Appeals Court Reverses Judge Caldwell’s “Reeks” Decision in Cerwonka–LSBEP Dispute

On April 11 the State of Louisiana First Circuit Court of Appeal, reversed Judge Michael Caldwell’s decision that the state psychology board violated Dr. Eric Cerwonka’s rights when the board used attorneys from the same law firm, and when the board’s prosecuting attorney had been previously involved with Cerwonka in a child custody case and fee dispute.

The Appeals Court reversed Caldwell, and sent the matter back to the district court for further proceedings. Costs of the appeal are to be paid by Cerwonka.

Following a January 2017 hearing the Louisiana State Board of Examiners of Psychologists revoked Dr. Cerwonka’s license. He then sought a review in the 19th Judicial District Court. Presiding Judge Mike Caldwell stopped the review and vacated the board’s decision saying that the process “reeked” with due process violations.

Judge Caldwell said that allowing Lloyd Lunceford, a member of the same law firm as the Board’s general counsel, to serve as presiding officer for the administrative proceeding; and allowing James ‘Jim’ Raines, who represented Dr. Cerwonka in a prior child custody matter, which also resulted in a fee dispute, to serve as the Board’s prosecuting attorney, violated Cerwonka’s rights to a fair hearing.

The Appeals Court disagreed. They reviewed the record of the January 2017 hearing and said that despite Ms. Amy Lowe and Mr. Lunceford being from the same law firm, this alone does not constitute a violation.

They cited a U.S. Supreme Court ruling (Withrow v. Larkin, 1975) noting the constitutional framework for analyzing issues involving the combination of investigative and adjudicative functions in state and federal administrative proceedings.

In a case involving a physician’s disciplinary hearing in Wisconsin, the Appeal judges wrote, “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.”‘

However, 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.”

The Appeal judges wrote that 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.

After reviewing the record of the hearing, the Appeals court found no evidence that Ms. Lowe had interjected herself unfairly in the proceedings. She did not prosecute or defend, or crossexamine any witnesses. The presiding officer Mr. Lunceford did not decide the merits of the allegations, and while he did rule on the admissibility of evidence, the Court did not see in its review of the record any evidence of unfairness to raise issues of due process.

Regarding Mr. Raines, Judge Caldwell agreed with Dr. Cerwonka’s view that Mr. Raines’ not recusing himself constitutes a due process violation. The Appeals Court disagreed.

The Board’s pleadings note that the issue was first raised during the course of the administrative proceeding, when Dr. Cerwonka argued that Mr. Raines should be recused because he was not impartial as required by LSAC.Cr.P. art. 680. The Appeals Court wrote that the article 680 “provides that a district attorney must be recused when he has a personal interest in the case, is related to the party accused or the party injured, or has been employed or consulted in the case as an attorney for the defendant before his election as district attorney.”

“However, we note that LSAC.Cr.P. art. 680 applies to district attorneys in criminal cases. By contrast, the Administrative Procedure Act applies to the underlying administrative proceeding. It requires only that the adjudicator be impartial and neutral.”

The Appeals Court wrote that Mr. Raines is not required to be a neutral party but an advocate, who has developed the “will to win.”

They wrote, “Dr. Cerwonka contended that Mr. Raines should have been recused because he represented Dr. Cerwonka in a prior custody case in 2006 in which a subsequent fee dispute arose between Raines’ firm and Dr. Cerwonka. Mr. Raines admitted that as a second year associate, he worked under the partner of his law firm and was one of two attorneys who represented Dr. Cerwonka over ten years prior to the initiation of the underlying administrative proceeding. That representation pertained to a custody judgment rendered against Dr. Cerwonka, which was wholly unrelated to the licensing dispute before the Board.”

“Rule 1.9 of the Louisiana Rules of Professional Conduct prohibits an attorney from representing a person or entity that is adverse to a former client in the same or substantially related matter.”

However, the Court said, “Here, there is no possibility that the issues involved in a child custody matter or a collections matter could be considered substantially related to the licensing issue before the Board.

However, Dr. Cerwonka asserts that Mr. Raines used information he possessed from his prior representation against Dr. Cerwonka in the underlying proceeding and that documents from the domestic litigation were used at the examiner’s hearing. Dr. Cerwonka has cited nothing in the record to support these assertions.”

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