STATE OF WISCONSIN

BEFORE THE MEDICAL EXAMINING BOARD

 

IN THE MATTER OF THE DISCIPLINARY

PROCEEDING AGAINST:

 

            STUART M. SUSTER, M.D., Respondent                  CASE NO. 00 MED 272

                                                                                                LS-0210291-MED

            STUART M. SUSTER, M.D.,

Counter-Plaintiff

 

                                    vs.

 

            WISCONSIN STATE BOARD OF MEDICAL EXAMINERS.

                                    Counter-Respondent

            _________________________________

 

 

            STUART M. SUSTER, M.D., Cross-Plaintiff

 

                                    vs.

 

            ARTHUR THEXTON et al, Cross-Respondent

 

            ________________________________

 

 

RESPONDENT’S POST-HEARING CLOSING ARGUMENT BRIEF

FOR PROPOSED DECISION BY ALJ AND ATTACHED NARRATIVE

 

            NOW COMES Stuart M. Suster, M.D., Respondent to file this Post-Hearing Closing Argument Brief for Proposed Decision by ALJ and would show the Court the following, to wit:

 

            First, all the witnesses called by the prosecuting attorney, Arthur Thexton, could have been all impeached by the Respondent during the hearing as the transcript will show.  In cross-examination, it was shown that the witnesses were nervous and contradictory about the truthfulness of their direct testimony for the prosecution.  Thus, none of the testimony can be relied upon to decide any fact issues or merits in this case.  The prosecuting attorney failed to meet the burden of proof necessary in each count to prevail in this case.  The Respondent has not been allowed a meaningful nor adequate legal defense.  In addition, all evidence offered by the prosecuting attorney is tainted by his own written admission by a letter written to Respondent’s counsel.

 

 

 

Failure to Provide Oaths of Office for Board Members and Office of Administrative Law Judge

 

The Respondent is being prosecuted by the Wisconsin Medical Examining Board for alleged violations of the Wisconsin Medical Practice Act.  An alleged appointed Administrative Law Judge was assigned to this instant case being an individual named Ruby Jefferson-Moore.

 

A search of the records at the Office of the Wisconsin Secretary of State revealed that the individual Ruby Jefferson-Moore has not filed an Oath of Office with the Office of Secretary of State for Wisconsin for the appointment and/or any reappointments to the Office of Administrative Law Judge.  The response from the Office of Secretary of State certifies that an Oath of Office was not filed.

 

The omission of non-filing by Ruby Jefferson-Moore of her Oath of Office has serious legal repercussions and consequences that directly affect the alleged prosecution of Respondent, Stuart M. Suster, M.D. in this case.

 

Several legal provisions of the law demand that a state-appointed officer, i.e. Administrative Law Judge, take an Oath of Office and file the same with the designated depository which are as follows:

 

The U.S. Constitution, Art. VI, cl. 3, states that,

 

“…all executive and judicial officers…of the several states, shall be bound by Oath of Affirmation, to support this Constitution…”

 

“Every state…executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 to support his Constitution.”  Cooper v. Aaron, 358 US. 1.  The first step in supporting the U.S. Constitution is taking the Oath of Office.

 

The Federal Statute or Code, Title 4 USC §101 states that,

 

“…every executive and judicial officer of a State, shall, before he (she) proceeds to execute the duties of his (her) office, take an oath in the following form, to wit:  ‘I A B, do solemnly swear that I will support the Constitution of the United States.’”

 

The Wisconsin Constitution, Art. IV, Section 28, states that,

 

“…all officers, executive and judicial, except such inferior officers as may be by law exempted, shall before they enter upon the duties of their respective offices, take and subscribe an oath or affirmation to support the Constitution of the United States and the  Constitution of the State of Wisconsin…”

 

The Office of Administrative Law Judge is not exempted by the law; therefore, Ruby Jefferson-Moore must take and file her Oath of Office before she is able to take office or execute any duties.

 

The Wisconsin Statute also addresses Official Oaths and Bonds in Subchapter I, s. 19.01,

“19.01 Oaths and Bonds (1) Form of Oath.  Every official oath required by Article IV, Section 28, of the Constitution or by any statute shall be in writing and sworn to…” (emphasis added)

 

“19.01(4) Where Filed.  (a)  Official oaths and bonds of the following public officials shall be filed in the Office of the Secretary of State:  (emphasis added)

 

The Administrative Law Judge is included under s. 19.01 (1) and (4) as defined by s. 19.01 (4) (9):

 

“(4) 9.  Every officer…whose compensation is paid in whole or in part out of the state treasury…”

 

The statute also addresses the time for filing:

 

“(5) Time of Filing.  Every public officer required to file an official oath or an official bond shall file the same before entering upon the duties of the office; and when both are required, both shall be filed at the same time. (emphasis added)

 

The Office of the Administrative Law Judge allegedly held or filled by Ruby Jefferson-Moore has been vacant during the pendency of the Respondent, Stuart M. Suster, M.D. case.  Statute 17.03 addresses vacancies, how they are caused, and the effect of taking and filing the official oath and filing a bond.

