IN THE MATTER OF DR. ERIC R. CERWONKA, PSY.D
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
Lane Roy Elizabeth C. Austin Lafayette, Louisiana Counsel for
Plaintiff/Appellee Eric R. Cerwonka.
Groves Lowe Baton Rouge, Louisiana Counsel for
Defendant/Appellant Louisiana State Board of Examiners of
BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.
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.
AND PROCEDURAL HISTORY
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,
Board issued a summary suspension of Dr. Cerwonka's
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.
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.
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 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.
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.
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 ...