WEBVTT 1 00:00:00.517 --> 00:00:04.703 SJC-12817 in the matter of an impounded case. 2 00:00:06.761 --> 00:00:09.678 (papers shuffling) 3 00:00:18.170 --> 00:00:19.840 Mr. Tower, good morning. 4 00:00:19.840 --> 00:00:21.830 Morning your honor, good morning Chief Justice Gants, 5 00:00:21.830 --> 00:00:24.060 Associate Justices, may it please the court. 6 00:00:24.060 --> 00:00:25.570 My name is Michael Tower here on behalf 7 00:00:25.570 --> 00:00:27.760 of the appellant Dr. Doe. 8 00:00:27.760 --> 00:00:30.510 There are two primary issues that the court is called upon 9 00:00:30.510 --> 00:00:33.230 to consider in the context of this case. 10 00:00:33.230 --> 00:00:35.930 The first is whether the Board of Registration in Medicine 11 00:00:35.930 --> 00:00:38.960 is permitted to use a criminal record 12 00:00:38.960 --> 00:00:40.230 that's been judicially sealed 13 00:00:40.230 --> 00:00:44.140 pursuant to NGL-276, section 100C, 14 00:00:44.140 --> 00:00:46.290 to discipline a physician. 15 00:00:46.290 --> 00:00:48.330 The second related question is 16 00:00:48.330 --> 00:00:51.260 if this court deems that that the board 17 00:00:51.260 --> 00:00:54.163 is in fact authorized to use that sealed criminal record, 18 00:00:55.000 --> 00:00:56.410 does that necessarily mean that 19 00:00:56.410 --> 00:00:58.640 the board is authorized to disclose the contents 20 00:00:58.640 --> 00:01:00.800 of that sealed criminal record? 21 00:01:00.800 --> 00:01:03.010 Now, Dr. Doe submits that this court 22 00:01:03.010 --> 00:01:05.030 should answer no to both of those questions 23 00:01:05.030 --> 00:01:06.740 and that this court's doing so 24 00:01:06.740 --> 00:01:08.600 will in no way hamper the board's ability 25 00:01:08.600 --> 00:01:10.450 to fulfill its statutory mission. 26 00:01:10.450 --> 00:01:12.233 Could you clarify, cause I think 27 00:01:12.233 --> 00:01:16.500 that the board makes the argument that, you know, 28 00:01:16.500 --> 00:01:18.750 he had already disclosed a lot of stuff 29 00:01:18.750 --> 00:01:22.173 before the record was sealed, so what about that stuff? 30 00:01:26.620 --> 00:01:28.300 Your honor, it's our position in this case 31 00:01:28.300 --> 00:01:30.890 that those disclosures were compelled 32 00:01:30.890 --> 00:01:33.070 by the board's regulations. 33 00:01:33.070 --> 00:01:35.080 It is undisputed, it's in the joint facts, 34 00:01:35.080 --> 00:01:37.310 that Dr. Doe would've been required 35 00:01:37.310 --> 00:01:39.850 to disclose the existence of this underlying matter 36 00:01:39.850 --> 00:01:42.130 in connection with his application. 37 00:01:42.130 --> 00:01:45.100 And it is also one of the enumerated bases 38 00:01:45.100 --> 00:01:46.510 for board discipline 39 00:01:46.510 --> 00:01:48.220 that if a physician fails to respond 40 00:01:48.220 --> 00:01:50.280 to information requests from the board. 41 00:01:50.280 --> 00:01:52.370 So it would be our position-- 42 00:01:52.370 --> 00:01:53.203 But that was before 43 00:01:53.203 --> 00:01:54.630 the record was sealed, right? 44 00:01:54.630 --> 00:01:55.710 Yes, Your Honor, it was. 45 00:01:55.710 --> 00:01:58.810 So that would, does that make a difference? 46 00:01:58.810 --> 00:02:00.310 I think it does make a difference, 47 00:02:00.310 --> 00:02:03.810 because it will always be the case when a record is sealed 48 00:02:03.810 --> 00:02:06.390 that the court is, in effect, taking information 49 00:02:06.390 --> 00:02:07.890 that was available to the public 50 00:02:07.890 --> 00:02:10.210 and removing it from public purview. 51 00:02:10.210 --> 00:02:12.200 And so in a situation like this, 52 00:02:12.200 --> 00:02:13.240 where the only information 53 00:02:13.240 --> 00:02:16.450 that the Board of Registration has was compelled 54 00:02:16.450 --> 00:02:20.160 by the mere existence of the underlying criminal matter 55 00:02:20.160 --> 00:02:22.720 as opposed to the underlying conduct itself, 56 00:02:22.720 --> 00:02:24.980 we think that the effect of the board's sealing, 57 00:02:24.980 --> 00:02:27.480 is to remove that from the board's purview, 58 00:02:27.480 --> 00:02:29.150 purely for disciplinary purposes. 59 00:02:29.150 --> 00:02:30.280 Let me ask you a question then. 60 00:02:30.280 --> 00:02:31.946 Yes, ma'am. Would it made a difference 61 00:02:31.946 --> 00:02:34.820 if the record had been sealed before? 62 00:02:34.820 --> 00:02:38.261 Before disciplinary proceedings had begun. 63 00:02:38.261 --> 00:02:39.094 So-- 64 00:02:39.094 --> 00:02:40.020 In the sense that, y'know, 65 00:02:40.020 --> 00:02:42.630 if they had only the sealed record, 66 00:02:42.630 --> 00:02:44.580 would he have had to disclose anything? 67 00:02:45.890 --> 00:02:48.160 At the time of his application, 68 00:02:48.160 --> 00:02:49.610 the statute had not yet been amended, 69 00:02:49.610 --> 00:02:51.860 so he would have been-- 70 00:02:51.860 --> 00:02:53.550 Even though it was sealed? 71 00:02:53.550 --> 00:02:55.040 He would not at that point have been permitted 72 00:02:55.040 --> 00:02:58.400 to respond "No record" in response to that, 73 00:02:58.400 --> 00:03:02.020 that was a change that the legislature made in 2018, 74 00:03:02.020 --> 00:03:04.930 authorizing "No record" in the face of a request 75 00:03:04.930 --> 00:03:06.140 by a licensing board. 76 00:03:06.140 --> 00:03:09.060 Okay, so now if it was somebody in the same situation 77 00:03:09.060 --> 00:03:10.910 who had the record sealed, 78 00:03:10.910 --> 00:03:12.920 that person could answer "No record"? 79 00:03:12.920 --> 00:03:14.570 Yes, Your Honor. 80 00:03:14.570 --> 00:03:17.460 And it's our position that that's really one 81 00:03:17.460 --> 00:03:18.993 of the determining factors. 82 00:03:19.920 --> 00:03:22.840 Today, this information would never have come 83 00:03:22.840 --> 00:03:25.970 to the board's attention unless there were 84 00:03:25.970 --> 00:03:28.330 some independent report to the board 85 00:03:28.330 --> 00:03:29.750 that caught its attention. 86 00:03:29.750 --> 00:03:30.913 And I think one way to-- 87 00:03:30.913 --> 00:03:32.830 When you say "this information," 88 00:03:32.830 --> 00:03:35.610 do you mean the incident itself 89 00:03:35.610 --> 00:03:38.010 or do you mean the fact of a record? 90 00:03:38.010 --> 00:03:39.130 Well, either one, Your Honor. 91 00:03:39.130 --> 00:03:40.640 Because he self-- 92 00:03:40.640 --> 00:03:43.053 wouldn't he still been required to self-report? 93 00:03:44.210 --> 00:03:46.073 Even if there had, wouldn't he still be have been 94 00:03:46.073 --> 00:03:48.610 require to self-report to the board? 95 00:03:48.610 --> 00:03:49.827 Once the record was sealed, he was-- 96 00:03:49.827 --> 00:03:51.500 No, before the record was sealed. 97 00:03:51.500 --> 00:03:52.333 Oh. 98 00:03:52.333 --> 00:03:53.760 Before there was-- 99 00:03:53.760 --> 00:03:56.703 When he reported, which was appropriate, wasn't it? 100 00:03:57.870 --> 00:03:59.630 He would've been required to report 101 00:03:59.630 --> 00:04:01.133 on his next application. 102 00:04:02.060 --> 00:04:02.893 That's correct. 103 00:04:02.893 --> 00:04:04.040 At that point, he would've been required 104 00:04:04.040 --> 00:04:05.180 to disclose the information. 105 00:04:05.180 --> 00:04:07.810 Okay, but at the time that he disclosed the information, 106 00:04:07.810 --> 00:04:11.320 wasn't he required to disclose the information? 107 00:04:11.320 --> 00:04:12.153 Yes. 108 00:04:12.153 --> 00:04:17.153 Okay, so with that in mind, the board has the information. 109 00:04:17.170 --> 00:04:18.003 Yes. 110 00:04:18.003 --> 00:04:20.880 And they can use whatever they know, apart, 111 00:04:20.880 --> 00:04:22.910 in your argument, apart from what was sealed, 112 00:04:22.910 --> 00:04:23.863 is that correct? 113 00:04:26.600 --> 00:04:28.800 It is our position that if the only information 114 00:04:28.800 --> 00:04:31.260 that the board receives is the existence 115 00:04:31.260 --> 00:04:34.170 of a criminal matter, that is subsequently 116 00:04:34.170 --> 00:04:36.170 or even previously sealed, 117 00:04:36.170 --> 00:04:39.533 that that is not a sufficient basis for attorney discipline. 