Nassiri v. Chiropractic Physicians' Bd. , 2014 NV 27 ( 2014 )

130 Nev., Advance Opinion 27
IN THE SUPREME COURT OF THE STATE OF NEVADA
OBTEEN NASSIRI, D.C.; AND No. 60490
EDWARD JOHNSON, D.C.,
Appellants,
vs.
FILED
CHIROPRACTIC PHYSICIANS' BOARD APR 0 3 2014
OF NEVADA,
TRACE K. LINDEMAN
Respondent. CLERK\ Off SURREMECOUBT
BY
CHIEF DERMY CLERK
Appeal from a district court order granting in part and
denying in part a petition for judicial review in a professional licensing
matter. Eighth Judicial District Court, Clark County; Kathy A.
Hardcastle, Judge.
Affirmed.
Agwara & Associates and Liborius I. Agwara and George A. Maglares, Las
Vegas,
for Appellants.
Louis A. Ling, Reno,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
OPINION
By the Court, CHERRY, J.:
Appellants assert that the Chiropractic Physicians' Board of
Nevada violated their statutory and constitutional rights by applying a
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lower standard of proof in disciplinary proceedings than due process
allows. They further argue that applying a different standard of proof in
chiropractic physician disciplinary proceedings than is applied in medical
physician disciplinary proceedings violates the Equal Protection Clause of
the United States Constitution. We hold that, in the absence of a specific
statutory mandate, agencies generally must utilize, at a minimum, the
preponderance-of-the-evidence standard in their adjudicative hearings as
it is the general civil standard of proof Because the preponderance-of-the-
evidence standard of proof was ostensibly applied and met here, we affirm
FACTS AND PROCEDURAL HISTORY
Appellant Dr. Obteen Nassiri owned and operated a Las
Vegas-based chiropractic practice that specialized in treating patients who
had been injured in motor vehicle accidents. The practice employed
appellant Dr. Edward Johnson as a chiropractic physician, who later
purchased the practice from Dr. Nassiri. At the time, both appellants
were licensed chiropractic physicians in Nevada.
After an insurance company reported that appellants may
have engaged in unprofessional conduct, respondent Chiropractic
Physicians' Board of Nevada" filed complaints for disciplinary action
against appellants, charging them with, among other things, unlawfully
referring patients to other physicians, unlawful fee splitting, inaccurate
record-keeping, fraud, and employing unregistered assistants. The Board
heard testimony from four witnesses and considered numerous exhibits.
It subsequently found, based on the "substantial, credible, reliable, and
'The Board consists of seven members appointed by the Governor
who are authorized to take disciplinary action against chiropractic
licensees. MRS 634.020; NRS 634.190.
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probative evidence," that appellants had violated multiple provisions of
NRS Chapter 634 and NAC Chapter 634. As a result, the Board revoked
Dr. Nassiri's license, ordered him to pay 80 percent of the Board's fees and
costs and a fine of $5,000 for each of the six violations that he was found to
have made, and further mandated that Dr. Nassiri could not own, directly
or indirectly, any interest in a chiropractic practice through any person
related to him within two degrees of consanguinity or affinity until his
license was restored. As for Dr. Johnson, the Board suspended his license
for one year with conditions, ordered him to pay 20 percent of the Board's
fees and costs and a fine of $1,000 for each of the five provisions that he
was found to have violated, and imposed probation with conditions for
three years to commence once the suspension was lifted.
Appellants petitioned for judicial review in the district court.
They asserted, in part, that the Board's order must be set aside because
the Board (1) used the wrong standard of proof—substantial evidence—
and in so doing violated their constitutional equal protection and due
process rights and (2) did not have the authority to prohibit Dr. Nassiri
from owning a chiropractic practice. The district court granted in part and
denied in part appellants' petition for judicial review. The court's order
granted the petition for judicial review on the portion of the Board's order
that prohibited Dr. Nassiri from owning any interest in a chiropractic
practice through any person related to him within two degrees of
consanguinity or affinity until his license is restored. 2 With respect to the
remainder of the Board's order, the district court adopted the Board's
2 Tbis portion of the district court's order is not before this court on
appeal.
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findings of fact and affirmed all of the substantive issues now on appeal,
thus denying judicial review. Citing NRS 233B.135(3)(e) and Minton v.
Board of Medical Examiners, 110 Nev. 1060, 1078, 881 P.2d 1339, 1352
(1994), the district court concluded that the Board's determinations must
be supported by substantial evidence because NRS Chapter 634 does not
set forth a specific standard of proof. The district court entered judgment
against appellants, who thereafter filed a timely notice of appeal.
