Allen v. State Bd. of DentistryAllen v. State Bd. of Dentistry
Guy Wootan, Patricia Haker, Wootan & Stakelum, for respondent.
COLE, Justice.
This case arises out of Dr. William D. Allen‘s petition for judicial review of the Louisiana State Board of Dentistry‘s decision suspending his license to practice dentistry for ten years. The district court, after an administrative remand and additional evidentiary hearings, reversed six of the Board‘s findings of professional misconduct but left the suspension intact. The Court of Appeal, Fourth Circuit, reversed three other of the Board‘s findings but otherwise affirmed the trial court.1 We granted certiorari2 to consider the important statutory and constitutional due process questions raised below, particularly those dealing with prosecutorial involvement in the administrative decision making proсess.
I. FACTS
On November 4, 1985, the Louisiana State Board of Dentistry (Board) brought formal charges against Dr. William Allen (Allen) alleging various violations of the Louisiana Dental Practice Act,
On February 13, 1986, Allen filed a federal civil rights lawsuit in U.S. District Court against all Board members and Wootan. The federal court abstained from hearing the case pending resolution of the State proceedings and the abstention was upheld by the U.S. Fifth Circuit Court of Appeals.4 On February 20, 1986, Allen filed a Motion to Recuse all Board members because of the pending federal action. The Board denied the motion and the hearing
The administrative hearing, with Wootan serving as prosecutor for the Board, lasted four days, concluding on February 24. The four members of the disciplinary committee5 (committee) took the matter under advisement and met on March 1, 1986 to deliberate and reach a decision. Neithеr Wootan nor Allen‘s counsel were present at these deliberations. When the committee deliberated, it had all the trial exhibits but it did not have the transcript of the hearing. Certain members of the committee had notes they had made during the hearing. After two and one half hours of deliberation, the committee found Allen “guilty” of 27 of the 45 violations charged, fixed the fines for these violations at $25,500.00, suspended Allen‘s license for ten years with an additional ten years probation, and ordered him to pay costs of $61,478.19.
On the following Monday, Dr. de la Houssaye, the chairman of the committee, contacted Wootan. He informed him of the committee‘s decision and instructed him to prepare the findings of fact and conclusions for the committee. The parties dispute whether Dr. de la Houssaye informed Wootan of any factual findings of the committee apart from the “guilty/not guilty” decision and the amount of the fines. Wootan then drafted detailed findings and conclusions which were signed by each committee member.
Dr. Allen subsequently filed three separate petitions for rehearing with the Board. In the petition filed February 26, 1986 (before the committee met to deliberate), Allen accused Wootan of inciting an illegal entry into his office by Brenda Gremillion and Terry Marino, two former employees of Dr. Allen who were among the initial complaintants. These accusations were supported by affidavits given by Gremillion and Marino. On April 14, 1986, the committee denied the petitions. Wootan again drafted the reasons for the committee‘s denial of rehearing despite the accusations made against him.
Beginning on March 27, 1986, Allen filed several petitions for judicial review of the Board‘s decision in the Civil District Court for the Parish of Orleans. On May 2, 1986, the trial court ordered the administrative hearing re-opened for two limited purposes: first, to develop a record concerning the illegal entry into Allen‘s office; and, second, to permit Allen to make all proffers of proof he was not allowed to make at the initial hearing. This limited rehearing was held June 21, 1986, and at its conclusion the committee оrally reaffirmed its prior decisions.
On October 6, 1986, Allen filed a Petition for Evidentiary Hearing in the district court to develop a record concerning Wootan‘s involvement in the Board‘s decision making process and in drafting the findings and conclusions of the hearing committee. The district court denied the petition and the Court of Appeal, Fourth Circuit, affirmed. On November 21, 1986 this Court granted supervisory writs, reversed the Court of Appeal, and remanded the case to the district court to take evidence on the issue of Wootan‘s involvement.6
On May 29, 1987, Allen filed another Petition for Evidentiary Hearing in the district court, alleging he had new evidence of Wootan‘s involvement in the illegal entry into his office. An evidentiary hеaring was held on both petitions on June 22, 1987 and argument was heard on Allen‘s Petitions for Judicial Review. On September 29, 1987, the trial court entered judgment reversing six of the Board‘s findings, reducing the fines accordingly, and affirming the board in other respects. Allen appealed and the Fourth Circuit, after reversing three additional findings of misconduct and reducing the fine, affirmed the trial court. Neither the trial court nor the Court of Appeal modified the ten year license suspension imposed by the committee and the Board.
