reasons but not for others.
It's not like they just totally omitted
or forgot to include that reference.
They did in 100C refer to
y'know, somebody not being able to use it,
but they did not, they specifically did not
mention licensing agencies.
-: I of course agree with Your Honor
that that use language is not in 100C,
but I think there's a relative--
-: But it is for, you agree it is for other
types of employers?
Or other agencies or something.
It's just excluded for licensing.
-: Yes, and I think that that can be explained
by noting that 100C is never available
for someone who has a criminal conviction.
It's only available for people whose cases,
like our client's was dismissed, for example,
which is one of the reasons why we think it's suspect
that the legislator intended to grant
enhanced protections to people who actually had
criminal convictions as opposed to those who didn't.
But with regard specifically to the missing language,
(clears throat)
I don't think there was any reason
for the legislature to ever think
that the board would use a dismissed misdemeanor
as a base for physician discipline.
And in that regard, we are,
we reference in our brief,
what I consider to be a nearly identical argument
advanced by the Attorney General's office
in Wing vs. Commonwealth.
The question there was:
can a criminal defendant access sealed records
of the victim for purposes of impeachment?
And in the brief, which we've supplied to the court,
the Attorney General took the position
that the impeachment statute speaks only to convictions.
And so, because of that, there was no need
for the legislature to include the use language in 100C,
because it never involves convictions.
It only involves cases like ours
that were dismissed or nolle prosed.
So we think that that demonstrates why the legislature
didn't need this language in 100C
when you look at the board's statutory and regulatory bases
for discipline, it refers to convictions.
The statute refers to conviction of a crime
that calls into question the physician's ability
to practice medicine, or competency to practice medicine.
In Borum's regulation, it's reserved for itself
even broader authority, authorizing itself to discipline
physicians based on the conviction of any crime.
But it does still require a conviction.
So when a legislator looks at that
statutory and regulatory scheme,
there's no reason for it to even occur to that legislator
that a dismissed misdemeanor claim
would serve the basis for board discipline.
-: Does it matter that 100C, if I'm remembering correctly,
that 100C doesn't have a time period
before they can be sealed?
In other words, before you can
have access under 100A and 100B,
to misdemeanors and felonies,
there's a certain period of time.
But 100C, even though it's dismissal,
would be available for immediate use, presumably.
-: Just so, Your Honor.
And in fact, I think that actually argues
a bit in our favor.
In addition to our suggestion that the legislature
would not have intended enhanced protections
for those with criminal convictions
as opposed to dismissed cases,
it's also important to look at the administrative scheme
or the procedural scheme.
Under 100A, it's merely a question of paperwork.
There's no discretion or individualized judicial scrutiny.
The criminal defendant basically fills out a form
that represents that a certain period of time
has happened since the underlying convictions
with no further criminal difficulties.
That goes to the Commissioner of Probation.
The Commissioner of Probation queries his records
and if the information is correct,
the records are sealed, period, full stop.
Under 100C however, the legislature required
a much much more strenuous process.
100C requires that that criminal defendant
go before a judge and carry the burden,
under the criteria that this court identified in Pon,
of proving that the interests of justice
are best advanced by sealing that criminal record.
And that is another reason why we contend
it simply defies logic that the legislator,
the legislature would've intended lesser protections
for those who actually are subject
to individualized judicial scrutiny
as opposed to those who are simply
filling out paperwork based on the passage of time.
-: So your argument is that when you go to a judge
and you get a order to seal,
that even though the board,
independently and with no wrongful conduct on its part,
has knowledge of wrongdoing which may
potentially be the subject of discipline,
that they cannot proceed with that
because you have now the order to seal?
-: That's not quite the position.
Our position is that if the board has truly,
has information that is truly independent
of the criminal matter and the process,
police reports, court documents,
the board is perfectly authorized to investigate
and, if appropriate, discipline on that basis.
-: But you agree that the board did nothing wrong.
Your client was obliged to report what he reported
and it was appropriate to question him with regard to it.
And whatever they obtained in the regard
involves no violation of any court order.
-: I'm not accusing the board of any impropriety,
no, Your Honor.
-: So the board now is supposed to, has this information
but now is barred from using it
because you got an order to seal.
-: I think that--
-: Is that, does that mean we don't have,
an order to seal does not necessarily
require all those who may have had information of the crime
to not act upon their own independent knowledge, does it?
