SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Transcription

1 1 II Terry Goddard Attorney General Rebecca J. Herbst, Bar No. 01 II Assistant Attorney General W. Washington II Phoenix, Arizona 00- Telephone: (0) - II Fax: (0) - Rebecca.Herbst@azag.gov Attorneys for Defendants ARTIFFANY GRAHAM-PAYNE, R.N.; SHARON HARRISON, R.N.; RICHARD HENEL Y, R.N.; GWEN HOLMES, R.N.; MOLLY MOORE, R.N., A.P.; MARK POWELL, R.N.; GREGG TIDRICK, R.N.; DAVID WERMUTH, R.N., C.R.N.A.; KIMBERLY WOHEAD; AND BARBARA L. WOODWARD, R.N., Plaintiffs, v. 1 THE STATE OF ARIZONA, by the II ARIZONA STATE BOARD OF NURSING, an Administrative Agency of 1 II the State of Arizona, and JOHN and JANE DOES I-XII, Defendants. II \I ~I~.-~~::=-:---=::~I Introduction. SUPERIOR COURT OF ARIZONA MARICOPA COUNTY Case No: CV-0 MOTION TO DISMISS (Assigned to the Honorable Michael McVey) The Arizona State Board of Nursing ("the Board") moves to dismiss the Plaintiffs' Complaint in its entirety. Plaintiffs allege that from September to April, the II Board exceeded its authority by ordering them to undergo evaluations at their expense. II The Board is absolutely immune from liability for its judicial acts in issuing the orders.

2 1 Additionally, Plaintiffs' Complaint fails to state a claim upon which relief can be granted. Plaintiffs' claim for declaratory relief fails because the Board has rescinded all existing Interim Orders, and as such no justiciable controversy exists. This Court should decline special action jurisdiction because the issue is moot since Plaintiffs already complied with the Interim Orders. Plaintiffs' fraud claim fails because they allege the misrepresentation of the law, not a fact. Plaintiffs' gross negligence claim fails because they do not allege the risk of bodily injury. Finally, most of the Plaintiffs' claims are time-barred because they did not file this lawsuit within one year or a Notice of Claim within days of the date their cause of action accrued. II.. Legal Argument. A. Plaintiffs' Claims For Monetary Damages Are Barred by Absolute Immunity. 1. The Board is Absolutely Immune for Exercising Judicial Functions. Under A.R.S. -.01(A), a public entity is not liable for the exercise of a 1 judicial function. Arizona's statutory immunity is based on common law judicial 1 immunity. Adams v. State, Ariz. 0, n., 1 P.d 1, n. (App. ). Judicial immunity exists so that "judges will exercise their functions with independence and without fear of consequences." Acevedo v. Pima County Adult Probation Dep 't, Ariz.,, 0 P.d, 0 (). The immunity doctrine does not only apply to judges. Burkv. State, Ariz.,, ~, P.d, (App. 0). "The immunity is granted to those who perform functions intimately related to or which amount to an integral part of the judicial process." Acevedo, Ariz. at,0 P.d at 0 (internal quotations omitted). Thus, courts look at the "nature of the activities performed and the relationship of those activities to the judicial function" to determine whether immunity applies. Id.; see also Butz v. Economou, U.S., () (officials who perform

3 1 quasi-judicial functions in administrative agency adjudications are entitled to the same judicial immunity as judges); Romano v. Bible, F.d 1, (th Cir. ) ("Absolute immunity extends to agency officials when they preside over hearings, initiate agency adjudication, or otherwise perform functions analogous to judges and prosecutors"). The Board's performance of its statutorily imposed duty to investigate licensees' competence and conduct and determine appropriate action is a judicial function. The Board's "power and duties" include the authority to "conduct investigations, hearings and proceedings concerning violations" of the nursing statutes or Board rules. A.R.S. - (A)(). The Board may on its own motion investigate whether a licensee has violated its rules. A.R.S. -(A). Additionally, the Board investigates complaints charging a licensee with unprofessional conduct. A.R.S. -(E). "For reasonable cause," the Board may issue Interim Orders requiring a "licensee or certificate holder to undergo any combination of mental, physical or psychological examinations or skills evaluations necessary to determine the person's competence and 1 conduct. These examinations may include bodily fluid testing." A.R.S. -(F); see also (Complaint, ~ ) (conceding that the Board has "legislative authority to require 1 Licensees to undergo certain examinations or evaluations"). Thus, the Board does not issue an Interim Order in all cases but only does so after deciding that reasonable cause exists. The Board is then required to review the investigation, including any ordered evaluations, and determine appropriate action to take. If after completing its investigation the board fmds that the information provided pursuant to this section is not of sufficient seriousness to merit direct action against the licensee or certificate holder it may take either of the following actions:

