Defending Yourself in Wisconsin
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Wisconsin: Polewski Pummeled Profusely...
Opinion by Consumer Advocate Tim Bolen
Friday, June 11th, 2004
Tuesday, June 8th and Wednesday, June 9th, 2004 were not good days for Wisconsin Department of Regulation & Licensing (DRL) prosecutor James Polewski. He would have been better off staying home in bed.
Polewski was supposed to be, those two days, prosecuting a case against Green Bay Biological Dentist Richard (Rick) Vander Heyden DDS. But, he didn't seem to have come prepared for the event.
But, Rick Vander Heyden came prepared - and it showed.
I'm glad I was there to see it. A room full of health activists and Rick Vander Heyden's patients from all over the State were there. Assemblyman Frank Lasee (R-Green Bay) came for the show. Rick, who was defending himself, asked me to sit next to him and help him stay organized during the hearing. Of course I did that - and it turned out to be the best seat in the house.
It certainly got interesting. There were several times during the two days when it appeared Polewski was going to blow apart from frustration. The Administrative Law Judge had to give him several fifteen minute breaks so he could, literally, run from the room, to do we-know-not-what, in a hurry. All during the hearing he scratched, fidgeted, twitched, shook, weaved, dipped, whirled, bumped, and butt-hopped. He was, DEFINITELY, NOT A HAPPY MAN.
But This, You're Not Going To Believe...
The first thing Polewski did, and I mean the VERY FIRST thing he did, during the first few minutes, of the first day of the hearing (get ready to say "huh?") was to demand of Administrative Law Judge Ruby Jefferson Moore that "she order me, Tim Bolen, out of the hearing room..."
Yup, he did that... And during the next day-and-a-half he bellowed that same demand several more times. And, once he even whined about it... The Judge said "no."
He must have been reacting negatively to my aura.
I've met some fruitcake government employees before, who have done some fruitcake things, but James Polewski, during this two-day hearing, gets my nomination for the 2004 "Annual Fruitcake, with Icing, Award."
It is a Good Idea to Be Prepared...
In my last article about the Vander Heyden case I talked about Polewski's "preparation" (or lack of it) for this case. I mentioned that he hadn't acquired an "expert witness" to back up his ludicrous assertions about what constitutes "Dental Care." I also mentioned that he based his whole claim of wrong doing on a DRL Investigator's "Understanding" of the situation.
Well, I didn't know the half of it. For the "hearing", Polewski was even less prepared than that. I, literally, had to concentrate to keep my jaw from drifting down on my chest, I was so in awe of Polewski's ineptness. As the hearing progressed, he got WORSE, not better.
Rick Vander Heyden, on the other hand, came PREPARED. It took three of us to carry his prepared "case" into the hearing room, from his car.
The night before the hearing, Rick, knowing I was coming for the event, asked me to hear his case, all of his arguments, and asked for my commentary. I have to say that I worry when someone represents themselves in a hearing - but I was very impressed with his thinking process, and his analysis of the case. He was on top of things, and it was obvious he was getting good advice. In the end, he was WAY ahead of Polewski.
What Vander Heyden did was to plot a course, and stay on it. He divided his case into two parts: (1) The legal arguments, and (2) the merits of the case.
The "Legal Argument..."
Prior to the hearing on the 8th and 9th, in fact, right from the start, Vander Heyden laid out the legal arguments. To deal with the "legal arguments " Vander Heyden focused, with outside assistance, on "due process," for the high courts hold that "due process" is not just critical, but is "everything." As we know in Wisconsin, from earlier cases, the REAL problem is the lack of due process. Polewski and Thexton, operating without supervision, have simply rode roughshod over licensees unfortunate enough to get their attention. It's gone on so long everybody thinks it's OK.
It's NOT OK.
The actuality of the "due process" legal argument was simple. Vander Heyden, right from the start, made legal demand of Polewski that he not only follow Wisconsin, and US, "due process" requirements, but that he, Polewski, must provide Vander Heyden with the details of what that "due process" entailed.
Vander Heyden also informed Polewski, with legal notification, that he, Vander Heyden had "worth" and that if he, Polewski, violated his civil rights (by violating "due process" requirements, etc), he could, and would, be held personally liable in a Court of Law. Polewski openly, and in writing, sneered at Vander Heyden's legal letter (called, in legal jargon - "Constructive Notice - With Warning") and intentionally misquoted (criminal fraud?) that letter to the Wisconsin Dental Board in order to show "probable cause," to get the board to approve a formal complaint against Vander Heyden.
The demand that Vander Heyden made of Polewski for "due process" information follows US Supreme Court guidelines. But, before I tell you what those are - let me tell you what else was going on in the background, for it's very important. About sixteen Wisconsin cutting-edge health professionals are working together to solve the DRL/Polewski/Thexton/quackbuster control of health care, in Wisconsin, issue. In working together, one of the things they've been doing is to get copies of their case files from DRL - and compare the ACTUAL circumstances of prosecution to what DRL SAYS is their policy.