-: Well, I think in this case
when the only source of that knowledge
flows from the existence of a criminal matter, it does.
And I think that, to take another example,
the board has taken the position, which we contest,
that it's a criminal justice agency
and therefore is authorized to access
sealed criminal records, so--
-: Put that aside, put that aside.
I'm not sure that I'm persuaded by that
given that was done before the legislature made it
pretty clear that doesn't necessarily
want them to have access to it.
But I'm--
The order to seal, which you got,
was done without notice to the board.
The board had no opportunity to go to the judge
and say "Substantial justice would not be served,
"Your Honor, because we intend to proceed with discipline
"based on this, and if you're,
"according to the argument of Dr. Doe,
"if you were to grant the order to seal,
"you will effectively be preventing us
"from pursuing discipline."
Shouldn't the judge have had the opportunity
to consider that in deciding whether to seal it?
-: Well, I think that the judge did.
The interest of the commonwealth in this case
were represented through the District Attorney's office
and the record at 112 also reflects
that two Assistant Attorneys General
also entered appearances.
In addition--
-: Is there anything in the record which indicates
that the judge was aware
that the board contemplating discipline
on the basis of the now-sealed matter?
-: I don't believe there's anything in the record,
but when Dr. Doe disclosed the fact of the sealing,
there were still, by my calculation, 11 days left
for the board to move for reconsideration
or to appeal the order.
So the board has explained why,
even though it had that opportunity
to challenge the order after it learned about it,
it never did so.
-: Can you take it that the board
has changed its position in any way
since the beginning of your suit before us?
I mean, does the board still take a position,
as far as you're concerned, that it must report?
-: The board appears to have abandoned that position.
The board does not, it appears based on the brief,
that the board no longer takes the position
that it has authority to publicize
the information regarding the underlying,
I'm sorry, regarding the sealed matter
during the pendency of the proceedings.
It appears to still take the position
that if it renders final discipline,
it can disclose the sealed criminal information
and, as we addressed in our brief,
its statutory basis for that, we think,
is quite shaky indeed.
The stature requires the board to create
profiles of physicians that describe final board actions.
And it's our position that the board could fulfill
that statutory mandate without violating the sealing order
by simply identifying the physician,
the date, and the type of reprimand.
In other words, the statute does not require disclosure
of the underlying information,
nor does it seem to authorize it.
So in the face of a binding judicial order
sealing the records, it is our position
that it would be inappropriate for the board
to unilaterally abrogate that order and unseal the records.
Justice Lenk: Okay, thank you.
-: Thank you, Your Honors.
Justice Lowy: Thank you.
Ms. Green.
-: Good morning, Your Honors.
May it please the court,
Assistant Attorney General Julie Green
for the Board of Registration in Medicine.
The Board of Registration in Medicine
is charged by Chapter 112 with regulating
the practice of medicine in the commonwealth.
And that statutory mandate includes, under Section Two,
ensuring that licensed physicians
are of good moral character.
And under Section Five, with taking action
on reports of physician misconduct,
imposing discipline where warranted,
and informing the public, disseminating to the public,
information about final disciplinary actions.
-: So along those lines, if the appellant was correct,
is correct in the argument,
what if the board has information,
independent of a disclosure,
they have information from witnesses, letters,
that there's this doctor's fraudulently or improperly
prescribing medication.
Under the appellant's argument, would you not be able
to do anything with that information?
-: No, the board is charged by Chapter 112
with taking action on that information, absolutely.
-: I understand that, I understand that,
but would you still be able to do it
if that information was sealed?
If there was a conviction
for improper prescribing of medication?
And at the time the board is looking into this, it's sealed.
If the appellant wins, could the board
not use that information?
-: So to make sure I'm understanding your question correctly,
if it's a conviction, it would be sealed under section 100A,
and in that case there is explicit language
prohibiting board use of a sealed record.
So to answer your question, it would depend,
I think, what the information is.
The prohibition, the plain language of the prohibition
extends only to such sealed records.
So the board would be prohibited from using
the sealed record itself.
-: What about a dismissal under or a not guilty under 100C?
-: Under 100C, there is no explicit prohibition--
-: I understand that, but-- Green: So in that case--
-: Back to your statutory argument
and just for the sake of my question,
assume that that's not successful
and we take the appellant's position,
would you be unable to use the independent information
under the (mutters) position?
-: No, we would be able to use the information
if it's independent of the sealed record.
