2007AP1072 Daniels v. Wisconsin Chiropractic Examining Board

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Administrative Law
Due process; chiropractors

There is no due process right to appear before the Wisconsin Chiropractic Examining Board when it reviews the decision of an administrative law judge.

"With respect to the initial proceedings, in order to agree with the circuit court, we would have to declare the procedure laid out in Wis. Stat. ch. 227 unconstitutional, since it provides for no opportunity to be heard before the Board where, as here, a hearing examiner conducts the hearing. See Wis. Stat. § 227.46(2). What the statute directs is that each party have the "opportunity to file objections to the proposed decision, briefly stating the reasons and authorities for each objection, and to argue with respect to them before the officials who are to participate in the decision. The agency may direct whether such argument shall be written or oral." Id. Here, when the ALJ issued the proposed decision, Daniels was notified of his right to file a written response both to the proposed decision and to the Department of Regulation & Licensing's arguments for revocation. He apparently did so. The proceedings below thus complied with the statutory procedure.

"Nor have we found any cases questioning the constitutional propriety of this procedure.

The circuit court cited Bracegirdle v. Department of Regulation & Licensing, 159 Wis. 2d 402, 417, 464 N.W.2d 111 (Ct. App. 1990), in which we stated that '[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her], notice and an opportunity to be heard are essential.' However, Daniels was granted notice and an opportunity to be heard in person before the ALJ and in writing before the Board itself. In Bracegirdle, the administrative agency accepted the hearing examiner's finding that there was no credible evidence of the violation the respondent nurse was accused of-but then it amended the proposed decision to find that the nurse had committed a violation based upon different facts and a different theory of law. Id. at 410-11. Thus, the nurse had no opportunity to have any input into the agency's decision. Bracegirdle is simply inapposite to this case, since Daniels was informed of the violations alleged and had the opportunity to argue his case before the ALJ in person and before the Board via written submission."

Reversed.

Recommended for publication in the official reports.

2007AP1072 Daniels v. Wisconsin Chiropractic Examining Board

Dist. II, Waukesha County, Gempeler, J., Brown, J.

Attorneys: For Appellant: Hunter, Robert M., Madison; For Respondent: Daniels, Gregory R., D.C., pro se

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