What they've learned, is what we suspected all along - THERE ARE NO WRITTEN POLICIES.
Why is it important to determine this? Simple. Because the American Court System has held, in PUBLISHED cases, that there are a number of things that are ABSOLUTELY REQUIRED in an action before an agency can proceed against someone. So, it is a good idea for a health professional under assault to determine, ahead of time, if an agency has followed the law, and can ensure "due process," before they respond to any inquiry from an agency. I'll list NINE of them below...
(1) An agency MUST PROVIDE an Index and Cross-Index of the Opinions, orders, etc., on which they rely, or have relied, to bring even an Investigation against an American citizen. Up front. In other words, they must answer the question "If you think I did something wrong, what are you basing your thinking on, exactly?"
(2) There must be a pre-Administrative hearing to determine if there is "cause to investigate." You can participate and argue your position.
(3) The deciding agency (like a Dental Board, or a Medical Board) must be able to show that it is legally constituted to make decisions.
(4) the agency must have, and provide you with, the "Rules of Interpretation," of the Statutes they claim, or suspect you may have, violated.
(5) If a Statute they claim you have violated, or may have violated, has a provision for "Rules and Regulations" then they MUST HAVE those written down, or the Statute is invalid.
(6) If an administrative agency even mentions the word "criminal," even in casual conversation, or puts an accusation against you for, or even a suggestion that they are investigating, or charging you, with a criminal act, the proceeding becomes "quasi-criminal" and the whole administrative procedure shifts gears and they must now follow a whole new set of rules...
(7) An agency like DRL MUST HAVE WRITTEN RULES and must follow them.
(8) If an agency suggests that you may have violated, or they may investigate a violation of any Federal Regulation, than they must comply with a whole slew of Federal Regulations designed to protect your rights.
(9) In Wisconsin, any rules made up MUST BE CERTIFIED by the Secretary of State.
There's a lot more, but that's for another day...
Simply put, Vander Heyden, in his response to Polewski, politely asked the above questions, because these requirements are absent at DRL in Wisconsin. Polewski, of course, openly sneered at this response, and refused to answer Vander Heyden's questions. Despite Vander Heyden's legal warning to Polewski, and his informing of Polewski that there were serious legal problems with his approach, Polewski proceeded against him.
Now, is there "substance" to Vander Heyden's approach? Yes there is, right here in Wisconsin. Just a few days ago in Milwaukee, a Federal Court Judge DISMISSED Stuart Suster MD's suit against The Wisconsin Medical Board members, Arthur Thexton, and Ruby Jefferson Moore. Suster had sued the above for circumstances related to EXACTLY THE NINE REASONS LISTED ABOVE... What's important in the decision to dismiss, is not that it was dismissed, but the language the Judge used in the dismissal. The Judge said "The court does not find that Suster's complaint is frivolous. The dismissal of this case is based on grounds of abstention..." In another section of the decision, the Judge makes it clear that Suster should be using OTHER Courts for remedy.
In short, DRL, Thexton and Polewski, are definitely on notice over their "due process" problems. Vander Heyden was not the first health professional to inform DRL of their "due process" problems, nor will he be the last. But yet, there has still been no real change at DRL, that we can see..
Arguing on the Merits...
When it became obvious that Polewski was too stupid, uncaring, or "quackbuster" oriented, to understand American Court Decisions and their implication on the the reality of prosecutions, and that no one at DRL was monitoring Polewski, Vander Heyden had to get ready for trial.
And, that he did.
Administrative Law hearings aren't all that complicated. Almost anyone, with a lick of sense, could do well in one. All they need is a little training, and half a quart of chutzpah. Look at the fact that both Polewski and Thexton do them all the time...
Hearings are divided into two parts (1) the prosecution's case, and (2) the defense case. The prosecutor brings out his witnesses, leads them through some testimony, and then rests their case. Then the defense does the same. Each party gets to cross-examine the other's witnesses. The case, for and against, is presented through the witnesses. Before the trial, each party is entitled to "discovery," meaning that you get to look at the other side's case, and prepare for it. For instance, the prosecutor in a case, must show you, ahead of time, what witnesses he intends to bring, what they will testify to, and what evidence he intends to show at the trial.
There are "procedural" rules involved, about who does what, when.
So Vander Heyden worked out what he had to do. Basically, he ONLY had two things to accomplish - discredit the prosecutor's witnesses, and bring superb witnesses of his own to testify on his behalf. During the trial he would have to, of course, keep emphasizing to the court that Polewski was intentionally violating his (Vander Heyden's) civil rights, by not providing "due process," etc...
Remember now, that, basically, Polewski was charging Vander Heyden with practicing outside of the scope of Dentistry by using EAV and homeopathy. Since Polewski couldn't find an "expert witness" of any kind, any where in the country, to testify to his ludicrous assertions about what constituted the "practice of dentistry," nor had he provided any EVIDENCE, before the trial to back up his wild-eyed claims, all Vander Heyden had to do was discredit and counter the testimony of two witnesses - the patient complainant, and the State DRL Investigator - an easy job, actually.
