Richardson v. Brunelle

• Decision Date: 28 February 1979
• Docket Number: No. 78-177,78-177
• Citation: 119 N.H. 104,398 A.2d 838
• Parties: Arabella RICHARDSON v. Robert L. BRUNELLE, Commissioner, Dept. of Education.
• Court: New Hampshire Supreme Court

Page 838

398 A.2d 838

119 N.H. 104

Arabella RICHARDSON v. Robert L. BRUNELLE, Commissioner, Dept. of Education.

No. 78-177.

Supreme Court of New Hampshire.

Feb. 28, 1979.

Cooper, Hall & Walker, Rochester (Peter A. Handy, Rochester, orally), for plaintiff.

Thomas D. Rath, Atty. Gen. (Andrew R. Grainger, Asst. Atty. Gen., orally), for defendant.

DOUGLAS, Justice.

This appeal, pursuant to RSA 326-B:14 (Supp.1977), challenges the New Hampshire Board of Nursing Education and Nurse Registration's denial of the plaintiff's application for a license to practice as a licensed practical nurse. Following a denial upon rehearing by the board, the plaintiff appealed the board's decision to superior court. The defendant then filed a motion to dismiss. All questions were transferred without ruling by Mullavey, J. We affirm the denial of her license.

The plaintiff contends that the licensing statute's requirement of a diploma from an approved school of practical nursing constitutes an irrebuttable presumption that without such diploma she is unqualified, and therefore the requirement violates her right to procedural due process. She also claims that the board's decision is arbitrary and capricious as applied to her. Finally, she contends that the statute's "grandfather clause" violates the equal protection clauses of the United States and New Hampshire Constitutions. U.S.Const. amend. 14 and N.H.Const. pt. I, art. 1.

The plaintiff, who passed the Massachusetts licensed practical nursing exam, is a duly-licensed practical nurse (LPN) in Massachusetts. From 1939 to 1942, the plaintiff successfully completed eight out of nine terms of the Registered Nurses Program at the Lynn Hospital School of Nursing in Massachusetts before withdrawing to marry. Before applying for a New Hampshire license, the plaintiff worked as a licensed practical nurse for fifteen years at Saugus General Hospital in Saugus, Massachusetts. While working at the hospital, she ran a medical-surgical floor for seven years and was head nurse in the emergency room for two years. She also practiced in obstetrics, pediatrics, recovery, and intensive care.

In 1972, the plaintiff and her husband moved to Union, New Hampshire. She continued to reside part time in Saugus until she left her job at Saugus General in June 1975. On May 23, 1977, the plaintiff applied for a license to practice as an LPN pursuant to RSA 326-B:7 (Supp.1977). Licensure was denied because the plaintiff did not possess a degree from an approved school of practical nursing.

Before 1975, New Hampshire's requirements for licensure as a practical nurse included either "a diploma from a school of practical nursing" or "equivalent education in theory and practice as determined by the Board." RSA 326:19(e) (repealed 1975; superseded by RSA 326-B:7 (Supp.1977)). In June 1975, the legislature upgraded the licensure requirement by eliminating the equivalency provision and requiring "written official evidence of graduation from an approved school of practical nursing." RSA 326-B:7 I(c)(Supp.1977).

The plaintiff's first contention is that the degree requirement creates a constitutionally invalid irrebuttable presumption of an applicant's incompetence absent a degree. Not all irrebuttable presumptions are unconstitutional. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Unlike Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the requirement of a degree is rationally related to nursing competence, and unlike Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), the plaintiff was not denied an opportunity to prove that she met the requirement at issue. She personally appeared before the board, but failed to show evidence of graduation from an approved school of practical nursing.

The plaintiff also asserts that the denial of a license to practice her profession constitutes a denial of substantive due process. In discussing a State's power to promulgate professional licensing standards, the Supreme Court held that "A state cannot exclude a person . . . from any . . . occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. . . . (A)ny qualification must have a rational connection with the applicant's fitness or capacity . . . ." Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). Thus, the only issue to be decided is whether the degree requirement is rationally related to nursing competence. A State may require "a certain degree of skill and learning upon which the community may confidently rely, their...