Louisiana Voice

LouisianaVoice has raised what it considered legitimate concerns about the practice of state boards and commissions serving as accusers, prosecutors and judges when deciding the fate of professionals whose practices are regulated by those same boards and commissions.

Particular attention has been focused on the State Board of Dentistry, the State Board of Medical Examiners, and the Auctioneers Licensing Board where the boards initiate charges against practitioners, employ the investigators and prosecutors and ultimately hear and make decisions on the charges.

And while LouisianaVoice has consistently called attention to the practices of the DENTISTRY BOARD, little has actually changed as it and other boards continue the practice of convening as accuser, prosecutor and judge in complaint cases, many of which are generated by the boards themselves.

And while Louisiana certainly is not bound by Pennsylvania law, it is interesting that we have stumbled across a 27-year-old PENNSYLVANIA SUPREME COURT RULING that addresses this very situation. The decision of the Keystone State high court illustrates just how far Louisiana lags behind other states.

The opinion of March 18, 1992 dealt with procedures initiated by a physician way back in 1985 when the Pennsylvania State Medical Board sat as accuser, prosecutor and judge of a doctor accused of sexually molesting a 17-year-old female patient.

The physician was acquitted of all charges by court juries but that didn’t prevent the medical board from proceeding with charges related to seven other reported events of sexual molestation. The board, which had brought the additional charges, also sat as judge and jury and decided that the doctor’s license be suspended for a period of five years and that he submit himself to treatment.

Whether or not the doctor was guilty, it is important to understand that he was never convicted in a formal court setting.

When his case was finally argued before the state supreme court in April 1991, the court ruled that “the overlap of prosecutorial and adjudicatory functions, even where not complete, was anathema to the notion of due process in Pennsylvania, where citizens rightly presume that the same individual does not wear the mantel of zealous prosecutor and impartial judge.” (Emphasis added)

The opinion further said, “Due process is not swept under the carpet simply because it is transgressed by a group of people, rather than a single individual (six of seven members of the board voted to punish the physician. The presiding officer did not participate in the vote and an eighth member abstained.)

“Nor is the threat to due process inconsequential where eight members of an administrative board wear the hat of the prosecutor and make the determination that probable cause exists to bring formal charges; and then the same board—with a number of members identical—later wears the robe of the judge to make a presumably impartial adjudication which will determine the fate of a physician’s license to practice medicine in this Commonwealth,” the ruling continued. “Whether it is one person or eight who merge the prosecutorial and adjudicatory roles, the danger is equally serious.

“Thus, the mere possibility of bias under Pennsylvania law is sufficient to raise the red flag of protection offered by the procedural guaranty of due process.

The opinion cited a 1978 case in which the associate general counsel of the Pennsylvania Insurance Department had supervised the office which initiated charges and then sat as a commissioner presiding over the hearing. The court wrote in that case, “Such a commingling of prosecutorial and adjudicatory functions in one individual offends fundamental notions of due process and is constitutionally impermissible.”

The court noted that in larger organizations such as corporations and state governments, it would be permissible to parcel out and divide among distinct departments the separate duties of investigator, prosecutor and judge so long as “walls of division be constructed which eliminate the threat or appearance of bias.”

Returning to its ruling that the procedures of the board “clearly created an unconstitutional intermingling of the prosecutorial and adjudicatory functions in a single entity,” the court pointedly said, “Whether or not any actual bias existed as a result of the board acting as both prosecutor and judge is inconsequential; the potential for bias and the appearance of non-objectivity is sufficient to create a fatal defect under the Pennsylvania Constitution.

“…The accused is forced to face the same body which heard allegations and formed prosecutorial judgments concerning probable cause (some of it perhaps inadmissible as formal evidence), now dressed in the robe of impartial jurist. Such a schizophrenic face of justice poses subtle dangers which threaten complete objectivity and is not permissible under the due process guaranty of the Pennsylvania Constitution as interpreted by this court for over three decades.”

I could be interesting to see if a Louisiana dentist, physician, auctioneer or other practitioner subject to the whims of the various boards and commissions who feels he or she has been unjustly punished decides to roll the dice with the Louisiana appellate courts and the State Supreme Court.