Allhusen v. State By and Through Wyoming Mental Health Professions Licensing Bd.

• Decision Date: 23 June 1995
• Docket Number: No. 94-36,94-36
• Citation: 898 P.2d 878
• Parties: David ALLHUSEN, M.S.S.W., an individual; Casper Psychological Services, a Wyoming professional corporation; George Conner, an individual; Jennifer Korb, an individual; and similarly situated John Does and Jane Does 1 through 100, Appellants, v. The STATE of Wyoming, acting By and Through the WYOMING MENTAL HEALTH PROFESSIONS LICENSING BOARD, Appellee.
• Court: Wyoming Supreme Court

Page 878

898 P.2d 878

David ALLHUSEN, M.S.S.W., an individual; Casper Psychological Services, a Wyoming professional corporation; George Conner, an individual; Jennifer Korb, an individual; and similarly situated John Does and Jane Does 1 through 100, Appellants, v. The STATE of Wyoming, acting By and Through the WYOMING MENTAL HEALTH PROFESSIONS LICENSING BOARD, Appellee.

No. 94-36.

Supreme Court of Wyoming.

June 23, 1995.

Michael Rosenthal of Hathaway, Speight, Kunz & Trautwein, Cheyenne, and Charles S. Chapin of Crowell & Chapin, P.C., Casper, for appellants.

Joseph B. Meyer, Atty. Gen.; Mary B. Guthrie, Deputy Atty. Gen.; Ron Arnold, and William G. Hibbler, Sr. Asst. Attys. Gen., for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

At issue in this case is the state constitutionality of the licensure provisions, ¹ the prerequisites to licensure, ² and the licensure exemptions ³ set forth in the Mental Health Professions Practice Act (MHPPA). ⁴ The issue arises primarily under the equal protection and uniform operation of the laws requirements found in the Constitution of the State of Wyoming. It occurs in the context of the licensure of mental health professionals and disparate treatment of unlicensed counselors employed by private, for-profit institutions and unlicensed counselors employed in public institutions, public and private educational institutions, including students, interns or trainees pursuing a course of study in the regulated professions in an accredited institution, and miscellaneous others. Reliance is placed by the parties upon various other state constitutional provisions. We hold the statutory provisions violate the constitutional mandate for equal protection of the laws, and the numerous other claims are subsumed by the equal protection analysis. While it did certify to this court the constitutional questions, the trial court articulated its conclusion that the provisions at issue are unconstitutional and issued a Temporary Restraining Order and Preliminary Injunction inhibiting the enforcement of the provisions. We agree with the conclusion of the trial court, although on more limited grounds, and in response to the Order Certifying Questions to the Supreme Court, we hold the statutory scheme is unconstitutional.

Pursuant to WYO.R.APP.P. 11, the trial court certified to this court the following questions:

1. Do the licensure provisions (W.S. § 33-38-110), prerequisites to licensure (W.S. § 33-38-106), and licensure exemptions (W.S. § 33-38-103) of the Mental Health Professions Practice Act:

(a) Violate Article 1, Section 2 of the Wyoming Constitution by denying Plaintiffs' equal protection of the law?

(b) Violate Article 1, Section 6 of the Wyoming Constitution by denying Plaintiffs due process of law?

(c) Violate Article 1, Section 7 of the Wyoming Constitution by imposing arbitrary power over the lives and property of the Plaintiffs without cause?

(d) Violate Article 1, Section 34 of the Wyoming Constitution by lacking uniform operation?

(e) Violate Article 3, Section 27 of the Wyoming Constitution by amounting to special legislation granting special or exclusive privileges and immunities where a general law could be enacted?

(f) Violate Article 1, Section 35 of the Wyoming Constitution by violating the rights and obligations of contracts ex post facto?

(g) Amount to prohibited "fencing" legislation?

(h) Deny Plaintiffs' fundamental property rights, liberties and privileges?

(i) Create unconstitutional classifications by exempting from regulation a class of similarly-situated individuals who provide the same services to the public as the Plaintiffs who are restricted from doing so under the provisions of the MHPPA?

2. Is the MHPPA so vague as to deny uniform enforcement without legislation on the part of the Administrative Board?

3. Will enforcement of the MHPPA adversely affect the health and welfare of Wyoming citizens in need of emotional and mental assistance?

The preceding questions encompass all of the issues in the case, and no additional issues are suggested by any party.

We are not advised of the reason for pursuing this case under WYO.R.APP.P. 11 ⁵ rather than WYO.STAT. § 1-13-101 (1988). ⁶ We understand WYO.R.APP.P. 11 to be broader in its application than WYO.STAT. § 1-13-101 and, in view of its specific nature, the statutory procedure should be invoked for the reservation of constitutional questions. We will consider the questions certified in this case, however, because the statutory provisions were substantially met.