In his application for certiorari and briefs to this court, Allen raised four substantive and procedural issues:
1) Whether the Court of Appeal erred in finding the admission of evidence obtained in the illеgal entry was proper;
2) Whether the Court of Appeal erred in concluding the dictates of the Louisiana Administrative Procedure Act and due process were not violated by Wootan‘s ex parte involvement in drafting the findings and conclusions adopted by the Board;
3) Whether the Court of Appeal erred in concluding the Board had no statutory duty under
La. R.S. 37:779 to contact patients and thus substantiate the charges made by former employees; and4) Whether the Court of Appeal erred in holding Allen was not denied his due process right to a fair hearing before an impartial tribunal.
All of these issues are properly subject to our review under the Louisiana Administrative Procedure Act. See
III. ANALYSIS
A. Suppression of Evidence
Allen argues the Board and the courts below erred in failing to suppress evidence allegedly obtained in an illegal entry into his office on August 26, 1985 by two of the principal complainants: Brenda Gremillion and Terry Marino. He contends Wootan “incited” the break-in and the Board “knowingly” utilized the fruits of the illegal entry. The Board denies both charges and submits they are not supported by the record. Apart from the legal issues raised by this allegation, two critical factual questions are presented: who knew what and when did they know it?
The chief fact supporting Allen‘s allegation Wootan “incited” the break-in is that the illegal entry occurred on the evening of August 26, 1985. Wootan had spoken with Terry Marino by telephone that same day. Marino and Gremillion testified Wootan told them it would be “helpful” if they could remember names, dates and the procedures they performed on patients contrary to the Louisiana Dental Practice Act. The two women stated they entered Allen‘s office through a window at approximately 10:00 P.M. They then copied information concerning patients and procedures from appointment books into a small notebook they brought with them. The information they obtained in the break-in was allegedly passed on to Wootan. Gremillion positively stated, however, that she did not inform Wootan how she had obtained the information she provided.7
We conclude, as a matter of fact, Woоtan did not in any way “incite” the illegal entry into Allen‘s office. It seems undisputed that Wootan, and therefore the Board, did not know of the break-in until after the disciplinary committee hearing in February, 1986. Thus we find Allen‘s claim the Board “knowingly” utilized illegally obtained evidence is also without merit.
In light of these factual determinations, the application of the pertinent legal rules becomes relatively straightforward. Allen asks us to apply the exclusionary rule in an administrative proceeding to suppress information illegally obtained by private parties acting independently. Following well-established legal principles, we decline to do so.
As the Court of Appeal correctly observed, the exclusionary rule is designed as a general deterrent to future violations of constitutional rights rather than a private remedy for a past violation. United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). More importantly, the prohibitions of the Louisiana and United States Constitutions against illegal searches and seizures are aimed at governmental
In addition, the applicability of the еxclusionary rule in administrative proceedings has been the subject of much debate. See generally Note, The Applicability of the Exclusionary Rule in Administrative Adjudicatory Proceedings, 66 Iowa L. Rev. 343 (1981). We addressed this issue in our recent opinion in Pullin v. Louisiana State Racing Comm‘n, 484 So. 2d 105 (La. 1986) (on rehearing). In Pullin, a plurality of this Court refused to apply the exclusionary rule in an administrative license revocation proceeding even though the evidence had been illegally seized by police officers.9 Rather than impose a per se exclusionary rule on the admissibility of improperly obtained evidence in administrative proceedings, we adopted the balancing test developed by the U.S. Supreme Court in Janis, 428 U.S. 433. We observed: “The appropriateness of extending the [exclusionary] rule to a particular proceeding is to be determined by the likely social benefits of excluding unlawfully seized evidence against the likely social costs.” 484 So. 2d at 106.
