Gonzales v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MANUEL ERINEO GONZALES, Appellee,
v.
ARIZONA STATE BOARD OF NURSING, Appellant.
No. 1 CA-CV 22-0278
FILED 4-13-2023
Appeal from the Superior Court in Maricopa County
No. LC2021-000127-001
The Honorable Daniel J. Kiley, Judge (Retired)
AFFIRMED
COUNSEL
Jaburg & Wilk, P.C., Phoenix
By Mark D. Bogard, David N. Farren
Counsel for Appellee
Arizona Attorney General’s Office, Phoenix
By Elizabeth A. Campbell, Justin J. Larson
Counsel for Appellant
GONZALES v. STATE
Opinion of the Court
OPINION
Presiding Judge David D. Weinzweig delivered the opinion of the Court, in
which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Arizona’s licensed professionals enjoy a protected interest in
their license under our state and federal constitutions, and that license
cannot be revoked unless procedural due process is afforded. But
procedural due process is a flexible guarantee: it calls for the procedural
safeguards demanded in a particular case.
¶2 Arizona law exemplifies that fluid approach to due process
in disciplinary proceedings against licensed professionals under the
Administrative Hearing Procedures Act. From one end, the state cannot
revoke a license unless it provides the licensee with an opportunity for a
hearing and at least 30-days’ notice of that hearing. This 30-day-notice
requirement ensures the licensee has enough time to develop a meaningful
defense. From the other end, the state must hold prompt revocation
hearings when it first takes preemptive action to summarily suspend a
person’s license. This prompt-hearing requirement ensures the licensee is
not left in procedural limbo, deprived of the ability to work in their chosen
profession for an extended period.
¶3 The Arizona Board of Nursing (“Board”) revoked Manuel
Gonzales’s (“Nurse”) nursing license after a revocation hearing, during
which Nurse complained he was not given enough time to prepare a
meaningful defense. The superior court later vacated the Board’s final
administrative decision because Nurse had received only 13-days’ notice of
the revocation hearing. The Board now asks us to reverse the superior
court’s order and reinstate its final revocation decision, arguing that
Arizona law required it to conduct a prompt revocation hearing—on less
than 30-days’ notice—because it had summarily suspended Nurse’s license
pending an action for revocation. But the Board confuses two distinct
rights, each grounded in due process and each promised to the licensee—
the right to adequate notice and the right to a prompt hearing. Because the
Board denied Nurse the right to adequate notice under Arizona law, we
affirm.
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Opinion of the Court
FACTS AND PROCEDURAL BACKGROUND
¶4 Nurse had been licensed as a registered nurse under Arizona
law since 2003. The Board received four complaints about Nurse in May
2020, each from a coworker and each for workplace misconduct,
culminating in his arrest for assault at the Veterans Health Administration
(“VA”) Hospital.
¶5 The Board notified Nurse of the allegations against him,
invited his response, and opened a six-month investigation. The Board’s
investigator interviewed several witnesses, including Nurse, before
recommending the Board summarily suspend and then revoke Nurse’s
license. The Board accepted that recommendation on November 12, 2020,
summarily suspending Nurse’s license “pending proceedings for
revocation,” finding that immediate action was required to protect public
health, safety and welfare.
¶6 On November 18, the Board issued a Complaint and Notice
of Hearing, alleging Nurse engaged in unprofessional conduct under the
Nurse Practice Act. The Board set the revocation hearing for December 1,
just 13 days hence, when an administrative law judge (“ALJ”) would hear
the evidence.
¶7 Nurse represented himself at the December 1 hearing,
explaining he could not find an attorney to represent him on such short
notice. The Board called five witnesses, including Nurse’s coworkers and
the Board’s investigator. The investigator testified he had subpoenaed the
VA police report from the alleged assault, but had not yet received that
report. Nurse testified in his own defense but called no witnesses because
he “was not given enough time to prepare.” Like the Board’s investigator,
Nurse said he requested but had not yet obtained the VA police report,
which required a lead time of four to six weeks. Nurse maintained the
police report “would shed a completely different picture about what people
have been saying here.” The hearing concluded after the ALJ assured
Nurse, “I’ve heard your testimony regarding the VA investigation.”
¶8 Almost six weeks later, the ALJ recommended the Board
revoke Nurse’s license, finding he had “committed unprofessional
conduct.” The Board agreed and revoked Nurse’s license, adopting the
ALJ’s findings, conclusions and recommendations in their entirety.