 

Statute 17.03 (7) specifically requires an office to be constructively vacated when:

 

“(7) A person…appointed or…reappointed to any office neglects or refuses to take and file the official oath or to execute or renew the official bond if required, or to file the oath or bond as prescribed by law.”  (emphasis added)

 

Ruby Jefferson did file an Oath of Office for her appointment as Assistant Attorney General in 1977, but that oath does not pertain to an Administrative Law Judge office.  Ruby Jefferson-Moore has neglected or refused to take and file her official Oath of Office, and thus, the office and the duties of the office cannot commence or begin without her said oath and bond.  Recusal is demanded when interest and prejudice concerns are involved.  Ruby Jefferson-Moore does not legally hold the Office of Administrative Law Judge for the Wisconsin Medical Examining Board or any other board and cannot legally perform the duties of the office.  Ruby Jefferson-Moore as an individual could not have a genuine interest in administering justice as an Administrative Law Judge because she is not bound by any oath to support the U.S. and Wisconsin Constitutions or State and Federal Statutes.

 

Furthermore, Ruby Jefferson filed an Oath of Office for her appointment as Assistant Attorney General in 1977 and did not file an Oath of Office for her appointment as Administrative Law Judge therefore demonstrating bad faith in her willful failure to take and file an Oath of Office by statutory obligation, 124 F.2d 875,883.

Whatever interest that Ruby Jefferson-Moore had or has would be a conflict of interest concerning the Respondent in this case because no judicial interest exists.

 

Also, the Respondent is severely prejudiced by not having a legal presiding administrative law judge who has the duty and responsibility to be fair, unbiased and administer justice according to the U.S. and Wisconsin Constitutions and statutes under oath to support same.

 

This dilemma of the Respondent is serious because it involves due process of law and equal protection under the law violations.  The Respondent has a constitutional and statutory right to legal hearings, determinations and rulings from a legitimate and legally constituted administrative law judge.

 

A final decision by Ruby Jefferson-Moore as a result of a fatally defective hearing would be illegal and erroneous.  Ruby Jefferson-Moore is not a civil servant under civil service law, and she speaks for the sovereign when the Medical Board is not in session.

 

Ruby Jefferson-Moore should have recused herself as the presiding alleged Administrative Law Judge in this case and cannot take any action in the future.  The filing of the Original Complaint must be approved by the full Board, Stats. §448.02(3)(b), before the ALJ may conduct the hearing.  There was no full Board because several Board Members had not taken or filed their Oath of Office.

 

Conspiracy with ALJ to Prohibit Respondent’s Right to Exercise Proper Legal Proceeding, i.e. Counterclaim, Cross-claims and Conspired with Medical Examining Board

 

The Cross-Respondents have maliciously alleged and accused the Cross-Plaintiff of various acts that the Cross-Respondents know to be false and misleading.  The specific allegations are now known to the Cross-Plaintiff through the original defective Complaint, deposition and the hearing.

 

The Cross-Respondents are conspiring with the prosecuting attorney of the Wisconsin State Board of Medical Examiners and others to intimidate, harass and illegally sanction and punish the Cross-Plaintiff.

 

The Cross-Respondents are conspiring with the Wisconsin State Board of Medical Examiners to violate the Civil and Constitutional Rights of the Cross-Plaintiff, more particularly being due process law found in the 1st, 4th, 5th and 14th Amendments to the U.S. Constitution.

 

The prosecuting attorney, Mr. Thexton, has falsely and erroneously advised Cross-Respondents that the Cross-Complaints are legally of no force or effect.  Mr. Thexton is interfering with the judicial process of this Administrative Court in a way that is contrary to established law and civil rules of procedure reflecting on the integrity of the Court.  There has been no legal determination of the legality or validity of the pleadings, only the unsubstantiated and biased guess-a-ments of Thexton.

 

Also, Mr. Thexton has made ex parte contacts and communications with the Administrative Judge in this case which is in violation of the Code of Professional Responsibility, Court Procedures and fair play.  This must stop immediately.

