Penny v. Mental Health Professions Lic. Bd.

Decision Date15 September 2005
Docket NumberNo. 04-263.,04-263.
Citation120 P.3d 152,2005 WY 117
PartiesIn the Matter of Licensure of Jerry PENNY, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING MENTAL HEALTH PROFESSIONS LICENSING BOARD, Appellee (Respondent).
CourtWyoming Supreme Court

Representing Appellee: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; and Angela C. Dougherty, Senior Assistant Attorney General, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] The district court affirmed an Order Denying Licensure issued by the Wyoming Mental Health Professions Licensing Board (Board). We also affirm.

ISSUES

[¶ 2] Preliminarily, we must address an issue not raised by the parties. Wyo. Stat. Ann. § 33-38-107 (LexisNexis 2005) requires licenses issued under the Mental Health Professions Practice Act to be renewed biennially. Rules and Regulations of the Mental Health Professions Licensing Board, ch. 8 § 1(c) (1997) (Board Rule) provides that licenses issued under the Act after July 1, 1997, expire on the licensee's birth date following the second anniversary of the issue date. On July 11, 2000, the appellant submitted an application for re-licensure as a clinical social worker. Had that application, which is the subject of this controversy, been approved, the resulting license would have expired on December 15, 2002. It is now 2005, which fact raises the question, not raised by the parties, of whether these issues are moot. "The applicable rule is that when we have notice of facts which have the effect of making any determination of a question unnecessary, or which would render any judgment we might pronounce ineffectual, the appeal should be dismissed." State, Dept. of Revenue and Taxation, Motor Vehicle Div. v. Andrews, 671 P.2d 1239, 1244 (Wyo.1983).

[¶ 3] In Wyoming Bd. of Outfitters and Professional Guides v. Clark, 2002 WY 24, ¶ 15, 39 P.3d 1106, 1109 (Wyo.2002), we dismissed an appeal for mootness where a present ruling could have no effect upon a professional license whose temporal life had passed. Certainly the same could be said here, where a license to practice clinical social work from 2000 to 2002 "would be of no practical value to" the appellant. See Walker v. Board of County Com'rs, Albany County, 644 P.2d 772, 773-74 (Wyo.1982) ("[a] cause will not be considered when a judgment rendered cannot be carried into effect."). We do not, however, follow this rule blindly and will, despite mootness caused by the passage of time, consider issues that may continue to arise or are of special significance. Lineberger v. Wyoming State Bd. of Outfitters and Professional Guides, 2002 WY 55, ¶ 1, 44 P.3d 56, 57 (Wyo.2002) (authority of Board to impose conditions on a license); Andrews, 671 P.2d at 1244-45 (questions of sufficient public interest and of a continuing nature).

[¶ 4] We find the instant case to be similar to Lineberger and Andrews. In particular, the issues of whether an expert must establish the standard of care, and whether notice may be accomplished through the State's disclosure statement, have broad application beyond the specific facts of this case and are worthy of being addressed. Furthermore, licensing issues are peculiarly likely to evade judicial review due to their temporal nature. We will not, therefore, dismiss this appeal despite the fact that the issues could, technically, be moot. Instead, we will address the issues raised by the parties:

1. Was the law violated when the appellant's license renewal application was denied by an administrative staff person, rather than by the Board?

2. Was an incorrect expiration date used in denying the appellant's license renewal application?

3. Was expert testimony required to prove alleged licensing violations?

4. Was the denial of re-licensure supported by substantial evidence?

5. Was the appellant's right to due process of law violated when evidence was presented during the contested case hearing concerning matters not identified in the notice of hearing?

FACTS

[¶ 5] The appellant was licensed in Wyoming as a clinical social worker in 1994, and his license was renewed in 1996.1 Wyo. Stat. Ann. § 33-38-107 requires licensees to submit a renewal application and fee biennially "at a time specified by the board." Board Rule, ch. 8, § 1(c), which became effective on November 4, 1997, provides that "licenses issued prior to July 1, 1997 shall expire on the Licensee's birth date following the current expiration date."