¶9 By March 2021, Nurse hired an attorney who unsuccessfully
moved the Board for a rehearing, arguing the revocation was not lawful
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Opinion of the Court
because Arizona law required the Board to provide Nurse with at least 30-
days’ notice before it held the revocation hearing.
¶10 Nurse appealed to the superior court, arguing the Board
violated Arizona law because he was not given at least 30-days’ notice to
prepare for the revocation hearing as required by A.R.S. § 41-1092.05(D).
The Board argued that 30-days’ notice was not necessary because it had
summarily suspended Nurse’s license under § 41-1092.11(B), which
required the Board to conduct a “prompt” hearing. The superior court
upheld the summary suspension but reversed the revocation because the
Board had violated the 30-days’ notice requirement under § 41-1092.05(D).
The Board timely appealed. We have jurisdiction. See A.R.S. §§ 12-913, -
120.21(A)(1).
DISCUSSION
¶11 The Board contends it was following the “prompt” hearing
requirement when it offered Nurse only 13-days’ notice of the evidentiary
hearing to determine whether his license should be permanently revoked.
Nurse argues the Board denied his right to due process under Arizona’s
version of the Uniform Administrative Hearing Procedures Act by
dispensing with the 30-day minimum notice requirement. We interpret a
statute de novo, see Stambaugh v. Killian, 242 Ariz. 508, 509,
¶ 7 (2017), and set aside an administrative decision if it is contrary to the
law, see A.R.S. § 12-910(F).
¶12 Our state and federal constitutions guarantee that “[n]o
person shall be deprived of life, liberty, or property without due process of
law,” U.S. Const. amend. XIV; Ariz. Const. art. 2, § 4, which requires the
person have an opportunity to be heard “at a meaningful time and in a
meaningful manner,” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation
omitted). But procedural due process is a flexible concept: it calls for the
procedural safeguards demanded in a particular case. See Morrissey v.
Brewer, 408 U.S. 471, 481 (1972); see also Comeau v. Ariz. State Bd. of Dental
Exam’rs, 196 Ariz. 102, 106–07 (App. 1999) (“Due process is not a static
concept; it must account for ‘the practicalities and peculiarities of the
case.’”) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950)).
¶13 Arizona law empowers the Board to discipline licensed
nurses for “unprofessional conduct.” A.R.S. § 32-1663(D). Like all licensed
professionals, however, licensed nurses enjoy a property interest in their
license, see Dahnad v. Buttrick, 201 Ariz. 394, 398, ¶ 15 (2001) (recognizing
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Opinion of the Court
“the practice of a profession is a right, not just a privilege”), and the Board
cannot finally deprive them of that interest without due process of law, see
Mathews, 424 U.S. at 333. When the Board intends to revoke a nurse’s
license, Arizona law guarantees due process under the Administrative
Hearing Procedures Act:
Revocation, suspension, annulment or withdrawal of any
license is not lawful unless, before the action, the agency
provides the licensee with notice and an opportunity for a
hearing in accordance with this article.
A.R.S. § 41-1092.11(B).
¶14 Earlier in the same article, the Administrative Hearing
Procedures Act elaborates on this requirement:
The agency shall prepare and serve a notice of hearing on all
parties to the appeal or contested case at least thirty days
before the hearing.
A.R.S. § 41-1092.05(D).
¶15 By requiring a 30-day notice period, the statute guarantees
one form of due process—ensuring a licensee has time to prepare for the
hearing and present a meaningful defense. Cf. Webb v. State ex rel. Ariz. Bd.
of Med. Exam’rs, 202 Ariz. 555, 558, ¶ 9 (App. 2002) (explaining that licensees
are entitled to present a defense in a “meaningful manner”).
¶16 A hearing may be expedited in limited circumstances,
however, if a party files a motion with the director of the office of
administrative hearings:
A hearing shall be expedited as provided by law or upon a
showing of extraordinary circumstances or the possibility of
irreparable harm if the parties to the appeal or contested case
have actual notice of the hearing date.
A.R.S. § 41-1092.05(E).
¶17 When emergency action is required, the Board may
summarily suspend a nursing license pending the formal revocation
hearing:
If the agency finds that the public health, safety or welfare
imperatively requires emergency action, and incorporates a
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Opinion of the Court
finding to that effect in its order, the agency may order
summary suspension of a license pending proceedings for
revocation or other action. These proceedings shall be
promptly instituted and determined.
