Wool v. Office of Prof'l Regulation

• Decision Date: 12 June 2020
• Docket Number: No. 2019-281,2019-281
• Court: Vermont Supreme Court
• Parties: Kirk Wool v. Office of Professional Regulation

2020 VT 44

Kirk Wool v. Office of Professional Regulation

No. 2019-281

Supreme Court of Vermont

January Term, 2020

June 12, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Washington Unit, Civil Division

Mary Miles Teachout, J.

Kirk Wool, Pro Se, Tutwiler, Mississippi, Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, and David Groff, Assistant Attorney General, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Petitioner Kirk Wool appeals the superior court's dismissal of his petition for mandamus relief against the Office of Professional Regulation (OPR) for lack of standing and for failure to state a claim upon which relief can be granted. Although we hold that petitioner has standing, we affirm the court's dismissal for failure to state a claim.

¶ 2. The Legislature has established a statutory scheme authorizing OPR and the Board of Psychological Examiners to license, regulate, investigate, and discipline psychologists in the state. See generally 3 V.S.A. §§ 121-37; 26 V.S.A. §§ 3001-18. In particular, the Board "shall investigate all complaints and charges of unprofessional conduct against any licensee," 26 V.S.A. § 3016a(c), and after giving the licensee an opportunity for hearing, "may take disciplinary action against a licensee . . . found guilty of unprofessional conduct," id. § 3016a(a). See also 3 V.S.A. § 123(a) (authorizing OPR to provide "administrative, secretarial, financial, investigatory, inspection, and legal services" to Board).

¶ 3. Petitioner is an inmate in the custody of the Department of Corrections. In 2015, he filed a disciplinary complaint against a psychologist, alleging that the psychologist had falsified certain scores in a risk assessment and that these scores force him to "max out" his sentence and serve fourteen additional years of incarceration. In 2016, while his complaint was under investigation, petitioner wrote to OPR requesting copies of the records the psychologist filed to defend against the complaint. Petitioner seeks the records to rebut the psychologist's defense with further evidence in support of the complaint. OPR replied that it was precluded by statute from releasing the requested records to the public because the complaint was under investigation.

¶ 4. Petitioner then filed a pro se petition for a writ of mandamus and for extraordinary relief in superior court, arguing that as the complainant in the disciplinary proceedings, he has a due process right to the records under the U.S. and Vermont Constitutions. Finding that petitioner lacked standing, was not entitled to mandamus or extraordinary relief, and failed to raise a colorable constitutional claim, the superior court granted OPR's motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. See V.R.C.P. 12(b)(1), (6). Petitioner appealed to this Court.

¶ 5. In October 2019, while this appeal was pending, OPR closed its investigation of the psychologist without filing disciplinary charges. Because the investigation has concluded, we must first determine whether the appeal has become moot, thereby divesting us of subject-matter jurisdiction.

I. Mootness

¶ 6. The Vermont Constitution "limits the authority of the courts to the determination of actual, live controversies between adverse litigants." In re Durkee, 2017 VT 49, ¶ 11, 205 Vt. 11, 171 A.3d 33 (quotation omitted). Accordingly, "[f]or this Court to have jurisdiction over an appeal, the appeal must involve an actual controversy arising between adverse litigants who havea legally cognizable interest in the outcome of the case." Paige v. State, 2017 VT 54, ¶ 6, 205 Vt. 287, 171 A.3d 1011. "Even if a case originally presented an actual controversy in the trial court, the case must remain live throughout the appellate process for us to examine the issues." Houston v. Town of Waitsfield, 2007 VT 135, ¶ 5, 183 Vt. 543, 944 A.2d 260. Thus, a case is moot if at any point we can "no longer grant effective relief." Id. (quotation omitted).

