ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
The Attorney General of New Jersey and the State Board of Psychological Examiners (the board) appeal from an order granting a partial summary judgment enjoining them from seeking the revocation or in any other way interfering with the license of plaintiff Sylvia Herz to practice psychology in New Jersey except for reasons and in accordance with procedures set forth in the statutes of New Jersey for the suspension or revocation of such licenses. The partial summary judgment was granted on the basis of an extensive record of affidavits, exhibits and depositions. The appellants do not, however, contend that there is any material issue of disputed fact. Rather, they contend that the court erred as a matter of law in enjoining them from revoking Dr. Herz's license for reasons other than those set forth in the New Jersey statutes. We affirm.
In 1966 New Jersey adopted a statute requiring the licensing of persons rendering professional psychological services. N.J.S.A. 45:14B-1-30; L.1966, ch. 282, §§ 1-30 (1966 Act). The statute created in the Department of Law and Public Safety a State Board of Psychological Examiners, consisting of 7 members appointed by the Governor. The board must "be composed of members who represent equitably the diverse fields of psychology, a majority of whom should be licensed practicing psychologists." N.J.S.A. 45:14B-9. Each member must be a resident of New Jersey and shall have these additional qualifications:
(b) He shall either be a member of or have professional standing equivalent to that required for classification as a member of the New Jersey Psychological Association and the American Psychological Association.
(c) He shall be at the time of his appointment, and shall have been for at least 5 years prior thereto, actively engaged as a psychologist in one or more phases or branches of psychology or in the education and training of doctoral or postdoctoral students of psychology or in psychological research, and shall have spent the major portion of the time devoted by him to such activity, during the 2 years preceding his appointment, in this State.
(d) He shall hold the doctoral degree in psychology or in a closely allied field from a recognized educational institution.
N.J.S.A. 45:14B-10. The first 7 appointees were, under the statute, "deemed to be licensed practicing psychologists immediately upon their appointment " N.J.S.A. 45:14B-11. Members of the New Jersey Psychological Association (the Association), a private professional organization, were appointed initially. The board is empowered to "examine and pass on the qualifications of all applicants for permits or licenses under the act, and shall issue a permit or license to each qualified successful applicant therefor, attesting to his professional qualifications to engage in the practice of psychology." N.J.S.A. 45:14B-13. Qualifications may be determined either by examination of credentials from another state or a nationally recognized psychological board or agency, N.J.S.A. 45:14B-20, or by a written examination, N.J.S.A. 45:14B-18. In addition, the 1966 Act contained a grandfather provision, since repealed,*fn1 providing that an applicant who applied before January 1, 1968 could be licensed by an examination of credentials showing that he
(h)as received the degree of Doctor of Philosophy in psychology from a recognized educational institution, or in lieu of such degree, a doctoral degree in a closely allied field if it is the opinion of the board that the training required therefor is substantially similar, or has otherwise had training in psychology deemed equivalent by the board, and has had at least the equivalent of 5 years of full-time professional experience in psychology, of which the equivalent of at least 2 years of full-time experience must have been accumulated in the practice of psychology, and of which the equivalent of 3 years of full-time experience may have been accumulated in the teaching of psychology at a recognized educational institution or in psychological research; or in the administration of a program of psychological services;
In 1964 Dr. Herz earned a Ph.D. degree from New York University in Human Development and Social Relations. By 1967 she had been active for many years in the field of mental health. She filed a timely application for licensure pursuant to the grandfather provision. The board denied her application on the ground that she did not possess sufficient psychology credits. Thereafter, on several occasions in 1969, 1973 and 1974, Dr. Herz attempted to have the board reconsider its denial of her application or explain more fully its reasons. With these applications she advised the board that she did have extensive graduate and undergraduate credits in psychology, and offered to supply transcripts. On each occasion she was denied a license.
Members of the board served for staggered terms. In 1974 the Governor ceased considering recommendations for membership proffered by the New Jersey Psychological Association. In that year he appointed Dr. Herz a member of the Board. There is no suggestion that she failed to meet the qualifications for membership specified in N.J.S.A. 45:14B-10 quoted above. By 1977 the influence of the New Jersey Psychological Association in the board had been considerably diminished. In that year Dr. Herz inquired of the Office of the Attorney General whether the board had the power to reconsider its denial of her 1967 application. That office had responsibility for furnishing legal advice to professional boards. N.J.S.A. 52:17A-4(e). The Deputy Attorney General in charge of professional boards concluded that so long as Dr. Herz did not participate in the board's deliberations on her application it could be reconsidered. That advice was given to the board after consideration within the Attorney General's office.
On June 27, 1977 reconsideration of Dr. Herz's application was taken up. The board minutes disclose:
At the request of Deputy Attorney General Joseph Ferraro, Jr., the application of Dr. Sylvia Herz for licensure, supported by supplemental material, was brought to the Board's attention. The extent of the documents submitted was such that a motion by Dr. Feldman, seconded by Dr. Breslin, to delay action on this matter until sufficient time for review of the new material had been given the Board members was passed by majority vote.
App. at 176.*fn2 Further deliberation took place at a meeting on September 12, 1977, at which a Deputy Attorney General was present, the minutes of which disclose:
SPECIAL REFERRAL THE MATTER OF DR. SYLVIA HERZ:
Dr. Taylor moved, seconded by Dr. Breslin, that the minutes reflect that she questioned whether the procedures for the reopening of Dr. Herz's application were usual and customary and open to all applicants. After discussion it was concluded that this is so. The motion passed unanimously.
Dr. Silverman made a motion that the application of Dr. Herz be considered under the "Grandfather Clause," retroactive to Board policy and consistent with the law at the time of original ...