The board's decision followed a successful first appeal by Dr. Grimm to this court from an earlier, similar decision. See Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993) (Grimm I). In the present appeal, Dr. Grimm argues that the board's latest decision is unlawful and unreasonable because: (1) the second hearing panel contained two members of the original panel which had voted to revoke Dr. Grimm's license; and (2) "the board failed to properly assess credibility, ignored certain undisputed facts and relied on information not contained in the record."

N.H. CONST. pt. I, art. 15. "[L]aw of the land" means due process of law. Petition of Grimm, 138 N.H. 42, 49, 635 A.2d 456, 461 (1993). [8] "We have held that a doctor has a legally protected property right in his license to practice medicine and thus is entitled to procedural due process."

Eaves v. Board of Med. Exam'rs, 467 N.W.2d 234, 237 (Iowa 1991); Rucker v. Michigan Bd. of Med., 138 Mich. App. 209, 360 N.W.2d 154, 155 (1984); Petition of Grimm, 138 N.H. 42, 635 A.2d 456, 461 (1993); In re Polk, 90 N.J. 550, 449 A.2d 7, 12-17 (1982); Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17, 19-20 (1998); Gandhi v. Medical Examining Bd., 168 Wis.2d 299, 483 N.W.2d 295, 298-300 (Ct.App. 1992). [¶ 24] In Grimm, 635 A.2d at 461-62, the New Hampshire Supreme Court held there was no due process or equal protection violation in the use of the preponderance of evidence standard of proof for disciplinary proceedings against a psychologist.

Because we find a State constitutional violation under this analysis and vacate, we need not analyze his federal constitutional claim. Our decision in Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993), governs this case. In Grimm, the petitioner appealed from the board's finding that he engaged in sexual relations with the complainant and thereby acted unprofessionally within the meaning of RSA 330-A:14, II(d). The only direct evidence concerning whether the petitioner and the complainant engaged in sexual relations was the conflicting testimony of the complainant and petitioner.

We reject the State's argument that the availability of an appeal under RSA 265:91-d or a petition for certiorari precluded the intervenors' constitutional challenges under RSA 491:22. The State argues that our opinion in Petition of Grimm, 138 N.H. 42, 635 A.2d 456 (1993), "established the exclusive method of challenging the bias or prejudice of an administrative decision-maker." In Petition of Grimm, we rejected an argument that a party was entitled to voir dire members of an administrative board to ascertain potential bias.

The highest courts of several other jurisdictions have similarly rejected calls for a higher standard of proof. See, e.g., Sherman v. Comm'n on Licensure to Practice the Healing Art, 407 A.2d 595, 601 (D.C.App.1979); Petition of Grimm, 138 N.H. 42, 635 A.2d 456, 461 (1993); In re Polk, 90 N.J. 550, 449 A.2d 7 (N.J.1982); N.D. State Bd. of Med. Examiners v. Hsu, 726 N.W.2d 216, 230 (N.D.2007). In determining the proper standard of proof, the three factors set forth in Mathews v. Eldridge must be considered: (1) “the private interest that will be affected by the official action;” (2) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail;” and (3) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”

Simard v. Board of Education of Town of Groton, 473 F.2d 988, 994 (2d Cir. 1973).The plaintiffs mistakenly rely upon Petition of Grimm, 138 N.H. 42, 46-47, 635 A.2d 456 (1993), and Petition of Smith, 139 N.H. 299, 302-05, 652 A.2d 154 (1994), to support their argument. In Petition of Grimm, we examined an exception to the general rule that "in administrative proceedings . . . an administrative officer may act on a written record of testimony by witnesses whom he has not personally seen or heard."

¶33 Other state courts have reached the same conclusion. See, e.g., In re Revocation of License of Polk, 90 N.J. 550, 562, 570, 449 A.2d 7 (1982) (interest in a professional license deserves protection, but not a fundamental right; such licenses are "'always subject to reasonable regulation in the public interest'" (quoting B. Jeselshon, Inc. v. Atlantic City, 70 N.J. 238, 242, 358 A.2d 797 (1976))); Petition of Grimm, 138 N.H. 42, 50, 635 A.2d 456 (1993) ("[t]he right to work in one's occupation has never been placed on equal footing with fundamental personal rights," applying rational basis review to licensing regulation for medical doctors). ¶34 In light of these cases, including our recent decision in Amunrud, it is clear that Nguyen is wrong in describing the interest in a professional license as a liberty interest akin to the liberty interests of the criminally accused and wrong in requiring the clear, cogent, and convincing standard to protect that interest.

The board should apply the presumption that the HSB, serving in an adjudicatory capacity, is "presumed to be of conscience and capable of reaching a just and fair result." Petition of Grimm, 138 N.H. 42, 52 (1993). In addition, the board must find that there was more than prior involvement of Kaplan or the HSB to bar the HSB from conducting the hearing on actual bias grounds.

Some jurisdictions have asserted the mere preponderance standard is sufficient to satisfy due process: Sherman v. Comm'n on Licensure to Practice the Healing Art, 407 A.2d 595 (D.C. 1979) (preponderance standard applies in medical and attorney disciplinary proceedings); Rucker v. Mich. Bd. of Med., 138 Mich. App. 209, 360 N.W.2d 154 (1984) (preponderance standard in medical discipline); Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998) (preponderance standard applies); In re Wang, 441 N.W.2d 488 (Minn. 1989) (preponderance standard); Eaves v. Bd. of Med. Exam'rs, 467 N.W.2d 234 (Iowa 1991) (preponderance standard); In re Grimm, 138 N.H. 42, 635 A.2d 456 (1993) (preponderance); Johnson v. Ark. Bd. of Exam'rs, 305 Ark. 451, 808 S.W.2d 766 (1991) (preponderance, same as in attorney discipline); Gandhi v. State Med. Examining Bd., 168 Wis.2d 299, 483 N.W.2d 295 (1992) (preponderance for physician but clear and convincing for attorneys); In re Polk, 90 N.J. 550, 449 A.2d 7 (1982) (preponderance standard in medical disciplinary proceedings); Gallant v. Bd. of Med. Exam'rs, 159 Or. App. 175, 974 P.2d 814, 816 (1999) (due process was satisfied by the mere preponderance standard). But see Bernard v. Bd. of Dental Exam'rs, 2 Or. App. 22, 465 P.2d 917 (1970) (due process requires the clear and convincing standard in professional license revocations involving fraud or misrepresentation) and Van Gordon v. Or. State Bd. of Dental Exam'rs, 52 Or. App. 749, 629 P.2d 848 (1981) (a license revocation based on fraud requires proof by clear, satisfactory, and convincing evidence).