118 00:04:40.690 --> 00:04:42.240 That does not mean, however, 119 00:04:42.240 --> 00:04:43.950 that we are asking for any limitations 120 00:04:43.950 --> 00:04:45.890 on the board's investigatory power 121 00:04:45.890 --> 00:04:48.490 nor are we submitting that the board could not 122 00:04:48.490 --> 00:04:50.390 independently reprimand a physician 123 00:04:50.390 --> 00:04:52.270 based on independent conduct. 124 00:04:52.270 --> 00:04:54.890 And I think actually one of the hypotheticals (fuzz) 125 00:04:54.890 --> 00:04:55.723 pardon me, 126 00:04:55.723 --> 00:04:58.750 in the board's brief really makes that point nicely. 127 00:04:58.750 --> 00:05:01.770 The board posits a physician who makes a report 128 00:05:01.770 --> 00:05:04.960 to the Board of Medicine that the physician's, 129 00:05:04.960 --> 00:05:07.780 that the patient's physician, pardon me, 130 00:05:07.780 --> 00:05:11.000 a patient makes a report to the Board of Medicine 131 00:05:11.000 --> 00:05:14.720 that the patient's physician committed an indecent assault. 132 00:05:14.720 --> 00:05:16.380 Now in the board's hypothetical, 133 00:05:16.380 --> 00:05:19.360 that, the concomitant criminal matter is dismissed 134 00:05:19.360 --> 00:05:20.860 and subsequently sealed. 135 00:05:20.860 --> 00:05:23.410 Now, without attempting to fight the hypothetical, 136 00:05:23.410 --> 00:05:26.370 I think it's important to remember that under 100C, 137 00:05:26.370 --> 00:05:28.020 that sealing only happens after 138 00:05:28.020 --> 00:05:30.860 an individualized judicial inquiry 139 00:05:30.860 --> 00:05:32.780 taking into account all of the factors 140 00:05:32.780 --> 00:05:35.090 that this court laid out in Pon, 141 00:05:35.090 --> 00:05:37.290 with the full participation of the commonwealth 142 00:05:37.290 --> 00:05:40.970 through the DA and all the associate appellate rights. 143 00:05:40.970 --> 00:05:44.360 But assuming in that hypothetical that it was sealed, 144 00:05:44.360 --> 00:05:47.290 the board would nevertheless have an independent basis 145 00:05:47.290 --> 00:05:50.640 to investigate and discipline the underlying conduct 146 00:05:50.640 --> 00:05:52.450 that is the report of the patient. 147 00:05:52.450 --> 00:05:55.080 And if the board subsequently was going 148 00:05:55.080 --> 00:05:59.960 to publish the results of its investigation or its order, 149 00:05:59.960 --> 00:06:03.170 it could recite its entire basis for discipline 150 00:06:03.170 --> 00:06:04.560 without ever even referencing 151 00:06:04.560 --> 00:06:05.590 the underlying criminal matter. 152 00:06:05.590 --> 00:06:08.580 But are you saying that they could not do that 153 00:06:08.580 --> 00:06:10.710 based on self-reporting? 154 00:06:10.710 --> 00:06:14.190 I think to create a scenario where the statute, 155 00:06:14.190 --> 00:06:16.460 where the legislature clearly, 156 00:06:16.460 --> 00:06:18.290 the legislature clearly contemplated 157 00:06:18.290 --> 00:06:22.280 that there would be applicants with sealed criminal records. 158 00:06:22.280 --> 00:06:23.700 That's baked into the statute, 159 00:06:23.700 --> 00:06:25.770 otherwise there would be no reason for the court, 160 00:06:25.770 --> 00:06:27.480 for the legislature to have authorized 161 00:06:27.480 --> 00:06:29.200 the "No record" response. 162 00:06:29.200 --> 00:06:31.710 So it's our position that if the only information 163 00:06:31.710 --> 00:06:35.640 that the board has relates to the existence 164 00:06:35.640 --> 00:06:38.187 in and of itself of the sealed criminal matter, 165 00:06:38.187 --> 00:06:40.750 and any concomitant compelled disclosures 166 00:06:40.750 --> 00:06:43.800 to the board of that matter, once it's sealed, 167 00:06:43.800 --> 00:06:45.510 that becomes off-limits. 168 00:06:45.510 --> 00:06:48.310 So in this case, nothing in the record suggests 169 00:06:48.310 --> 00:06:51.500 that the board has independently developed 170 00:06:51.500 --> 00:06:56.500 any information aside from these compelled reports. 171 00:06:56.520 --> 00:06:59.720 I think it also points to another concern 172 00:06:59.720 --> 00:07:00.820 that we have with the board's 173 00:07:00.820 --> 00:07:02.820 statutory construction scheme. 174 00:07:02.820 --> 00:07:05.860 That is we do not believe that it properly harmonizes 175 00:07:05.860 --> 00:07:08.250 the statutes or comports with legislative intent. 176 00:07:08.250 --> 00:07:10.910 But what do you do with the board's argument 177 00:07:10.910 --> 00:07:14.370 that 100C doesn't prohibit its use 178 00:07:14.370 --> 00:07:18.360 and we have the language in 100A and 100B? 179 00:07:18.360 --> 00:07:20.180 It's more specific. 180 00:07:20.180 --> 00:07:22.040 Well I think that there are, 181 00:07:22.040 --> 00:07:24.270 there are a few problems with that argument 182 00:07:24.270 --> 00:07:26.400 that could lead to absurd results. 183 00:07:26.400 --> 00:07:29.580 So baked into the board's argument is the notion 184 00:07:29.580 --> 00:07:33.490 that people that travel under 100A 185 00:07:33.490 --> 00:07:35.960 are somehow worthier of enhanced protections 186 00:07:35.960 --> 00:07:37.620 than those under 100C. 187 00:07:37.620 --> 00:07:40.190 And we think that that runs counter to legislative intent 188 00:07:40.190 --> 00:07:42.960 when you look at both the substantive and procedural 189 00:07:42.960 --> 00:07:44.280 tenets built into the statute. 190 00:07:44.280 --> 00:07:46.210 But let me follow up on that point for a minute. 191 00:07:46.210 --> 00:07:49.830 With 100A and 100B, the language is basically the same 192 00:07:49.830 --> 00:07:53.430 with regard to not using it, 193 00:07:53.430 --> 00:07:55.920 somebody not using the information that's sealed. 194 00:07:55.920 --> 00:07:57.880 It's basically two sentences. 195 00:07:57.880 --> 00:08:01.210 But when you get to 100C, it is permitted 196 00:08:01.210 --> 00:08:03.210 for some reasons but not for others. 197 00:08:03.210 --> 00:08:05.420 It's not like they just totally omitted 198 00:08:05.420 --> 00:08:08.250 or forgot to include that reference. 199 00:08:08.250 --> 00:08:10.770 They did in 100C refer to 200 00:08:12.540 --> 00:08:14.190 y'know, somebody not being able to use it, 201 00:08:14.190 --> 00:08:16.890 but they did not, they specifically did not 202 00:08:16.890 --> 00:08:18.913 mention licensing agencies. 203 00:08:21.000 --> 00:08:22.340 I of course agree with Your Honor 204 00:08:22.340 --> 00:08:24.640 that that use language is not in 100C, 205 00:08:24.640 --> 00:08:25.994 but I think there's a relative-- 206 00:08:25.994 --> 00:08:29.070 But it is for, you agree it is for other 207 00:08:29.070 --> 00:08:30.290 types of employers? 208 00:08:30.290 --> 00:08:32.040 Or other agencies or something. 209 00:08:32.040 --> 00:08:33.960 It's just excluded for licensing. 210 00:08:33.960 --> 00:08:36.440 Yes, and I think that that can be explained 211 00:08:36.440 --> 00:08:40.500 by noting that 100C is never available 212 00:08:40.500 --> 00:08:42.530 for someone who has a criminal conviction. 213 00:08:42.530 --> 00:08:44.790 It's only available for people whose cases, 214 00:08:44.790 --> 00:08:47.150 like our client's was dismissed, for example, 215 00:08:47.150 --> 00:08:49.650 which is one of the reasons why we think it's suspect 216 00:08:49.650 --> 00:08:51.350 that the legislator intended to grant 217 00:08:51.350 --> 00:08:53.940 enhanced protections to people who actually had 218 00:08:53.940 --> 00:08:56.440 criminal convictions as opposed to those who didn't. 219 00:08:56.440 --> 00:08:59.166 But with regard specifically to the missing language, 220 00:08:59.166 --> 00:09:00.960 (clears throat) 221 00:09:00.960 --> 00:09:02.280 I don't think there was any reason 222 00:09:02.280 --> 00:09:04.820 for the legislature to ever think 223 00:09:04.820 --> 00:09:07.840 that the board would use a dismissed misdemeanor 224 00:09:07.840 --> 00:09:10.080 as a base for physician discipline. 