Where I Stand — Mike O’Callaghan: There’s a difference between enforcing and bullying

Thursday, Sept. 3, 1998 | 11:27 a.m.

WATCHING THE NEVADA ETHICS Commission in action and reading a California Commission on Judicial Performance decision give me good reason to question the actions of other less noticed government entities. Our readers are aware of the state ethics officials' handling of several complaints during recent months. Their ruling against Las Vegas City Councilman Gary Reese has raised questions from several quarters. It's obvious the commissioners are still feeling their way through uncharted political and social minefields that we want them to decipher for public officials. So some errors can be expected.

Over in California, the Commission on Judicial Performance, a long-established group, went completely goofy when Appellate Justice J. Anthony Kline wrote a dissent that included refusal to adhere to a state Supreme Court precedent. The commission started a witch hunt to investigate Kline because he dared to disagree with a prior decision of the state's highest court. Californians asked, what's the purpose of judicial review and the independent thinking they expect from courts of appeal?

American Bar Association President J. Shestack, in a letter to the commission, wrote, "It is difficult to understand how a reasoned, measured, rational dissent can become the subject of a disciplinary inquiry." Shestack went on to stress the strong foundation of support that dissent has in our American legal system.

The Los Angeles Times wrote, "The commission's chilling move is all the more unusual because appellate judges hear cases in panels and Kline's declaration came in a dissent -- a judicial statement that has no legal effect other than to state a judge's opinion. Moreover, the precedent he opposed, concerning out-of-court settlements that occur after a court has rendered a verdict and that wipe the verdict from the record, is a controversial one. The 1992 state Supreme Court's ruling has been criticized by several legal scholars, and the sort of post-verdict settlement it sanctioned was barred in federal courts by a unanimous U.S. Supreme Court ruling in 1994."

The California commission that called Kline's dissent "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" now has to defend its actions before the Legislature.

This isn't the first time that appointed boards and commissions have overstepped their authority and abused their powers in the 50 states. The same can be said for the legislative creation of regulatory agencies that quietly run amuck while governors and legislators refuse to rein them in.

At this time I'm looking at some of the cases in which Nevada pharmacists and doctors have been jerked up by both federal and state agencies. State and national stories about fraud in Medicare and Medicaid have resulted in tough oversight of the people serving patients in these systems. For example, there was good reason for the 1991 Nevada Legislature to create the Medicaid Fraud Control Unit in the office of the attorney general. Much good has come from this outfit, but now there is reason to question whether, seven years later, it isn't doing more damage than good in the handling of some cases.

I'm looking at two specific cases and after a cursory review have come to believe some fraud hunters have entered into a medical arena that should be reserved for doctors, patients and professional medical organizations. Reasonable medical professionals can disagree over good applications of treatment, but there is no room for the lawyers hunting fraud to be involved. Since when can a practice approved by the American Medical Association even be considered as Medicaid fraud by the state unit?

Catching a doctor between professionally approved medical practices and some lawyer's desire to levy a fine has put several medical providers in a bind. Usually, good Nevada doctors, rather than suffering the embarrassment of a public trashing by the fraud hunters and some unsophisticated media, pay the fines. Doctors, like you and me, have families, friends and neighbors and belong to church and social organizations. Their good names are valuable and this forces many of them to suffer in silence, pay large fines and be defamed professionally.

I'd say it's time for Attorney General Frankie Sue Del Papa to take a close look at what's happening in all state regulatory boards, commissions and units. A close and honest review can provide invaluable information for the purpose of legislative and executive oversight.