 

Additionally, Mr. Thexton is falsely and erroneously advising Cross-Respondents that he would represent them and that they did not need to retain other legal counsel for themselves.

 

Mr. Thexton is blatantly in violation of the Wisconsin Code of Professional Responsibility and the American Bar Association Rules of Conduct, which specifically forbids willful and intentionally false and misleading advice and counsel to the public.

 

The prosecuting attorney in this case maliciously alleged and accused the Respondent of committing acts that were known to be untrue and did not occur.  The prosecuting attorney of the Wisconsin State Board of Medical Examiners and others used tactics to intimidate, harass and illegally sanction and punish the Respondent.  The Wisconsin State Board of Medical Examiners violated the Civil and Constitutional rights of Respondent, more particularly being due process of law found in the 1st, 4th, 5th and 14th Amendments to the U.S. Constitution.

 

Respondent’s inquiries and questions continue to go unanswered in this case; however, the ALJ informed Mr. Arthur Thexton of rulings that were determined, thereby allowing him to know in advance, and to Respondent’s exclusion, decisions reached on matters before the ALJ’s court regarding Respondent’s case.  It is well established that the ALJ has and continues to have ex-parte discussions/meetings with Mr. Arthur Thexton.   These ex-parte discussions with the prosecution is unfair and does not allow Respondent a fair and impartial hearing/judge.

 

The ALJ allowed altered documents to be displayed in the court as though these documents were the originals.   “Cutting and pasting” documents is not legal, and yet the prosecuting attorney, Arthur Thexton, openly admitted on October 29, 2003 that he used a “cut and pasted” document in an attempt to impune me.  The ALJ said and did nothing and, indeed, acted as though this “cutting and pasting” is “business as usual”.  Documents were presented with numerous “white-outs” to which Respondent vehemently objected. 

 

Additionally, the ALJ had not ruled on motions that Respondent put before the court until it was too late to act on them but ruled on motions which Mr. Thexton presented before the court.

 

The ALJ chose to openly state in court that Respondent is legally incompetent.  Labeling Respondent as incompetent prejudices this case before the court.   If the ALJ has already predetermined that Respondent is incompetent, it stands to reason that whatever is presented to the court is seen in that light.   Judges are to be impartial in all aspects of matters before the court.

 

The Order that restrained Respondent, et al., from filing claims against the Wisconsin Board of Medical Examiners and other related parties with discovery requests is void.  Said Order does not include any findings of fact and conclusions of law for the Counter-Claim.  Also, said Order does not include complete or sufficient findings of fact for the Cross-Claims and Requests for Discovery.  In fact, only the facts enumerated by Mr. Thexton are addressed.  None of the facts concerning the Respondent, et al.’s, Cross-Claims are addressed, and there are no conclusions of law concerning the Respondent, et. al.’s, Cross-Claims.

 

An adjudication of agency issues must provide findings, conclusions and the reasons or basis therefore on all material issues of fact and law.  Wesson v. S.E.C., 558 F 2d 879.  The purpose for requiring findings of fact is to furnish parties and the reviewing court with a sufficiently clear basis for understanding the premises used by the tribunal in reaching its conclusions of law.  Northeast Broadcasting, Inc. v. F.C.C, 130 U.S. App. D.C. 278, 400 F. 2d 749 (1968); Wasson v. S.E.C., supra.  The absence of required findings has been fatal to the valid of agency decisions.  Anglo-Canadian Shipping Co. Ltd. V. Federal Maritime Commission, 96 2d 554, 83 L. Ed. 391 (1038); Wasson v. S.E.C., supra.

 

Therefore, said Order by Ruby Jefferson-Moore is void and of no legal force and effect.  In addition, Respondent, et al., demands that complete Findings of Fact and Conclusions of Law be accomplished concerning all the issues before the Court can proceed.

 

Also, an agency must articulate a satisfactory explanation for its action.  To refuse to define the criteria it is applying is equivalent to simply saying “no” without explanation.  Pearson v. Shalala, 164 F. 3d 650 (D. C. Cir. 1999.)   In view of that, the first step in this instant case is to order the prosecuting attorney to fully explain his reasoning for filing the Motion for Protective Order in order that this Honorable Court can address all the issues.