4 Dismiss if in the opinion of the board the information is without merit.. A.R.S. -(G). File a letter of concern if in the opinion of the board there is insufficient evidence to support direct action against the licensee or certificate holder but sufficient evidence for the board to notify that person of its concerns. Alternatively, "if in the investigation in the opinion of the board reveals reasonable grounds to support the charge, the licensee or certificate holder is entitled to an administrative hearing." A.R.S. -(H). Additionally, in any matters before it, the Board has the power to issue subpoenas, compel witness testimony, and compel the production of documentary evidence. A.R.S. -(K). The Board is the trier-of-fact in its hearings. Culpepper v. State, Ariz. 1,,0 P.d 0, (App. ). The Board acts in a judicial capacity when it (1) determines whether reasonable cause exists to issue an Interim Order, () reviews the results of investigation and any ordered evaluations and determines whether to dismiss or proceed with the complaint, () decides whether to issue subpoenas or compel the attendance of witnesses, and () acts as the trier-of- fact in determining whether to discipline the licensee and, if so, to what extent. Thus, under A.R.S. -.01(A), the Board is absolutely immune from civil liability from the decisions it made in its judicial capacity, including issuing the Interim Orders which are the subject ofthis lawsuit. Plaintiffs' allegations that the Board exceeded its authority to order that the licensees pay for the evaluations and acted willful and wantonly, (Complaint e.g., ~~ 0,,, ), do not defeat the absolute immunity defense. The Arizona Supreme Court has made it clear that judicial immunity protects one from civil liability "even when such acts are in excess of their jurisdiction corruptly." or are alleged to have been done maliciously or Acevedo, Ariz. at,0 P.d at 0. Thus, even if the Board exceeded its authority by requiring the licensees to pay for the evaluations or acted wantonly in --

5 1 issuing those orders without explicit authority J the Board is absolutely immune from liability under Arizona law The Board is Absolutely Immune For Regulating the Nursing Profession. I Arizona's absolute immunity statute alio provides that a public entity shall not be liable for the "licensing and regulation of any frofession or occupation." A.R.S. -.01(B)(). Plaintiffs concede that the Boar "licenses, investigates and regulates (including taking disciplinary action against) p ofessional nurses, practical nurses, nursing assistants, nurse midwives, clinical nurse specialists, nurse anesthetists, and nurse practitioners ("Licensees") in Arizona." (Comrlaint, ~.) In Arizona's statutes, Title provides for the licensing and regulation of professions and occupations. Chapter governs the nursing profession and establishes the Board. See A.R.S. -1 to -. Article governs licensing and certification (A.R.S. -1 to -) a d Article governs regulation of the profession (A.R.S. - to -). U der the article governing regulation, the Board has the authority to issue Interim Orders See A.R.S. -(F). Thus, the Board clearly licenses and regulates the nursin~ profession. Plaintiffs allege that from to, ItheBoard issued Interim Orders which required licensees to "submit to one more or more evaluations, such as psychological, neuropsychological, and chemical dependency fvaluations" and required the licensees to pay the costs for the evaluation. (Complaint, ~ BO.) The decision to require the licensee to pay for the evaluation was applied to the profession as a whole, not to only particular licensees. See e.g., Doe v. State, 0 Ariz.,, ~, P.d, (01) (holding that "absolute immunity extends to the regulation and licensing of a profession as a whole, rather than to a decision to grant a license to a particular member of that profession"). Thus, the Board is absolutely immune from its acts in regulating the nursing

