Rogers v. Composite State Board of Medical Examiners ( 1980 )

Jordan, Justice,

dissenting.

I agree that this case raises very serious questions under the Fourth and Sixth Amendments to the United States Constitution. According to the complaint, there has been a serious infringement upon the rights of a private citizen and this court should address the case on its merits. I do not agree that the questions raised by the complaint are moot merely because the Board of Medical Examiners has decided to drop the investigation.

The record shows that Dr. Rogers was involved in civil litigation with the board concerning the composition and appointment of the members of the board, which on appeal to this court resulted in a ruling in favor of Dr. Rogers. ¹ During the pendency of this litigation the board sent a uniformed investigator to Dr. Rogers’ office, armed with a weapon and a subpoena, who after identifying himself and showing a badge, proceeded to read the Miranda rights to Dr. Rogers. He subsequently informed Dr. Rogers and his counsel that "it’s a criminal investigation. .. We don’t get involved in civil lawsuits.” The investigator refused to disclose any information as to the nature of the charges, other than to say it was a criminal investigation, or to identify the accusers. Dr. Rogers declined to comply with the subpoena that he furnish certain of his files to the investigator.

Shortly thereafter, newspaper reporters contacted Dr. Rogers requesting information about the episode with the investigator. On July 20,1978, an article appeared in the Columbus Enquirer wherein it was reported that Dr. Rogers was being investigated by the board for "alleged criminal acts.”

On October 25,1978, Dr. Rogers was advised by the board that the "case is closed,” and he filed this complaint challenging certain portions of the statute as being unconstitutional.

It can be seen from the above that serious allegations of a criminal nature have been made against a doctor by the board which could jeopardize his character and his profession. Reports of the criminal investigation were reported in the press in the community in which he lives and practices. He has been accused, and under this opinion is being denied the right of confrontation by his accusers.

Can we say to the doctor that your rights have not been abridged and that no damage has been done simply because your accusers say the "case is now closed”? If this is a result of our holding in Morton v. Skrine, 242 Ga. 844 (252 SE2d 408) (1979), then we made a serious mistake in that case.

The Sixth Amendment has no meaning if one can be accused of criminal acts by unknown accusers who hide behind the investigative powers of a board which has no power to investigate or indict one for a crime.

I respectfully dissent.

I am authorized to state that Judge Weltner joins in this dissent.