In re Cerwonka

• Decision Date: 11 April 2018
• Docket Number: 2017 CA 1199
• Parties: In the MATTER OF Dr. Eric R. CERWONKA, Psy.D
• Court: Court of Appeal of Louisiana — District of US

249 So.3d 30

In the MATTER OF Dr. Eric R. CERWONKA, Psy.D

2017 CA 1199

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: APRIL 11, 2018

L. Lane Roy, Elizabeth C. Austin, Lafayette, Louisiana, Counsel for Plaintiff/Appellee, Eric R. Cerwonka

Amy Groves Lowe, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Louisiana State Board of Examiners of, Psychologists

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

MCCLENDON, J.

The Louisiana State Board of Examiners of Psychologists ("the Board") seeks review of a district court judgment that vacates the Board's revocation of a psychologist's license based on the court's conclusion that the Board violated the psychologist's right to due process. For the following reasons, we reverse the district court's judgment and remand this matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Eric R. Cerwonka is a duly licensed and practicing psychologist in the State of Louisiana. On October 20, 2015, an administrative complaint was filed against Dr. Cerwonka with the Louisiana State Board of Examiners of Psychologists. The Board notified Dr. Cerwonka of the complaint in writing on January 25, 2016. On August 5, 2016, supplemental notice was sent to Dr. Cerwonka setting forth an additional statement of material facts and matters alleged to be in violation of the Board's rules and regulations. After a Bertucci hearing,¹ the Board issued a summary suspension of Dr. Cerwonka's license.

Following a disciplinary hearing held on January 12 and 13, 2017, the Board rendered an opinion on February 10, 2017, that revoked Dr. Cerwonka's license to practice psychology in the State of Louisiana.

Dr. Cerwonka subsequently sought review of the Board's opinion by filing a petition with the Nineteenth Judicial District Court. Therein, Dr. Cerwonka alleged that there was no substantial evidence presented by the Board that he should have his license to practice revoked. Dr. Cerwonka also asserted that the Board violated his right to due process.

Following oral argument and briefs submitted by the parties, the district court found that the Board violated Dr. Cerwonka's right to due process in two aspects: (1) allowing Lloyd Lunceford, a member of the same law firm as the Board's general counsel, to serve as presiding officer² of the administrative proceeding; and (2) allowing James R. "Jim" Raines, who represented Dr. Cerwonka in a prior child custody matter, to serve as the Board's prosecuting attorney. The district court signed a judgment on July 26, 2017, vacating the Board's February 10, 2017 opinion, and ordering that if the Board prosecutes Dr. Cerwonka again for the same matters, it shall not use a Board attorney and a presiding officer from the same firm, nor shall it use the same presiding officer or prosecuting attorney from the prior hearing.

The Board has appealed, assigning the following as error:

1. The district court erred in reversing the February 10, 2017, Order of the Board and remanding the case to the Board for additional proceedings.

2. The district court erred in finding that Cerwonka's right to due process was violated by the [presiding officer] and the Board's attorney being members of the same firm.

3. The district court erred in finding that Cerwonka's right to due process was violated by the use of James Raines as prosecuting attorney.

DISCUSSION

The Louisiana Administrative Procedure Act, at LSA–R.S. 49:964(G), governs the judicial review of a final decision in an agency adjudication, providing that:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(6) Not supported and sustainable by a preponderance of the evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

Any one of the six bases listed in the statute is sufficient to modify or reverse an agency determination. Johnson v. Strain, 15-0714 (La.App. 1 Cir. 11/6/15), 183 So.3d 562, 564. Once a final judgment is rendered by the district court, an aggrieved party may seek review by appeal to the appropriate appellate court. LSA–R.S. 49:965 ; Johnson, 183 So.3d at 564. On review of the district court's judgment, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Johnson, 183 So.3d at 564. Consequently, this court will conduct its own independent review of the record in accordance with the standards provided in LSA–R.S. 49:964(G). See Johnson, 183 So.3d at 564.

It is undisputed that the Board's general counsel, Amy Groves Lowe, and the presiding officer at the administrative hearing, Lloyd Lunceford, belong to the same law firm. On appeal, the Board contends that this connection in itself, without any showing of any actual impropriety, is insufficient to violate due process. On the other hand, Dr. Cerwonka avers that this connection alone was violative of his due process rights.

In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the United States Supreme Court provided the constitutional framework for analyzing issues involving the combination of investigative and adjudicative functions in state and federal administrative proceedings. Withrow involved review of a physician's disciplinary hearing before the Wisconsin Medical Examining Board. Withrow, 421 U.S. at 38, 95 S.Ct. at 1460. The Supreme Court recognized that a fair trial in a fair tribunal is a basic requirement of due process and that this requirement applies to administrative agencies which adjudicate, as well as to courts. The Supreme Court went on to state that "[n]ot only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness.’ " Withrow, 421 U.S. at 46–47, 95 S.Ct. at 1464, quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955).

In Withrow, the physician claimed that the Wisconsin Medical Examiners Board's participation in prior investigative proceedings prevented it from qualifying as an independent decisionmaker. The Supreme Court implicitly rejected that structural argument and held that the "combination of investigative and adjudicative functions does not, without more, constitute a due process violation." Withrow, 421 U.S. at 58, 95 S.Ct. at 1470. However, the Supreme Court continued by pointing out that, depending on the facts and circumstances of the case, the risk of error could become intolerably high to prompt due process concerns. Id. Following the Supreme Court's decision in Withrow, the prevailing view is that a party basing a procedural due process claim on an impermissible combination of functions argument must demonstrate that the risk of actual bias is intolerably high, not merely that a combination of functions exists. See Withrow, 421 U.S. at 58, 95 S.Ct. at 1470. Thus, any form of function combination, occurring alone and without other exacerbating biasing influences, is very unlikely to run afoul of procedural due process. John R. Allison, Combination of Decision–Making Functions, Ex Parte Communications, and Related Biasing Influences: A Process–Value Analysis, 1993 Utah L.Rev. 1135, 1145.

Louisiana courts have addressed this complicated due process issue in a number of cases reviewing administrative agencies' rulings, with varying results depending on the particular facts and circumstances of each case.

Value Import, Inc. v. Louisiana Used Motor Vehicle Com'n, 12-1592 (La.App. 1 Cir. 8/9/13), 2013 WL 4039947 at *8 unpublished opinion).

In Allen v. Louisiana State Board of Dentistry, 543 So.2d 908, 909–10 (La. 1989), the State Board of Dentistry requested an attorney, who acted as both investigator and prosecutor, to prepare written findings of fact and conclusions of law. Although the Board instructed the attorney as to the Board's ultimate decision on each charge against Dr. Allen, it did not provide detailed reasons for its decision. Dr. Allen was given no notice of the ex parte participation of the prosecutor in drafting the Board's formal findings of fact and conclusions, and no opportunity to object prior to the Board's adoption of same. Allen, 543 So.2d at 913. The court found that the attorney's dual role as prosecutor and factfinder violated Dr. Allen's right to a neutral adjudicator, reasoning as follows:

[The attorney's] involvement in drafting the opinion of the committee renders the decision infirm on both statutory and due process grounds. The ex parte nature of [the attorney's] participation is specifically proscribed by La.R.S. 49:960(A).^{[3 ]} His contact with the decision maker was not limited or inconsequential. Indeed, by drafting the committee's findings and conclusions, [the attorney] put himself in the position of the adjudicator. He performed duties delegated to the committee as trier of fact under the Administration Procedure Act. [Footnotes omitted.]

Allen, 543...