6 1 " profession. Bird v. State, 0 Ariz.,, P.d,1 (App. 1) (granting the II State immunity for claims relating to the licensing and regulation of structural pest control " operators). " B. Plaintiffs' Complaint Also Fails to State a Claim. 1. Plaintiffs Declaratory Action Claim Fails Because No Justiciable Controversy Exists. " Plaintiffs' first claim, seeking a declaratory judgment, fails because no justiciable II controversy exists. A declaratory action "is an appropriate vehicle for resolving II controversies as to the legality of acts of public officials." Riley v. County of Cochise, " Ariz.App.,, P.d 0, 0 (App. ). "It is well settled that a proceeding II for a declaratory judgment must be based upon an actual controversy." Moore v. Bolin, 0 II Ariz.,,0 P.d 0, 1 (0) quoting 1 Am.Jur., Declaratory Judgments. II Thus, a declaratory action, may only proceed, if the complaint sets forth "sufficient facts to II establish that there is a justiciable controversy." Planned Parenthood Center of Tucson, " Inc. v. Marks, Ariz.App. 0,, P.d, (App. ). To have a 1 II justiciable controversy, the plaintiff must allege claims "upon present existing facts, which have ripened for judicial determination." Id., see also Wickenburg v. State, 1 Ariz., 1, P.d, (App. ) (the plaintiffs "rights must be presently affected"); Richey v. City of Phoenix, 1Ariz.App., 0, 01 P.d, 1 (App. ) ("there must be an actual controversy upon a present state of facts"); Riley, Ariz.App. at, P.d " at 0 (plaintiff must allege "a present legal right against the defendant."). II Plaintiffs' declaratory action fails because there is no present controversy between II the parties. Plaintiffs allege that the Board acted unlawfully by issuing Interim Orders in II the past. (Complaint, ~~ -0.) Plaintiffs seek reimbursement for the costs of the evaluations that were previously ordered by the Board. (Id., ~.) Plaintiffs concede that as of April,, the board "rescinded all outstanding" Interim Orders. (Jd., ~ 1.)

7 1 II Thus, because no Interim Orders currently exist, Plaintiffs have not alleged a present II justiciable controversy. As such, the claim for declaratory relief fails as a matter of law. 1 1 Plaintiffs'. This Court Should Deny Special Action Jurisdiction Because Plaintiffs' Claim is Moot. second count is titled Special Action (Mandamus) Relief. This claim is moot. If Plaintiffs succeeded in the special action-by excess of its legal authority-the showing that the Board acted in remedy would be for this Court to rescind the Board's Interim Orders. Ariz. R.P. Spec. Act. (b). However, this Court cannot do so because, as Plaintiffs concede, the Board has already rescinded all outstanding Interim Orders. (Complaint, ~ 1.) Courts are generally prohibited from ruling on moot issues. Ash, Inc. v. Mesa Unified Sch. Dist. No., Ariz. 0, 1, P.d, (App. Ariz. ) (special action to void a contract was moot because it had been fully performed and plaintiff had failed to seek an injunction or stay to protect the status quo); see also Dunwell v. Univ. of Ariz., Ariz. 0,0, P.d, (App. ) (issue of whether trial court improperly ordered the production of documents was moot because the defendant had complied with the order). Here, Plaintiffs allege that the Board ordered the Plaintiffs to pay for evaluations. (Complaint, ~ 0.) Plaintiffs, however, did not file a special action while those orders were pending. to the evaluations at their expense.' Instead, they complied with such orders and submitted (Id., ~~ -.) Because are no outstanding Orders for this Court to overturn, the issue is moot. Thus, this Court should decline special action jurisdiction. 1 The Plaintiffs seek reimbursement for the costs they paid to the evaluators. (Complaint, p., ~ C.) They do not allege that the Board unconstitutionally took any money from them. Thus, this Court could not order the Board to refund the money.