225 00:09:10.080 --> 00:09:13.003 And in that regard, we are, 226 00:09:14.270 --> 00:09:15.970 we reference in our brief, 227 00:09:15.970 --> 00:09:18.350 what I consider to be a nearly identical argument 228 00:09:18.350 --> 00:09:21.070 advanced by the Attorney General's office 229 00:09:21.070 --> 00:09:23.050 in Wing vs. Commonwealth. 230 00:09:23.050 --> 00:09:24.310 The question there was: 231 00:09:24.310 --> 00:09:26.850 can a criminal defendant access sealed records 232 00:09:26.850 --> 00:09:30.090 of the victim for purposes of impeachment? 233 00:09:30.090 --> 00:09:32.170 And in the brief, which we've supplied to the court, 234 00:09:32.170 --> 00:09:34.050 the Attorney General took the position 235 00:09:34.050 --> 00:09:37.390 that the impeachment statute speaks only to convictions. 236 00:09:37.390 --> 00:09:40.060 And so, because of that, there was no need 237 00:09:40.060 --> 00:09:43.550 for the legislature to include the use language in 100C, 238 00:09:43.550 --> 00:09:45.760 because it never involves convictions. 239 00:09:45.760 --> 00:09:48.700 It only involves cases like ours 240 00:09:48.700 --> 00:09:50.800 that were dismissed or nolle prosed. 241 00:09:50.800 --> 00:09:54.430 So we think that that demonstrates why the legislature 242 00:09:54.430 --> 00:09:56.620 didn't need this language in 100C 243 00:09:56.620 --> 00:10:00.330 when you look at the board's statutory and regulatory bases 244 00:10:00.330 --> 00:10:02.740 for discipline, it refers to convictions. 245 00:10:02.740 --> 00:10:05.460 The statute refers to conviction of a crime 246 00:10:05.460 --> 00:10:07.920 that calls into question the physician's ability 247 00:10:07.920 --> 00:10:10.960 to practice medicine, or competency to practice medicine. 248 00:10:10.960 --> 00:10:12.850 In Borum's regulation, it's reserved for itself 249 00:10:12.850 --> 00:10:16.740 even broader authority, authorizing itself to discipline 250 00:10:16.740 --> 00:10:19.210 physicians based on the conviction of any crime. 251 00:10:19.210 --> 00:10:21.270 But it does still require a conviction. 252 00:10:21.270 --> 00:10:23.510 So when a legislator looks at that 253 00:10:23.510 --> 00:10:25.600 statutory and regulatory scheme, 254 00:10:25.600 --> 00:10:28.540 there's no reason for it to even occur to that legislator 255 00:10:28.540 --> 00:10:31.390 that a dismissed misdemeanor claim 256 00:10:31.390 --> 00:10:33.230 would serve the basis for board discipline. 257 00:10:33.230 --> 00:10:36.270 Does it matter that 100C, if I'm remembering correctly, 258 00:10:36.270 --> 00:10:40.650 that 100C doesn't have a time period 259 00:10:40.650 --> 00:10:44.750 before they can be sealed? 260 00:10:44.750 --> 00:10:46.580 In other words, before you can 261 00:10:46.580 --> 00:10:48.810 have access under 100A and 100B, 262 00:10:48.810 --> 00:10:50.774 to misdemeanors and felonies, 263 00:10:50.774 --> 00:10:52.840 there's a certain period of time. 264 00:10:52.840 --> 00:10:55.283 But 100C, even though it's dismissal, 265 00:10:57.650 --> 00:11:00.440 would be available for immediate use, presumably. 266 00:11:00.440 --> 00:11:01.300 Just so, Your Honor. 267 00:11:01.300 --> 00:11:04.010 And in fact, I think that actually argues 268 00:11:04.010 --> 00:11:05.360 a bit in our favor. 269 00:11:05.360 --> 00:11:08.610 In addition to our suggestion that the legislature 270 00:11:08.610 --> 00:11:10.950 would not have intended enhanced protections 271 00:11:10.950 --> 00:11:12.530 for those with criminal convictions 272 00:11:12.530 --> 00:11:14.260 as opposed to dismissed cases, 273 00:11:14.260 --> 00:11:16.770 it's also important to look at the administrative scheme 274 00:11:16.770 --> 00:11:18.610 or the procedural scheme. 275 00:11:18.610 --> 00:11:22.100 Under 100A, it's merely a question of paperwork. 276 00:11:22.100 --> 00:11:25.630 There's no discretion or individualized judicial scrutiny. 277 00:11:25.630 --> 00:11:29.520 The criminal defendant basically fills out a form 278 00:11:29.520 --> 00:11:31.780 that represents that a certain period of time 279 00:11:31.780 --> 00:11:33.640 has happened since the underlying convictions 280 00:11:33.640 --> 00:11:36.060 with no further criminal difficulties. 281 00:11:36.060 --> 00:11:37.730 That goes to the Commissioner of Probation. 282 00:11:37.730 --> 00:11:40.000 The Commissioner of Probation queries his records 283 00:11:40.000 --> 00:11:41.690 and if the information is correct, 284 00:11:41.690 --> 00:11:44.130 the records are sealed, period, full stop. 285 00:11:44.130 --> 00:11:47.180 Under 100C however, the legislature required 286 00:11:47.180 --> 00:11:49.600 a much much more strenuous process. 287 00:11:49.600 --> 00:11:52.250 100C requires that that criminal defendant 288 00:11:52.250 --> 00:11:56.130 go before a judge and carry the burden, 289 00:11:56.130 --> 00:11:58.760 under the criteria that this court identified in Pon, 290 00:11:58.760 --> 00:12:00.480 of proving that the interests of justice 291 00:12:00.480 --> 00:12:05.120 are best advanced by sealing that criminal record. 292 00:12:05.120 --> 00:12:07.320 And that is another reason why we contend 293 00:12:07.320 --> 00:12:10.240 it simply defies logic that the legislator, 294 00:12:10.240 --> 00:12:13.860 the legislature would've intended lesser protections 295 00:12:13.860 --> 00:12:15.410 for those who actually are subject 296 00:12:15.410 --> 00:12:17.630 to individualized judicial scrutiny 297 00:12:17.630 --> 00:12:19.480 as opposed to those who are simply 298 00:12:19.480 --> 00:12:22.070 filling out paperwork based on the passage of time. 299 00:12:22.070 --> 00:12:26.610 So your argument is that when you go to a judge 300 00:12:26.610 --> 00:12:30.690 and you get a order to seal, 301 00:12:30.690 --> 00:12:32.950 that even though the board, 302 00:12:32.950 --> 00:12:37.670 independently and with no wrongful conduct on its part, 303 00:12:37.670 --> 00:12:39.750 has knowledge of wrongdoing which may 304 00:12:39.750 --> 00:12:42.290 potentially be the subject of discipline, 305 00:12:42.290 --> 00:12:44.040 that they cannot proceed with that 306 00:12:44.040 --> 00:12:45.990 because you have now the order to seal? 307 00:12:47.670 --> 00:12:49.610 That's not quite the position. 308 00:12:49.610 --> 00:12:53.430 Our position is that if the board has truly, 309 00:12:53.430 --> 00:12:56.140 has information that is truly independent 310 00:12:56.140 --> 00:12:58.200 of the criminal matter and the process, 311 00:12:58.200 --> 00:13:00.990 police reports, court documents, 312 00:13:00.990 --> 00:13:04.910 the board is perfectly authorized to investigate 313 00:13:04.910 --> 00:13:07.200 and, if appropriate, discipline on that basis. 314 00:13:07.200 --> 00:13:09.670 But you agree that the board did nothing wrong. 315 00:13:09.670 --> 00:13:14.630 Your client was obliged to report what he reported 316 00:13:14.630 --> 00:13:18.680 and it was appropriate to question him with regard to it. 317 00:13:18.680 --> 00:13:21.720 And whatever they obtained in the regard 318 00:13:21.720 --> 00:13:24.973 involves no violation of any court order. 319 00:13:26.490 --> 00:13:28.510 I'm not accusing the board of any impropriety, 320 00:13:28.510 --> 00:13:29.343 no, Your Honor. 