Under this test, the case for application of the exclusionary rule is much weaker here than it was under the facts of Pullin. There is no apparent social benefit in applying the exclusionary rule in this case since the parties who acted improperly were private citizens. Gremillion and Marino, unlike the government agents in Pullin, are unlikely to be deterred from similar conduct in the future by the exclusion from this proceeding of their ill-gotten evidence. Since the Board did not incite the illegal entry or knowingly use the tainted evidence, application of the rule is not needed to deter the Board from illegal conduct. On the other side of the balance, the costs of excluding the improper evidence and its alleged “fruits” would be high. The state has a strong interest in enforcing its dental practice regulations for the protection of the health of its citizens. We therefore find, under the Pullin test, the Board and the lower courts did not err in failing to exclude the evidence of which Allen complains.
Finally, Allen urges us to exclude the evidence under the rule adopted by the U.S. Seventh Circuit Court of Appeals in Knoll Associates, Inc. v. Federal Trade Comm‘n, 397 F.2d 530 (1968). In Knoll, the court applied the exclusionary rule to documents stolen by a private party but later used by thе administrative agency in its administrative action against the company. Even if we were convinced of the wisdom of the per se rule apparently employed by the U.S. Seventh Circuit, Knoll is readily distinguishable from the present case. In Knoll, the court found the Commission‘s representatives knew the private party had stolen the documents he gave them for use in the prosecution. 397 F.2d at 537. We have concluded as a matter of fact that the Board and its representative, Wootan, did not knowingly use illegally
We conclude the Court of Appeal did not err in refusing to apply the exclusionary rule to the evidence illegally obtained by Gremillion and Marino. Allen did not show that Wootan “incited” the illegal conduct or that the Board “knowingly” used unlawfully obtained information. In light of these factual shortcomings, Allen cannot рrevail on this issue under our established jurisprudential rules governing the role of the exclusionary rule in administrative adjudicatory proceedings.
B. Prosecutorial Involvement in Drafting Decision
It is clear from the record that Wootan, the Board‘s prosecutor, drafted the formal findings of fact and conclusions of the committee. Wootan‘s participation was ex parte and without notice to Allen. Allen was given no opportunity to object to the prosecutor‘s proposed findings and conclusions prior to the committee‘s adoption of them. On the other hand, it is equally clear that Wootan did not play any role in the committee‘s decision on the ultimate issue with respect to any individual charge, i.e., whether Allen was “guilty” or “not guilty.” Nor did Wootan fix the penalty assessed. One fact very much in dispute is the precise extent of Wootan‘s involvement in drafting the committee‘s detailed findings and conclusions. The Court of Appeal concluded Dr. de la Houssaye, the committee chairman, had spoken at length with Wootan as to the committee‘s reasons for judgment. We disagree.
At the evidentiary hearing on the issue of Wootan‘s involvement in the drafting of the committee‘s findings, all four members of the committee testified, as did Wootan and his former paralegal, Marcia Kisner. Wootan said Dr. de la Houssaye had given him a brief statement of the committee‘s reasons for ruling as it did. Dr. de la Houssaye first testified he did not dictate detailed findings and conclusions to Wootan. Later in the hearing he stated he had given Wootan detailed reasons for the committee‘s findings, including detailed notes on the testimony of each witness. The testimony of the other three members of the panel clearly indicates the committee members never even arrived at detailed findings and conclusions. They delegated this task to Wootan in his role as counsel to the Board. Dr. Merrick Dugal specifically testified the committee formulated no reasons at all but only reached a final decision on each specification and the penalty to be imposed. Kisner, who assisted Wootan in preparing the findings and conclusions, testified she worked from notes she had made as the prosecutor‘s assistant at the committee hearing. She used no findings by the committee in preparing the draft.