8 Plaintiffs' Fraud Claim Fails Because Plaintiffs Allege that the Board Misrepresented the Law, Not a Fact. To state a claim for fraud, Plaintiffs must plead the following: (1) a representation; () its falsity; () its materiality; () the speaker's knowledge of its falsity or ignorance of its truth; () the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; () the hearer's ignorance of its falsity; () the hearer's reliance on its truth; () the right to rely on it; [and] () his consequent and proximate injury. Echols v. Beauty Built Homes, Inc., Ariz.,00, P.d,1 (Ariz. ). Additionally, Rule (b), of the Arizona Rules of Civil Procedure, requires plaintiffs to plead each element with particularity. Plaintiffs' misrepresentation fraud allegations fail as a matter of law because they do not allege a of fact. They allege that the Board did not have the authority, and should have known that it did not have the authority, to order licensees to pay for the evaluations or to threaten discipline for not complying with the Interim Order. (Complaint,,-r,-r, 1, 1-.) Plaintiffs allege that they had a "legal right to expect" and "legal right to justifiably rely" that the Board would only issue orders within its authority to do so. (Id.,,-r,-r, -.) Assuming that Plaintiffs sufficiently alleged an actual misrepresentation (they never claim that the Board told them that they had the authority to require them to pay for the evaluations), Plaintiffs only allege that the Board misrepresented the law. Their claim fails because a "misrepresentation of the law does not constitute actionable fraud at common law." Cearley v. Weiser, 1 Ariz.,, P.d, (App. ); Barnes v. Lopez, Ariz.App., 0, P.d, (App. ). Plaintiffs' the state's statutes. fraud claim also fails because Arizona presumes that all persons know Cooper v. Ariz. Western College Dist., Ariz.,, P.d, (App. 0). Additionally, the law imposes a duty on all persons dealing with

9 1 II public offices to "to know the extent and limits of their power." Bigler v. Graham County, II Ariz.,, P.d 0, 0 (App. 1). Plaintiffs allege that "[a]t all times II relevant hereto, the language of A.R.S. - was clear and unambiguous in providing II Defendant only with legislative authority to require [licensees] to undergo evaluations." (Complaint, ~.) They also allege that the Board "had no statutory or rule authority to require the [licensees] to pay for the evaluations pursuant to the Interim Orders." (Id., ~ II.) The law presumes that Plaintiffs knew the law which they allege is clear and II unambiguous. Thus, they cannot show the right to rely on any representation as required II to establish fraud. Thus, Plaintiffs' fraud claim fails as a matter oflaw.. Plaintiffs' Gross Negligence Claim Fails Because They Did Not Allege An Unreasonable Risk of Bodily Harm. Plaintiffs' final claim alleging gross negligence fails to allege sufficient facts to establish the claim. "A party is grossly or wantonly negligent ifhe acts or fails to act when he know or has reason to know facts which would lead a reasonable person to realize that his conduct not only creates an unreasonable risk of bodily harm to others but also 1 involves a high probability that substantial harm will result." Walls v. Ariz. Dep 't of 1 Public Safety, 0 Ariz. 1,, P.d, (App. 1) (citing Nichols v. Baker, 1 Ariz. 1,,1 P.d, ()). Plaintiffs' gross negligence claim fails because the plaintiffs did not allege that they were subjected to an unreasonable risk of bodily harm. Instead, plaintiffs allege only that the Board ordered them to pay money. (Complaint, ~~ -1.) Thus, this claim fails as a matter oflaw. C. The Majority of the Plaintiffs' Claims Are Time-Barred. Even if this Court did not dismiss Plaintiffs' Complaint based on judicial immunity and its failure to state a claim, the majority ofthe Plaintiffs' claims are time-barred.