321 00:13:29.343 --> 00:13:32.650 So the board now is supposed to, has this information 322 00:13:32.650 --> 00:13:35.220 but now is barred from using it 323 00:13:36.060 --> 00:13:38.503 because you got an order to seal. 324 00:13:40.100 --> 00:13:40.964 I think that-- 325 00:13:40.964 --> 00:13:43.620 Is that, does that mean we don't have, 326 00:13:43.620 --> 00:13:48.360 an order to seal does not necessarily 327 00:13:48.360 --> 00:13:52.040 require all those who may have had information of the crime 328 00:13:52.040 --> 00:13:57.040 to not act upon their own independent knowledge, does it? 329 00:13:57.870 --> 00:13:59.640 Well, I think in this case 330 00:13:59.640 --> 00:14:02.100 when the only source of that knowledge 331 00:14:02.100 --> 00:14:05.530 flows from the existence of a criminal matter, it does. 332 00:14:05.530 --> 00:14:09.470 And I think that, to take another example, 333 00:14:09.470 --> 00:14:12.640 the board has taken the position, which we contest, 334 00:14:12.640 --> 00:14:14.210 that it's a criminal justice agency 335 00:14:14.210 --> 00:14:16.300 and therefore is authorized to access 336 00:14:16.300 --> 00:14:17.367 sealed criminal records, so-- 337 00:14:17.367 --> 00:14:19.930 Put that aside, put that aside. 338 00:14:19.930 --> 00:14:21.410 I'm not sure that I'm persuaded by that 339 00:14:21.410 --> 00:14:25.970 given that was done before the legislature made it 340 00:14:25.970 --> 00:14:28.380 pretty clear that doesn't necessarily 341 00:14:28.380 --> 00:14:30.103 want them to have access to it. 342 00:14:31.619 --> 00:14:32.740 But I'm-- 343 00:14:32.740 --> 00:14:34.390 The order to seal, which you got, 344 00:14:34.390 --> 00:14:37.130 was done without notice to the board. 345 00:14:37.130 --> 00:14:39.240 The board had no opportunity to go to the judge 346 00:14:39.240 --> 00:14:42.177 and say "Substantial justice would not be served, 347 00:14:42.177 --> 00:14:45.997 "Your Honor, because we intend to proceed with discipline 348 00:14:45.997 --> 00:14:47.727 "based on this, and if you're, 349 00:14:47.727 --> 00:14:50.347 "according to the argument of Dr. Doe, 350 00:14:50.347 --> 00:14:53.087 "if you were to grant the order to seal, 351 00:14:53.087 --> 00:14:56.187 "you will effectively be preventing us 352 00:14:56.187 --> 00:14:57.980 "from pursuing discipline." 353 00:14:57.980 --> 00:14:59.780 Shouldn't the judge have had the opportunity 354 00:14:59.780 --> 00:15:03.170 to consider that in deciding whether to seal it? 355 00:15:03.170 --> 00:15:05.720 Well, I think that the judge did. 356 00:15:05.720 --> 00:15:07.740 The interest of the commonwealth in this case 357 00:15:07.740 --> 00:15:09.890 were represented through the District Attorney's office 358 00:15:09.890 --> 00:15:11.920 and the record at 112 also reflects 359 00:15:11.920 --> 00:15:14.100 that two Assistant Attorneys General 360 00:15:14.100 --> 00:15:15.780 also entered appearances. 361 00:15:15.780 --> 00:15:16.665 In addition-- 362 00:15:16.665 --> 00:15:18.680 Is there anything in the record which indicates 363 00:15:18.680 --> 00:15:20.290 that the judge was aware 364 00:15:20.290 --> 00:15:22.290 that the board contemplating discipline 365 00:15:23.300 --> 00:15:26.813 on the basis of the now-sealed matter? 366 00:15:28.750 --> 00:15:30.540 I don't believe there's anything in the record, 367 00:15:30.540 --> 00:15:34.330 but when Dr. Doe disclosed the fact of the sealing, 368 00:15:34.330 --> 00:15:37.390 there were still, by my calculation, 11 days left 369 00:15:37.390 --> 00:15:39.720 for the board to move for reconsideration 370 00:15:39.720 --> 00:15:40.700 or to appeal the order. 371 00:15:40.700 --> 00:15:43.130 So the board has explained why, 372 00:15:43.130 --> 00:15:44.590 even though it had that opportunity 373 00:15:44.590 --> 00:15:46.970 to challenge the order after it learned about it, 374 00:15:46.970 --> 00:15:48.013 it never did so. 375 00:15:50.920 --> 00:15:52.340 Can you take it that the board 376 00:15:52.340 --> 00:15:53.970 has changed its position in any way 377 00:15:53.970 --> 00:15:57.763 since the beginning of your suit before us? 378 00:15:59.369 --> 00:16:00.650 I mean, does the board still take a position, 379 00:16:00.650 --> 00:16:03.113 as far as you're concerned, that it must report? 380 00:16:04.700 --> 00:16:07.900 The board appears to have abandoned that position. 381 00:16:07.900 --> 00:16:10.770 The board does not, it appears based on the brief, 382 00:16:10.770 --> 00:16:13.050 that the board no longer takes the position 383 00:16:13.050 --> 00:16:16.040 that it has authority to publicize 384 00:16:16.040 --> 00:16:18.530 the information regarding the underlying, 385 00:16:18.530 --> 00:16:20.520 I'm sorry, regarding the sealed matter 386 00:16:20.520 --> 00:16:22.900 during the pendency of the proceedings. 387 00:16:22.900 --> 00:16:25.110 It appears to still take the position 388 00:16:25.110 --> 00:16:27.940 that if it renders final discipline, 389 00:16:27.940 --> 00:16:30.160 it can disclose the sealed criminal information 390 00:16:30.160 --> 00:16:31.750 and, as we addressed in our brief, 391 00:16:31.750 --> 00:16:33.610 its statutory basis for that, we think, 392 00:16:33.610 --> 00:16:35.620 is quite shaky indeed. 393 00:16:35.620 --> 00:16:38.400 The stature requires the board to create 394 00:16:38.400 --> 00:16:42.610 profiles of physicians that describe final board actions. 395 00:16:42.610 --> 00:16:44.470 And it's our position that the board could fulfill 396 00:16:44.470 --> 00:16:48.580 that statutory mandate without violating the sealing order 397 00:16:48.580 --> 00:16:50.490 by simply identifying the physician, 398 00:16:50.490 --> 00:16:53.030 the date, and the type of reprimand. 399 00:16:53.030 --> 00:16:56.470 In other words, the statute does not require disclosure 400 00:16:56.470 --> 00:16:57.760 of the underlying information, 401 00:16:57.760 --> 00:16:59.290 nor does it seem to authorize it. 402 00:16:59.290 --> 00:17:01.890 So in the face of a binding judicial order 403 00:17:01.890 --> 00:17:04.530 sealing the records, it is our position 404 00:17:04.530 --> 00:17:06.010 that it would be inappropriate for the board 405 00:17:06.010 --> 00:17:09.640 to unilaterally abrogate that order and unseal the records. 406 00:17:09.640 --> 00:17:11.290 Okay, thank you. 407 00:17:11.290 --> 00:17:12.123 Thank you, Your Honors. 408 00:17:12.123 --> 00:17:13.540 Thank you. 409 00:17:13.540 --> 00:17:14.373 Ms. Green. 410 00:17:19.390 --> 00:17:20.280 Good morning, Your Honors. 411 00:17:20.280 --> 00:17:21.160 May it please the court, 412 00:17:21.160 --> 00:17:22.730 Assistant Attorney General Julie Green 413 00:17:22.730 --> 00:17:25.590 for the Board of Registration in Medicine. 414 00:17:25.590 --> 00:17:26.930 The Board of Registration in Medicine 415 00:17:26.930 --> 00:17:30.410 is charged by Chapter 112 with regulating 416 00:17:30.410 --> 00:17:32.170 the practice of medicine in the commonwealth. 417 00:17:32.170 --> 00:17:35.870 And that statutory mandate includes, under Section Two, 418 00:17:35.870 --> 00:17:38.290 ensuring that licensed physicians 419 00:17:38.290 --> 00:17:39.940 are of good moral character. 420 00:17:39.940 --> 00:17:43.330 And under Section Five, with taking action 421 00:17:43.330 --> 00:17:45.670 on reports of physician misconduct, 422 00:17:45.670 --> 00:17:47.830 imposing discipline where warranted, 423 00:17:47.830 --> 00:17:51.130 and informing the public, disseminating to the public, 424 00:17:51.130 --> 00:17:53.880 information about final disciplinary actions. 425 00:17:53.880 --> 00:17:57.890 So along those lines, if the appellant was correct, 426 00:17:57.890 --> 00:18:00.280 is correct in the argument, 427 00:18:00.280 --> 00:18:02.560 what if the board has information, 428 00:18:02.560 --> 00:18:04.453 independent of a disclosure, 429 00:18:05.370 --> 00:18:10.120 they have information from witnesses, letters, 430 00:18:10.120 --> 00:18:15.120 that there's this doctor's fraudulently or improperly 431 00:18:17.500 --> 00:18:18.993 prescribing medication. 432 00:18:20.260 --> 00:18:23.080 Under the appellant's argument, would you not be able 433 00:18:23.080 --> 00:18:25.310 to do anything with that information? 434 00:18:25.310 --> 00:18:28.310 No, the board is charged by Chapter 112 435 00:18:28.310 --> 00:18:30.890 with taking action on that information, absolutely. 436 00:18:30.890 --> 00:18:32.500 I understand that, I understand that, 437 00:18:32.500 --> 00:18:34.670 but would you still be able to do it 438 00:18:34.670 --> 00:18:38.230 if that information was sealed? 