State ex rel. Oklahoma State Board of Behavioral Health Licensure v. Vanita Matthews-Glover, LPC

455 P.3d 16

STATE of Oklahoma EX REL. OKLAHOMA STATE BOARD OF BEHAVIORAL HEALTH LICENSURE, Petitioner/Appellee,

v.VANITA MATTHEWS-GLOVER, LPC, Respondent/Appellant.

Case Number: 116081

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: March 6, 2019

Mandate Issued: December 11, 2019

Rehearing Denied: May 3, 2019

R. Mitchell McGrew, ASSISTANT ATTORNEY GENERAL, STATE OF OKLAHOMA, Oklahoma City, Oklahoma, for Petitioner/Appellee

Malinda S. Matlock, Jacqueline M. McCormick, PIERCE, COUCH, HENDRICKSON, BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Respondent/Appellant

OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 In November 2015, the Oklahoma State Board of Behavioral Health Licensure (the Board) issued an order finding Vanita Matthews-Glover (Ms. Glover, or Appellant) "has violated 59 O.S. § 1912(A)(5) and OAC 86:11-3-3(e) by engaging in a romantic relationship with a client within five years after the end of the counselor/client professional relationship." The order states,

Section 1912(A)(5) provides that [the Board] may deny, revoke, suspend or place on probation any license or specialty designation issued pursuant to the provisions of the Licensed Professional Counselors Act ( 59 O.S. §§ 1901 - 1920 ) to a licensed professional counselor [ (LPC) ], if the person has engaged in unprofessional conduct as defined by the rules established by the Board.

The order further provides: "The Oklahoma Administrative Code 86:[11]-3-3(e) states that [LPCs] shall not engage in any activity that is or may be sexual in nature with a former client for at least five (5) years after the termination of the counseling relationship." In its order, the Board determined that Ms. Glover's "license as [an LPC] is hereby REVOKED effective thirty (30) days after she is notified of this final agency order ...."

¶2 Ms. Glover sought judicial review of the Board's order by filing a petition in the district court. She requested that the district court set aside the Board's order, modify the order "to a lesser punishment," or reverse and remand the case to the Board for further proceedings. Ms. Glover asserted, among other things, that the Board's conclusions are "arbitrary and capricious," and that the Board violated her "constitutional rights of substantive due process under the United States and Oklahoma Constitutions."¹

¶3 A hearing was held before the district court in April 2017. Prior to this hearing, Ms. Glover filed a brief in which she clarified that she admits she violated "OAC 86-11-3-3(e) by having a romantic relationship with ... a former client[ ] more than 2 years but less than 5 years after the therapy relationship with [the former client] ended." Ms. Glover asserted, however, that the five-year rule found in § 86:11-3-3(e) of the Administrative Code "violates substantive due process and is an unequal exercise of power by the Board." In addition, Ms. Glover asserted the remedy of license revocation "under these facts is excessive, arbitrary and capricious[.]"

¶4 Following the hearing, the district court entered its order finding, in part, as follows:

2. There was clear and convincing evidence that [Ms. Glover] violated the Oklahoma State Board of Behavioral Health License rules 59 O.S. § 1912(A)(5) and OAC 86:[11]-3-3(e) by engaging in a romantic relationship with a client within five years after the end of the counselor/client professional relationship, which was the basis for the decision by the Board to revoke [her] LPC license.

3. The decision of [the Board] is neither arbitrary nor capricious.

4. [Ms. Glover's] substantive due process claim is denied.

5. [Ms. Glover] failed to show [the Board's] five year ban on any activity that is or may be sexual in nature between [LPCs] and their former clients is arbitrary and unreasonable, having no rational relationship to public health, safety, or welfare.

6. [The Board's] rule banning for five years sexual relationships between [LPCs] and their former clients is rationally related to protection of public health, safety, or welfare.

7. [Ms. Glover's] equal protection claim is denied as [the Board] has articulated a potential reason to support the finding of a rational basis for the difference in the time frame of the ban on sexual relationships with former clients for [LPCs] and Licensed Marriage and Family Therapists....

¶5 From the district court's order upholding the Board's order, Ms. Glover appeals.

STANDARD OF REVIEW

¶6 The Licensed Professional Counselors Act² provides that "[t]he hearings provided for by the Licensed Professional Counselors Act shall be conducted in conformity with, and records made thereof as provided by, the provisions of" the Oklahoma Administrative Procedures Act.³ 59 O.S. 2011 § 1914. The Oklahoma Administrative Procedures Act provides, in pertinent part, as follows:

(1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are:

(a) in violation of constitutional provisions; or

(b) in excess of the statutory authority or jurisdiction of the agency; or

(c) made upon unlawful procedure; or

(d) affected by other error of law; or

(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or

(f) arbitrary or capricious; or

(g) because findings of fact, upon issues essential to the decision were not made although requested.

(2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue.

(3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant.

75 O.S. 2011 § 322 (footnotes omitted).

ANALYSIS

I. Equal Protection

¶7 Appellant argues the five-year restriction on sexual relationships with former clients applicable to LPCs in Oklahoma violates the Equal Protection Clause⁴ because this Clause, according to Appellant, "does not allow classification based on unreal or feigned differences." Appellant asserts, "Other similarly situated behavioral health professionals, governed by the same Board, do not have the same time restrictions as LPCs; the restrictions are shorter." Appellant singles out "specifically LMFTs" — referring to marital and family therapists. Appellant asserts LPCs and marital and family therapists — two "counseling professions overseen by the Board" — "are simply too similarly situated" to justify the stricter treatment of LPCs. She asserts, "The Board must show that the differences in the rules' respective timeframes" — i.e., a two-year restriction on sexual relationships with former clients applicable to marital and family therapists, and a five-year restriction applicable to LPCs⁵ — "has a rational basis which connects to the difference between LPCs and other behavioral health professions it governs; it has not and cannot." Appellant similarly asserts there is a "lack of rational explanation for the five year ban, especially in light of the significantly differing standards," and argues the Board has unconstitutionally promulgated and applied "a different rule for the same behavior by a therapist[.]"

¶8 The Oklahoma Supreme Court has explained:

An "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right [such as the right to vote, the right of interstate travel, rights guaranteed by the First Amendment, or the right to procreate] or operates to the peculiar disadvantage of a suspect class [such as a class based on race, alienage or ancestry]." Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause is intended to safeguard the quality of governmental treatment against arbitrary discrimination.

Gladstone v. Bartlesville Indep. Sch. Dist. No. 30 (I-30) , 2003 OK 30, ¶ 9, 66 P.3d 442 (footnote omitted). "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans , 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (citations omitted). Thus, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Id. (citation omitted) That is, "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citations omitted).

¶9 Appellant does not assert that the separate classification of LPCs targets a suspect class, or that the five-year rule in question burdens a fundamental right. Instead, she frames her argument under a rational basis review standard, asserting "[t]here is no rational basis for the 5 year rule[.]"⁶

¶10 As indicated above, LPCs in Oklahoma are governed by the Licensed Professional...