Hardee v. State, Dep’t of Soc. & Health Servs.
No. 83728-7
MADSEN, C.J. (concurring)—I concur in the result reached by the lead opinion.
The majority in Ongom v. Department of Health, 159 Wn.2d 132, 148 P.3d 1029 (2006),
incorrectly determined that due process requires proof by clear, cogent, and convincing
evidence when the State seeks to revoke an occupational license. Id. at 144-49 (Madsen,
J., dissenting). I agree that it must be overruled.
But Ongom rested on Bang D. Nguyen v. Department of Health, 144 Wn.2d 516,
29 P.3d 689 (2001), which was also incorrectly decided. However, instead of overruling
Nguyen, the lead opinion distinguishes it on the basis that the license at issue in Nguyen
was a professional license. Lead opinion at 24. This distinction finds no support in our
precedent or that of the United States Supreme Court. It will have the unfortunate effect
of turning the selection of standards of proof for licensure deprivations into ad hoc,
occupation-specific value judgments about the nature of the private interest at stake.
Rather than adopting an unjustifiable distinction to preserve an incorrectly decided case,
we should overrule Nguyen as well.
ANALYSIS
The legislature has found that the State’s interest in protecting the health and
No. 83728-7
welfare of children is “paramount over the right of any person to provide care” to
children. RCW 43.215.005(4)(c). The legislature has also determined that in
proceedings in which the State seeks to deprive a person of a license to provide child
care, the applicable standard of proof is the preponderance of the evidence standard.
RCW 43.215.300(2). Using this standard, the Department of Early Learning revoked
Kathleen Hardee’s license to provide child care, finding that she had violated the
conditions for maintaining her certification. The review judge, the superior court, and the
Court of Appeals all found revocation well-supported by the record. Hardee v. Dep’t of
Soc. & Health Servs., 152 Wn. App. 48, 51, 215 P.3d 214 (2009). Nonetheless, Ms.
Hardee claims that revoking her license on the basis of proof by a preponderance of the
evidence denies her due process of law. Citing Ongom and Nguyen, she argues that she is
entitled to proof by clear, cogent, and convincing evidence.
The preponderance standard traditionally applies in licensure revocation
proceedings regardless of the occupation at issue. Ongom, 159 Wn.2d at 155 n.15
(Owens, J., dissenting) (citing numerous cases to this effect from other states, including
Granek v. Tex. State Bd. of Med. Exam’rs, 172 S.W.3d 761 (Tex. App. 2005)
(ophthalmologist’s medical license); Parrish v. Ky. Bd. of Med. Licensure, 145 S.W.3d
401 (Ky. Ct. App. 2004) (radiologist’s medical license); Snyder v. Colo. Podiatry Bd.,
100 P.3d 496 (Colo. App. 2004) (podiatrist’s medical license); In re Smith, 169 Vt. 162,
730 A.2d 605 (1999) (nursing license); Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603,
478 S.E.2d 437 (1996) (dentistry license); In re Grimm, 138 N.H. 42, 635 A.2d 456
2
No. 83728-7
(1993) (psychologist’s license); Pickett v. Utah Dep’t of Commerce, 858 P.2d 187 (Utah
App. 1993) (pharmacist’s license); Boswell v. Iowa Bd. of Veterinary Med., 477 N.W.2d
366 (1991) (veterinarian’s license)). This is true because while citizens have “some
generalized due process right to choose one’s field of private employment,” the right of
all citizens to pursue a particular occupation has always been limited, subject to
“reasonable government regulation.” Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S. Ct.
