Denboer v. Abpe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JOHN DENBOER, Plaintiff/Appellant,
v.
STATE OF ARIZONA BOARD OF PSYCHOLOGIST EXAMINERS,
Defendant/Appellee.
No. 1 CA-CV 19-0254
FILED 2-6-2020
Appeal from the Superior Court in Maricopa County
No. CV2016-011587
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL
Cohen Law Firm, Phoenix
By Larry J. Cohen
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Duval Raine
Counsel for Defendant/Appellee
DENBOER v. ABPE
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.
C R U Z, Judge:
¶1 John DenBoer, Ph.D. (“DenBoer”), appeals from the superior
court’s grant of judgment in favor of the Arizona Board of Psychologist
Examiners (“Board”). The question on appeal is whether DenBoer is subject
to the procedure in former Arizona Revised Statutes (“A.R.S.”) section 32-
2081(B) (2009) (“Section B”) or the procedure in A.R.S. § 32-2081(C) (2015)
(“Section C”). Finding that Section C applies, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 DenBoer received his Arizona license to practice as a
psychologist in 2009. On or about May 7, 2015, DenBoer was appointed by
the superior court to serve as a counselor/therapist for a minor child in a
family court matter. He did so.
¶3 In September 2015, the child’s father requested the Board
investigate a complaint of unprofessionalism against DenBoer. The Board
notified DenBoer that a Request for Investigation (“RFI”) had been issued
against him, pursuant to the claim process set forth in Section C, because at
least one Board member determined there was sufficient merit to open an
investigation.
¶4 Rather than responding to the RFI, DenBoer challenged the
use of the Section C process. When the Board denied his challenge, he filed
this action for declaratory judgment in the superior court. The Board
agreed to stay the proceedings pending a final order from the superior
court.
¶5 The parties filed cross-motions for summary judgment. After
oral argument, the superior court found in favor of the Board. It denied
DenBoer’s request for summary judgment. The superior court did not
elucidate its reasoning in the order, rather relying on “the reasons stated on
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DENBOER v. ABPE
Decision of the Court
the record.”1 A judgment was filed with the finality language of Arizona
Rule of Civil Procedure 54(c). DenBoer timely appealed.
DISCUSSION
¶6 DenBoer asserts he should not be subject to the new Section C
screening process because the statute became effective in July 2015—two
months after he was appointed in the family court matter. DenBoer further
argues he has a vested right to have the superior court judge, who knows
the parties and the level of contentiousness in the proceedings, first
determine whether there is a substantial basis supporting the complaint.
¶7 The effective date of a statute is a question of law. See City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 548-49, ¶¶ 11, 17 (2005)
(holding new statute of limitations did not apply to claims filed before the
express effective date). We review de novo the interpretation of statutes and
“are not bound by the agency’s or the superior court’s legal conclusions or
statutory interpretations.” Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz.
320, 322-23, ¶ 10 (App. 2017).
I. Former Section B Process
¶8 The key difference in the Section B process and the new
Section C process concerns who screens initial complaints.2 From
September 30, 2009, until July 2, 2015, Section B provided that, in the context
of any court-ordered evaluation or treatment, the Board would not
investigate a claim of unprofessionalism unless the appointing court first
found “a substantial basis to refer the complaint for consideration by the
board.” A.R.S. § 32-2081(B)(2009). The same process applied universally to
1 A transcript of the hearing was not included in the record on appeal.
DenBoer was responsible for ordering transcripts of proceedings that he
deems “necessary for proper consideration of the issues on appeal.”
ARCAP 11(c)(1)(A). “We may only consider the matters in the record
before us. As to matters not in our record, we presume that the record
before the trial court supported its decision.” Ashton-Blair v. Merrill, 187
Ariz. 315, 317 (App. 1996).
2 There is also a secondary difference in the statutes concerning the
level of certainty needed by the screening party to refer a complaint for
investigation. Section B required a “substantial basis”; Section C requires
one or more board members to find the claim has “merit.”
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DENBOER v. ABPE
Decision of the Court
potential sex offenders and other clients. Id. Specifically, Section B read in
pertinent part:
The board shall not consider a complaint against a judicially
appointed psychologist arising out of a court ordered
evaluation, treatment or psychoeducation . . . of
unprofessional conduct unless the court ordering the
evaluation, treatment or psychoeducation has found a
substantial basis to refer the complaint for consideration by
the board.
A.R.S. § 32-2081(B) (2009).
II. Current Section C Process
¶9 On or after July 3, 2015, the Section B process remained the
same when the complainant was being evaluated regarding a potential sex
offense. See A.R.S. § 32-2081(B). However, under Section C, the legislature
designated a new screening process for other appointments:
A claim of unprofessional conduct brought on or after July 3,
2015 against a psychologist arising out of court-ordered
services shall be independently reviewed by three members
of the board . . . . If one or more of the board members who
are reviewing the claim determine that there is merit to open
an investigation as a complaint, an investigation shall be
opened and shall follow the complaint process pursuant to
this article. (Emphasis added.)
