Appeal of Trotzer

719 A.2d 584, 143 N.H. 64, 1998 N.H. LEXIS 68
CourtSupreme Court of New Hampshire
DecidedOctober 5, 1998
DocketNo. 96-799
StatusPublished
Cited by8 cases

This text of 719 A.2d 584 (Appeal of Trotzer) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Trotzer, 719 A.2d 584, 143 N.H. 64, 1998 N.H. LEXIS 68 (N.H. 1998).

Opinion

HORTON, J.

The petitioner, James E Trotzer, Ph.D., appeals the decision of the New Hampshire Board of Examiners of Psychology and Mental Health Practice (board) suspending his psychologist certificate for sixty months, with leave to request a stay of the last thirty months of the suspension, as a result of professional misconduct. See RSA 330-A:14, 111(b), :15-b, VII (1995); RSA 541:6 (1997). The board found that Dr. Trotzer engaged in unprofessional and incompetent conduct in violation of RSA 330-A:14, II (c), (d) (1995). [66]*66On appeal, Dr. Trotzer argues that the board violated his rights to due process and freedom of religion. We affirm.

This case arises out of the consolidation of three allegations of professional misconduct. See RSA 330-A:15-a, VIII (1995). Dr. Trotzer is a board certified psychologist who was employed as executive director of the Renew Counseling Center in Rye. In the spring of 1993, the board received two complaints from Dr. Trotzer’s office manager and a staff counselor. In January 1995, the board received a third complaint from a former patient. Essentially, the three female complainants alleged that Dr. Trotzer engaged in inappropriate and sexually oriented behavior toward them. The board’s professional conduct committee (PCC) investigated these complaints pursuant to RSA 330-A:15-a.

On June 1, 1995, the board issued a notice of hearing informing Dr. Trotzer of the allegations of misconduct and notifying him of the commencement of a disciplinary hearing pursuant to RSA 330-A:15-b. The notice named Assistant Attorney General Dahlia A. George, of the consumer protection and antitrust bureau of the department of justice, to act as prosecutor and as a party to the proceeding. See RSA 330-A:15-a, II. The notice also named Assistant Attorney General Douglas N. Jones, of the civil bureau of the department of justice, as counsel to the board.

At a prehearing conference held on July 7, 1995, the hearing officer denied without prejudice Dr. Trotzer’s motion requesting discovery of his former patient’s subsequent clinical records on the grounds that the records were irrelevant to the proceeding. On October 7, 1996, after conducting an evidentiary hearing on four non-consecutive days, the board found that Dr. Trotzer had acted unethically, unprofessionally, and incompetently within the meaning of RSA 330-A:14, II (c), (d), by engaging in a pattern of abuse of authority. The board determined that Dr. Trotzer’s substandard and exploitative treatment of his patient, in conjunction with his exploitative behavior toward his office manager and staff counselor, necessitated disciplinary sanctions to prevent safety risks to future patients.

I. Due Process

Dr. Trotzer contends that the board violated his right ,to due process under the State and Federal Constitutions by: (1) failing to construct or maintain adequate walls of division between the assistant attorneys general who served as prosecutor and counsel to the board; (2) allowing a recused member of the board to participate in the prosecution of the case; and (3) denying his prehearing motion [67]*67for discovery of the subsequent clinical records of his former patient. We disagree.

We address Dr. Trotzer’s State constitutional claims first, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only as an aid to our analysis, Appeal of Dell, 140 N.H. 484, 491, 668 A.2d 1024, 1031 (1995). “Because we conclude that federal law is not more favorable to the petitioner, we make no separate federal analysis.” Id. at 492, 668 A.2d at 1031 (quotation omitted). Dr. Trotzer has a legally protected property interest in his license entitling him to the safeguards of due process. See, e.g., Appeal of Grimm, 141 N.H. 719, 720, 692 A.2d 508, 510 (1997) (Grimm II); Petition of Grimm, 138 N.H. 42, 46, 635 A.2d 456, 459 (1993) (Grimm I).

We will not set aside a decision of the board absent an error of law, unless the decision is clearly unjust or unreasonable. See RSA 541:13 (1997); Grimm II, 141 N.H. at 723, 692 A.2d at 511. The board’s findings of fact shall be deemed “prima facie lawful and reasonable.” Grimm II, 141 N.H. at 723, 692 A.2d at 511-12 (quotation omitted).

First, Dr. Trotzer contends that his due process rights under Part 1, Article 15 were violated when one member of the attorney general’s office participated in the prosecution of the case and another member of the office participated in the adjudication of the case. He argues that “where investigative, prosecutorial, and adjudicative functions are reposed within a single entity, visible walls of division must be constructed to eliminate the threat or appearance of bias.” He maintains that the failure of the attorney general’s office to establish “walls of division” between the prosecutor, Attorney George, and counsel to the board, Attorney Jones, deprived him of due process. Alternatively, Dr. Trotzer asserts that even if walls of division existed in this case, the record demonstrates that Attorney George and Attorney Jones repeatedly breached such walls.

Dr. Trotzer contends that Attorney George and Attorney Jones commingled investigative, accusative, and adjudicative functions. Specifically, he notes that after Attorney George was appointed to act as prosecutor, the board continually referred him to her for routine inquiries, evidencing a lack of impartiality. Dr. Trotzer also maintains that Attorney Jones’ conduct as counsel to the board jeopardized the impartiality of the proceedings, resulting in actual prejudice. For example, he contends that at the prehearing conference, Attorney Jones questioned him in the absence of any request [68]*68from the board, denied him the opportunity to ask the board questions, and usurped the board’s authority by denying certain motions before the board had an opportunity to rule on them. Finally, Dr. Trotzer argues that Attorney Jones abandoned all pretense of impartiality at the hearing by aiding Attorney George in her cross-examination of him, attempting to point out inconsistencies in his testimony, and questioning his credibility.

When a single individual commingles investigative, accusative, and adjudicative functions, the mere appearance of prejudice may be sufficient to violate due process. See, e.g., Appeal of Office of Consumer Advocate, 134 N.H. 651, 659-60, 597 A.2d 528, 533 (1991). We have long recognized, however, that the legislature does not offend due process merely by assigning investigative and adjudicative functions to the same administrative body. See, e.g., id.; Appeal of Beyer, 122 N.H. 934, 940, 453 A.2d 834, 837-38 (1982). Where investigative, accusative, and adjudicative functions are commingled within a single administrative agency, a party alleging a due process violation must show actual bias in order to prevail. See, e.g., Consumer Advocate, 134 N.H. at 660, 597 A.2d at 533; Scarborough v. Arnold, 117 N.H. 803, 809-10,

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Bluebook (online)
719 A.2d 584, 143 N.H. 64, 1998 N.H. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-trotzer-nh-1998.