 

The State may not under guise of prohibiting professional misconduct, ignore Constitutional rights.  N.A.A.C.P. v. Button, 9 L. Ed. 2d 405.  The Constitutional right of due process has been violated in this instant case against the Respondent, et. al., by the issuance of said Order, thus causing said Court to lack jurisdiction.  An Order is absolutely void if the Court that issued it lacked needed jurisdiction to do so.  Garza, 323 S.W. 2d at 156.  Green Oaks Ltd. v. Cannan, 749 S.W. 2d 128 (1987).  This Administrative Court lacks jurisdiction concerning said Order against Respondent, et. al.

 

Again, Mr. Thexton attempted to illegally represent the Cross-Respondents in this case.  Since he was also a Co-Cross-Respondent, he cannot speak for or represent any other Cross-Respondent.  This would be a conflict of interest and is specifically forbidden by the Wisconsin State Bar Rules and ABA rules.

Denying the Respondent in this case the right to exercise his right to file a Counter-Claim and Cross-Claims would violate Respondent’s due process of law and equal protection of the law under the 5th and 14th Amendments of the U.S. Constitution and equivalent provisions of the Wisconsin Constitution.

 

The Respondent, et. al., is not limited to discovery in this case and neither is the Administrative Law Judge.  RL 2.10 (2) of the Wisconsin Administrative Code states that, “Authority.  An administrative law judge....has the authority described in S. 227.46 (1), stats.”  Statute 227.46 states that, “Hearing examiners...examiners presiding at hearings may:....(i) Take other action authorized by agency rules consistent with this chapter.”

 

This same Chapter 227 states in Section 227.02 that, “Compliance with this chapter does not eliminate the necessity of complying with a procedure required by another statute.”  In a footnote, it states that, “Chapter 227 contemplates the limited used of civil procedures statutes that do not conflict with Ch. 227.  Wagner v. State Medical Examining Board, 181 Wis. 2d 633 (1994).”

 

There are no conflicts with using Counterclaims and Cross Claims along with Ch. 227.  Thus, they are part of the Administrative Code.  Therefore, the prosecuting attorney’s Motion for a Protective Order is frivolous and absurd.

 

The immunity of other third parties is not absolute as stated in § 440.042(2).  When these parties have not acted in good faith, they may not have immunity.  The third parties in this case have acted in bad faith which can be proven by the Respondent.

 

Also, §440.042(2) only applies to witnesses, not defendants in a separate cause of action involving a Counterclaim or Cross Claim involving third parties.

 

The witnesses, as defendants in a Cross Claim action will be found liable, and this Honorable Court has both personal and subject-matter jurisdiction to make a finding and issue sanctions.

 

The “papers”, i.e. Cross-Complaints, were filed to enforce the Civil and Constitutional rights of the Respondent.  It is also requested and demanded that a hearing be made available to the Respondent.

 

The Board filed the Original Complaint in this case to intimidate, harass and illegally sanction and punish the Counter-Plaintiff for attempting to carry out the mandate of the Wisconsin Legislature, i.e., to protect the health of the citizens of the State of Wisconsin according to the Act.

 

The Board, instead of following the mandate, has elected to use their power and authority to further the self-interest of a select group of persons.  This select group of persons has an agenda to monopolize the service of their medical industry for their own economic gain, including, but not limited to, Health Insurance Companies and other persons involved in this case.  This is accomplished by advocating only a certain conventional modality of medical treatment for the public which is based on their own false ideological and philosophical dogmas and beliefs, not on sound scientific research, data and reasoning.

 

The Board has conspired with this group of persons to effectively eliminate the free choice of the public concerning the type or modality of medical treatment needed for their case and maintenance.  The Board knows that it cannot directly regulate the freedom of choice of the public, but has attempted to limit the number of choices available to the public by eliminating and sanctioning any medical practitioner offering other legitimate choices for the public not approved by the Board.

 

As the plaintiff or petitioner in the original complaint, the Board should first offer a due process notice and hearing for any practice and practitioner to determine if the type of modality of treatment is protecting or adversely affecting the public interest before any investigation is begun concerning any individual patient of practitioner.  The burden of proof must be on the Board according to the law.

 

In this case, the Board has taken the position as prosecutor, judge and executioner by arbitrarily, illegally and automatically pronouncing the treatment modality as guilty of endangering the health of the public and pronouncing the medical practitioner as a suspect for endangering the health of the public.  The Board then erroneously and illegally believes that it has the right to conduct a thorough investigation and inquisition of the suspect practitioner.

 

If the Board is truly concerned with the health of the citizens of the State of Wisconsin, then a thorough investigation should be made of the treatment modality in general with a public hearing and then and only then would individual practitioners be subject to an investigation if the treatment modality was found to be adverse to public health.