439 00:18:38.230 --> 00:18:39.970 If there was a conviction 440 00:18:39.970 --> 00:18:44.350 for improper prescribing of medication? 441 00:18:44.350 --> 00:18:48.803 And at the time the board is looking into this, it's sealed. 442 00:18:50.440 --> 00:18:52.010 If the appellant wins, could the board 443 00:18:52.010 --> 00:18:54.070 not use that information? 444 00:18:54.070 --> 00:18:56.100 So to make sure I'm understanding your question correctly, 445 00:18:56.100 --> 00:19:00.070 if it's a conviction, it would be sealed under section 100A, 446 00:19:00.070 --> 00:19:02.440 and in that case there is explicit language 447 00:19:02.440 --> 00:19:05.780 prohibiting board use of a sealed record. 448 00:19:05.780 --> 00:19:08.770 So to answer your question, it would depend, 449 00:19:08.770 --> 00:19:10.490 I think, what the information is. 450 00:19:10.490 --> 00:19:14.980 The prohibition, the plain language of the prohibition 451 00:19:14.980 --> 00:19:18.030 extends only to such sealed records. 452 00:19:18.030 --> 00:19:20.040 So the board would be prohibited from using 453 00:19:20.040 --> 00:19:21.290 the sealed record itself. 454 00:19:21.290 --> 00:19:25.480 What about a dismissal under or a not guilty under 100C? 455 00:19:25.480 --> 00:19:28.828 Under 100C, there is no explicit prohibition-- 456 00:19:28.828 --> 00:19:30.494 I understand that, but-- So in that case-- 457 00:19:30.494 --> 00:19:32.060 Back to your statutory argument 458 00:19:32.060 --> 00:19:35.010 and just for the sake of my question, 459 00:19:35.010 --> 00:19:37.080 assume that that's not successful 460 00:19:37.080 --> 00:19:39.170 and we take the appellant's position, 461 00:19:39.170 --> 00:19:42.890 would you be unable to use the independent information 462 00:19:42.890 --> 00:19:44.400 under the (mutters) position? 463 00:19:44.400 --> 00:19:48.560 No, we would be able to use the information 464 00:19:48.560 --> 00:19:50.580 if it's independent of the sealed record. 465 00:19:50.580 --> 00:19:55.580 So assume you read into 100C the prohibition from 100A, 466 00:19:57.020 --> 00:19:58.940 the board would still be able to take action 467 00:19:58.940 --> 00:20:01.230 on information gathered from other sources, 468 00:20:01.230 --> 00:20:04.500 not relying on the sealed record itself. 469 00:20:04.500 --> 00:20:07.060 Obviously, there is a continuum of evidence 470 00:20:07.060 --> 00:20:10.140 that the board gathers, so on the one hand, 471 00:20:10.140 --> 00:20:12.070 there's the sealed record itself 472 00:20:12.070 --> 00:20:14.780 or perhaps a photocopy of the sealed record. 473 00:20:14.780 --> 00:20:17.600 But there's also the doctor's own self-disclosure, 474 00:20:17.600 --> 00:20:20.260 as in this case, before the record was sealed. 475 00:20:20.260 --> 00:20:23.520 There is information reported by third parties; 476 00:20:23.520 --> 00:20:26.940 victims, hospitals, mandated reporters, 477 00:20:26.940 --> 00:20:29.790 who provide information directly to the board. 478 00:20:29.790 --> 00:20:31.410 If the doctor had been arrested, 479 00:20:31.410 --> 00:20:33.690 that could've been covered in the local paper. 480 00:20:33.690 --> 00:20:36.870 The board monitors news and receives reports 481 00:20:36.870 --> 00:20:39.630 on physician misconduct through that mechanism. 482 00:20:39.630 --> 00:20:42.034 Another way that the board receives information 483 00:20:42.034 --> 00:20:44.250 about potential physician misconduct 484 00:20:44.250 --> 00:20:45.800 is by monitoring court records, 485 00:20:45.800 --> 00:20:49.160 so records of court proceedings, 486 00:20:49.160 --> 00:20:51.410 long before any sealing could occur, 487 00:20:51.410 --> 00:20:53.920 would come to the board's attention that way. 488 00:20:53.920 --> 00:20:56.000 These are all sort of different mechanisms 489 00:20:56.000 --> 00:20:58.550 for the board to investigate and take action. 490 00:20:58.550 --> 00:21:00.150 On reports of physician misconduct, 491 00:21:00.150 --> 00:21:01.720 and to take the position, 492 00:21:01.720 --> 00:21:05.380 to adopt the doctor's position in this case, 493 00:21:05.380 --> 00:21:09.300 that the use prohibition extends beyond 494 00:21:09.300 --> 00:21:12.730 the plain language that the legislature enacted 495 00:21:12.730 --> 00:21:15.780 into a sort of vast swath of evidence 496 00:21:15.780 --> 00:21:17.470 about physician misconduct, 497 00:21:17.470 --> 00:21:20.850 would really, I think, be to tie the board's hands 498 00:21:20.850 --> 00:21:23.600 in a way that is not supported by the statutory language, 499 00:21:23.600 --> 00:21:25.220 and it would really disserve 500 00:21:25.220 --> 00:21:26.723 the patient's safety mission of the board. 501 00:21:26.723 --> 00:21:29.290 What would you take the language then to mean 502 00:21:29.290 --> 00:21:30.373 about using it? 503 00:21:31.930 --> 00:21:35.187 So the use prohibition section of 100A says 504 00:21:35.187 --> 00:21:36.473 "use of such sealed records"-- 505 00:21:36.473 --> 00:21:38.690 Okay, so what do you mean by that? 506 00:21:38.690 --> 00:21:41.600 What do you take that to mean, I guess is what I'm asking. 507 00:21:41.600 --> 00:21:43.370 It also says "admissible in evidence." 508 00:21:43.370 --> 00:21:45.550 I think it's akin to admissible in evidence. 509 00:21:45.550 --> 00:21:48.020 I think it would be reliance on the fact 510 00:21:48.020 --> 00:21:49.590 of the sealed record. 511 00:21:49.590 --> 00:21:52.650 But if on the other hand, the board sits down 512 00:21:52.650 --> 00:21:53.607 with the doctor and says 513 00:21:53.607 --> 00:21:56.467 "Okay, tell us what you did, what happened." 514 00:21:57.470 --> 00:21:59.880 In that case, that would be separate 515 00:21:59.880 --> 00:22:01.200 and independent information. 516 00:22:01.200 --> 00:22:02.540 The board wouldn't need to rely 517 00:22:02.540 --> 00:22:05.160 on the fact of the record itself. 518 00:22:05.160 --> 00:22:07.580 And you focus on the legislative language, 519 00:22:07.580 --> 00:22:09.893 but there's new legislative language, 520 00:22:11.110 --> 00:22:14.160 which now says that if he had been a medical student 521 00:22:14.160 --> 00:22:18.270 when this happened, and if the record had been sealed 522 00:22:18.270 --> 00:22:22.900 at that time and he were to apply to be a doctor, 523 00:22:22.900 --> 00:22:26.227 you would have on his form that you should answer 524 00:22:26.227 --> 00:22:28.783 "No record" if your record was sealed. 525 00:22:29.766 --> 00:22:34.766 The legislature clearly wishing that that not be 526 00:22:34.820 --> 00:22:39.820 the basis to prevent him from serving as a doctor. 527 00:22:39.820 --> 00:22:42.837 So, I understand that that was in 2018, 528 00:22:42.837 --> 00:22:44.399 and that was before that. 529 00:22:44.399 --> 00:22:47.460 I understand that you have this information independently, 530 00:22:47.460 --> 00:22:50.110 but what are you, how do you understand 531 00:22:50.950 --> 00:22:53.770 the mission now of the board of registration 532 00:22:53.770 --> 00:22:55.940 in view of this new legislative mandate? 533 00:22:55.940 --> 00:22:59.290 You focus on the legislative obligation that you have 534 00:22:59.290 --> 00:23:04.170 to protect individuals who are receiving medical care, 535 00:23:04.170 --> 00:23:06.170 but now you have another legislative, 536 00:23:06.170 --> 00:23:07.700 more recent legislative mandate. 537 00:23:07.700 --> 00:23:09.093 How do you marry those two? 538 00:23:10.190 --> 00:23:11.820 There's not question that there's a tension. 539 00:23:11.820 --> 00:23:14.440 They're serving two different purposes. 540 00:23:14.440 --> 00:23:17.150 At the end of the day, I think that the sealing statutes 541 00:23:17.150 --> 00:23:19.130 in Massachusetts are a creature of statute. 542 00:23:19.130 --> 00:23:21.980 The sealing benefits are a creature of statute. 543 00:23:21.980 --> 00:23:24.780 It is not as in some jurisdictions inequitable remedy 544 00:23:24.780 --> 00:23:26.710 of uncertain contours. 