You see, the "burden of proof" is on the prosecutor. Polewski showed up for the event with no experts, and no evidence. Not a good thing to do.
Except, Polewski tries to "cheat." He's known for it. So Vander Heyden was ready for him. Polewski, in almost all of his hearings, likes to testify from the prosecutor's chair. That, of course, is not allowed, but you have to call him on it, and Vander Heyden was prepared to do so - and did.
But Polewski tried to pull another stunt. Before the hearing, he literally, threw a pile of ten "exhibits" (evidence) on Vander Heyden's defense table expecting to have them admitted into evidence - and the war was on - for he hadn't shown Vander Heyden ANY of those exhibits before the trial. Sifting through those "exhibits," they looked like the sort of things Stephen Barrett or Bobbie Baratz would think important, And, there was only one document that might have been of any danger - one that Polewski portrayed as "evidence" that EAV (Electric Acupuncture according to Voll) was a criminal act and that Vander Heyden should have known EAV was illegal.
Of course, those documents didn't actually portray any such thing. They were just one of Polewski's lame attempts. EAV is not illegal, using it is not a criminal act, and the FDA has not "banned" EAV, as Polewski asserted. MedLine has over 600 peer reviewed articles on Electric Acupuncture. Polewski should read something other than the crackpot commentaries of "quackwatch.com," to find information on health care.
In essence, all Vander Heyden had to do, for the hearing, was to competently cross-examine the patient who made the complaint, and the DRL Investigator on her "understanding," of the situation on which, supposedly, the case was built. Then Vander Heyden could present, and question, his own "expert witness." This last part, the testimony of the defense "expert witness" would be easy, fun, and informative, for the witness has a sixty-page resume, and the dentistry textbooks he writes are used in ALL of the Dental Schools in the country, but two. I always say, "if you're going to get an expert witness, get the best." Vander Heyden got the best.
Now, it's laugh time...
After Vander Heyden cross-examined the patient complainant, Polewski WITHDREW THE TESTIMONY OF HIS DRL INVESTIGATOR, no doubt in SHEER FEAR of what Vander Heyden was about to do to his DRL Investigator. For Polewski, that was a good move, for Vander Heyden had SHREDDED the testimony of the patient witness.
The question series Vander Heyden had designed for the Investigator had two basic parts - since the case WAS BASED on the DRL Investigator's "understanding" of the situation. Question number one "What, exactly, is your 'understanding' of the situation?" Question number two, in MY WORDS, not Vander Heyden's, was "What investigation, exactly, did you do to reach that lame-brained conclusion?"
But, Polewski rested his case, without the Investigator testifying.
The next day, the defense "expert witness" testified for three hours. Polewski tried to block the answers to almost every question Vander Heyden asked of his witness, his objections getting more and more pathetic, as they were spoken. Vander Heyden came to the last question, the most important of all. He asked "You've examined my record of this patient, all eight years of treatment. Tell me - did I do anything wrong? Am I practicing within the scope of Dentistry?" And, the room got very quiet, for Rick Vander Heyden had just put his whole life, everything he believes in, his whole future, in the hands of a man he only knew professionally.
The man thought for a moment, and then answered. His response took several minutes as he talked about the patient record he had read, and the questions he had asked Rick about his actions to help the patient. What he said was, in essence "You are the kind of Dentist we teach our students to be." You did nothing wrong, and everything right in this case. I commend you." There were tears in Rick Vander Heyden's eyes when he heard that.
But Polewski had the last word. And, powerful words they were. He said "No questions, no cross-examination..."
Rick turned to me with a question on his face, the reaction to the expert's comment still strong on his mind. I put my hand on his shoulder, smiled, and said "Tell the Judge you're done - the Defense rests." He did that.
Next comes closing arguments in writing, due thirty days after the transcripts are ready.
Tim Bolen - Consumer Advocate
This "Millions of Health Freedom Fighters - Newsletter" is about the battle between "Health and Medicine" on Planet Earth. Tim Bolen is an op/ed writer with extensive knowledge of the activities of a subversive organization calling itself the "quackbusters," and that organization's attempts to suppress, and discredit, any, and all health modalities that compete with the allopathic (MD) paradigm for consumer health dollars. The focus of the newsletter is on the ongoing activities, battles, politics, and the victories won by members of the "Health Freedom Movement" against the "quackbusters" It details "who the quackbusters are, what they are, where they are operating, when they appear, and how they operate - and how easy it is to beat them..."
For background information on the "Battle between Health and Medicine" go to: http://www.savedrclark.net/by_whom2.htm. A copy of THIS newsletter, and older ones, are viewable at the website http://quackpotwatch.org/index.html.
For EVEN MORE interesting and related articles go to http://bolenreport.com/.
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