Althof v. Ohio State Bd. of Psychology, 2007 Ohio 1010 (Ohio App. 3/8/2007)
| Decision Date | 08 March 2007 |
| Docket Number | No. 05AP-1169.,05AP-1169. |
| Citation | 2007 Ohio 1010 |
| Parties | James E. Althof, Ph.D., Appellant-Appellant, v. Ohio State Board of Psychology, Appellee-Appellee. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 04CVF-11-11675.
Lane, Alton & Horst, LLC, Jeffrey J. Jurca and Richard O. Wuerth, for appellant.
Marc Dann, Attorney General, and Roger F. Carroll, for appellee.
{¶1} Appellant, James E. Althof, Ph.D., appeals from a judgment of the Franklin County Court of Common Pleas that, among other things, affirmed an order of the Ohio State Board of Psychology ("board") revoking appellant's license to practice psychology for a minimum of five years. Because the common pleas court did not abuse its discretion by affirming the board's order, we affirm the common pleas court's judgment.
{¶2} By means of a notice of opportunity for hearing, the board informed appellant that it intended to determine whether to reprimand appellant, or suspend or revoke appellant's license to practice psychology for, among other things: allegedly engaging in sexual intercourse with several female clients; impaired objectivity and dual relationships; exploiting the trust or dependency of clients; negligence; improper billing; engaging in fraud, misrepresentation, or deception; and failing to protect client confidentiality.
{¶3} After holding an administrative hearing, the board revoked appellant's license to practice psychology for a minimum of five years, effective November 19, 2004. The board also ordered that, in the event that circumstances warranted restoration of appellant's psychology license, appellant's return to practice "shall be accompanied by a restriction from providing psychological services to females in perpetuity and that practice monitoring by a Board-approved mental health professional shall be required in perpetuity." (Oct. 21, 2004 Order.)
{¶4} From the board's order, appellant appealed to the Franklin County Court of Common Pleas. The common pleas court stayed execution of the board's order pending resolution of the merits of appellant's appeal. Later, the common pleas court issued a judgment affirming the board's order of revocation. In its judgment, the common pleas court also vacated its earlier stay of execution of the board's order.
{¶5} Following the common pleas court's judgment, appellant moved the court to clarify its order vacating the stay of execution of the board's order. The common pleas court did not rule upon this motion. We, therefore, presume that the common pleas court overruled appellant's motion. See, generally, Kostelnik v. Helper, 96 Ohio St.3d 1, 2002O-hio-2985, at ¶13, reconsideration denied, 96 Ohio St.3d 1489, citing State ex rel. V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469 ().
{¶6} From the common pleas court's judgment, appellant now appeals. On July 6, 2006, after appellant's appeal was submitted to this court, appellant moved this court to stay the effect of the board's order. By entry filed on August 2, 2006, this court suspended execution of the board's revocation order. Appellant has assigned ten errors for our consideration:
The trial court erred in finding that participation of "patient advocates" in the adjudicative hearing was consistent with due process.
The trial court erred in finding that the Board's failure to enforce its own subpoena duces tecum was consistent with due process.
The trial court erred in finding that the Board's ex parte conversation with the Assistant Attorney General was consistent with due process.
The trial court erred in finding that testimony relating to Appellant's temperament and behavior was properly admitted.
The trial court erred in finding that Dr. Jane Woodrow's participation in the hearing was consistent with due process.
The trial court erred in finding that R.C. 2305.51 does not provide immunity to Appellant.
The trial court erred in finding that the Board's decision to allow a witness to read from a journal containing hearsay was proper.
The trial court erred in finding that the Board's failure to give explicit prior notice did not deny Appellant his due process rights to reasonable notice and fair hearing.
The trial court erred in lifting the stay of Appellant's suspension.
The trial court erred and abused its discretion in finding that the Board's Order was based on reliable, probative and substantial evidence.
{¶7} Under R.C. 119.12, when a common pleas court reviews an order of an administrative agency, it must consider the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980), 63 Ohio St.2d 108, 110-111; Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280. See, also, Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571 ().
{¶8} The common pleas court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and the weight thereof.' " Lies v. Ohio Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207, quoting Andrews, at 280. In its review, the common pleas court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Conrad, at 111.
{¶9} An appellate court's review of an administrative decision is more limited than that of a common pleas court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, rehearing denied, 67 Ohio St.3d 1439. In Pons, the Supreme Court of Ohio explained:
* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment. * * *
Id. at 621. See, also, Smith v. State Liquor Control Comm. (Dec. 10, 1998), Athens App. No. 98CA03, at fn. 1 (). (Emphasis sic.)
{¶10} An appellate court does, however, have plenary review of questions of law. Chirila v. Ohio State Chiropractic Bd. (2001), 145 Ohio App.3d 589, 592, citing Steinfels v Ohio Dept. of Commerce, Div. of Securities (1998), 129 Ohio App.3d 800, 803, appeal not allowed (1999), 84 Ohio St.3d 1488.
{¶11} Appellant's first, second, third, fifth, and eighth assignments of error assert violations of due process, and we shall collectively consider them.
{¶12} "The Fourteenth Amendment to the United States Constitution prohibits any state from depriving `any person of life, liberty, or property, without due process of law.' " State ex rel. Haylett v. Ohio Bur. of Workers' Comp. (1999), 87 Ohio St.3d 325, 331. Under the Ohio Constitution, "Section 16, Article I * * * states that `every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law." Id. See, also, Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 422-423, citing Direct Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 544 (); Chirila, supra, at 593, citing LTV Steel Co. v. Indus. Comm. (2000), 140 Ohio App.3d 680, 688 ().
{¶13} "Due process contains two components: procedural due process and substantive due process." State v. Pennington (Jan. 29, 2002), Franklin App. No. 01AP6-57, appeal not allowed, 95 Ohio St.3d 1460, 2002-Ohio-2230. See, generally, Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 541, 105 S.Ct. 1487 ); Pennington, supra.
{¶14} " `[D]ue process' is a flexible concept—that the processes required by the Clause with respect to the termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur." Walters v. Natl. Assn. of Radiation Survivors (1985), 473 U.S. 305, 320, 105 S.Ct. 3180. However, ...
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