Minch v. Azbn ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ALICE JUNE MINCH, Plaintiff/Appellant,
v.
ARIZONA STATE BOARD OF NURSING, Defendant/Appellee.
No. 1 CA-CV 16-0152
FILED 5-16-17
Appeal from the Superior Court in Maricopa County
No. LC2015-000195-001
The Honorable Crane McClennen, Judge Retired
AFFIRMED
COUNSEL
Alice June Minch, Sun City
Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Elizabeth A. Campbell
Counsel for Defendant/Appellee
MINCH v. AZBN
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.
B E E N E, Judge:
¶1 Alice Minch appeals the superior court’s order affirming the
decision of the Arizona State Board of Nursing (the Board) to place her
registered nurse license on probation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In January 2011, Minch was offered a position as a seasonal
nurse at Yuma Regional Medical Center (YRMC), and she moved into
hospital-provided housing at a nearby apartment complex. Soon
thereafter, Minch became involved in disputes with several other residents
at the complex; these disputes quickly escalated, involving other YRMC
employees and the Yuma Police Department. Then, in August 2011, Minch
posted on a nurse-recruiting website an account of a nurse who was
sexually assaulted in YRMC housing. Minch claimed to have first-hand
knowledge of the crime; however, the posting was based on a June 1992
Yuma Police Department report. The victim identified in the report was
abducted from a grocery store parking lot and had been living in YRMC
housing, but the posting was false in other pertinent respects.
¶3 In September 2011, the Board received a complaint from
YRMC’s general counsel alleging there was evidence Minch was guilty of
unprofessional conduct, specifically, that she was “mentally incompetent
or physically unsafe to a degree that is or might be harmful or dangerous
to the health of a patient or the public.” Ariz. Rev. Stat. (A.R.S.) § 32-
1601(24)(e) (2016). The Board investigated the complaint and issued an
Interim Order requiring Minch to submit to a psychological evaluation with
Dr. Phillip Lett. See A.R.S. § 32-1664(F) (2017).1 Thereafter, the Board
1 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
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MINCH v. AZBN
Decision of the Court
determined reasonable grounds supported the complaint and requested a
hearing with the Office of Administrative Hearings. See A.R.S. § 32-1664(I).
¶4 During a four-day hearing, Administrative Law Judge (ALJ)
Brian Tully received evidence and heard testimony from twelve witnesses,
including Minch and Dr. Lett. Following the hearing, the matter was
reassigned to ALJ Michael Douglas, who issued findings of fact and
conclusions of law in a recommended decision. See A.R.S. § 41-1092.08(A)
(2017). After considering ALJ Douglas’s recommended decision and the
administrative record, the Board adopted his findings of fact and
conclusions of law. See A.R.S. § 41-1092.08(B). The Board placed Minch’s
license on probation for one year, subject to certain terms and conditions.
See A.R.S. § 32-1664(O); see also A.R.S. § 32-1663(D) (2017). Minch then
unsuccessfully sought a rehearing, see A.R.S. § 41-1092.09 (2017); see also
A.R.S. § 32-1665 (2017), and, ultimately, review by the superior court. The
superior court affirmed, and Minch timely appealed to this Court. We have
jurisdiction pursuant to A.R.S. § 12-913 (2017). Svendsen v. Ariz. Dep’t of
Transp., 234 Ariz. 528, 533, ¶ 13 (App. 2014) (construing § 12-913 as allowing
appeal to court of appeals).
DISCUSSION
¶5 In reviewing a decision upholding the decision of an
administrative agency, we review whether the agency’s determination is
contrary to law, arbitrary and capricious, or an abuse of discretion. A.R.S.
§ 12-910(E) (2017); Stant v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, 201,
¶ 14-15 (App. 2014). We view the facts in the light most favorable to
upholding the agency’s decision. Shorey v. Ariz. Corp. Comm’n, 238 Ariz.
253, 258, ¶ 14-15 (App. 2015). We will not re-weigh conflicting evidence
and will affirm if the decision is supported by substantial evidence. DeGroot
v. Ariz. Racing Comm’n, 141 Ariz. 331, 335-36 (App. 1984). We give deference
to the agency’s resolution of issues that draw on “the accumulated
experience and expertise of its members.” Croft v. Ariz. State Bd. of Dental
Exam’rs, 157 Ariz. 203, 208 (App. 1988). We review questions of law de novo.
Comm. for Justice & Fairness v. Ariz. Sec’y of State’s Office, 235 Ariz. 347, 351,
¶ 17 (App. 2014).
A. Jurisdiction
¶6 Minch argues the Board does not have jurisdiction to
discipline her for conduct that occurred outside of her employment as a
nurse.
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¶7 Administrative decisions that reach beyond an agency’s
statutory power are void. Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz.
v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz.
150, 156-57 (App. 1989). We review de novo the issue of subject matter
jurisdiction. TWE Ret. Fund Trust v. Ream, 198 Ariz. 268, 271, ¶ 11 (App.
2000).