 

The Board has erroneously and illegally shifted the burden of proof to the Counter-Plaintiff in this case, which causes a chilling effect on the free exercise of protecting the health of the citizens of Wisconsin.  Since there is a high probability that withholding certain beneficial treatment modalities from being used for the public health, the Board becomes guilty of endangering the public health in the State of Wisconsin.

 

Therefore, the Board is directly violating the mandate of the Wisconsin Legislature by not only refusing to protect, but endangering the health of citizens of the State of Wisconsin.  The Board is effectively eliminating the free choice of medical service in violation of the “Act” by its bias and prejudice.

 

The Counter-Plaintiff in this case has been denied due process of law in that the Board has pronounced already a defacto judgment concerning the legitimacy of certain treatment modalities outlined in the Original Complaint with no notice or opportunity for a hearing before an investigation, no access to adverse witness, no oral argument before a proper decision maker, no cross examination, no confrontation of accusers, no final written determination with legal citations or basis in law, no opportunity for appeal, no transcripts, no evidence, no expert witnesses, no investigation or research, no representation, no opportunity for a defense, no testimony of patients who have had their health protected or have been harmed by conventional treatment modalities, no fairness, no justice and no due process of law.

 

The Counter-Plaintiff now also complains that the Counter-Respondent hereinafter referred to as “the Board” has conducted discriminatory, selective and malicious practices against the Counter-Plaintiff in this case.  The Board, instead of pursuing its mandatory role, duty and responsibility of investigating and sanctioning real and actual instances where certain medical practices have severely harmed the public of the State of Wisconsin have instead focused their time, attention and resources on their imaginary perceived financial enemy, being the alternative medical practitioner.  And, in this case, that alternative medical practitioner is the Counter-Plaintiff, Stuart M. Suster, M.D.

 

It is a well known fact that numerous members of the public in Wisconsin have been greatly harmed and maimed by hundreds of faulty medical devices and doctor errors in utilizing or implementing those devices.  The following list are a few examples out of hundreds:

 

1.)                Recalled hip implants

2.)                Recalled heart valves

3.)                Recalled stents

4.)                recalled pacing leads

5.)                Recalled defibrillators

6.)                Recalled lens implants

7.)                Recalled pacemakers

 

In many of the recalled devices, it has been determined by the FDA and the testimony and evidence in several lawsuits that doctor error is the major cause of the medical device failure.  But, the Board has taken little or no action in most of these cases of recall and doctor error because the Board considers these modalities of medical treatment, maintenance and care “conventional”.  The Board is also aware of the fact that several hundred instances of medicine device failures and doctor errors occur where nothing is reported and there is actually a cover-up.  Yet, no action is even attempted by the Board to investigate or prosecute these violations of the Wisconsin Medical Practice Act, with few exceptions.

This overall policy and procedure of the Board is discriminatory, selective and malicious concerning the Counter-Plaintiff in this case and must cease and terminate immediately.  The counter-plaintiff has been greatly harmed by the Board’s action.

 

The Board has effectively conducted a Star-Chamber proceeding that was outlawed in the U.S. over 200 years ago.  This court must demand that the Board assume its burden of proof and conduct itself within the bounds of the law offering credible evidence and hearing before any action is taken concerning any investigation and legal action against any individual medical practitioner.

 

Failure to Provide Any Indexing or Cross-Indexing to Board’s Previous Rulings, Opinions, Interpretations Dealing with Similar Cases

 

Respondent has officially requested the proper and complete regulations and rules concerning the statutes or code of the Wisconsin Medical Practice Act. Said rules and regulations are demanded by numerous court decisions: e.g. United States v. Mersky, 4 L Ed. 2d 423; California Banker’s Assn. v. Schultz, 416 U.S. 21; U.S.V. Reinis, 794 F. 2d 506; United States v. Murphy, 809 F. 2d 1427; U.S. v. Two Hundred Thousand Dollars, 590 F. Supp. 866.

 

The feeble attempt to satisfy these requirements of the law by the Medical Board has failed. The Rules propagated by the Board are incomplete, too broad, vague, ambiguous and confusing. Therefore, the rules are of no force and effect of law. In order for the statute to have any legal force, proper and complete regulations and rules need to be drafted and published as soon as possible or this investigation must be dismissed.