In such an instance, we rely entirely upon the factual determinations made in the trial court. As set forth in the Order Certifying Questions to the Supreme Court, they are:

In 1987, the Wyoming Legislature enacted the "Professional Counselors, Marriage and Family Therapists, Social Workers and Chemical Dependency Specialists Act." (Laws 1987, Ch. 239, § 1, codified as W.S. § 33-38-101, et seq.) Under this Act, a licensure procedure was available, but not required, for mental health professionals practicing in the state of Wyoming.

In 1993, the Legislature passed several amendments to the Act, including changing its name to the "Mental Health Professions Practice Act" (MHPPA). The 1993 amendments (Laws 1993, Ch. 181, §§ 2 and 3) for the first time made licensure mandatory for mental health professionals practicing in the state of Wyoming (W.S. § 33-38-110(a)(i)). However, the 1993 amendments also exempted from the licensure requirements a large group of persons providing counseling activities and services to the public, including people employed by any federal or state agency or any political subdivision thereof, or public or private educational institutions, students, interns or trainees pursuing a course of study in the regulated professions in an accredited institution of higher education or training institution, clergymen, or persons providing volunteer or professional services for public and private non-profit organizations or charities (W.S. § 33-38-103(a)(i)-(vi)). Additionally, the 1993 amendments enlarged the number of hours of supervised clinical experience and supervision required of applicants for licensure before they could qualify to take the licensure examination (W.S. § 33-38-106(b)).

The licensure requirement of the MHPPA set out in W.S. § 33-38-110(a)(i), prohibits unlicensed counselors from having direct patient contact, even if that contact is under the direct supervision of a counselor already holding a valid Wyoming license. Persons violating the Act are subject to criminal prosecution which can lead to felony convictions and imprisonment for not more than two years and a fine of not more than $2,000 for each violation (W.S. § 33-38-110(e)).

As of the July 1, 1993, effective date of the MHPPA, Plaintiffs ⁷ Allhusen, Conner and Korb were all employed as counselors and had all previously received Masters Degrees in various counseling fields. Plaintiffs Allhusen and Korb had not yet achieved the number of hours of clinical experience necessary to qualify to sit for the licensure examination. Plaintiff Conner had amassed the requisite number of hours of clinical experience, but the Mental Health Professionals Licensing Board informed Plaintiff Conner that, despite receiving a Masters Degree in Psychology, he would need to receive additional hours of education before being allowed to sit for the licensure examination.

Plaintiff Casper Psychological Services, P.C., employed Plaintiffs Conner and Korb to provide counseling services to the public directly and through a contract with Crestview [Crest View] Hospital and Counseling Center of Casper, Wyoming. Under the terms of this contractual relationship, Casper Psychological provided counseling services to eight to ten patients at Crestview Hospital on an average daily basis.

Plaintiff Allhusen was employed directly by Crestview Hospital and Counseling Center and, before the controversy which gave rise to this litigation arose, provided counseling services as a social worker at Crestview under the supervision of a Licensed Professional Social Worker as well as licensed psychiatrists and medical doctors.

Section 33-38-105 of the MHPPA requires the Board to "adopt rules not inconsistent with this Act or the laws of this state that are reasonable and necessary to administer this Act." As of the July 1, 1993, effective date of the Act, the Board had not adopted any rules or regulations by which to administer the Act. The Board adopted "Emergency Rules and Regulations" on October 18, 1993, after this action was filed, and without the benefit of public comment or a public hearing.

After the July 1, 1993, effective date, several inquiries were directed to the Mental Health Professions Licensing Board and its attorney by the administrators and counsel for Crestview Hospital and Counseling Center concerning the status under the MHPPA of persons like Plaintiffs Allhusen and Korb, new graduates having less than 3,000 post-graduate clinical hours of experience and, thus, not eligible under the Act to sit for the licensure examination. The Board, through its Administrative Officer, informed Crestview that these persons would not be eligible or qualified for supervised practice in non-exempt, private, for-profit counseling institutions such as Crestview. Crestview was informed by the Board's Administrative Officer that "new graduates will need to seek employment in exempted areas (meaning not-for-profit, government or educational institutions) in order to build the necessary hours required" to qualify to take the licensure examination.

Crestview was further informed by the Board that it would not allow any non-licensed counselors or new Masters-level graduates to practice professional counseling in for-profit institutions. On September 16, 1993, Crestview was informed by the Licensing Board's attorney that non-licensed mental...