Allen v. Louisiana State Bd. of Dentistry

• Decision Date: 28 May 1992
• Docket Number: No. 91-CA-1258,91-CA-1258
• Parties: William D. ALLEN, D.D.S. v. The LOUISIANA STATE BOARD OF DENTISTRY.
• Court: Court of Appeal of Louisiana — District of US

Page 238

603 So.2d 238

William D. ALLEN, D.D.S. v. The LOUISIANA STATE BOARD OF DENTISTRY.

No. 91-CA-1258.

Court of Appeal of Louisiana, Fourth Circuit.

May 28, 1992.

Rehearing Denied Sept. 17, 1992.

Guy Wooton, John C. Saunders, Jr., Wooton & Stakelum, APC, Brian M. Begue, New Orleans, for defendant/appellee.

Paul R. Baier, Baton Rouge, for plaintiff/appellant.

Before LOBRANO, WARD and ARMSTRONG, JJ.

LOBRANO, Judge.

This appeal arises from a judgment in favor of defendant-appellee, the Louisiana State Board of Dentistry, dismissing the Petition for Judicial Review and Injunctive Relief filed by plaintiff-appellant, Dr. William D. Allen.

FACTS AND PROCEDURAL HISTORY:

In November of 1985, the Louisiana State Board of Dentistry (the Board) filed formal charges against Dr. William D. Allen for numerous violations of the Louisiana Dental Practice Act, Louisiana Revised Statute 37:751, et seq. A total of seven (7) charges were filed consisting of forty-five (45) individual counts. In due time, an administrative hearing was convened on February 21, 1986. The hearing lasted four (4) days. At the close of the hearing on February 24, 1986, the Board disciplinary committee took the matter under advisement. On March 24, 1986, the Board rendered its decision finding Dr. Allen in violation of twenty-seven (27) of the forty-five (45) counts. The eighteen (18) remaining counts were either voluntarily dismissed by the committee or by Guy Wootan, counsel for the Board. The committee suspended Dr. Allen's license to practice dentistry for ten (10) years and placed him on probation for an additional ten (10) years. In addition, he was ordered to pay twenty-five thousand five hundred dollars ($25,500.00) in fines and costs of sixty-one thousand four hundred and seventy eight dollars and nineteen cents ($61,478.19).

On March 27, 1986, Dr. Allen filed a Petition for Judicial Review and Stay Order in the Civil District Court for the Parish of Orleans. The district court remanded the matter back to the Board for a limited rehearing which was held on June 2, 1986. At the conclusion of the rehearing, the committee affirmed its prior decision in all respects. Subsequently, Dr. Allen filed several Petitions For Judicial Review in the district court, as well as supervisory writs in this Court and the Supreme Court alleging various violations by the Board including Wootan's involvement in the Board's decision. The Supreme Court granted writs and directed the district court to take evidence concerning the issue of Wootan's alleged involvement in the Board's decision. The trial court subsequently conducted a hearing on Dr. Allen's various assertions as well as the involvement of Wootan in the administrative proceedings. The court found "not a scintilla of evidence" to support the allegations against Wootan. However the court reversed six (6) of the Board's finding of misconduct. The fine was reduced to nineteen thousand five hundred dollars ($19,500.00). From that judgment Dr. Allen appealed.

In Allen v. Louisiana State Board of Dentistry, 531 So.2d 787 (La.App. 4th Cir.1988), this Court reversed three (3) additional charges and further reduced the fine to sixteen thousand five hundred dollars ($16,500.00). In all other respects the trial court judgment was affirmed, including the district court's finding that there was no evidence to support the allegations against Wootan.

The Supreme Court granted certiorari to consider various statutory and constitutional due process questions raised by Dr. Allen, particularly those dealing with prosecutorial (Wootan's) involvement in the decision making process. ¹ That court ultimately held that Wootan's "ex parte " drafting of the findings of the committee constituted reversible error and remanded the case for a hearing "de novo ". Allen v. Louisiana State Board of Dentistry, 543 So.2d 908 (La.1989).