545 00:23:26.710 --> 00:23:29.390 The sealing statutes give precisely the benefits 546 00:23:29.390 --> 00:23:30.410 that they give. 547 00:23:30.410 --> 00:23:34.390 In this case, the legislature was tasked 548 00:23:34.390 --> 00:23:37.510 with finding, striking a balance between 549 00:23:37.510 --> 00:23:39.700 two fundamentally competing interests, 550 00:23:39.700 --> 00:23:43.080 as this court recognized in Commonwealth v. Pon, 551 00:23:43.080 --> 00:23:45.290 there is the public safety interest and 552 00:23:45.290 --> 00:23:47.410 ensuring that the public has access 553 00:23:47.410 --> 00:23:49.250 to information about criminal history. 554 00:23:49.250 --> 00:23:50.360 And on the other hand, 555 00:23:50.360 --> 00:23:54.340 there's the rehabilitative interest in permitting 556 00:23:54.340 --> 00:23:57.090 licensees a clean start. 557 00:23:57.090 --> 00:24:00.740 So the legislature served one interest in part 558 00:24:00.740 --> 00:24:02.420 and another interest in part. 559 00:24:02.420 --> 00:24:04.450 And the result is a compromise. 560 00:24:04.450 --> 00:24:08.620 It is perhaps not entirely satisfying to everyone, 561 00:24:08.620 --> 00:24:12.530 but it is a permissible and rational legislative choice. 562 00:24:12.530 --> 00:24:13.940 And the legislature could not 563 00:24:13.940 --> 00:24:15.920 have been clearer about the language 564 00:24:15.920 --> 00:24:18.190 that it chose in doing so. 565 00:24:18.190 --> 00:24:20.970 Can I, can I, can I follow up on that question, though? 566 00:24:20.970 --> 00:24:25.970 I mean, it seems to me that the board 567 00:24:26.360 --> 00:24:28.740 would be treating the doctor differently 568 00:24:28.740 --> 00:24:31.030 if this had happened after the legislation 569 00:24:31.030 --> 00:24:32.100 than preceding it. 570 00:24:32.100 --> 00:24:33.660 Is that not so? 571 00:24:33.660 --> 00:24:35.440 That would not be the case on these facts, 572 00:24:35.440 --> 00:24:39.130 because Dr. Doe didn't have his record sealed at the time 573 00:24:39.130 --> 00:24:41.080 that he had to file his license application. 574 00:24:41.080 --> 00:24:42.970 So he would not have been able to answer "No record" 575 00:24:42.970 --> 00:24:44.970 even if he got it sealed afterwards. 576 00:24:44.970 --> 00:24:45.803 Exactly right. 577 00:24:45.803 --> 00:24:48.070 So the distinction that now exists, 578 00:24:48.070 --> 00:24:51.610 as to everybody to whom the new, the amended version applies 579 00:24:51.610 --> 00:24:53.330 is simply a distinction between 580 00:24:53.330 --> 00:24:55.030 those who've gotten their records sealed 581 00:24:55.030 --> 00:24:56.140 and those who have not. 582 00:24:56.140 --> 00:24:57.680 All right, so assume that you've gotten 583 00:24:57.680 --> 00:24:59.150 your records sealed, 584 00:24:59.150 --> 00:25:02.633 what does it mean in terms of how you proceed now? 585 00:25:04.990 --> 00:25:06.840 If Dr. Doe had his records sealed 586 00:25:06.840 --> 00:25:08.560 at the time he filed his application 587 00:25:08.560 --> 00:25:11.580 under the amended statute, he could've answered "No record." 588 00:25:11.580 --> 00:25:13.410 Okay, and then what would've happened? 589 00:25:13.410 --> 00:25:14.403 It would depend. 590 00:25:15.370 --> 00:25:17.750 If the board had no other information, 591 00:25:17.750 --> 00:25:19.350 it would have no basis to discipline. 592 00:25:19.350 --> 00:25:21.470 It would simply be unaware of the events. 593 00:25:21.470 --> 00:25:22.303 Okay. 594 00:25:22.303 --> 00:25:24.130 If, on the other hand, the board had learned 595 00:25:24.130 --> 00:25:26.560 of the information through independent means, 596 00:25:26.560 --> 00:25:27.610 it could take action. 597 00:25:27.610 --> 00:25:30.670 So for example, if the arrest had been covered 598 00:25:30.670 --> 00:25:32.090 in the local paper, 599 00:25:32.090 --> 00:25:35.770 if the board had had the court records, 600 00:25:35.770 --> 00:25:39.580 if the board had checked the court records 601 00:25:39.580 --> 00:25:42.590 during the lengthy period before it was sealed-- 602 00:25:42.590 --> 00:25:44.270 Any information that was gotten independently 603 00:25:44.270 --> 00:25:45.420 could be used, you're saying? 604 00:25:45.420 --> 00:25:46.253 Could be used. 605 00:25:46.253 --> 00:25:47.310 Even though it was the same information 606 00:25:47.310 --> 00:25:49.270 that would've been sealed. 607 00:25:49.270 --> 00:25:50.180 That's correct. 608 00:25:50.180 --> 00:25:53.050 And that's simply by virtue of the language of the statute. 609 00:25:53.050 --> 00:25:54.200 And what's the consequence? 610 00:25:54.200 --> 00:25:56.480 So let's assume that you proceed, 611 00:25:56.480 --> 00:26:00.010 let's assume that we permit you to proceed with discipline, 612 00:26:00.010 --> 00:26:02.290 and let's assume that you decide 613 00:26:02.290 --> 00:26:04.420 that some discipline is appropriate. 614 00:26:04.420 --> 00:26:07.330 When I go on your board of registration's site 615 00:26:07.330 --> 00:26:10.460 for Dr. Doe, what will I find? 616 00:26:10.460 --> 00:26:12.790 And what would be the consequence of the sealing order 617 00:26:12.790 --> 00:26:14.123 on what I will find? 618 00:26:14.970 --> 00:26:17.830 Oh, what you will find, assuming final discipline 619 00:26:17.830 --> 00:26:21.133 is entered and not, y'know, reversed after judicial review, 620 00:26:22.100 --> 00:26:23.740 there's a physician profile, 621 00:26:23.740 --> 00:26:26.910 and in it there's a section relating to discipline, 622 00:26:26.910 --> 00:26:31.910 and you'll find the actual sanction that was imposed. 623 00:26:32.040 --> 00:26:34.170 And there's a separate section devoted 624 00:26:34.170 --> 00:26:37.230 to disciplinary action in which you will find 625 00:26:37.230 --> 00:26:41.050 the final order entered by the board. 626 00:26:41.050 --> 00:26:42.940 And so if you'd like to see an example of what 627 00:26:42.940 --> 00:26:43.773 that looks like-- 628 00:26:43.773 --> 00:26:46.200 I've already gone on your website to look. 629 00:26:46.200 --> 00:26:49.370 So it'll say "Censure" if that's to be, 630 00:26:49.370 --> 00:26:52.130 if that is to be the discipline, correct? 631 00:26:52.130 --> 00:26:52.970 Or reprimand, frequently. 632 00:26:52.970 --> 00:26:56.430 Okay, but then you go on the website and then you can, 633 00:26:56.430 --> 00:26:59.500 the statement of allegations, there's a PDF. 634 00:26:59.500 --> 00:27:01.570 Do you intend, in this particular case, 635 00:27:01.570 --> 00:27:05.510 to publish the statement of allegations? 636 00:27:05.510 --> 00:27:07.610 The board's practice, as I understand it, 637 00:27:07.610 --> 00:27:10.520 is not to publish the statement of allegations itself, 638 00:27:10.520 --> 00:27:11.353 but rather-- 639 00:27:11.353 --> 00:27:12.218 [Chief Justice Gants] I saw it. 640 00:27:12.218 --> 00:27:13.657 The final disciplinary action. 641 00:27:13.657 --> 00:27:15.120 No, I saw it last night. 642 00:27:15.120 --> 00:27:18.860 I went on and I plugged in and saw another doctor's 643 00:27:18.860 --> 00:27:23.460 2019 statement of allegations. 644 00:27:23.460 --> 00:27:25.080 Yes, that's correct, and I think it varies 645 00:27:25.080 --> 00:27:25.913 from case to case. 646 00:27:25.913 --> 00:27:27.960 I think, my understanding is, 647 00:27:27.960 --> 00:27:32.710 that when there's a final written document, 648 00:27:32.710 --> 00:27:34.770 sort of a final disciplinary decision, 649 00:27:34.770 --> 00:27:37.470 the board opts to produce that. 650 00:27:37.470 --> 00:27:40.930 So you could see a record appendix 143 651 00:27:40.930 --> 00:27:42.640 is a nice example of one of those. 652 00:27:42.640 --> 00:27:45.680 Okay, so let's go back to my hypo. 653 00:27:45.680 --> 00:27:48.680 And again, as to whether or not discipline's appropriate, 654 00:27:48.680 --> 00:27:50.133 that's not before us. 655 00:27:51.120 --> 00:27:52.880 The only question is whether you have the, 656 00:27:52.880 --> 00:27:55.210 whether the board has the possibility of proceeding 657 00:27:55.210 --> 00:27:57.350 with discipline in this particular matter. 