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March 7, 1978

ROBERT P. WHALEN, M.D., Commissioner of Health of the State of New York, and THADDEUS J. MARAWSKI, M.D., Executive Secretary of the State Board for Professional Misconduct of the State of New York, Defendants

The opinion of the court was delivered by: TENNEY


 Plaintiffs Michael B. Schachter, M.D., a physician licensed to practice medicine in the State of New York, and John Doe, Richard Roe and Mary Moe, anonymous individuals who are alleged to be Dr. Schachter's patients, bring this civil rights action seeking both a declaration that Sections 230(10)(k) and (l) of the New York Public Health Law are unconstitutional and an injunction against further enforcement of those statutory provisions. *fn1" Now before this Court is the plaintiffs' application for a preliminary injunction. Because the Court concludes, for the reasons set out below, that principles of abstention prohibit this Court's assertion of jurisdiction over the controversy, the application is denied and the complaint is dismissed.

 The supervision and discipline of the practice of medicine in New York State, traditionally the province of the Board of Regents, was recently delegated in part by the legislature to a newly created body known as the New York State Board for Professional Medical Conduct ("Board"). 1975 New York Laws ch. 109, §§ 28-29, 32 (McKinney's), as amended, 1977 New York Laws ch. 773, §§ 2-5 (McKinney's) codified at N.Y. Educ. Law §§ 6500, 6510-a and N.Y. Pub. Health Law § 230. The Board has been given the authority to investigate suspected professional misconduct, hold hearings thereon and make recommendations for professional discipline to the Board of Regents. N.Y. Pub. Health Law § 230(10).

 It was brought to the Board's attention through "[complaints] received, as well as media reports of interviews with Doctor Schachter, together with other information obtained by the Office of Professional Medical Conduct," that Dr. Schachter, in the context of his medical practice, prescribes and administers nontoxic therapy to patients suffering from cancer. Among the medicines used in this therapy are two drugs, one known variously as "Laetrile," "Amygdalin" and "Vitamin B-17" and the other as "MA-7." Affidavit of Thaddeus J. Murawski, sworn to January 31, 1978, para. 7 ("Murawski Affidavit").

 The Board contends that Dr. Schachter's "possible advocacy of Laetrile and 'MA-7' . . . as preferred methods of treating cancer and his possible claims of the successful treatment with these substances" might not be "supported by fact," and thus may constitute grounds for charges of professional misconduct under Sections 6509(2) and (9) of the New York Education Law, as well as numerous provisions of Sections 29.1 and 29.2 of Title 8 of the Official Compilation of New York Codes, Rules and Regulations. Therefore, a committee of the Board met on December 29, 1977 and authorized an investigation of Dr. Schachter. Id. P 9 & Exh. 1; Memorandum in Opposition to Motion for Preliminary Injunction 13-14. As a first step in this investigation, the committee authorized the Board's Executive Secretary to issue subpoenas under the authority of N.Y. Pub. Health Law § 230(10)(l), one of the provisions challenged in this action. Murawski Affidavit Exh. 1. Accordingly, on January 18, 1978, Dr. Schachter was served with a subpoena duces tecum directing him to appear on January 27, 1978, and to furnish the Board with "[complete] medical charts and records for each and every person treated by you or under your direction with the drug commonly known as Laetrile" and with the same information for those treated "with a drug known as MA-7." Complaint para. 8 & Exh. A.

 Dr. Schachter, having requested the Board to withdraw the subpoena, see N.Y.C.P.L.R. § 2304, brought this action in the federal court upon the Board's refusal. A temporary restraining order was entered by the Court January 26, 1978; *fn2" notwithstanding the expiration of this order, the defendants have voluntarily refrained from seeking enforcement of the subpoena in order to allow both sides to fully brief the issues.


 In a landmark series of cases, Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) et seq., the Supreme Court announced a basic jurisdictional principle -- that federal courts should refrain from interfering with ongoing state criminal proceedings. More recently, the Court has indicated that this principle extends well beyond the criminal context of its initial application since

the "'more vital consideration'" behind the Younger doctrine of nonintervention lay not in the fact that the state criminal process was involved but rather in
"'the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.'" Huffman v. Pursue, Ltd., 420 U.S., at 601, quoting Younger, 401 U.S., at 44.

 Juidice v. Vail, 430 U.S. 327, 334, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977). Thus, the Supreme Court has applied the Younger nonintervention principle where a federal plaintiff sought an injunction against a state court civil obscenity-nuisance proceeding, Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975); where individuals subject to state court civil default judgments who were subpoenaed by their creditors sought relief from threatened state court contempt proceedings, Juidice v. Vail, supra ; and where individuals whose property had been attached as the automatic first step in a civil action by the state to recover allegedly fraudulently obtained welfare benefits sought federal court intervention against the attachment process. Trainor v. Hernandez, 431 U.S. 434, 52 L. Ed. 2d 486, 97 S. Ct. 1911 (1977).

 In these decisions the Supreme Court has indicated that a federal court asked to take action which would interfere with an ongoing "state civil enforcement action," id. at 443, should base any decision to abstain on several factors: (1) an analysis of the role played by the state in the ongoing proceeding and of the importance of state policies and interests sought to be vindicated therein, id. at 444; Juidice v. Vail, supra, 430 U.S. at 335-36; Huffman v. Pursue, Ltd., supra, 420 U.S. at 604; (2) whether the plaintiffs "had an opportunity to present their federal claims in the state proceedings," Juidice v. Vail, supra, 430 U.S. at 337 (emphasis deleted); and (3) whether interference will result in duplicative legal proceedings and will reflect negatively on the state court's ability to enforce constitutional principles. Huffman v. Pursue, Ltd., supra, 420 U.S. at 604.

 The Supreme Court has not had occasion to address itself in a full opinion to the application of these principles to federal interference in a pending state administrative proceeding. However, in Geiger v. Jenkins, 401 U.S. 985, 28 L. Ed. 2d 525, 91 S. Ct. 1236 (1971), aff'g 316 F. Supp. 370 (N.D. Ga. 1970) (three-judge court), the Court affirmed on appeal the decision of a three-judge court to abstain from interfering in an ongoing state medical disciplinary proceeding. While the decision in Geiger is "somewhat opaque," as the Court recognized in Gibson v. Berryhill, 411 U.S. 564, 576, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973), the exegesis of Geiger by the Gibson Court shows that Geiger rests in some measure upon the principle "that administrative proceedings looking toward the revocation of a license to practice medicine may in proper circumstances command the respect due court proceedings." Id. at 576-77. Indeed, Gibson itself seems to indicate that abstention in the face of an ongoing administrative proceeding is appropriate where the district court has determined that the federal plaintiff has "the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved." Id. at 577.

 Moreover, the United States Court of Appeals for the Second Circuit has read the Geiger and Gibson decisions as indicating that the existence of ongoing state administrative proceedings is sufficient to ...

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