[¶ 6] The appellant's birth date is December 15th. On December 16, 1998, he mailed, and on December 17, 1998, the Board received his license renewal application. The Board's executive director returned the renewal fee to the appellant along with a letter explaining that the license had expired, that it could not be renewed, and that re-licensure was in order. The appellant testified that he did not receive the returned fee or accompanying letter. He continued to work in Wyoming.

[¶ 7] In October 1999, the Board received a citizen complaint (the first complaint) about the appellant's services in a court case. After discussing the matter with a Board member, the executive director sent the appellant a letter informing him of the complaint, encouraging him to refrain from practicing clinical social work without a license, and requesting a response. The letter was returned, unclaimed, by the postal service. A similar letter was then mailed, with the appellant signing for its receipt on December 2, 1999. Upon receiving no response from the appellant, the executive director sent yet another certified letter to the appellant in January 2000, seeking a response. Once again, the letter was returned unclaimed. The Board member assigned to investigate the first complaint then authorized employment of a private investigator, Gene Giffin, to assist in locating the appellant. Giffin found and talked to the appellant, who, according to the executive director, provided the following explanation for his situation:

Mr. Giffin also reported that [the appellant] had informed him that when he received his renewal application back in the mail, that he contacted the Board office and spoke to a male who answered the phone, didn't recall his name, but that the person who answered the phone told him that he would take care of it. Then Mr. Giffin informed [the appellant] that his license was not valid.

[The appellant] asked Mr. Giffin how he could — what should he do. Mr. Giffin suggested that [the appellant] contact the Board office immediately to ask about what he can do to get his license back.

[¶ 8] Giffin interviewed the appellant on March 6, 2000. The following week, the appellant contacted the Board's executive director and told her that he had never received the October 1999 letter concerning the first complaint. A copy of the letter was then sent to him, and he responded on March 27, 2000. In his response, the appellant explained that his practice was limited to trial consulting, mediation, conflict resolution, and forensic social work, none of which fit the definition of "clinical social work." The Board reviewed the response at its next meeting and, on May 30, 2000, the executive director sent the appellant a letter stating that the Board had determined that he was practicing clinical social work, and that he should cease doing so until he was again licensed.

[¶ 9] On July 11, 2000, the appellant submitted an application for re-licensure. That application was returned to him as incomplete. The appellant corrected the deficiencies and re-submitted the application. In the meantime, however, the Board received a second complaint. Thereafter, the Board contacted the appellant four times in an effort to obtain his records concerning the matter underlying this second complaint, for the purpose of determining whether he was engaged in clinical social work. Those efforts were not successful. After reviewing the appellant's application materials, the Board instructed the executive director to send the appellant a letter denying his application. The findings and conclusions of that denial letter can be summarized as follows:

1. In October 1999, the appellant fraudulently represented to the district court, in the matter involving the first complaint, that he was a licensed counselor in the State of Wyoming.

2. Despite notification that his license had expired, the appellant continued to practice as a counselor until criminal charges were brought against him.

3. In an October 2000 meeting with the Board, the appellant and his attorney were told that his continuing education was deficient, that the Board was concerned with his inability to locate his files involving the second complaint, and that he had practiced for nearly two years without a license.

4. His application was being denied because he had practiced without a license, in violation of Wyo. Stat. Ann. § 33-38-110(a)(i) and (iii) (LexisNexis 2005) and Board Rule, ch. 12, § 2(a)(iii), and because his inability to produce his records concerning the second complaint constituted gross incompetence or malpractice, in violation of Wyo. Stat. Ann. § 33-38-110(a)(iii) and Board Rule, ch. 12, § 2(a)(vii) and ch. 11, § 2.2

[¶ 10] On August 21, 2001, the appellant requested a hearing before the Board. The hearing was set for October 25, 2002.3 The Board twice granted the appellant's motions for a continuance, but denied a third motion, leaving the hearing set for July 25, 2003. That date was vacated, however, because the Board could not meet quorum requirements. The hearing, at which both parties presented evidence, finally took place on October 23-24, 2003. Thereafter, the Board issued a detailed order denying re-licensure. The appellant filed a petition for review of that order in the district...

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