So assume you read into 100C the prohibition from 100A,
the board would still be able to take action
on information gathered from other sources,
not relying on the sealed record itself.
Obviously, there is a continuum of evidence
that the board gathers, so on the one hand,
there's the sealed record itself
or perhaps a photocopy of the sealed record.
But there's also the doctor's own self-disclosure,
as in this case, before the record was sealed.
There is information reported by third parties;
victims, hospitals, mandated reporters,
who provide information directly to the board.
If the doctor had been arrested,
that could've been covered in the local paper.
The board monitors news and receives reports
on physician misconduct through that mechanism.
Another way that the board receives information
about potential physician misconduct
is by monitoring court records,
so records of court proceedings,
long before any sealing could occur,
would come to the board's attention that way.
These are all sort of different mechanisms
for the board to investigate and take action.
On reports of physician misconduct,
and to take the position,
to adopt the doctor's position in this case,
that the use prohibition extends beyond
the plain language that the legislature enacted
into a sort of vast swath of evidence
about physician misconduct,
would really, I think, be to tie the board's hands
in a way that is not supported by the statutory language,
and it would really disserve
the patient's safety mission of the board.
-: What would you take the language then to mean
about using it?
-: So the use prohibition section of 100A says
"use of such sealed records"--
-: Okay, so what do you mean by that?
What do you take that to mean, I guess is what I'm asking.
-: It also says "admissible in evidence."
I think it's akin to admissible in evidence.
I think it would be reliance on the fact
of the sealed record.
But if on the other hand, the board sits down
with the doctor and says
"Okay, tell us what you did, what happened."
In that case, that would be separate
and independent information.
The board wouldn't need to rely
on the fact of the record itself.
-: And you focus on the legislative language,
but there's new legislative language,
which now says that if he had been a medical student
when this happened, and if the record had been sealed
at that time and he were to apply to be a doctor,
you would have on his form that you should answer
"No record" if your record was sealed.
The legislature clearly wishing that that not be
the basis to prevent him from serving as a doctor.
So, I understand that that was in 2018,
and that was before that.
I understand that you have this information independently,
but what are you, how do you understand
the mission now of the board of registration
in view of this new legislative mandate?
You focus on the legislative obligation that you have
to protect individuals who are receiving medical care,
but now you have another legislative,
more recent legislative mandate.
How do you marry those two?
-: There's not question that there's a tension.
They're serving two different purposes.
At the end of the day, I think that the sealing statutes
in Massachusetts are a creature of statute.
The sealing benefits are a creature of statute.
It is not as in some jurisdictions inequitable remedy
of uncertain contours.
The sealing statutes give precisely the benefits
that they give.
In this case, the legislature was tasked
with finding, striking a balance between
two fundamentally competing interests,
as this court recognized in Commonwealth v. Pon,
there is the public safety interest and
ensuring that the public has access
to information about criminal history.
And on the other hand,
there's the rehabilitative interest in permitting
licensees a clean start.
So the legislature served one interest in part
and another interest in part.
And the result is a compromise.
It is perhaps not entirely satisfying to everyone,
but it is a permissible and rational legislative choice.
And the legislature could not
have been clearer about the language
that it chose in doing so.
-: Can I, can I, can I follow up on that question, though?
I mean, it seems to me that the board
would be treating the doctor differently
if this had happened after the legislation
than preceding it.
Is that not so?
-: That would not be the case on these facts,
because Dr. Doe didn't have his record sealed at the time
that he had to file his license application.
-: So he would not have been able to answer "No record"
even if he got it sealed afterwards.
-: Exactly right.
So the distinction that now exists,
as to everybody to whom the new, the amended version applies
is simply a distinction between
those who've gotten their records sealed
and those who have not.
-: All right, so assume that you've gotten
your records sealed,
what does it mean in terms of how you proceed now?
-: If Dr. Doe had his records sealed
at the time he filed his application
under the amended statute, he could've answered "No record."
-: Okay, and then what would've happened?
-: It would depend.
If the board had no other information,
it would have no basis to discipline.
It would simply be unaware of the events.
Justice Lenk: Okay.
-: If, on the other hand, the board had learned
of the information through independent means,
it could take action.
So for example, if the arrest had been covered
in the local paper,
if the board had had the court records,
if the board had checked the court records
during the lengthy period before it was sealed--
-: Any information that was gotten independently
could be used, you're saying?