 

Failure to Verify and Document Proper Certification of Board’s Rules and Regulations with Secretary of State

 

The Respondent in this case has been accused of violating the following regulations or rules, to wit:

 

21 CFR § 1304.11

§ Phar 8.02 (2)

§ Med 17.05 (2) (b) 2

21 CFR § 1304.21

§ Phar 8.02 (1)

§ Med 10.02 (2) (P)

§ Med 10.02 (2) (Z)

§ Med  10.02 (2) (a) (b) (h) (o)

§ Med 17.03

§ Med 17.04

 

An inquiry was made to the Office of the Secretary of State to obtain a copy of the Certified copy of each of the above rules promulgated the Wisconsin Medical Board used in this case. The Secretary of State official stated that the Medical Board had said Certified copies.

 

A letter was written to Arthur Thexton on October 27, 2003 as an official request for certified copies of each rule that the Wisconsin Medical Board has promulgated and filed in the Office of Secretary of State and in the Office of the Revisor concerning or relating to each and every alleged violation of said respondent in this case. See Wisconsin Administrative Procedures Act (WAPA) Section 227.20.

 

Please note that, “No rule is valid until certified copies have been filed”. See WAPA, Section 227.20(1).  A proper response is not to some web site address. There are no certified rules on the web site that can be verified as having been properly filed with the Secretary of State of Wisconsin where the Secretary of State has endorsed the date and the time of filing of each certified copy filed. In addition, the Secretary of State shall keep a file of all Certified Copies. See WAPA Section 227.20 (2).

 

Since we can now assume that said filing and retaining has not been accomplished, none of the above rules are valid. See WAPA 227.20 (1). Therefore, the Wisconsin Medical Board and this Administrative Court lacks jurisdiction and authority in this case. The Complaint is lacking any valid statutory violations and is a nullity. Any subsequent prosecution based on the original Complaint would be a serious violation of due process rights and equal protection under the law.

 

Respondent officially requested certified copies of each rule that the Wisconsin Medical Board has promulgated and filed in the Office of Secretary of State and in the Office of the Revisor concerning or relating to each and every alleged violation of said Respondent in this case in accordance with the Wisconsin Administrative Procedures Act (WAPA) Section 227.20.  “No rule is valid until certified copies have been filed”.  See WAPA, Section 227.20(1).  There are no certified rules on the web-site that can be verified as having been properly filed with the Secretary of State in Wisconsin where the Secretary of State has endorsed the date and the time of filing of each certified copy filed under subsection (1) in their file.  See WAPA, Section 227.20(2).  The prosecuting attorney refused this request of the certified copies of the rules that should have been filed with the Wisconsin Secretary of State and he and his agency are in total legal default. 

 

Failure to Provide Rules of Interpretation or Construction

 

Respondent officially requested and demanded the Rules of Construction or Interpretation that must be made available to Respondent to properly understand and implement the Statutes and Rules used by the Medical Board in their investigations and final decisions against Respondent.

 

The said Rules of Construction or Interpretation is demanded by the Courts. To interpret statute, the first question which must be addressed is whether there is a binding construction of statute. Snider v. Stimson Lumber Company, 914 F. Supp. 388.

Without predetermined Rules of Construction and Interpretation, no Statutes or Rules could be properly understood or applied and a prosecutor could arbitrarily make the Statute or Rule mean anything he or she would want it to mean.

 

Therefore, any application of any statute or Rules would by definition be a violation of this Respondent’s Due Process of Law without the proper Rules of Construction or Interpretation.

 

The proper Rules of Construction and Interpretation were not received.  The Statutes and Rules are deemed to be too broad, vague and ambiguous to be understood and applied resulting in lack of fair notice and a violation of Due Process of Law. Also, appropriate legal recourse will be sought against the prosecuting attorney and his agency.

 

Failure to Issue a Proper and Legal Complaint Against Respondent and Prosecuted Respondent with No Jurisdiction or Authority

 

The Original Complaint in this case is legally insufficient; thus, this Court does not have jurisdiction or authority to compel or sanction the Respondent, et. al.

 

The Complaint or Information in this case has several missing legal and factual essential elements concerning the overt acts and law in this case.  Since violations of the Medical Practice Act are specific intent crimes, the Complaint or Information must allege that the Respondent willfully and knowingly violated some specific law, regulation or rule.  The legal terms willfully or knowingly or their equivalents are totally missing from the Complaint or Information for both the overt acts and legal aspects.

 

Also, a Complaint or Information is not legally sufficient unless it has all the specifics or particulars concerning the facts concerning the alleged violation.

 

Since the Complaint is totally deficient of the necessary and required essential material elements, the Complaint is unconstitutionally void and does not charge any offense.  Thus, the Administrative Court lacks jurisdiction to legally proceed in this case and must quash the Complaint.

