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.

Granted, it was half-a-century ago when I attended Louisiana Tech, but still, to see the difference between the cost of a college education then and now is mind-boggling—and not a little depressing.

When I was at Tech, gasoline was 30 cents a gallon. Today, it hovers around $2 and has on occasion exceeded $3. My new 1969 Chevy Malibu was, if I recall correctly, in the neighborhood of $2,500-$3.000. (My first car, a ’64 VW Beetle, was a whopping $1,600, right off the showroom floor.) I don remember the prices of a gallon of milk or a loaf of bread then but suffice it to say it was considerably less than what we pay today. My first house, a nice brick home on an acre lot in a nice neighborhood in Ruston was around $11,000-$12,000.

So, based on the price of those items, gasoline and automobiles have increased about tenfold. Homes a shade more than that and while I can’t say for certain, I would assume milk and bread have increased along those same lines.

Not a college education, though. Oh, no.

When I was at Tech, it cost me anywhere from $100 to $200 per quarter, excluding books. That’s because as a resident of Ruston, I lived off campus.

My grandson, who attends Tech and who also lives off-campus in my late mother-in-law’s home in nearby Simsboro, just forked over $3,529.20 to attend the fall quarter.

It would be about half that amount but for a laundry list of obscure fees tacked onto the tuition, which was a more modest $1.851.

And it might well be considerably less than that but for one Bobby Jindal who during his eight disastrous years as governor, managed to slash about 75 percent of state funding from Louisiana’s colleges and universities. Don’t for a moment think that I’ve forgotten that.

[Of course, Eddie Rispone, with his promise of a rollback of taxes, would likely continue down that same reckless path.]

But I digress. The fees. Oh, yes, the fees. I would love for someone to come forward and explain, item-by-item what those fees are for. Here’s the list:

• Building Use Fee: $44.50 (okay, I get that, sort of. But many of those buildings have been “in use” for a long time—and they already have a dormitory fee for those living on campus).
• Academic Enhancement Fee: $16.67. Say what?
• Academic Excellence Fee: $80. What’s the difference between “enhancement” and “excellence’? Someone please enlighten me—and why does “excellence” cost nearly five times as much as “enhancement”?
• Operational Fee: $46. And how is that different than the Building Use fee?
• General Fee: $95.39. I guess they couldn’t come up with a creative name for that one.
• University Support Fee: $594.04. Okay, you have a Building Use fee and an Operational fee. What, pray tell is this for?
• Student Self-Assessed Fee: $327.90. As I remember from my student days, part of this was for the student newspaper—which now is online and not even printed—and for the Tech yearbook, The Lagniappe. Does anyone even get a yearbook anymore?
• Technology Fee: $45. What technology? Wi-fi perhaps? Seems a little high when you multiply that by several thousand students.
• Energy Surcharge: $80. Again, multiplying that by thousands of students…

The amounts given above were applicable to number of hours my grandson is taking. Some of the fees are even greater for students taking more hours.

And there are also parking permit fees for students bringing cars onto the campus, dorm fees for those living on campus, meal ticket fees for students eating in the campus cafeteria, and out-of-state fees for, well, out-of-state students.

And I thought reading all the charges on my cellphone bill was complicated.