From these facts, we find the Court of Appeal erred in concluding the committee‘s opinion was not largely the product of the Board‘s prosecutor. Wootan was not merely a scribe; he became the main fact finder. The detailed findings and credibility judgments which were offered in support of the committee‘s final decision and which play such a critical role in meaningful judicial review were simply not those of the neutral hearing committee. They were the secret product of an advocate. This infirmity is not cured by the fact Wootan‘s drаft was adopted verbatim by the committee members after minimal review.
The committee members were apparently of the opinion that their findings of fact needed to be drafted by a lawyer and cast in “legal language.” The Louisiana Administrative Procedure Act imposes no such requirement. All the committee needed to do was articulate, in its own words, the reasons for its conclusions. If the committee thought the assistance of an attorney was desirable, it should have contacted an indeрendent counsel, not the prosecutor, and given this attorney the reasons why the committee reached the conclusions it did. This procedure would avoid even the appearance of impropriety and
Wootan‘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 Wootan‘s participation is specifically proscribed by
The Board argues Allen‘s due process right to a neutral adjudicator was not violated here since the committee had decided the ultimate quеstion of guilt prior to Wootan‘s participation and since the committee members subsequently signed the draft opinion. We reject both these arguments. The first fails because the committee‘s conclusions on the ultimate issue are only as strong as their factual basis. Wootan cannot be considered a neutral party; his role was that of advocate, one who has developed the “will to win.” See Grolier, Inc. v. Federal Trade Comm‘n, 615 F.2d 1215 (9th Cir. 1980)ex parte nature of Wootan‘s involvement distinguishes the procedure followed here from the practice of some trial courts of allowing counsel to prepare draft “reasons for judgment” for the court. We conclude that since Wootan‘s “involvement” in the decision process began before the adjudicators’ task was done, i.e., before the committee had arrived at findings of fact and reasons for judgment, Allen‘s right to a neutral adjudicator was violated.
As to the Board‘s second contention, we find ample basis in the record to question the thoroughness with which the individual committee members reviewed Wootan‘s draft. The committee made no independent rulings on each proposed finding as required by
In light of the substantial powers given to administrative bodies, the courts must be vigilent in assuring that parties in administrative adjudications receive the procedural protections our law affords. As we held above, Wootan‘s dual role as prosecutor and factfinder violated Allen‘s right to a neutral adjudicator. In addition, however, this commingling of functions violated Allen‘s right to a hearing that is both fair and that has the appearance of fairness, and his right to meaningful judicial review.
First, Wootan‘s secret involvement in drafting the committee‘s opinion robbed these proceedings of the crucial appearanсe of fairness. As we observed in Matter of Rollins Environmental Services, Inc.: “Not only must there be impartiality on the part of a presiding officer in an administrative adjudicatory hearing, but there must also be in connection with the hearing the appearance of complete fairness.” 481 So. 2d 113, 119 (La. 1985) (footnotes omitted) (emphasis in original). Apart from the substantive unfairness caused by Wootan‘s roles as investigator, general counsel, prosecutor and fact finder, this commingling of functions clearly created the appearance of impropriety. This, coupled with the actual prejudice Allen suffered, is sufficient to constitute a denial of due process. See Bruteyn v. State Dental Council & Examining Bd., 32 Pa. Cmwlth. 541, 380 A.2d 497, 502 (1977).15
Another consequence of the commingling of the prosecutorial and adjudicative functions in this case is the harm done to Allen‘s right to meaningful judicial review under
In short, we find the commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further. The courts below erred in concluding otherwise.
C. Failure to Contact Patients
Allen‘s claim his due process rights were violated by the Board‘s failure to contact the patients involved in his alleged wrongdoing is clearly without merit.
D. Denial of Fair Hearing
Because we conclude a remand is proper on other grounds, we pretermit discussion of this issue.