 

The key purpose of a Complaint is notification.  Respondent in this case has not been notified of the mens rea elements of willfulness or knowingly as related to any overt act.  The Complaint fails because it does not charge each of the essential elements of the alleged offenses.

 

In addition, Counts I thru XI only has a reference to the statutory citations and do not include the necessary elements found in each of the statutes, regulations and rules.  A statutory citation does not cure the lack of essential elements in a complaint, U.S. v. Daniels, 973 F.2d 272; United States v. Hooker, 841 F.2d 1225; United States v. Pupo, 841 F.2d 1235, Cert. Denied 102 L.Ed. 2d 87 (1988).

 

Again, failure of a Complaint to state an offense is a fatal defect which causes the Complaint to be insufficient and void.

 

The Complaint or Information in this case has several missing legal and factual essential elements concerning the overt acts and law in this case.  Since violations of the Medical Practice Act are specific intent penal offenses.  Also, a Complaint or Information is not legally sufficient unless it has all the specifics or particulars concerning the facts concerning the alleged violation.

 

This case is not a civil action, but a quasi-criminal action against the Respondent. Referring to Barron’s Law Dictionary; Quasi means nearly, almost, like. Quasi-criminal refers to a proceeding which, though not actually a criminal prosecution, is sufficiently similar in terms of the sanction to be imposed, e.g. civil fine, loss of employment, loss of license, suspension…, etc. Thus, where substantial penalties and sanctions may result, a civil action becomes a quasi-criminal prosecution against the Respondent. Goldberg v. Kelly,  25 L. Ed. 2d 287; Greene v. McElroy, 360 U.S. 474 at 496-497; Upton v. S.E.C.,  75 F. 3d 92;  Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489.

 

In a quasi-criminal prosecution, all of the due process rights must be made available to the Respondent who is not in custody except presentment of the charge to a grand jury. These rights are protected not only in criminal cases, but also in all cases of penal administrative action. Goldberg, supra.

 

The Complaint alleges violation of 21 CFR § 1304.11 which is a Federal Regulation. The Wisconsin Board of Medical Examiners does not have jurisdiction, venue, or authority to enforce the Federal Regulations. This is an overcharge in the Complaint filed against the Respondent causing the Complaint to be invalid and the Respondent to attempt to defend against charges that can never be legally resolved by a State Administrative Judge or Board. Thus, the entire Complaint is a legal nullity.

 

In addition, reference to the statutory citations does not include the necessary elements found in each of the statutes, regulations and rules. A statutory citation does not cure the lack of essential elements in a complaint, U.S. v. Daniels,  973 F. 2d 272; United States v. Hooker, 841 F. 2d 1225; United States v. Pupo, 841 F. 2d 1235, Cert. Denied 102 L. Ed. 2d 87 (1988).

 

The key purpose of a Complaint is notification. Respondent in this case has not been notified that the erroneous and illegal Federal Statutes and regulations do not apply to him in violation of due process of law in this case.

 

Again, failure of a Complaint to state a legal and valid offense is a fatal defect which causes the Complaint to be insufficient and void.

 

If the Complaint is totally deficient of the necessary and required essential material elements, the Complaint is unconstitutionally void and does not charge any offense. Thus, the Administrative Court would lack jurisdiction to legally proceed in this case and must quash the Complaint.

Mr. Thexton is acting illegally outside his authority and jurisdiction under color of law which violates the Civil and Constitutional rights of Dr. Suster under the U.S. and Wisconsin Constitutions and Statutes.  If a public officer authorizes the doing of an act not within the scope of his authority, he will be held liable.  Barley v. New York, 3 Hill (N.Y.) 531; Rogers v. Conklin, 17 L. Ed. 714; Hafer v. Melo, 116 L. Ed. 2d 301.  Thus, Mr. Thexton is not personally immune from liability as an individual Hafer v. Melo, supra.

 

Failure to Comply with Privacy Act Request Letter Enforcing Federal Regulations

 

The prosecuting attorney and his agency has demanded certain information and records from Respondent.  The Privacy Act of 1974 requires each agency to automatically inform each individual, requested to supply information, of the following before the information or records are requested:

 

Respondent is entitled to have the Privacy Act questions answered because the Petitioner is charged with violating a Federal Regulation based on a Federal Statute in the Complaint filed by the Board.  In addition, the Wisconsin Board is being used to carry out a Federal Agency investigation.  These facts make the Wisconsin Medical Board a Quasi-Federal agency which is required to answer the Privacy Act questions under Title 5 USC §552a.  The Board has assumed Federal jurisdiction; therefore, it has become a Federal agency.