Green: Could be used.
-: Even though it was the same information
that would've been sealed.
-: That's correct.
And that's simply by virtue of the language of the statute.
-: And what's the consequence?
So let's assume that you proceed,
let's assume that we permit you to proceed with discipline,
and let's assume that you decide
that some discipline is appropriate.
When I go on your board of registration's site
for Dr. Doe, what will I find?
And what would be the consequence of the sealing order
on what I will find?
-: Oh, what you will find, assuming final discipline
is entered and not, y'know, reversed after judicial review,
there's a physician profile,
and in it there's a section relating to discipline,
and you'll find the actual sanction that was imposed.
And there's a separate section devoted
to disciplinary action in which you will find
the final order entered by the board.
And so if you'd like to see an example of what
that looks like--
-: I've already gone on your website to look.
So it'll say "Censure" if that's to be,
if that is to be the discipline, correct?
-: Or reprimand, frequently.
-: Okay, but then you go on the website and then you can,
the statement of allegations, there's a PDF.
Do you intend, in this particular case,
to publish the statement of allegations?
-: The board's practice, as I understand it,
is not to publish the statement of allegations itself,
but rather--
-: [Chief Justice Gants] I saw it.
-: The final disciplinary action.
-: No, I saw it last night.
I went on and I plugged in and saw another doctor's
2019 statement of allegations.
-: Yes, that's correct, and I think it varies
from case to case.
I think, my understanding is,
that when there's a final written document,
sort of a final disciplinary decision,
the board opts to produce that.
So you could see a record appendix 143
is a nice example of one of those.
-: Okay, so let's go back to my hypo.
And again, as to whether or not discipline's appropriate,
that's not before us.
The only question is whether you have the,
whether the board has the possibility of proceeding
with discipline in this particular matter.
But let's assume for the sake of argument,
that we do permit you proceed with discipline,
and there's a finding of censure.
Is it your intent, in view of the sealing of the order,
for there to be a statement of allegations
that would essentially make public all that has been sealed?
-: Potentially, yes.
To make public, certainly, the essential basis
for the discipline and the facts necessary
to apprise the public.
-: And how is that in keeping
with the legislative mandate with regard
to the sealing order?
You will now have made public
effectively all of the information
which a judge has ordered sealed
after a finding that a substantial justice
would best be served by the sealing.
-: So the answer is that the benefits of sealing
are only those that the legislature prescribed by statute.
And it's not a hermetic seal.
And for a certain subset of individuals,
those who choose to become licensed physicians,
when they engage in misconduct that is independently
potentially subject to discipline,
even not withstanding a seal,
nothing in the sealing statutes prohibits the board
from taking action and from publicizing that information
about what the basis for the disciplinary action was.
-: Now I look to 112, Section Five,
and it requires there to be a description
of any charges for felonies and serious misdemeanors
as determined by the board to which a physician pleads
"Nolo contendere" or where sufficient facts of guilt
were found and the matter was continued
with that finding by a court of competent jurisdiction,
which, of course, is this case.
Is it your view that you would be publishing
that information, even though it's sealed?
-: Potentially, yes.
And I actually would refer you to the item
a couple notches down that refers to a description
of any final disciplinary action.
-: That's only one notch down,
but that description of any final board disciplinary action
could be done simply by "Censured."
-: It could, and the board certainly has discretion
in how much detail to provide to the public.
-: The statute does not oblige you to include
the statement of allegations.
It obliges you only to describe the final sanction.
-: I think there is discretion in the board.
It is the board's practice and policy
that to say that a physician has been disciplined
without saying why would disserve both
the interests of the public and the physician, herself.
-: I understand that, but do you have a practice or policy
when it's a criminal matter, which itself is sealed?
-: Nothing specific to sealing.
The general policy would be
that public transparency is important,
it's essential to the board's mission,
and to say "Censured" or "Reprimanded"
without saying what the problem was
would be to disserve the patient interest
in selecting a physician in whom
the patient can repose trust and confidence.
-: So when we're seeking to marry the language
of the board of registration's statute
with the language of the sealing statute,
what do you say we should do with regard
to the amount of information that you make public?
Allow you to do what you do in your discretion
including a statement of allegations,
or limit the information which you are permitted
to furnish to the public, lest it negate the order to seal?
-: There doesn't need to be any marrying in this case
because the sealing statute itself doesn't contain
any prohibition on either board use or dissemination.