A.R.S. § 41-1092.11(B).
¶18 By requiring a prompt hearing, the statute offers a second
form of due process to licensees—preventing the Board from summarily
suspending a nurse’s license, only to slow-walk the revocation proceedings
and keep the nurse in procedural limbo, left to watch the administrative
process crawl forward. See Dahnad, 201 Ariz. at 396, ¶ 2 (noting “the
administrative process . . . can drag out for month after month,” and
“[d]uring this process, a dentist summarily suspended cannot practice
dentistry; nor, if the suspension turns out to have been improper, can the
dentist’s lost income be restored”). But that right is waivable, and “due
process requires that individuals have the option of waiving their right to
expedited proceedings in order to receive meaningful review of their
claims.” See Tur v. F.A.A., 4 F.3d 766, 770 (9th Cir. 1993).
¶19 Against that backdrop, the Board argues it need not provide
a licensed nurse with 30-days’ notice to prepare a meaningful defense
under § 41-1092.05(D) whenever it first summarily suspends the nurse’s
license under § 41-1092.11(B). For that argument, the Board relies on the
last sentence of § 41-1092.11(B), which requires that proceedings to revoke
a license be “promptly instituted and determined” when the Board has first
taken “emergency action” to summarily suspend that license.
¶20 We reject the Board’s argument for several reasons. First, §
41-1092.11(B) directs that all licensees receive notice and a hearing “in
accordance with this article,” referring to § 41-1092.05(D), which requires the
Board to provide a licensed nurse with 30-days’ notice of the revocation
hearing. § 41-1092.11(B) (emphasis added). Had the legislature wished to
strip licensees of the right to adequate notice when the state has summarily
suspended their license, it would have required notice and a hearing “in
accordance with this section.” We presume the legislature says what it
means. S. Arizona Home Builders Ass’n v. Town of Marana, 522 P.3d 671, 676,
¶ 31 (Ariz. 2023) (“Statutory interpretation requires us to determine the
meaning of the words the legislature chose to use. We do so neither
narrowly nor liberally, but rather according to the plain meaning of the
words in their broader statutory context, unless the legislature directs us to
do otherwise.”).
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Opinion of the Court
¶21 Second, the Board confuses two disparate forms of due
process promised to licensees under Arizona law. By holding the
revocation hearing just 13 days after providing Nurse with notice of that
hearing, the Board denied Nurse time—17 more days—to prepare a
meaningful defense. This confusion explains the Board’s misplaced
reliance on Dahnad, where the state summarily suspended a license but
waited nearly three months to complete the formal post-suspension
revocation hearing. 201 Ariz. at 397, ¶ 9. There, unlike here, the licensee
was deprived of a prompt resolution after his license was summarily
suspended. Here, unlike there, Nurse was denied a meaningful
opportunity to prepare a defense.
¶22 Lastly, the summary suspension route is meant to facilitate
the dictates of due process, not to inhibit them, and the Board cannot exploit
that route to justify less process. By first summarily suspending Nurse’s
license, the Board acted swiftly to protect the public health and safety so that
due process could then unfold. See Dahnad, 201 Ariz. at 399, ¶ 19(recognizing that Arizona law strikes a balance “to move swiftly when
protective action cannot wait, yet grants an opportunity to be heard at a
significant time and in a significant manner”) (cleaned up).
Waiver and Expedited Hearing
¶23 The Board raises two more arguments. It first contends that
Nurse waived any due process rights by participating in the revocation
hearing. A valid waiver of constitutional rights must be voluntary,
knowing and intelligent. Webb, 202 Ariz. at 558, ¶ 9. No waiver is found
on this record. When informed of the hearing date, Nurse requested more
time to prepare a meaningful defense; and Nurse reiterated the point more
than once during the hearing, lamenting he had not yet received the VA
police report.
¶24 The Board also contends this case qualified for an expedited
hearing under § 41-1092.05(E). Not so. The Board shows no extraordinary
circumstances or irreparable harm, and Nurse’s license had been
summarily suspended pending the outcome of the hearing. Because Nurse
was denied adequate notice of the revocation hearing, we affirm the
superior court’s ruling.
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GONZALES v. STATE
Opinion of the Court
CONCLUSION
¶25 We affirm. Nurse requests an award of reasonable attorney
fees and costs on appeal, which we grant under A.R.S. § 12-348(A)(2)
contingent upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
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