Kenneth v. Veterinary Bd. Of Governors

156 Wash.App. 132

231 P.3d 840

Kenneth and Nonna NEWMAN, Appellants,v. VETERINARY BOARD OF GOVERNORS and Washington State Department of Health, Respondents,Kobi Johnson, DVM, and Michael Harrington, DVM, Intervenors.

No. 64904-3-I.

Court of Appeals of Washington Division 1.

May 17, 2010.

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Adam Phillip Karp, Animal Law Offices, Bellingham, WA, for Appellants.

Mark Hodgeman Calkins, Alan D. Copsey, Office of the Attorney General, Olympia, WA, for Respondents.

John W. Schedler, Keith Joseph Kuhn, Lee Smart PS Inc., Seattle, WA, for Intervenors.

MEYER, J.P.T.^*

¶ 1 Drs. Michael Harrington and Kobi Johnson put Trali, Kenneth and Nonna Newman's Pekinese dog, to sleep following unsuccessful treatment for a disc condition over a six month period. Nonna Newman signed a document authorizing both the euthanasia and cremation thereafter. Five months later, the Newmans filed an unprofessional conduct complaint with the Veterinary Board of Governors. After thorough investigation, the Board determined that there was no cause for disciplinary action and closed the case against the veterinarians. The Newmans sought review of that decision through statutory and constitutional writs and then through an action under the Administrative Procedure Act, chapter 34.05 RCW. We can find no basis for reversing the trial court's order denying their petition on all grounds due to lack of standing.

FACTS

¶ 2 On June 11, 2007, the Newmans filed a report with the Veterinary Board of Governors (Board) alleging that Drs. Harrington and Johnson acted unprofessionally while treating Trali. After a nine month review, on March 6, 2008, the Board sent a letter to the Newmans informing them that their complaint had been fully investigated by the Board. The Board determined that “there was no cause for disciplinary action against either of the veterinarians because the care provided was within standards of practice.” The Board explained that in order to “take disciplinary action, the Board must be able to prove by clear and convincing (highly likely) evidence that unprofessional conduct occurred.” The Board was sympathetic to the Newmans' experience, but it did “not have sufficient evidence to discipline the practitioners.” Accordingly, in the March 6, 2008 letter, the Board informed the Newmans that the cases against the two doctors were being closed.

¶ 3 In a letter to the Board on March 13, 2008, Kenneth Newman stated that “we are not interested in reconsideration” and requested “an adjudicative hearing on the merits.” On March 20, 2008, the Board responded that “[a]dministrative rules do not provide an appeal process once the Veterinary Board of Governors makes a decision to close a case without action. Neither the Uniform Disciplinary Act (Chapter 18.130 RCW) nor the Administrative Procedures Act (Chapter 34.05 RCW) provide for an adjudicative hearing on a Board decision not to issue a Statement of Charges.” The Board further noted that it could not provide Newman with “legal advice regarding this matter” and that he may wish to consult with his “own attorney regarding the scope of any statutory appeal to the courts.” The Newmans filed a petition for reconsideration, which the Board reviewed and denied on November 10, 2008, stating that the “two cases identified above will remain closed as the care was within the standard of practice and no new evidence was provided.”

¶ 4 The Newmans sought judicial review of the Board's decision by filing a petition for a constitutional writ of certiorari and a statutory writ of review in Thurston County Superior Court on December 8, 2008. The veterinarians were allowed to intervene. The trial court heard argument on March 6, 2009. By order dated April 17, 2009, the trial court denied the Newmans' petition for a statutory writ because the agency was not “exercising judicial functions” when it decided to close the complaint. The trial court denied the constitutional writ on the ground that the Newmans would have had standing to petition for judicial review and, thus, had an adequate remedy at law. The trial court found that the Newmans did not comply with the Administrative Procedure Act's filing requirements, which are jurisdictional, require strict compliance, and cannot be extended. The trial court granted a joint motion by the Board and the Veterinarians to strike Newmans' submission of a declaration dated April 9, 2009. The Newmans appeal.

STATUTORY WRIT

¶ 5 RCW 7.16.040 requires that a writ of review be granted “when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.” Under the four part test derived from RCW 7.16.040, a “court will issue a statutory writ of review ... if the petitioner can show that (1) an inferior tribunal or officer (2) exercising judicial functions (3) exceeded its jurisdiction or acted illegally, and (4) there is no other avenue of review or adequate remedy at law.” Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wash.2d 840, 845, 991 P.2d 1161 (2000). If any of the factors is absent, then there is no jurisdiction for superior court review. Clark County, 139 Wash.2d at 845, 991 P.2d 1161; Bridle Trails Cmty. Club v. City of Bellevue, 45 Wash.App. 248, 252, 724 P.2d 1110 (1986). The statutory writ of review is available only for actions that are judicial or quasi-judicial in nature. Williams v. Seattle Sch. Dist. No. 1, 97 Wash.2d 215, 218, 643 P.2d 426 (1982). “The issue whether a court has jurisdiction is a question of law subject to de novo review.” Crosby v. Spokane, 137 Wash.2d 296, 301, 971 P.2d 32 (1999).