658 00:27:57.350 --> 00:27:59.610 But let's assume for the sake of argument, 659 00:27:59.610 --> 00:28:01.880 that we do permit you proceed with discipline, 660 00:28:01.880 --> 00:28:03.660 and there's a finding of censure. 661 00:28:03.660 --> 00:28:05.990 Is it your intent, in view of the sealing of the order, 662 00:28:05.990 --> 00:28:07.850 for there to be a statement of allegations 663 00:28:07.850 --> 00:28:12.850 that would essentially make public all that has been sealed? 664 00:28:14.410 --> 00:28:16.030 Potentially, yes. 665 00:28:16.030 --> 00:28:19.460 To make public, certainly, the essential basis 666 00:28:19.460 --> 00:28:21.640 for the discipline and the facts necessary 667 00:28:21.640 --> 00:28:22.674 to apprise the public. 668 00:28:22.674 --> 00:28:24.074 And how is that in keeping 669 00:28:24.920 --> 00:28:27.760 with the legislative mandate with regard 670 00:28:27.760 --> 00:28:28.660 to the sealing order? 671 00:28:28.660 --> 00:28:31.130 You will now have made public 672 00:28:32.260 --> 00:28:34.740 effectively all of the information 673 00:28:34.740 --> 00:28:37.700 which a judge has ordered sealed 674 00:28:37.700 --> 00:28:40.480 after a finding that a substantial justice 675 00:28:40.480 --> 00:28:42.373 would best be served by the sealing. 676 00:28:44.020 --> 00:28:46.650 So the answer is that the benefits of sealing 677 00:28:46.650 --> 00:28:51.030 are only those that the legislature prescribed by statute. 678 00:28:51.030 --> 00:28:54.060 And it's not a hermetic seal. 679 00:28:54.060 --> 00:28:56.880 And for a certain subset of individuals, 680 00:28:56.880 --> 00:29:00.870 those who choose to become licensed physicians, 681 00:29:00.870 --> 00:29:04.350 when they engage in misconduct that is independently 682 00:29:04.350 --> 00:29:06.263 potentially subject to discipline, 683 00:29:07.150 --> 00:29:09.240 even not withstanding a seal, 684 00:29:09.240 --> 00:29:13.440 nothing in the sealing statutes prohibits the board 685 00:29:13.440 --> 00:29:18.440 from taking action and from publicizing that information 686 00:29:18.690 --> 00:29:21.910 about what the basis for the disciplinary action was. 687 00:29:21.910 --> 00:29:24.643 Now I look to 112, Section Five, 688 00:29:25.660 --> 00:29:28.400 and it requires there to be a description 689 00:29:28.400 --> 00:29:31.470 of any charges for felonies and serious misdemeanors 690 00:29:31.470 --> 00:29:33.887 as determined by the board to which a physician pleads 691 00:29:33.887 --> 00:29:36.930 "Nolo contendere" or where sufficient facts of guilt 692 00:29:36.930 --> 00:29:38.570 were found and the matter was continued 693 00:29:38.570 --> 00:29:40.860 with that finding by a court of competent jurisdiction, 694 00:29:40.860 --> 00:29:42.700 which, of course, is this case. 695 00:29:42.700 --> 00:29:45.980 Is it your view that you would be publishing 696 00:29:45.980 --> 00:29:48.080 that information, even though it's sealed? 697 00:29:49.160 --> 00:29:50.220 Potentially, yes. 698 00:29:50.220 --> 00:29:52.700 And I actually would refer you to the item 699 00:29:52.700 --> 00:29:56.150 a couple notches down that refers to a description 700 00:29:56.150 --> 00:29:57.594 of any final disciplinary action. 701 00:29:57.594 --> 00:29:58.767 That's only one notch down, 702 00:29:58.767 --> 00:30:01.717 but that description of any final board disciplinary action 703 00:30:04.220 --> 00:30:07.200 could be done simply by "Censured." 704 00:30:07.200 --> 00:30:11.070 It could, and the board certainly has discretion 705 00:30:11.070 --> 00:30:13.337 in how much detail to provide to the public. 706 00:30:13.337 --> 00:30:16.240 The statute does not oblige you to include 707 00:30:16.240 --> 00:30:17.510 the statement of allegations. 708 00:30:17.510 --> 00:30:22.510 It obliges you only to describe the final sanction. 709 00:30:23.130 --> 00:30:24.860 I think there is discretion in the board. 710 00:30:24.860 --> 00:30:27.860 It is the board's practice and policy 711 00:30:27.860 --> 00:30:31.830 that to say that a physician has been disciplined 712 00:30:31.830 --> 00:30:35.040 without saying why would disserve both 713 00:30:35.040 --> 00:30:36.430 the interests of the public and the physician, herself. 714 00:30:36.430 --> 00:30:39.087 I understand that, but do you have a practice or policy 715 00:30:39.087 --> 00:30:43.323 when it's a criminal matter, which itself is sealed? 716 00:30:44.870 --> 00:30:46.700 Nothing specific to sealing. 717 00:30:46.700 --> 00:30:48.300 The general policy would be 718 00:30:48.300 --> 00:30:51.350 that public transparency is important, 719 00:30:51.350 --> 00:30:53.000 it's essential to the board's mission, 720 00:30:53.000 --> 00:30:56.100 and to say "Censured" or "Reprimanded" 721 00:30:56.100 --> 00:30:59.290 without saying what the problem was 722 00:30:59.290 --> 00:31:01.970 would be to disserve the patient interest 723 00:31:01.970 --> 00:31:04.910 in selecting a physician in whom 724 00:31:04.910 --> 00:31:07.710 the patient can repose trust and confidence. 725 00:31:07.710 --> 00:31:12.510 So when we're seeking to marry the language 726 00:31:12.510 --> 00:31:14.380 of the board of registration's statute 727 00:31:14.380 --> 00:31:16.430 with the language of the sealing statute, 728 00:31:18.040 --> 00:31:20.610 what do you say we should do with regard 729 00:31:20.610 --> 00:31:23.650 to the amount of information that you make public? 730 00:31:23.650 --> 00:31:26.120 Allow you to do what you do in your discretion 731 00:31:26.120 --> 00:31:28.720 including a statement of allegations, 732 00:31:28.720 --> 00:31:32.010 or limit the information which you are permitted 733 00:31:32.010 --> 00:31:37.010 to furnish to the public, lest it negate the order to seal? 734 00:31:40.670 --> 00:31:42.990 There doesn't need to be any marrying in this case 735 00:31:42.990 --> 00:31:45.850 because the sealing statute itself doesn't contain 736 00:31:45.850 --> 00:31:49.810 any prohibition on either board use or dissemination. 737 00:31:49.810 --> 00:31:52.680 The sealing statute gives only the benefits that it gives, 738 00:31:52.680 --> 00:31:54.420 and that is not among them. 739 00:31:54.420 --> 00:31:56.340 It is certainly open to the legislature 740 00:31:56.340 --> 00:31:58.610 to make a different policy choice, 741 00:31:58.610 --> 00:32:00.780 but it hasn't done so. 742 00:32:00.780 --> 00:32:02.940 Can you, you may have answered this already, I'm sorry. 743 00:32:02.940 --> 00:32:05.030 Have I interrupted you? No, go. 744 00:32:05.030 --> 00:32:06.900 You may have already answered this and I missed it, 745 00:32:06.900 --> 00:32:09.490 but what do you think the rationale is 746 00:32:09.490 --> 00:32:13.590 for the change, the difference in section 100C 747 00:32:13.590 --> 00:32:15.340 versus the other two sections? 748 00:32:15.340 --> 00:32:17.220 So I can only speculate about 749 00:32:17.220 --> 00:32:18.420 what was in the legislature's mind, 750 00:32:18.420 --> 00:32:20.120 but I see a couple of distinctions. 751 00:32:20.120 --> 00:32:24.050 First, 100A sealing is only available 752 00:32:24.050 --> 00:32:26.283 after a substantial lapse of time, 753 00:32:27.190 --> 00:32:28.800 during which the individual has to show 754 00:32:28.800 --> 00:32:31.260 a sustained lack of recidivism. 755 00:32:31.260 --> 00:32:34.040 This is based on evidence that was before the legislature 756 00:32:34.040 --> 00:32:38.520 that that sustained period has predictive value 757 00:32:38.520 --> 00:32:39.680 for the future. 758 00:32:39.680 --> 00:32:43.360 That lack of recidivism, the time lapse, 759 00:32:43.360 --> 00:32:45.440 isn't present in 100C. 760 00:32:45.440 --> 00:32:49.390 100C sealing is made on a discretionary, 761 00:32:49.390 --> 00:32:52.660 inherently predictive decision by, you know, 762 00:32:52.660 --> 00:32:54.520 a fallible human being. 