IV. CONCLUSION
We conclude the Court of Appeal was correct in refusing to apply the exclusionary rule to the evidence illegally obtained by Brenda Gremillion and Terry Marino. There is no evidence the Board incited the illegal search or that it knowingly used the tainted evidence. Since suppression of the evidence would not serve as a deterrent, we decline to apply the exclusionary rule in this case. The Court of Appeal was also correct in finding the Board has no blanket duty to contact patients when the requirements of
The Court of Appeal erred, however, in concluding Wootan‘s ex parte drafting of the findings of the committee was not improper. Wootan‘s conduct was clearly violative of
In this professional licensing case, the matter of a dentist‘s professional conduct is particularly within the expertise of the Board. This expertise, however, is not a substitute for reasoned findings. See Baltimore & Ohio Railroad v. Aberdeen & Rockfish Railroad, 393 U.S. 87, 89 S. Ct. 280, 21 L. Ed. 2d 219 (1968). The committee was also required to supply factual findings and legal cоnclusions under
V. DECREE
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 in 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.
REVERSED AND REMANDED.
DENNIS, J., concurs with reasons.
DIXON, C.J., dissents.
CALOGERO, J., dissents and assigns reasons and would grant a rehearing.
I respectfully concur, disagreeing only with the majority opinion‘s treatment of relator‘s Assignment of Error # 1. The majority incorrectly concludes that, like the Fourth Amendment of the United States Constitution, the Louisiana Constitutional prohibition against illegal searches and seizures is “aimed [only] at governmental conduct rather than the actions of private citizens operating independently of the government or its agents.” Article I, Section 5 of the Louisiana Constitution affords broader protection than the Fourth Amendment against invasions of privacy. See State v. Church, 538 So. 2d 993 (La. 1989); State v. Hernandez, 410 So. 2d 1381 (La. 1982); State v. Hutchinson, 349 So. 2d 1252 (La. 1977); State v. Abram, 353 So. 2d 1019 (La. 1978); State v. Overton, 337 So. 2d 1201 (La. 1976); State v. Kinnemann, 337 So. 2d 441 (La. 1976); L. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. (1974).
The Board of Dentistry, not Wooten, deliberated on the evidence.
The Board, not Wooten, found the defendant in violation of the Louisiana Dental Practice Act.
And the Board, not Wooten, determined the appropriate penalties for these violations.
I simply cannot agree with the majority that under these circumstances, the Board‘s decision to have Wooten author its formal findings requires this Court to reverse the Board (as well as the court of appeal and the trial court) and to remand for a new hearing.
The majority relies upon Bruteyn v. State Dental Council & Exam. Bd., 32 Pa. Cmwlth. 541, 380 A.2d 497 (1977). There, the court indeed concluded that the prosecutor, who toоk it upon himself “to amend and supplement certain findings” of the dental board, overstepped his prosecutorial function to the point that the outcome of the proceeding was tainted, and due process considerations require a new hearing. 380 A.2d at 502. In so holding,
“such assistance came after the Board had reached its decision and the assistant [the prosecutor] in no way participated in or influenced the decision.... While it would be a better practice to have review of adjudications conducted by an individual who did not participate in the prosecutorial role, we can find no prejudice here, where the Board reached its decision independent of and prior to any assistance from the rеpresentative of the Department of Justice. Appellant was not denied due process in this regard.” 457 Pa. at 272-73, 318 A.2d at 915. (emphasis added)
If indeed we are to rely on Pennsylvania law as persuasive authority for resolving this issue, it would appear that Pollack is more factually similar to this case than Bruteyn. As I read the majority opinion in this case, it does not hold that the administrative hearing itself was tainted. Nor does it conclude that the Board‘s determinations as to the violations that occurred or the penalties that were imposed were not independently reached. And, finally, it does not conclude that the record does not support the board‘s determinations in that regard. The majority‘s only quarrel is with the manner in which the Board chose to articulate its ruling.
Absent some shоwing of actual prejudice to the defendant caused by the fact that the prosecutor authored the board‘s findings, I am unwilling to conclude that the rulings below must be reversed and that the case must be remanded for a new hearing. Instead, I believe we should have rejected defendant‘s argument regarding the alleged improper role played by the prosecutor, and proceeded to determine the merits of the case (that is, whether the Dental Board‘s ruling or any portion thereof, as modified by the courts below, was unreasonable, arbitrary, capricious or amounted to an abuse of discretion, considering the evidence).