 

The questions that must be answered even before the records are requested or demanded are –

 

1.)  The authority which authorizes the solicitation of the information.

 

2.)    Whether disclosure of information is mandatory or voluntary.

 

3.)    The principle purposes for which the information is intended to be used.

 

4.)    The routine uses for which the information is intended to be used.

 

5.)    The effects on the individual, if any, of not providing all or any part of the requested information.

 

This agency has relationship and connections with federal agencies which are also recognized in state statute or code.  The information that you receive from this individual is shared with federal agencies and authorities.  In this case, there is much evidence to that fact.  Therefore, your agency must comply with The Privacy Act of 1974 as an accomplice.

 

Since the ALJ is already in default, any and all information and records you have received must necessarily be constitutionally tainted with the poison of your unauthorized, illegal and erroneous acts.

 

In addition, it was demanded that any and all copies of records and documents obtained from Respondent per discovery requests be returned immediately.

 

Several Egregious Violations of Due Process

Rights Occurred During the Hearing

 

1.)                The ALJ requested that the Respondent file his final witness list in writing which was accomplished, but denied every witness the Respondent wanted to call or use during the hearing.

 

2.)                The ALJ allowed the Respondent to provide a “rebuttal witness list” in writing, but during the hearing, denied the Respondent’s right to call or use any of the rebuttal witnesses.

 

3.)                The ALJ allowed the Respondent to reserve the right to recall the State’s witnesses at the time of Respondent’s cross-examination, and then denied the Respondent that right at the culmination of said proceedings.

 

4.)                The ALJ and prosecutor refused to produce the complete rules and regulations of said hearing proceedings after multiple requests both verbally and in writing.

 

5.)                The ALJ refused to recuse herself after the Motion for Recusal was filed showing that she had not taken the office of ALJ due to the omission of taking and filing her Oath of Office with the Office of the Wisconsin Secretary of State.

 

6.)                The ALJ, on numerous occasions during the hearing, illegally limited the cross-examination of the Respondent concerning the State’s witnesses.

 

7.)                The ALJ, on numerous occasions before and during the hearing, illegally ruled or would not allow Respondent’s objections to the prosecutor’s procedures, questions or evidence and/or ALJ rulings and/or procedures.

 

8.)                The ALJ allowed the prosecutor to amend the Complaint during the hearing.

 

9.)                The Respondent did not have timely, reasonable or meaningful access to the transcripts of the hearing to prepare a closing argument brief.

 

10.)            The Respondent was illegally not allowed to call witnesses that were on the State’s witnesses list where the State decided not to call on them.

 

11.)            The Respondent’s objections to entering hearsay and/or illegal depositions were illegally overruled.

 

12.)            The ALJ continually sustained improper and illegal objections by the prosecutor concerning questions by the Respondent that were critical in his defense and made impeachment of the witness impossible.

13.)            There is hearing testimony in the transcript from witnesses who testified under oath that Mr. Arthur Thexton and the Wisconsin Department of Regulation and Licensing advised Cross-Respondents to ignore valid legal process in the form of a Cross-Complaint.  This is in violation of the rules and due process of law.

 

14.)            The ALJ denied the Respondent a meaningful and fair procedure during the entire hearing process.

 

THEREFORE IT IS Prayed that the entire Complaint against the Respondent be dismissed.

 

                                                                        Respectfully submitted,

 

 

 

                                                                        ________________________

                                                                        Stuart M. Suster, M.D.

                                                                        P.O. Box 26507

                                                                        10125 W. North Avenue

                                                                        Wauwatosa, Wisconsin

                                                                        (414) 443-6432

 

 

CERTIFICATE OF SERVICE

 

            IT IS HEREBY Certified that a true and correct copy of the foregoing Respondent’s Post-Hearing Closing Argument Brief for Proposed Decision by ALJ has been served in compliance with the State Office of Administrative Hearing Rules of Procedure on the following individuals at the locations and in the manner indicated below on the ____ day of March, 2004, to wit:

 

 

                                                                                    __________________________

                                                                                    Stuart M. Suster, M.D.

 

 

VIA FIRST CLASS MAIL                           VIA FIRST CLASS MAIL

Docket Clerk                                                   Mr. Arthur Thexton - Prosecuting Attorney

Department of Regulation and Licensing            P.O. Box 8935

Board of Legal Services                                    Madison, Wisconsin  53708-8935

P.O. Box 8935

Madison, Wisconsin  53708