In re Huston

840 A.2d 773, 150 N.H. 410, 2003 N.H. LEXIS 202
CourtSupreme Court of New Hampshire
DecidedDecember 29, 2003
DocketNo. 2003-103
StatusPublished
Cited by7 cases

This text of 840 A.2d 773 (In re Huston) 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
In re Huston, 840 A.2d 773, 150 N.H. 410, 2003 N.H. LEXIS 202 (N.H. 2003).

Opinion

Brock, C.J.

The petitioner, Roland E. Huston, Jr., D.V.M., appeals the order of the New Hampshire Board of Veterinary Medicine (board) suspending his license to practice veterinary medicine and imposing a $9,000 fine. The petitioner challenges: (1) the board’s denial of his motion to recuse board counsel; and (2) hearing counsel’s failure to produce all potentially exculpatory evidence before the hearing. In addition, he argues that six of the board’s findings were unjust and unreasonable. At oral argument, he conceded that his argument that the board lacked authority to order him to attend counseling was moot. We affirm.

I. Background

The petitioner owns State Line Veterinary Hospital (State Line) in Nashua. He was the subject of a board investigation in 2001, precipitated by the board’s receipt of complaints about him. In 2002, the board held a hearing at which it determined that the petitioner violated the standards of conduct under the New Hampshire Veterinary Practice Act, RSA chapter 332, as well as the board’s administrative rules and the American Veterinary Medicine Association (AVMA) code of ethics by, among other things: (1) failing to maintain proper records with respect to two animals, Sergeant Dunn and Oscar Bowen (findings 9A and 9E); (2) taking unnecessary X rays of Sergeant Dunn (finding 9D); failing to treat Sergeant Dunn properly (finding 9C); (3) using foul language to refer to his employees (finding 9H); and (4) knowingly allowing John A. Settle, Jr., a fugitive from justice, to live and work at State Line from 1998 to 2001 (finding 90).

In addition to fining the petitioner $9,000, the board suspended his license for two years and imposed a number of conditions. The board ordered that eighteen months of his two-year suspension would be deferred, however, if he met various conditions.

II. Standard of Review

RSA chapter 541 governs our review of board decisions. RSA 332-B:16, VII (Supp. 2002). Under RSA 541:13 (1997), we will not set aside the board’s order except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. See Appeal of Basani, 149 N.H. 259, 261 (2003). The board’s findings of fact are presumed prima facie lawful and reasonable. See id. at 261-62; see also RSA 541:13. This presumption may be overcome only by a showing that there was no evidence from which the board could conclude as it did. See Appeal of Basani, 149 N.H. at 262. We review the board’s rulings on issues of law de novo. See Appeal of Portsmouth Regional Hosp., 148 N.H. 55, 57 (2002).

[412]*412 III. Discussion

A. Motion to Recuse

The petitioner argues that his State and federal constitutional rights were violated because two members of the attorney general’s office prosecuted the case, while a third served as board counsel. See N.H. CONST, pt. I, arts. 15, 35; U.S. CONST, amend. XIV. The petitioner asserts his claims under the State and Federal Due Process Clauses, see N.H. CONST, pt. I, art. 15; U.S. CONST, amend. XIV, and Part I, Article 35 of the State Constitution, which also guarantees the right to an impartial jurist.

We addressed nearly identical claims in Appeal of Trotzer, 143 N.H. 64 (1998). In Trotzer, the petitioner was a psychologist whose certificate had been suspended by the New Hampshire Board of Examiners of Psychology and Mental Health Practice for professional misconduct. Id. at 65. He argued that his State and federal due process rights were violated because the department of justice had failed to “construct or maintain adequate walls of division between the assistant attorneys general who served as prosecutor and counsel to the board.” Id. at 66. He asserted that due process required “visible walls of division ... to eliminate the threat or appearance of bias” when investigative, prosecutorial and adjudicative functions are contained within a single agency. Id. at 67.

We ruled that while the appearance of bias might establish a due process violation when one person “commingle[s] investigative, accusative, and adjudicative functions,” when these functions are combined within one agency, actual bias must be shown. Id.; see also Withrow v. Larkin, 421 U.S. 35, 52 (1975). We held that, in the absence of actual bias, “it is permissible for one assistant attorney general to represent the board in its quasi-judicial capacity and another assistant attorney general to prosecute the case before the board.” Trotzer, 143 N.H. at 68.

The petitioner concedes there was no actual bias in this case. Thus, under Trotzer, his State and federal due process claims fail. See id. As Part I, Article 35 of the State Constitution affords no additional protection, his claim under that provision also fails. See Appeal of Campaign for Ratepayers Rights, 133 N.H. 480, 484 (1990).

The petitioner argues, however, that we should overrule Trotzer because it creates an ethical double standard for public and private attorneys, permitting public attorneys to do what private attorneys cannot. “In this day and age, when the reputation of the legal profession is constantly being called into question,” he contends, we should no longer sanction this double standard.

[413]*413We decline the petitioner’s invitation to overrule Trotzer. See Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504-05 (2003).

The petitioner’s argument rests upon a false premise. He assumes that the ethical obligations of private and public attorneys are identical in all circumstances. They are not. “Under various legal provisions, including constitutional, statutory and common lav?, the responsibilities of government lawyers” differ from those of private attorneys. N.H. R. Prof. Conduct Scope. Accordingly, public and private attorneys have different ethical obligations in some circumstances. See id. Lawyers under the supervision of the attorney general, for instance, “may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients.” Id. The rules of professional conduct do not abrogate this authority. Id.

By our ruling, we do not intend to imply that the ethical obligations of public and private attorneys are different in all circumstances. We are not called upon in this opinion to discuss the circumstances under which public and private attorneys are subject to the same ethical obligations.

B. Exculpatory Evidence

The petitioner argues that hearing counsel’s failure to produce potentially exculpatory evidence for his review before the hearing violated the board’s discovery order and his statutory and constitutional rights to a fair hearing. See RSA 541-A:31, IV (1997); RSA 332-B:16 (Supp. 2002); N.H. Const, pt. I, art. 15.

The evidence about which the petitioner complains was relevant to the allegation that he knowingly allowed Settle, a fugitive from justice, to live and work at State Line from 1998 to 2001.

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Bluebook (online)
840 A.2d 773, 150 N.H. 410, 2003 N.H. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-huston-nh-2003.