10 1 A one-year statute oflimitations applies to all lawsuits against a public entity. See A.R.S. -l. This lawsuit was filed on August,. Thus, all claims prior to August,0, are time-barred. Plaintiffs did not allege dates for any of the Interim Orders in their Complaint. However, the Interim Orders are matters of public record, and as such this Court may consider them without converting this motion to one for summary judgment. Strategic 1 1 Development and Construction, v. th & Roosevelt Partners, Ariz. 0, ~, P.d, 0 (App. ). The Interim Orders show the following: Graham-Payne was issued an InterimOrder on November,0 (attached as Exhibit 1); Harrison was issued an Interim Order on August,0 (attached as Exhibit ); Hene1y was issued an Interim Order on November,0 (attached as Exhibit ); Holmes was issued an Interim Order on January, 0 (attached as Exhibit ); Moore was issued an Interim Order on September, 0 (attached as Exhibit ); Powell was never issued an Interim Order; Tiddrick was issued an Interim Order on November,0 (attached as Exhibit ); Wermuth was issued an Interim Order on September, 0 (attached as Exhibit ); Wohead was issued an Interim Order on January, 0 (attached as Exhibit );

11 1 Woodward was issued an Interim Order on November 1,0 (attached as II Exhibit.) Only Tiddrick, Wermuth, and Woodward filed suit within one year ofthe date of their Interim Order. Thus, the remaining Plaintiffs should be dismissed. Additionally, to assert a state-law claim for monetary damages against an Arizona public entity, a plaintiff must file a notice of claim within days of the date the cause of action accrued. See A.R.S. -.01; State v. Mabery Ranch, Co., Ariz.,, ~, P.d 1, (App. 0). The notice of claim is a "mandatory" and an "essential" prerequisite to filing a lawsuit against the public entity. Pritchard v. State, Ariz.,, P.d, (0). Plaintiffs served their Notice of Claim on II May,. (Attached, as Exhibit lol Thus, only those monetary claims arising on or after November,0 (/0 less days) are timely.' The only Plaintiffs whose claims arose after that date are Tiddrick and Woodward. II III. Conclusion. This Court should dismiss Plaintiffs' Complaint in its entirety. The Board is 1 absolutely immune from civil liability for issuing the Interim Orders. Plaintiffs' Complaint also fails to state a claim. Plaintiffs concede that the Board 1 rescinded all outstanding Interim Orders, no justiciable controversy exists to support a declaratory action and the special action claim is moot. Plaintiffs' fraud and gross Normally, a court may not look beyond the plaintiffs complaint in resolving a motion to dismiss. However, ''where documents attached to a motion to dismiss, response and/or reply are the subject of and/or described in the pleadings, they do not constitute 'matters outside the pleadings,' and their submission does not require the trial court to treat the motion to dismiss as one for summary judgment." Ariz. Prac., Civil Trial Practice. (pd ed). Plaintiffs refer to the Notice of Claim in their Complaint. The Notice of Claim was filed on behalf of Tiddrick and Henely only. (Exhibit ). Thus, the Notice of Claim would only apply to the other named Plaintiffs if this Court ultimately grants class certification. City of Phoenix v. Fields, Ariz.,,1 P.d, (0).

12 1 negligence claims fail as a matter of law because Plaintiffs did not plead the misrepresentation of a fact or the threat of bodily harm. Finally, the claims of Graham-Payne, Harrison, Henely, Holmes, Moore, Powell, and Wohead are barred by the statute of limitations. All monetary claims except for Tiddrick and Woodward's fail because the Notice of Claim was not filed within days II of the date they were issued an Interim Order. II RESPECTFULL Y SUBMITTED this fl!!aay of November,. Terry Goddard Attorney General t~~j ~ho{- Rebecca J. Herbst Assistant Attorney General Attorneys for Defendants 1 1 C,?py of the foregoing mailed this ~ day of November,, to: Teressa M. Sanzio, Esq. Law Office of Teressa M. Sanzio, PC E. Thunderbird Rd., # Phoenix, AZ 0 Lisa Gervase, Esq. Gervase Law Firm, PLLC N. Tatum Blvd., Ste. B Cave Creek, AZ 1 Attorneys for Plaintiffs ~.. #