On June 29, 1989, pursuant to a timely application for rehearing, the high court modified its original decree to read as follows:

"The decision of the Louisiana State Board of Dentistry suspending the license of Dr. William D. Allen for ten years and imposing fines and costs is reversed. The case is remanded to the Board for a new hearing on the existing factual record before a committee composed of dentists who have had no involvement with the present case. Furthermore, both parties shall have the opportunity to present additional evidence to supplement the original record. The new committee may, at its discretion, permit the recall of any witnesses if it deems this necessary to pass on their credibility." Allen v. Louisiana State Board of Dentistry, 543 So.2d 908 at p. 917 (La.1989) (emphasis added)

On May 22, 1990, the committee issued an administrative order informing Dr. Allen of the charges and specifications the committee found to be still viable and set the rehearing date for August 4, 1990. ²

On July 5, 1990, the committee issued an additional administrative order correcting a clerical error ³ and finding that Dr. Allen's objection to the composition of the newly appointed committee was not properly presented by affidavit as required by Louisiana Revised Statute 49:960(B).

On July 10, 1990, Dr. Allen filed the required affidavit in which he objected to Drs. James P. Tomaszewski, Ralph B. King, Jr. and James R. Long as members of the new committee. Dr. Allen asserted that all three doctors had been previously involved in his case and should be recused as per the Supreme Court's order. In addition, Dr. Allen objected to the inclusion of charges and specifications that were found not proven or reversed by the trial court and this Court. On this same day, Dr. Allen also filed a Petition for Judicial Review and Injunctive Relief in the civil district court for the Parish of Orleans.

On July 20, 1990, following a preliminary hearing, the trial court ordered the Board to meet prior to September 1, 1990 to decide the recusal motion filed by Dr. Allen. The August 4, 1990 administrative hearing was cancelled pending the Board's decision on the recusal issue as well as other issues raised by Dr. Allen in his Petition for Judicial Review.

In the interim, the Board filed with the Supreme Court a Motion for Clarification of Decree Under Original Jurisdiction and For Stay of District Court Proceedings. It was the Board's position that since a resolution of the issues raised by Dr. Allen depended in large measure upon an interpretation of the Supreme Court's decree, only the Supreme Court had jurisdiction to interpret it. This motion, however, was denied by the high court on July 19, 1990. ⁴

Thereafter, on August 25, 1990, the Board ordered the recusal of the newly appointed committee in order to avoid the appearance of unfairness. The Board immediately notified Governor Roemer of this decision and requested that he appoint four dentists not residing or working in the same congressional district as Dr. Allen and who had no prior involvement with the matter to sit as pro tem members of the committee in accordance with Louisiana Revised Statute 49:960(B). Four new committee members were appointed as requested. No new rehearing date has been set pending the outcome of this appeal.

On February 4, 1991, a preliminary hearing was held in the district court on the Petition for Judicial Review and Injunctive Relief. No evidence was taken. Thereafter, on February 25, 1991, the trial court rendered judgment denying and dismissing Dr. Allen's Petition and authorized the Board to proceed with the administrative hearing ordered by the Supreme Court. No reasons for judgment were given by the trial court. Dr. Allen appeals that judgment asserting:

1) The trial court erred by denying the Petition and Prayer for Declaratory Relief Regarding the Charges found "Not Proven" at the first administrative hearing or reversed on appeal for insufficient evidence.

2) The trial court erred in not awarding attorneys fees and expenses pursuant to Louisiana Revised Statutes 49:965.1.

These assignments require us to interpret the meaning of the Supreme Court's decree.

ASSIGNMENT OF ERROR 1:

Dr. Allen asserts that the prohibition against double jeopardy, due process and res judicata precludes the newly appointed committee from requiring him to defend himself against charges found "not proven" by the prior committee ⁵ and charges reversed by the district court ⁶ and this Court. ⁷ We disagree.

Double Jeopardy

Article I, Section 15 of the Louisiana Constitution provides:

"Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained."

Dr. Allen argues that double jeopardy is applicable because the proceedings against him are "quasi criminal in nature." In support he cites Gulf States Utilities v. Louisiana Public Service Commission, 578 So.2d 71 (La.1991), cert den. --- U.S. ----, 112 S.Ct. 637, 116 L.Ed.2d 655 (1991) and Labrosse v. St. Bernard Parish School Board, 483 So.2d 1253 (La.App. 4th Cir.1986). We find neither case controlling, nor supportive of the assertion that double jeopardy is applicable to the instant administrative proceeding.

In Gulf States the court, in discussing a due process argument, made the comment that Allen v. Louisiana State Board of Dentistry, supra, "concerned a quasi-criminal prosecution...." In our opinion that statement is dicta and does not establish a rule of law which classifies license revocation proceedings as criminal in nature. The holding in Labrosse concerned the basic principle that due process requires notice of the specific charges and a chance to be heard in a trial of those charges. Bradley R. Labrosse, Jr. had been expelled from school...