A.R.S. § 32-2081(C).
¶10 DenBoer asserts the critical date for our analysis is his May
2015 appointment by the superior court. He claims that the Board
incorrectly applied the Section C process retroactively by including
appointments made prior to the statute’s July 2015 effective date.3 The
3 “No statute is retroactive unless expressly declared therein.” A.R.S.
§ 1-244. While DenBoer relies on the Board’s use of the word
“retroactively” in the meeting minutes, it is of no legal significance here.
“[W]e are not bound by the agency’s or the superior court’s legal
conclusions or statutory interpretations.” Parsons, 242 Ariz. at 322-23, ¶ 10.
And because we find that the statute was applied prospectively, we need
not conduct a retroactive analysis.
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DENBOER v. ABPE
Decision of the Court
Board argues it applied the statute according to its terms, using three board
members to screen because the father’s claim against DenBoer was
“brought” in September 2015.
III. The Claim Was Brought in September 2015
¶11 To determine the meaning of “brought” in Section C, we first
examine the plain language of the statute. See N. Valley Emergency,
Specialists, LLC v. Santana, 208 Ariz. 301, 303, ¶ 9 (2004). We “assign to the
language its ‘usual and commonly understood meaning.’” Bilke v. State, 206
Ariz. 462, 464-65, ¶ 11 (2003) (citation omitted). And we “may refer to
established and widely used dictionaries” for that purpose. Stout v. Taylor,
233 Ariz. 275, 278, ¶ 12 (App. 2013).
¶12 Black’s Law Dictionary discusses the term “brought” and
says:
To “bring” an action or suit has a settled customary meaning
at law, and refers to the initiation of legal proceedings in a
suit. A suit is “brought” at the time it is commenced. Brought
and commenced in statutes of limitations are commonly
deemed to be synonymous.
Bring suit, Black’s Law Dictionary (6th ed. 1990) (internal citations omitted).
Likewise, this court routinely uses the term “brought” to indicate the
commencement of an action. See, e.g., In re Estate of Travers, 192 Ariz. 333,
336, ¶ 21 (App. 1998) (defining statute of limitations as “a legislative
enactment which sets maximum time periods during which certain actions
can be brought”); Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 501, ¶ 28
(App. 2004) (stating that Section 12-552 “sets a period of time within which
claims must be brought regardless of when the cause of action may
accrue”).
¶13 To treat “brought” the same as “appointed,” as DenBoer
urges, runs counter to the directive that different statutory terms should not
be treated as synonymous unless context permits no other alternative. See
P.F. West, Inc. v. Superior Court, 139 Ariz. 31, 34 (App. 1984). We find the
statutory language that the Section C process applies to “claim[s] of
unprofessional conduct brought after July 3, 2015” is clear and
unambiguous. Applying the ordinary meaning of “brought,” we hold that
the legislature used that term to denote when a claim of unprofessionalism
was filed against a court-ordered psychologist, not when the court
appointed the psychologist. Therefore, the Board did not apply the new
provision retroactively.
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DENBOER v. ABPE
Decision of the Court
¶14 Absent an applicable exception, DenBoer is subject to the
procedure in Section C. DenBoer argues he had a vested right in the Section
B procedure and protection based on his understanding of the statute
because he was licensed in 2009. We disagree.
¶15 Section C is a procedural statute. “[R]ules of procedure
regulate secondary rather than primary conduct, the fact that a new
procedural rule was instituted after the conduct giving rise to the suit does
not make application of the rule at trial retroactive.” Landgraf v. USI Film
Prods., 511 U.S. 244, 275 (1994). Substantive law “creates, defines and
regulates rights” while a procedural law establishes only “the method of
enforcing such rights or obtaining redress.” Allen v. Fisher, 118 Ariz. 95, 96
(App. 1977). Section C does not create or define substantive rights, rather
it sets the administrative process. Litigants have no vested entitlement to a
given procedure. Id. Statutory procedural changes may be applied to
pending proceedings. Metzler v. BCI Coca-Cola Bottling Co. of L.A., Inc., 235
Ariz. 141, 146-47, ¶ 25 (2014) (holding prejudgment interest was due on
judgment filed after the effective date of the statute). The Board correctly
determined that Section C was the appropriate process for the screening of
the claim.
¶16 DenBoer argues there are various policy reasons why
practicing psychologists might opt out of court-appointed positions where
any charge of unprofessionalism must be defended at the Board level. He
asserts he and other professionals relied on the protection from harassment
and expense afforded by Section B. He argues that even if we find the
amendment was procedural, it would be manifestly unjust to apply it in
this instance. We decline the invitation to impose a procedure that is
contrary to the express language of a valid statute.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court’s
judgment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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