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In re Cerwonka

Court of Appeals of Louisiana, First Circuit

April 11, 2018

IN THE MATTER OF DR. ERIC R. CERWONKA, PSY.D

          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 656587 Honorable R. Michael Caldwell, Judge Presiding

          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 THE RIOT, 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 officer[2] 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 ...

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