The sealing statute gives only the benefits that it gives,
and that is not among them.
It is certainly open to the legislature
to make a different policy choice,
but it hasn't done so.
-: Can you, you may have answered this already, I'm sorry.
Have I interrupted you? -: No, go.
-: You may have already answered this and I missed it,
but what do you think the rationale is
for the change, the difference in section 100C
versus the other two sections?
-: So I can only speculate about
what was in the legislature's mind,
but I see a couple of distinctions.
First, 100A sealing is only available
after a substantial lapse of time,
during which the individual has to show
a sustained lack of recidivism.
This is based on evidence that was before the legislature
that that sustained period has predictive value
for the future.
That lack of recidivism, the time lapse,
isn't present in 100C.
100C sealing is made on a discretionary,
inherently predictive decision by, you know,
a fallible human being.
And therefore there may be need
for a licensing, a public safety agency
like the board to take action.
There's a second difference,
which is that sealing under 100A doesn't occur
until the record has been publicly available,
at least unsealed, for a substantial period of time.
So the Board of Registration in Medicine,
in any case where a physician is already licensed,
will have already received information
about a conviction subject to sealing under 100A,
because the license renewal cycle is every two years
and sealing under 100A isn't available
until at least year three.
So there's a substantial period of time
during which that information is available fully
for use by boards and commissions,
which is not the case in C, where the record can be sealed
on the immediate next day.
-: Now you made reference to the public records law.
-: Yes.
-: Which would limit the disclosure
to an individual who sought information regarding Dr. Doe.
-: So yes, and if I could clarify our position,
we have altered our position
since the single Justice briefing.
And I can certainly explain to you what that is.
-: Help me to understand where you were
and where you are now.
-: Thank you.
So at the time of the single Justice briefing,
it was our understanding that the public records law
would compel disclosure of all records
of pending disciplinary proceedings,
that is, before final board action,
in response to a public records request.
We have since revisited that legal analysis
and concluded that exemptions
to the public records law would potentially apply.
Such that it certainly in the case
where there's a sealed record
that compelled disclosure via the public records law
would not be required.
That then, gives rise to a follow up question,
which is what disclosure would the board make
absent the legal compulsion of the public records law?
And there we've submitted and affidavit,
which I recognize is an unusual thing to do,
but we did want the court to have before it
information about what the board's practices are
with regard to public disclosure,
and the answer in that case is
Dr. Doe has available to him, and the board will,
upon request, impound all records relating
to disciplinary proceedings,
up until final discipline is entered
and for a period of 10 days thereafter
to give the doctor and opportunity to seek judicial review.
-: Wouldn't that've foreclosed the ability
to seek 2002, 2113, or the propriety seeking to 2113 review?
Or wouldn't it have been--
Green: I'm sorry, I couldn't hear.
-: It wouldn't have been necessary, right?
If you'd taken that position ahead of time?
This whole thing wouldn't have been necessary, would it?
-: It certainly would've been postponed
until final judicial review of final discipline,
that's correct.
And we are trying, this is a new phenomenon,
seeking sealing during the pendency
of disciplinary matters.
We are trying to get to the right and best practices.
-: Okay, so you say it would be,
your proposal is that if you take disciplinary action,
it will be, you'll wait 10 days
before you go public with it.
So they can seek an order of impoundment.
And what would be the,
what would be the argument with regard
to why that should be done by a judge
as opposed to by us when we are deciding this case?
-: So this speaks specifically to the doctor's claim
that the board lacks substantive authority
to discipline a doctor for these particular allegations.
-: [Chief Justice Gants] That's a separate issue, but--
-: So our position is the court need not reach
that particular claim
because that claim can be effectively addressed
on judicial review of any final action.
-: I understand that, I understand that,
but the issue of basically you saying
you will go ahead in the board's discretion,
not because the legislature mandates it,
but because the board in its discretion intends to,
publish it unless they go to court
and get some order,
but you anticipate then that a court has the authority
to order you not to do so?
-: Yes, I think the court could enter a stay of disclosures,
a matter of its equitable injunctive power,
pending judicial review if the doctor
shows a likelihood of success on the merits,
the court could order a stay of discipline and disclosure.
-: And after judicial review, assuming it's affirmed?
-: At that point, I think the board would have power
to disclose, assuming it's affirmed.
-: [Chief Justice Gants] Okay, thank you.
-: Thank you, Your Honor.