763 00:32:54.520 --> 00:32:56.640 And therefore there may be need 764 00:32:56.640 --> 00:33:01.340 for a licensing, a public safety agency 765 00:33:01.340 --> 00:33:02.800 like the board to take action. 766 00:33:02.800 --> 00:33:05.070 There's a second difference, 767 00:33:05.070 --> 00:33:08.770 which is that sealing under 100A doesn't occur 768 00:33:08.770 --> 00:33:11.160 until the record has been publicly available, 769 00:33:11.160 --> 00:33:14.360 at least unsealed, for a substantial period of time. 770 00:33:14.360 --> 00:33:17.350 So the Board of Registration in Medicine, 771 00:33:17.350 --> 00:33:19.650 in any case where a physician is already licensed, 772 00:33:19.650 --> 00:33:22.450 will have already received information 773 00:33:22.450 --> 00:33:26.240 about a conviction subject to sealing under 100A, 774 00:33:26.240 --> 00:33:28.750 because the license renewal cycle is every two years 775 00:33:28.750 --> 00:33:31.120 and sealing under 100A isn't available 776 00:33:31.120 --> 00:33:33.070 until at least year three. 777 00:33:33.070 --> 00:33:35.980 So there's a substantial period of time 778 00:33:35.980 --> 00:33:38.940 during which that information is available fully 779 00:33:38.940 --> 00:33:41.040 for use by boards and commissions, 780 00:33:41.040 --> 00:33:44.610 which is not the case in C, where the record can be sealed 781 00:33:44.610 --> 00:33:46.113 on the immediate next day. 782 00:33:47.860 --> 00:33:50.890 Now you made reference to the public records law. 783 00:33:50.890 --> 00:33:52.150 Yes. 784 00:33:52.150 --> 00:33:54.760 Which would limit the disclosure 785 00:33:54.760 --> 00:33:57.743 to an individual who sought information regarding Dr. Doe. 786 00:33:58.980 --> 00:34:03.760 So yes, and if I could clarify our position, 787 00:34:03.760 --> 00:34:05.960 we have altered our position 788 00:34:05.960 --> 00:34:08.200 since the single Justice briefing. 789 00:34:08.200 --> 00:34:09.587 And I can certainly explain to you what that is. 790 00:34:09.587 --> 00:34:10.770 Help me to understand where you were 791 00:34:10.770 --> 00:34:12.400 and where you are now. 792 00:34:12.400 --> 00:34:13.233 Thank you. 793 00:34:13.233 --> 00:34:16.540 So at the time of the single Justice briefing, 794 00:34:16.540 --> 00:34:20.410 it was our understanding that the public records law 795 00:34:20.410 --> 00:34:24.070 would compel disclosure of all records 796 00:34:24.070 --> 00:34:26.270 of pending disciplinary proceedings, 797 00:34:26.270 --> 00:34:28.840 that is, before final board action, 798 00:34:28.840 --> 00:34:31.580 in response to a public records request. 799 00:34:31.580 --> 00:34:34.910 We have since revisited that legal analysis 800 00:34:34.910 --> 00:34:36.910 and concluded that exemptions 801 00:34:36.910 --> 00:34:39.570 to the public records law would potentially apply. 802 00:34:39.570 --> 00:34:42.010 Such that it certainly in the case 803 00:34:42.010 --> 00:34:43.800 where there's a sealed record 804 00:34:43.800 --> 00:34:47.250 that compelled disclosure via the public records law 805 00:34:47.250 --> 00:34:49.530 would not be required. 806 00:34:49.530 --> 00:34:52.260 That then, gives rise to a follow up question, 807 00:34:52.260 --> 00:34:55.320 which is what disclosure would the board make 808 00:34:55.320 --> 00:34:59.020 absent the legal compulsion of the public records law? 809 00:34:59.020 --> 00:35:01.300 And there we've submitted and affidavit, 810 00:35:01.300 --> 00:35:03.930 which I recognize is an unusual thing to do, 811 00:35:03.930 --> 00:35:06.820 but we did want the court to have before it 812 00:35:06.820 --> 00:35:09.850 information about what the board's practices are 813 00:35:09.850 --> 00:35:11.570 with regard to public disclosure, 814 00:35:11.570 --> 00:35:14.100 and the answer in that case is 815 00:35:14.100 --> 00:35:17.300 Dr. Doe has available to him, and the board will, 816 00:35:17.300 --> 00:35:20.870 upon request, impound all records relating 817 00:35:20.870 --> 00:35:22.570 to disciplinary proceedings, 818 00:35:22.570 --> 00:35:25.200 up until final discipline is entered 819 00:35:25.200 --> 00:35:27.790 and for a period of 10 days thereafter 820 00:35:27.790 --> 00:35:31.710 to give the doctor and opportunity to seek judicial review. 821 00:35:31.710 --> 00:35:34.570 Wouldn't that've foreclosed the ability 822 00:35:34.570 --> 00:35:39.570 to seek 2002, 2113, or the propriety seeking to 2113 review? 823 00:35:40.330 --> 00:35:41.163 Or wouldn't it have been-- 824 00:35:41.163 --> 00:35:42.154 I'm sorry, I couldn't hear. 825 00:35:42.154 --> 00:35:42.987 It wouldn't have been necessary, right? 826 00:35:42.987 --> 00:35:44.620 If you'd taken that position ahead of time? 827 00:35:44.620 --> 00:35:46.490 This whole thing wouldn't have been necessary, would it? 828 00:35:46.490 --> 00:35:48.250 It certainly would've been postponed 829 00:35:48.250 --> 00:35:51.450 until final judicial review of final discipline, 830 00:35:51.450 --> 00:35:52.610 that's correct. 831 00:35:52.610 --> 00:35:55.930 And we are trying, this is a new phenomenon, 832 00:35:55.930 --> 00:35:58.080 seeking sealing during the pendency 833 00:35:58.080 --> 00:35:59.630 of disciplinary matters. 834 00:35:59.630 --> 00:36:03.610 We are trying to get to the right and best practices. 835 00:36:03.610 --> 00:36:05.540 Okay, so you say it would be, 836 00:36:05.540 --> 00:36:09.330 your proposal is that if you take disciplinary action, 837 00:36:09.330 --> 00:36:11.490 it will be, you'll wait 10 days 838 00:36:11.490 --> 00:36:13.670 before you go public with it. 839 00:36:13.670 --> 00:36:15.810 So they can seek an order of impoundment. 840 00:36:15.810 --> 00:36:17.007 And what would be the, 841 00:36:19.480 --> 00:36:22.190 what would be the argument with regard 842 00:36:22.190 --> 00:36:24.350 to why that should be done by a judge 843 00:36:24.350 --> 00:36:27.823 as opposed to by us when we are deciding this case? 844 00:36:28.900 --> 00:36:31.660 So this speaks specifically to the doctor's claim 845 00:36:31.660 --> 00:36:33.940 that the board lacks substantive authority 846 00:36:33.940 --> 00:36:37.087 to discipline a doctor for these particular allegations. 847 00:36:37.087 --> 00:36:39.580 [Chief Justice Gants] That's a separate issue, but-- 848 00:36:39.580 --> 00:36:42.470 So our position is the court need not reach 849 00:36:42.470 --> 00:36:44.190 that particular claim 850 00:36:44.190 --> 00:36:46.420 because that claim can be effectively addressed 851 00:36:46.420 --> 00:36:47.920 on judicial review of any final action. 852 00:36:47.920 --> 00:36:49.560 I understand that, I understand that, 853 00:36:49.560 --> 00:36:52.960 but the issue of basically you saying 854 00:36:52.960 --> 00:36:56.450 you will go ahead in the board's discretion, 855 00:36:56.450 --> 00:36:58.440 not because the legislature mandates it, 856 00:36:58.440 --> 00:37:01.730 but because the board in its discretion intends to, 857 00:37:01.730 --> 00:37:04.540 publish it unless they go to court 858 00:37:04.540 --> 00:37:05.990 and get some order, 859 00:37:05.990 --> 00:37:10.210 but you anticipate then that a court has the authority 860 00:37:10.210 --> 00:37:12.093 to order you not to do so? 861 00:37:13.380 --> 00:37:18.380 Yes, I think the court could enter a stay of disclosures, 862 00:37:19.670 --> 00:37:22.970 a matter of its equitable injunctive power, 863 00:37:22.970 --> 00:37:25.150 pending judicial review if the doctor 864 00:37:25.150 --> 00:37:27.350 shows a likelihood of success on the merits, 865 00:37:27.350 --> 00:37:30.960 the court could order a stay of discipline and disclosure. 866 00:37:30.960 --> 00:37:34.310 And after judicial review, assuming it's affirmed? 867 00:37:34.310 --> 00:37:36.580 At that point, I think the board would have power 868 00:37:36.580 --> 00:37:38.843 to disclose, assuming it's affirmed. 869 00:37:40.571 --> 00:37:42.140 [Chief Justice Gants] Okay, thank you. 870 00:37:42.140 --> 00:37:43.340 Thank you, Your Honor.