¶ 6 The Newmans argue that the trial court erred by finding that the Board was not exercising a judicial or quasi-judicial function in refusing to prepare a statement of charges. Under the Uniform Disciplinary Act, the Board is the disciplinary authority for licensed veterinarians. RCW 18.130.040(2)(b)(xiv); RCW 18.92.046. The Board has the authority to “investigate all complaints or reports of unprofessional conduct.” RCW 18.130.050(2). If the Board determines that a complaint merits investigation after an initial assessment, it “shall investigate to determine whether there has been unprofessional conduct.” RCW 18.130.080(2); WAC 246-14-040(1).

¶ 7 Following an investigation, the Board decides “whether to issue a statement of charges on a complaint, to take informal action, or to close the complaint without action.” WAC 246-14-060(1). If the Board determines “that there is reason to believe a violation of RCW 18.130.180 [defining unprofessional conduct] has occurred, a statement of charge or charges shall be prepared and served upon the license holder or applicant at the earliest practical time.” RCW 18.130.090(1).

¶ 8 Jones v. State establishes that the decision to prepare a statement of charges is a prosecutorial function. 140 Wash.App. 476, 166 P.3d 1219 (2007), review granted, 164 Wash.2d 1019, 195 P.3d 89 (2008). In Jones, the Washington State Board of Pharmacy filed a statement of charges against a pharmacist following an investigation. The pharmacist sued the executive director of the Board of Pharmacy, among others, after the Board of Pharmacy suspended his license. This court held that “[c]harging decisions and filing a statement of charges are traditional prosecutorial functions.” Jones, 140 Wash.App. at 489, 166 P.3d 1219. The trial court did not err by concluding that there was no basis for a statutory writ of review.

CONSTITUTIONAL WRIT

¶ 9 “The fundamental purpose of the constitutional writ of certiorari is to enable a court of review to determine whether the proceedings below were within the lower tribunal's jurisdiction and authority.” Saldin Sec., Inc. v. Snohomish County, 134 Wash.2d 288, 292, 949 P.2d 370 (1998); Wash. Const. art. IV, § 6. The superior court will grant review “only if the petitioning party ‘can allege facts that, if verified, would establish that the lower tribunal's decision was illegal or arbitrary and capricious.’ ” Malted Mousse, Inc. v. Steinmetz, 150 Wash.2d 518, 533, 79 P.3d 1154 (2003) (quoting Saldin Sec., 134 Wash.2d at 292, 949 P.2d 370). Illegality in the context of a constitutional writ refers to the lower tribunal's jurisdiction and authority. Klickitat County v. Beck, 104 Wash.App. 453, 459, 16 P.3d 692 review denied, 143 Wash.2d 1024, 25 P.3d 1020 (2001). “[A]n alleged error of law is insufficient to invoke the court's constitutional power of review.” Wash. Pub. Employees Ass'n v. Wash. Pers. Res. Bd., 91 Wash.App. 640, 658, 959 P.2d 143 (1998).

¶ 10 A constitutional writ “will not issue if another avenue of review, such as a statutory writ or direct appeal, is available,” “unless the appellant can show good cause for not using those methods.” Malted Mousse, 150 Wash.2d at 533, 79 P.3d 1154; Saldin Sec., 134 Wash.2d at 293, 949 P.2d 370. We review a trial court's decision to deny a petition for a constitutional writ of certiorari for abuse of discretion. Bridle Trails, 45 Wash.App. at 252, 724 P.2d 1110.

¶ 11 “To invoke constitutional certiorari to review actions of an administrative agency, a petitioner must establish standing to challenge the governmental action.” Harris v. Pierce County, 84 Wash.App. 222, 230, 928 P.2d 1111 (1996). This court applies a two part test in determining whether a person or entity has standing to seek a constitutional writ of certiorari. Snohomish County Prop. Rights Alliance v. Snohomish County, 76 Wash.App. 44, 52, 882 P.2d 807 (1994) review denied, 125 Wash.2d 1025, 890 P.2d 464 (1995); Trepanier v. City of Everett, 64 Wash.App. 380, 382, 824 P.2d 524, review denied, 119 Wash.2d 1012, 833 P.2d 386 (1992)...