DISCUSSION
Standard of review
On appeal from orders deciding petitions for judicial review,
this court reviews the administrative decision in the same manner as the
district court. Elizondo v. Hood Mach., Inc., 129 Nev. „ 312 P.3d
479, 482 (2013) (citing City of N. Las Vegas v. Warburton, 127 Nev. ,
262 P.3d 715, 718 (2011)). We review the factual determinations of
administrative agencies for clear error "in view of the reliable, probative
and substantial evidence on the whole record" or for an "abuse of
discretion." NRS 233B.135(3)(e), (f). Thus, factual findings will only be
overturned if they are not supported by substantial evidence, which, we
have explained, is evidence that a reasonable mind could accept as
adequately supporting the agency's conclusions. Mizondo, 129 Nev. at
312 P.3d at 482. "A de novo standard of review is applied when this
court addresses a question of law, 'including the administrative
construction of statutes.'" Id. (quoting Holiday Ret. Corp. v. State, Div. of
Indus. Relations, 128 Nev. „ 274 P.3d 759, 761 (2012)). We will
decide purely legal issues without deference to the agency's conclusions of
law. Id.
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Standard of proof at administrative agency proceedings
Appellants argue that the Board improperly used the
"substantial evidence" standard set forth in NRS 233B.135 to determine
that appellants committed professional misconduct. They assert that this
standard is lower than that utilized to discipline medical doctors and that
this incongruity is unconstitutional.
Appellants' argument displays a simple misunderstanding
regarding the concept of standard of proof Foremost, appellants
mistakenly use "burden of proof' synonymously with "standard of proof."
The two concepts are actually distinct. "Burden of proof' refers broadly to
a party's duty to present evidence and argument to prove his or her
allegations, whereas "standard of proof' refers to the "degree or level of
proof demanded" to prove a specific allegation. Black's Law Dictionary
223, 1535 (9th ed. 2009). A standard of proofs function, as the United
States Supreme Court has expressed, "is to 'instruct the factfinder
concerning the degree of confidence our society thinks he should have in
the correctness of factual conclusions for a particular type of
adjudication." Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re
Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). In this case,
the issue is what standard of proof applies in chiropractor disciplinary
adjudications, as all parties agree that the Board carried the initial
burden to prove that appellants committed misconduct.
Next, appellants appear to confuse "standard of proof' with
"standard of review." As noted above, the "substantial evidence" standard
set forth in NRS 233B.135 is a standard of review: "Mhe court may
remand or affirm the final decision or set it aside in whole or in
part .. . because the final decision of the agency is: . . . [c]learly erroneous
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in view of the reliable, probative, and substantial evidence on the whole
record." NRS 233B.135(3)(e). Under that statute, a reviewing court,
whether the district court or this court, must inquire whether the agency's
factual determinations are reasonably supported by evidence of sufficient
quality and quantity. Id.; see Elizondo, 129 Nev. at , 312 P.3d at 482.
Although administrative proceedings typically need not strictly follow the
rules of evidence, see NRS 233B.123(1) (allowing the admittance of
evidence during administrative proceedings "except where precluded by
statute, if it is of a type commonly relied upon by reasonable and prudent
persons in the conduct of their affairs"), the fact-finder is charged with
making a decision based only on evidence of a type and amount that will
ensure a fair and impartial hearing. See NRS 233B.125; State, Dep't of
Motor Vehicles & Pub. Safety v. Evans, 114 Nev. 41, 44-45, 952 P.2d 958,
961 (1998); Garson v. Steamboat Canal Co., 43 Nev. 298, 308-09, 185 P.
801, 804 (1919). The substantial evidence standard of review thus refers
to the quality and quantity of the evidence necessary to support factual
determinations. It contemplates deference to those determinations on
review, asking only whether the facts found by the administrative fact-
finder are reasonably supported by sufficient, worthy evidence in the
record. See U.S. Steel Mining Co. v. Dir., Office of Workers' Comp.
Programs, 187 F.3d 384, 389 (4th Cir. 1999) (explaining that, under
analogous federal Administrative Procedure Act provisions, an agency
fact-finder has a "duty to qualify evidence as reliable, probative, and
substantial before relying upon it to grant or deny a claim," so to avoid a
decision based on speculation and conjecture (internal quotations
omitted)); 3 Charles H. Koch, Jr., Administrative Law and Practice §
9:24[1] (3d ed. 2010) (explaining that "substantial evidence" language
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most often conveys a reasonableness standard of review, leaving the
decision-making power with the agency). We do not reweigh the fact-
finder's conclusions as to the persuasiveness of its factual determinations.
NRS 233B.135(3) ("The [reviewing] court shall not substitute its judgment
for that of the agency as to the weight of evidence on a question of fact.").
Not only does the language of NRS 233B.135 indicate its application to
courts' secondary review and not to the determinations of administrative
agencies, but here there is also no lower tribunal to which the Board
would give deference. Thus, NRS 233B.135's standard of review does not
set forth a standard of proof that administrative agencies apply in their
adjudicative hearings.
