Nims v. WA. BD. OF REGISTRATION
| Decision Date | 30 August 2002 |
| Docket Number | No. 27431-1-II.,27431-1-II. |
| Citation | 53 P.3d 52,113 Wash. App. 499,113 Wn. App. 499 |
| Parties | James F. NIMS, Appellant, v. WA. BOARD OF REGISTRATION, et al, Respondents. |
| Court | Washington Court of Appeals |
James Titchener Schmid, Asst. Attorney General, Seattle, for Respondents.
Rhys Alden Sterling, Hobart, for Appellant.
James F. Nims appeals the revocation of his engineering license. We reverse and remand for application of the correct burden of persuasion. In all other respects, we affirm.
Nims was a registered professional engineer. He was licensed by the Department of Licensing and subject to discipline by the Board of Registered Professional Engineers.1
On July 1, 1998, the Department commenced a disciplinary proceeding against Nims. Then and in amended charges filed September 20, 1999, the Department accused Nims of engaging in various acts and omissions that amounted to "incompetence, gross negligence and/or other acts contrary to the accepted standard of practice of professional engineers."2 One charge, involving a business called the Snack Shack, was based only on the sworn complaint of an employee of the Department of Licensing. More than one charge was based not only on RCW 18.43.110, but also on other sections of chapter 18.43 RCW.3 At least one charge involved conduct more than two years old.
Nims' license was due to expire on October 25, 1999. He made no effort to renew it, so it lapsed on that date.
The Board held hearings in March and April 2000. It upheld some charges but dismissed others. In August 2000, it entered findings of fact based on a preponderance of the evidence. It also entered conclusions of law and revoked Nims' license. It ordered that he have "no right to reapply" unless he completed an ethics class and met "all of the requirements for licensure as a new applicant, including successfully passing the full examination for licensure."4
Nims appealed to the Pacific County Superior Court, which affirmed. He then brought this appeal, in which he makes five claims.
Nims first claims that Board erred by basing its findings of fact on a preponderance of the evidence. Citing Nguyen v. Department of Health, Medical Quality Assurance Commission,5 he claims that the Board was required to base its findings on clear, cogent, and convincing evidence.
In Nguyen, the Medical Quality Assurance Commission found by a preponderance of evidence that a physician had engaged in inappropriate sexual contact with three patients. The Commission revoked his license to practice medicine, and the case went to the Supreme Court. The issue was whether the Board had applied the correct burden of persuasion. Reversing, the Supreme Court held that in a proceeding to discipline a physician, the facts must be proved by clear and convincing evidence.
The Department asserts that Nims cannot rely on Nguyen because he did not cite it to the Board or the superior court, or in the opening brief that he filed with this court; he first mentioned it in the reply brief that he filed with this court on September 25, 2001. According to the record, however, Nims filed his opening brief in this court on July 6, 2001, and Nguyen was not decided until August 23, 2001. Necessarily then, Nims could not have argued Nguyen before the Board, before the superior court, or in the opening brief that he filed with this court. He cited Nguyen as soon as he reasonably could have, and it has now been briefed by both sides. Under these circumstances, Nims has not waived his right to argue Nguyen.
If Nguyen applies, it requires us to remand to the Board for findings based on clear, cogent, and convincing evidence. In the Department's view, however, Nguyen does not apply to a registered professional engineer like Nims. To support that view, the Department relies on Eidson v. Department of Licensing.6 In Eidson, the Department of Licensing revoked the license of a real estate appraiser after finding by a preponderance of the evidence that the appraiser had made fraudulent misrepresentations. The appraiser appealed to superior court, which affirmed, and then to Division One, which also affirmed. Division One reasoned that an incompetent doctor creates a more "direct and immediate threat" to health, safety and welfare than an incompetent appraiser; thus, it was appropriate to use a clear and convincing burden of persuasion for the doctor, but a preponderance burden of persuasion for the appraiser.7 Division One also reasoned that different burdens of persuasion are proper for doctors and appraisers because doctors' training involves more time and money than appraisers' training.8 Finally, Division One reasoned that the charges in Nguyen were subjective while the charges in Eidson were objective; thus, it was appropriate to use a clear and convincing burden of persuasion in Nguyen but a preponderance burden of persuasion in Eidson.9 Consequently, Division One "declin[ed] to extend Nguyen's holding to encompass proceedings under the Certified Real Estate Appraiser Act."10
We cannot agree with the Eidson court's first reason for not following Nguyen. The court derived that reason, at least in part, from cases decided in other states.11 In general, these out-of-state cases hold that the degree of risk created by professional incompetency varies with the profession involved. Incompetency among doctors, for example, creates a "direct and immediate threat to physical health, safety and welfare[.]"12 Incompetency among lawyers does not, at least to the same degree. Thus, these out-of-state cases conclude that a state is constitutionally free to apply a lower, more discipline-friendly, preponderance burden of persuasion to the profession that creates the higher risk (e.g., doctors), while at the same time applying a higher, less discipline-friendly, clear and convincing burden of persuasion to the profession that creates the lower risk (e.g., lawyers).
