Gilpin v. Board of Nursing, Dept. of Commerce
| Decision Date | 22 September 1992 |
| Docket Number | No. 92-212,92-212 |
| Citation | 254 Mont. 308,837 P.2d 1342 |
| Parties | Joel R. GILPIN, Petitioner and Appellant, v. BOARD OF NURSING, DEPARTMENT OF COMMERCE, State of Montana, Respondent and Respondent. |
| Court | Montana Supreme Court |
Richard Larson, Chronister, Driscoll & Moreen, Helena, for petitioner and appellant.
Steven J. Shapiro, Sp. Asst. Atty. Gen., Dept. of Commerce, Helena, for respondent and respondent.
This is an appeal of an administrative action of the Montana Board of Nursing, which permanently revoked the license of Joel R. Gilpin to practice in Montana as a registered professional nurse. The District Court for the First Judicial District, Lewis and Clark County, affirmed, but it deleted a provision that the revocation is permanent. Gilpin appeals to this Court. We affirm.
The issues are:
1. Does the Board have jurisdiction to revoke a Montana nursing license which expired before revocation?
2. Did the Board revoke Gilpin's Montana nursing license without affording him a proper hearing?
3. Did the Board properly consider criteria for licensure of criminal offenders in revoking Gilpin's nursing license?
Gilpin was licensed as a registered nurse in Montana from 1980 through 1990. The Board did not send him a license renewal application for 1991, and his license lapsed at the end of 1990.
In 1987, Gilpin was convicted of two counts of sexual assault upon eleven- and twelve-year-old girls. He was sentenced to four years' imprisonment on each count, to be served consecutively. In June 1988, as a result of his criminal conviction, the Board initiated a license disciplinary proceeding against him. At Gilpin's request, the disciplinary proceeding was delayed while he appealed his criminal conviction to this Court and pursued a habeas corpus action in federal court.
This Court's opinion affirming Gilpin's criminal conviction sets forth the facts underlying the conviction. State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445. That opinion is a public record and as such was available to the Board.
In November 1990, the proceeding before the Board was reactivated. The parties submitted the matter on an agreed statement of facts. A hearing examiner heard the case and submitted findings, conclusions, and a recommended order to the Board. After hearing Gilpin's objections orally and receiving them in writing, the Board adopted the hearing examiner's findings, conclusions, and recommendations.
Gilpin appealed to the District Court. The court heard the parties' arguments and then issued its written memorandum and order affirming the decision to revoke Gilpin's license. However, the court deleted the provision that the revocation is permanent.
Does the Board have jurisdiction to revoke a Montana nursing license which expired before revocation?
Gilpin argues that the Board lost jurisdiction over him after his nursing license lapsed in 1990. He claims that the Board is statutorily empowered to take action only on an application for a nursing license or on an issued license, not on an expired license.
Section 37-8-431(3), MCA, provides that a lapsed nursing license may be reinstated by the Board upon satisfactory explanation for the failure to renew the license and upon payment of current fees. Section 37-1-141, MCA, provides that a lapsed occupational or professional license which is not renewed within three years of the most recent renewal date automatically terminates and a new original license must be obtained.
Because the above statutes give the Board the power to reinstate a nursing license for three years after it lapses, we conclude that the Board retains jurisdiction over a lapsed nursing license for three years following a failure to renew. This action took place within three years after Gilpin's license lapsed. We hold that the Board had jurisdiction to revoke Gilpin's license.
Did the Board revoke Gilpin's Montana nursing license without affording him a proper hearing?
Despite his consent to submit to the hearing examiner an agreed set of facts, Gilpin contends that he was entitled to a hearing before the Board on the merits of his case. He points out that, in the brief submitted to the Board in support of revoking his license, various harmful consequences were alleged as possible results of halting disciplinary proceedings. Gilpin maintains that a hearing should have been held to afford him an opportunity to rebut those "allegations of fact."
The material facts of this case were stipulated--that Gilpin stands convicted of sexually molesting two pre-teen girls. The results which were forecast if disciplinary proceedings were halted did not create material issues of fact. Gilpin was afforded a hearing before the Board at which he presented his arguments in opposition to the hearing examiner's findings and conclusions. We hold that Gilpin's criminal conviction and the facts to which he stipulated were a sufficient basis for summary judgment and that Gilpin was not entitled to any hearings in addition to those which he was given.
Did the Board properly consider criteria for licensure of criminal offenders in revoking Gilpin's nursing license?
Gilpin states that there is no indication, in either the record in this case or in this Court's decision in his appeal from his criminal conviction, of any connection between the conduct on which his criminal conviction was based and his nursing practice. He points out that the conduct occurred while he was off duty and away from his workplace. He quotes the following statutes dealing with the licensure of criminal offenders:
37-1-201. Purpose. It is the public policy of the legislature of the state of Montana to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of ...
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Erickson v. State ex rel. Bd. of Medical Examiners
...health, welfare, or safety under § 37-1-203, MCA. The Board argues that under Mills, and the subsequent case of Gilpin v. Board of Nursing (1992), 254 Mont. 308, 837 P.2d 1342, a conviction alone could indeed constitute a bar to In Mills and Gilpin, this Court did not distinguish between th......