¶8 There is no support for Minch’s suggestion that the Board’s
disciplinary jurisdiction extends only to her on-duty conduct.2 The
legislature has given the Board authority to act where a licensee is found to
have committed an act of unprofessional conduct. A.R.S. § 32-1664(O); see
also A.R.S. § 32-1663 (2017). The legislature has defined unprofessional
conduct to include, “whether occurring in this state or elsewhere: . . . [b]eing
mentally incompetent or physically unsafe to a degree that is or might be
harmful or dangerous to the health of a patient or the public.” A.R.S. § 32-
1601(24)(e) (2016) (emphasis added). We cannot rewrite the definition of
unprofessional conduct under the guise of judicial interpretation. See New
Sun Bus. Park, LLC v. Yuma Cty., 221 Ariz. 43, 47, ¶ 16 (App. 2009) (quoting
State v. Patchin, 125 Ariz. 501, 502 (App. 1980)); see also City of Phx. v. Butler,
110 Ariz. 160, 162 (1973) (explaining that the choice of appropriate wording
rests with the legislature). The Board properly had, and exercised, its
jurisdiction here.
B. Due Process
¶9 Minch argues she was denied due process because the ALJ
who presided over the case did not draft the recommended decision.
¶10 A professional licensee maintains a property interest in her
license, and the State must afford due process before curtailing that right.
Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106, ¶¶ 18–19 (App.
1999). Due process is not a static concept, but generally requires “notice
2 The Arizona case on which Minch relies is inapposite. See Murphy v.
Bd. of Med. Exam’rs, 190 Ariz. 441, 446-47 (App. 1997) (holding that medical
board had jurisdiction to review medical decisions made by a licensee
working as the medical director for an insurance company). Similarly, the
out-of-state cases she cites are distinguishable. See David N. v. St. Mary’s
Cty. Dep’t of Soc. Servs., 16 A.3d 991 (Md. App. 2011) (discussing whether a
local department of social services was authorized to investigate a report of
suspected abuse or neglect in Maryland of a child who lived outside the
state); State v. Groff, 409 So. 2d 44 (Fla. App. 1981) (discussing whether
psychiatrist was a mandatory reporter under Florida statute).
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and an opportunity to be heard” in a meaningful manner and at a
meaningful time. Id. ¶ 20 (citation omitted). The party asserting a denial of
due process must show prejudice. Cty. of La Paz v. Yakima Compost Co., 224
Ariz. 590, 598, ¶ 12 (App. 2010); Brown v. Ariz. Dep’t of Real Estate, 181 Ariz.
320, 324 (App. 1995). We review constitutional issues, including an alleged
denial of due process, de novo. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16
(App. 2014); Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13 (App.
2007).
¶11 Minch had a meaningful opportunity to be heard. She offered
evidence and confronted adverse witnesses in the administrative hearing
before ALJ Tully. See Gaveck v. Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz.
433, 437, ¶ 14 (App. 2009). Although ALJ Douglas did not conduct the
hearing, he had the benefit of all the documentary evidence, plus the
recorded testimony, see A.R.S. § 41-1092.07(E) (2017), and his detailed
findings of fact clearly demonstrate his knowledge of the complete record.
¶12 Moreover, Minch has not shown any prejudice. She relies on
Adams v. Industrial Commission, but that case discussed a substituted ALJ’s
decision to rescind a workers’ compensation award. 147 Ariz. 418 (App.
1985). In that context, the ALJ’s decision constituted the final agency
decision reviewable by the superior court; here, though, the Board is the
“ultimate decision maker.” See Ritland v. Ariz. State Bd. of Med. Exam’rs, 213
Ariz. 187, 190, ¶ 9 (App. 2006); see A.R.S. § 41-1092.08(B). The Board does
not observe the witnesses, but it renders a final decision, including findings
of fact on credibility, based on an independent review of the record.3 See
Ritland, 213 Ariz. at 190-91, ¶¶ 10-12, 14; see also Pine-Strawberry Improvement
Ass’n v. Ariz. Corp. Comm’n, 152 Ariz. 339, 340 (App. 1986). We will not
reverse the Board’s decision if there is substantial evidence in the record
supporting it. See Ritland, 213 Ariz. at 191, ¶ 15. Substantial evidence
supports the Board’s decision.4
3 On this basis, Minch’s reliance on Bradford v. Foundation & Marine
Construction Co. is misplaced. 182 So. 2d 447 (Fla. App. 1966) (holding that
a successor judge may not render a judgment without a trial de novo).
4 Minch raised this issue before the Board, which could have rejected
or modified the recommended decision or granted her request for
rehearing. See A.R.S. §§ 41-1092.08(B), -1092.09; see also A.A.C. R4-19-
608(B)(1), (C) (2017); compare Ritland, 213 Ariz. at 192, ¶ 16 (several members
of the medical board expressed reservations about credibility of witnesses
despite ALJ’s finding the witnesses were credible).
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Decision of the Court
CONCLUSION
¶13 Because Minch has not shown the Board erred in placing her
license on probation, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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