Appellants' confusion is understandable given that both
standards refer to conclusions concerning the evidence and the district
court also confused NRS 233B.135's standard of review with a standard of
proof The district court's order states that NRS 233B.135 governs the
Board's proceedings in the absence of a statutorily mandated standard of
proof in the Board's governing statutes. This court has also contributed to
the confusion. See Gilman v. State Bd. of Veterinary Med. Exam'rs, 120
Nev. 263, 274, 89 P.3d 1000, 1008 (2004) ("When a higher standard of
proof is set forth in a statute involving license revocation proceedings, that
statute supersedes the substantial evidence standard of review set forth at
NRS 233B.135(3)(e)."); Minton v. Bd. of Med. Exam'rs, 110 Nev. 1060,
1078, 881 P.2d 1339, 1352 (1994) (construing the statute providing the
standard of proof in medical license revocation proceedings "to supersede"
the standard in NRS 233B.135(3)(e)).
We take this opportunity to clarify that NRS 233B.135 sets
out a standard of judicial review, not a standard of proof. Agency
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adjudication should use the standard of proof set out in the agency's
governing statutes. See Gilman, 120 Nev. at 274, 89 P.3d at 1008; cf. J.D.
Constr. v. IBEX Inel Grp., 126 Nev. „ 240 P.3d 1033, 1042-43
(2010) (reasoning that "this court must look to reason and public policy" to
determine the applicable standard of proof only after analyzing whether
"[Ole statute. . . clearly state [s] what standard of proof the district court
should use"). On appeal, the reviewing court should then determine
whether substantial evidence supports the agency's factual
determinations. See Gilman, 120 Nev. at 275, 89 P.3d at 1008 (holding
that this court should review the agency decision to determine whether
substantial evidence exists to have convinced the agency that violations
had been shown in accord with the standard of proof set out in the
statute(s) being enforced). To the extent that the language in Minton and
Gilman could be read to conflict with our clarification here, we disapprove
of the language used in the reasoning in those cases.
This raises the question of what standard of proof applies in
an agency's occupational license revocation proceedings in the absence of a
specific governing statute. This court has held that the "the
preponderance-of-the-evidence standard is the general civil standard."
J.D. Constr., 126 Nev. at , 240 P.3d at 1043. The preponderance-of-the-
evidence standard is the minimum civil standard of proof. See Betsinger v.
D.R. Horton, Inc., 126 Nev. „ 232 P.3d 433, 435 (2010) ("Generally,
a preponderance of the evidence is all that is needed to resolve a civil
matter. . ."). We have held that the preponderance-of-the-evidence
standard is appropriate to protect the procedural due process rights of
those confronted with possible revocation of emission-station and inspector
licenses. Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263,
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1268, 197 P.3d 1061, 1065 (2008). Here, the license at issue can be no less
deserving of due process than the one at issue in Nellis Motors because, in
that case, we approved of the use of the minimum civil standard of proof.
See id. There is no lower standard. 3 Thus, we hold that the Board was
required to find that the allegations were proven by at least a
preponderance of the evidence. 4
The Board found, by at least a preponderance of the evidence,
that appellants committed professional misconduct based on the evidence
presented. See Brown v. State, 107 Nev. 164, 166, 807 P.2d 1379, 1381
(1991) (stating that a preponderance of the evidence amounts to whether
the existence of the contested fact is found to be more probable than not).
There is no evidence in the record showing that the Board used any sort of
standard lower than a preponderance of the evidence, such as that the
violations, however unlikely, might have occurred. Although the Board
refers to the evidence being "substantial, credible, reliable, and probative,"
these factors speak to the qualification of the evidence, rather than to
3 1f
there were a lower standard, it would be nonsensical; it would
allow a tribunal to reach a conclusion even after reasoning that the
conclusion is more likely to be incorrect than it is to be correct.
4Appellants do not argue, and thus we do not address, that a higher
standard than preponderance of the evidence might apply.
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whether the evidence satisfies the standard of proof used to evaluate
whether a violation occurred. See United States Steel Mining Co., 187
F.3d at 389 (clarifying that, "to prove by a preponderance of the evidence
each element of a claim before an administrative agency, the claimant
must present reliable, probative, and substantial evidence of such
sufficient quality and quantity that a reasonable [administrative fact-
finder] could conclude that the existence of the facts supporting the claim
are more probable than their nonexistence"). Thus, we hold that the
Board did not err in finding that appellants committed violations
warranting professional discipline.
Regarding appellants' argument that due process requires a
higher level of review, their argument supposes that the Board used a
substantial evidence standard, which we repudiate. We also note that, in
light of our conclusion that the Board was convinced by at least a
preponderance of the evidence, appellants' equal protection argument is
rendered moot because the disciplinary proceedings for medical physicians
also use a preponderance-of-the-evidence standard of proof. See NRS
630.346(2).
Accordingly, because the Board applied at least the
preponderance-of-the-evidence standard and there was no equal protection
violation here, we affirm the district court's order denying, in part, judicial
review of the Board's order.
LeAp_ J.
Cherry
We concur:
j.
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