The facts of In the Matter of Jitan are rather startling, but this opinion by the Superior Court of New Jersey Appellate Division, decided on October 13, 2022, provides a reminder of the exceedingly deferential standard of judicial review of professional disciplinary decisions and the broad discretion permitted to the licensing boards in determining appropriate sanctions. It also provides an unstated punctuation mark in the evolution of grounds for licensure action that were enacted on May 11, 2021.
The Attorney General filed an administrative complaint with the Board of Medical Examiners seeking revocation or suspension of the respondent physician’s license after he had been convicted of a criminal offense in February 2020. The physician, a nuclear cardiologist, was arrested and charged with multiple counts of sexual assault, criminal sexual contact, and invasion of privacy arising out of an approximate five-year practice of obtaining pictures of his daughter without her knowledge or consent using cameras placed in her bedroom and bathroom. These photographs depicted the full nudity of the girl as well as images of her “intimate parts.” Jitan eventually pled guilty to the invasion of privacy provisions of N.J.S.A. 2C:14-9(b), a crime of the third degree. He was sentenced to two years of probation and a mental health evaluation.
The Board complaint alleged the commission of “a crime of moral turpitude” in violation of N.J.S.A. 45:1-21(f). The text of that statutory provision authorizes suspension or revocation of a license where an individual “[h]as been convicted of, or engaged in acts constituting, any crime or offense involving moral turpitude or relating adversely to the activity regulated by the board.” The respondent physician did not contest the factual assertions and admitted liability but offered evidence in mitigation of penalty. In addition to providing information concerning a 39-year career without any disciplinary actions, letters of support from character witnesses and hospitals, and a mental health evaluation, Jitan attempted to justify his conduct with an explanation that he was concerned that his daughter was smoking marijuana at home, and he wanted to obtain evidence of that behavior with this being “a limited lapse in judgment.” Given the time span and volume of photographic images obtained, the Board rejected this position along with its observation that as a physician he could have used more clinical methods of detecting and monitoring alcohol or drug usage.
With its final agency decision, the Board suspended Jitan’s license for eight years. The physician appealed. He argued that because his conduct had only involved a “personal matter,” the eight-year suspension was “shockingly inconsistent with fairness.” The Appellate Division found his contentions to be insufficient to merit extended discussion in a written opinion but nonetheless added comments while affirming the Board’s action.
It started with the usual recitation regarding the limited review of administrative agency determinations. The court declined to second-guess or substitute its judgment for that of the regulators. It emphasized that review of an agency’s choice of sanctions would be modified only when necessary to bring the agency’s action into conformity with its statutory authority. Referring to the Supreme Court precedents of In re Zahl and In re Polk’s License, it recited the oft-repeated refrain that the test was whether the punishment was “so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness.” Cases meeting this test are as rare as hen’s teeth.
It concluded that the Board’s imposition of the eight-year suspension was warranted by the commission of this “‘egregious’ crime of moral turpitude” with the misconduct raising questions about this physician’s ability to safely interact with patients in the future.
The scope of a crime of moral turpitude has long been a matter of problematic analysis. In connection with an offense of conspiracy to convert pension funds, the Supreme Court of New Jersey observed in In re Fanelli that the legislative history of the statute did not define moral turpitude. It quoted at length from State Bd. of Medical Examiners v. Weiner, where the Appellate Division had stated:
What is ‘moral turpitude’? It has been defined as an ‘act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and man,’ … and as, ‘in its legal sense * * * everything done contrary to justice, honesty, modesty, or good morals.’ … The United States Supreme Court, in connection with alien deportation proceedings, has held that, in addition to ‘crimes * * * of the gravest character,’ any crime in which fraud is an ingredient involves moral turpitude. … But the attempt to apply these definitions to specific criminal acts, especially in the context of license revocation proceedings, has demonstrated only the elasticity of the phrase and its necessarily adaptive character, reflective at all times of the common moral sense prevailing throughout the community.
The Supreme Court noted the variety of manifestations of “moral turpitude” reflected in the case law. It held that Fanelli was entitled to a hearing on whether his conduct constituted “moral turpitude” and that the burden of proving the elements of moral turpitude was on the Board. It also addressed the second aspect of the statute providing for discipline where the offense related adversely to the practice of medicine. It concluded that the conduct need not have occurred during the rendering of professional services and that the practice of medicine involves more than patient care but also encompasses record keeping, billing practices, and how physicians treat their employees. It emphasized that Fanelli should have the opportunity to show that his unlawful actions were unrelated to the practice of medicine.
It is no longer necessary to deal with the vagueness and vagaries of what constitutes “moral turpitude” in the context of license revocation or suspension proceedings. The provisions of N.J.S.A. 45:1-21(f) were amended by P.L. 2021, chapter 81. The Appellate Division opinion includes no reference to or recognition of the modification of the statutory grounds for action.
The bill containing the amendments also included a new section codified as N.J.S.A. 45:1-21.5 that deals with rehabilitation of persons who had been convicted of an offense and setting forth notice and hearing requirements. The legislative history explicitly deletes “moral turpitude” as a standard for license denial, suspension or revocation. Amended subsection (f) now reads that disciplinary action may be taken when a person:
[h]as been convicted of, or engaged in acts constituting, any crime or offense that has a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare, provided that the board shall make this determination in a manner consistent with [N.J.S.A. 45:1-21.5].
The provisions of N.J.S.A. 45:1-21.5 set forth standards for making the new determination:
- the nature and seriousness of the crime or offense and the passage of time since its commission;
- the relationship of the crime or offense to the purposes of regulating the profession or occupation regulated by the entity;
- any evidence of rehabilitation of the person in the period of time following the prior conviction that may be made available to the entity; and
- the relationship of the crime or offense to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation regulated by the entity.
There are no published cases yet on determining a “direct” or “substantial” relationship to the professional practice activity regulated by the licensing board or what would be “inconsistent with the public’s health, safety, or welfare.” Those determinations undoubtedly will continue to be subjected to judicial review on a limited and deferential basis.