¶ 7. Although OPR has concluded its investigation, this appeal is not moot because petitioner retains a legally cognizable interest in its outcome. Petitioner argues that as the complainant in the disciplinary proceedings, he has a due process right to the records, with which he can rebut the psychologist's defense and prove the merit of his complaint. If we were to find such a right on the merits, then OPR's refusal to produce the records would be unlawful, and we could order OPR to produce the records and reopen its investigation. That renewed investigation could result in a finding of unprofessional conduct by, and disciplinary action against, the psychologist. See 3 V.S.A. § 129a(a)(7), (d)(1) (providing that "[w]illfully making or filing false reports or records in the practice of the profession" constitutes unprofessional conduct and authorizing Board to take disciplinary action on that basis); 26 V.S.A. §§ 3016, 3016a(a) (same). Because we could still grant effective relief to petitioner, we move on to consider the issues on appeal.

II. Standard of Review

¶ 8. Motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim under Vermont Rules of Civil Procedure 12(b)(1) and (6) may not be granted "unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Murray v. City of Burlington, 2012 VT 11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.) (quotation omitted). "[W]e assume as true the nonmoving party's factual allegations and accept all reasonable inferences that may be drawn from those facts." Id. Our review of dismissals under Rules 12(b)(1) and (6) is plenary and non deferential. See Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 999 A.2d 677 (applying de novo review to Rule 12(b)(1) dismissal); Skaskiw v. Vt.Agency of Agric., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277 (applying de novo review to Rule 12(b)(6) dismissal).

III. Dismissal for Lack of Standing under Rule 12(b)(1)

¶ 9. We first review the superior court's dismissal for lack of standing. OPR argues that petitioner lacks constitutional standing to litigate issues related to the disciplinary proceedings because he is not a party to those proceedings, which it maintains are intended for the protection of the public generally. For support, OPR points to a statute governing professional regulation and its agency regulations. See 26 V.S.A. § 3101(a) (providing that "[i]t is the policy of the State of Vermont that regulation be imposed upon a profession or occupation solely for the purpose of protecting the public"); Office of Professional Regulation Administrative Rules of Practice, Rule 1.1(J), Code of Vt. Rules 04 030 005, https://sos.vermont.gov/media/osal1nmq/administrative-rules-of-practice.pdf [https://perma.cc/32SE-VTP4] (defining "party" in disciplinary hearing and appeal as "the licensee and the State of Vermont").

¶ 10. Like the mootness doctrine, standing is rooted in constitutional principles requiring actual controversies between adverse litigants and is a jurisdictional prerequisite. See Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 8, 182 Vt. 234, 936 A.2d 1286 (holding that "Vermont courts are vested with subject matter jurisdiction only over actual cases or controversies involving litigants with adverse interests," and that "[t]o have a case or controversy subject to the jurisdiction of the court, the plaintiffs must have standing"). "In the absence of standing, any judicial decision would be merely advisory, and Vermont courts are without constitutional authority to issue advisory opinions." Id. To satisfy constitutional standing, a plaintiff must allege facts on the face of the complaint that show "(1) injury in fact, (2) causation, and (3) redressability." Severson v. City of Burlington, 2019 VT 41, ¶¶ 9-10, ___ Vt. ___, 215 A.3d 102 (quotation omitted). Specifically, the plaintiff "must have suffered a particular injury that is attributable to the defendant and that can be redressed by a court of law." Parker v. Town of Milton, 169 Vt. 74, 77, 726 A.2d 477, 480 (1998). "The alleged injury must be an invasion of alegally protected interest, not a generalized harm to the public." Paige v. State, 2018 VT 136, ¶ 9, 209 Vt. 379, 205 A.3d 526 (quotation omitted).¹

¶ 11. Although closely related, standing and the merits are separate inquiries, such that the former does not depend on the latter. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2663 (2015) (noting that "one must not confuse weakness on the merits with absence of Article III standing" (quotation and alteration omitted)); ASARCO Inc. v. Kadish, 490 U.S. 605, 624 (1989) (observing that "although . . . standing often turns on the nature and source of the claim asserted, it in no way depends on the merits of the claim" (quotation and alteration omitted)). As noted, the plaintiff's burden to satisfy standing is merely to " 'allege facts sufficient to confer standing on the face of the complaint.' " Severson, 2019 VT 41, ¶ 9 (quoting Parker, 169 Vt. at 76, 726 A.2d at 479); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) ("At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." (quotation and alteration omitted)); 13A C. Wright et al., Fed....