We do not dispute these holdings, but we cannot agree with the Eidson court's application of them. Based on the out-of-state cases just discussed, the Eidson court asserted or implied that incompetent doctors create a greater risk to human health, safety, and welfare than incompetent appraisers.13 It then reasoned that doctors—the profession creating the greater risk—should receive the benefits of a higher (less discipline-friendly) burden of persuasion, while appraisers—the profession creating the lesser risk—should receive the detriments of a lower (more discipline-friendly) burden of persuasion. That does not make sense to us, and it is not an approach that we are willing to emulate.
Nor can we agree with the Eidson court's view that the time and money spent on training justifies different burdens of persuasion for different professions. In our view, the time and money spent on training has so little bearing on disciplinary proceedings that it cannot, by itself, justify a higher or lower burden of persuasion.
Nor can we agree with the Eidson court's reliance on the "subjective" nature of the charges in Nguyen, as opposed to the "objective" nature of the charges in Eidson. It is our view that the applicable burden of persuasion should be constant for disciplinary proceedings of like kind, and that the burden of persuasion should not vary according to the nature of the charges in the particular case. Nguyen is the law of this state, whether one agrees with it or not. Nguyen held that a physician is entitled to a clear, cogent, and convincing burden of persuasion. A registered professional engineer is entitled to the same, so far as is shown here or in Eidson. Accordingly, we hold that the Board erred by basing its findings on a mere preponderance of the evidence, and that it must make new findings based on clear, cogent, and convincing evidence. So long as the Board otherwise follows the law, it may make such new findings from the record already in existence,14 or it may take new evidence.
We address Nims' remaining issues because they are potentially dispositive or likely to arise on remand. They are (A) whether, when Nims chose not to renew his license, the Board lost jurisdiction of the disciplinary proceeding that was then ongoing; (B) whether the Board can discipline for reasons set forth in RCW 18.43.105; (C) whether the statute of limitations or collateral estoppel precluded the Board from considering certain charges; (D) whether the Department properly supported its charges with sworn complaints; and (E) whether the Board properly notified Nims of the charges against him.
Nims claims that the Board lost jurisdiction when he elected not to renew his license. He bases this claim on RCW 18.43.110, which provides that the Board shall have the exclusive power to discipline a "registrant;" on WAC 196-27-010(4), which defines a registrant as "any person holding a certificate of registration issued by this board[;]" and on a Connecticut case called Stern v. Connecticut Medical Examining Board.15
We first address whether the Board had jurisdiction at the outset of this disciplinary proceeding against Nims. The answer is yes. The Department filed charges on July 1, 1998, and it amended those charges on September 20, 1999. On both dates, Nims was a "registrant" within the meaning of RCW 18.43.110 and WAC 196-27-010(4). Thus, the Board had jurisdiction at the outset of this proceeding.
We next address whether the Board lost jurisdiction when, on October 15, 1999, Nims chose not to renew his license. The answer is no. Nothing in RCW 18.43.110 or WAC 196-27-010(4) addresses this question expressly. The case upon which Nims relies, Stern v. Connecticut Medical Examining Board, is obviously distinguishable.16 As the Department correctly points out, cases from other jurisdictions reject Nims' position.17 Agreeing with those cases, we hold that once a professional disciplinary tribunal lawfully acquires jurisdiction over a proceeding, its...
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