1292, 143 L. Ed. 2d 399 (1999) (citing Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231,
32 L. Ed. 623 (1889)). Consistent with the limited nature of the right, a person’s interest
in pursuing a particular profession is unlike the “particularly important” interests that are
“more substantial than mere loss of money,” which require proof by clear, cogent, and
convincing evidence before someone can be deprived of them. Addington v. Texas, 441
U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).1 We recognized this principle in
the context of a challenge to the State’s revocation of a taxicab driver’s license when we
held that “while it is clear that pursuing a lawful private profession or occupation is a
protected right under the state and federal constitutions, it is equally clear that such right
is not a fundamental right, requiring heightened judicial scrutiny.” Amunrud v. Bd. of
Appeals, 158 Wn.2d 208, 222, 143 P.3d 571 (2006). While Amunrud presented a
substantive due process challenge, it nevertheless demonstrates the limited nature of the
1
These interests include parental rights (see Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982)); personal liberty (see Addington, 441 U.S. at 427); United States
residency (see Woodby v. Immigration & Naturalization Servs, 385 U.S. 276, 285, 87 S. Ct. 483,
17 L. Ed. 2d 362 (1966)); and citizenship (see Chaunt v. United States, 364 U.S. 350, 353, 81 S.
Ct. 147, 5 L. Ed. 2d 120 (1960)).
3
No. 83728-7
private interest one possesses in pursuing an occupation for purposes of procedural due
process. Ongom, 159 Wn.2d at 146 (Madsen, J., dissenting).
Absent “countervailing constitutional constraints,” the United States Supreme
Court has found a preponderance of the evidence to be sufficient in proceedings to revoke
an occupational license. Steadman v. Sec. & Exch. Comm’n, 450 U.S. 91, 95, 101 S. Ct.
999, 67 L. Ed. 2d 69 (1981) (requiring only preponderance to revoke a stockbroker’s
license).
Other jurisdictions agree that in the context of a license to practice medicine, the
preponderance standard satisfies constitutional due process requirements. See N.D. State
Bd. of Med. Exam’rs v. Hsu, 726 N.W.2d 216, 230 (2007) (“Under the Mathews
framework for analyzing due process claims, we conclude the preponderance of evidence
standard satisfies due process” in disciplinary proceedings where a physician’s interest in
a medical license is at stake.); Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329
S.C. 371, 378, 496 S.E.2d 17 (1998) (same); Gandhi v. State Med. Examining Bd., 168
Wis. 2d 299, 304-07, 483 N.W.2d 295 (1992) (same); In re Revocation of License of
Polk, 90 N.J. 550, 560-69, 449 A.2d 7 (1982).
Although the United States Supreme Court has had occasion to consider a wide
range of professions, it has never suggested that the nature of a profession affects the
scope of the interest of those seeking to pursue it. Cf. Barry v. Barchi, 443 U.S. 55, 64,
99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979) (protected interest in horse trainer’s license);
Dent, 129 U.S. at 121-22 (protected interest in medical license). To the contrary, the
4
No. 83728-7
Court has indicated that “the liberty component of the Fourteenth Amendment’s Due
Process Clause includes some generalized due process right to choose one’s field of
private employment.” Conn, 526 U.S. at 291-92 (emphasis added); cf. Dent, 129 U.S. at
121 (“all vocations are open to every one on like conditions [and] [a]ll may be pursued as
sources of livelihood, some requiring years of study and great learning” (emphasis
added)). The Court has never suggested that a professional licensee has a greater interest
in retaining his or her certification than the holder of a nonprofessional licensee. Because
the constitutional right to pursue any profession is the same, the nature of the license at
issue does not affect the standard of proof necessary to satisfy due process when the state
seeks to revoke the license.
Unfortunately, in attempting to distinguish Nguyen, the lead opinion makes this
exact distinction. The lead opinion says that acquiring a license to practice medicine
requires greater “education” and “investment” than a license to provide child care and
that physicians have greater “personal attachment” to their licenses. Lead opinion at 17.
Therefore, the lead opinion reasons that a physician has a greater interest in his or her
medical license than a child care provider has in his or her license to provide child care.
Id. at 24.
The lead opinion cites no authority for its assertion that a child care provider has
less “attachment” to her license. But, even if a medical license does require greater
“investment” and carry greater “personal attachment” than a child care license, both
licenses only entitle a licensee to pursue an occupation. See id. at 17. And neither
5
No. 83728-7
occupation affects a fundamental constitutional liberty interest. To the extent the lead
opinion holds otherwise, it is inconsistent with both Amunrud and Steadman.
Moreover, a rule that distinguishes between professional and nonprofessional
licenses is untenable. Licenses come in many forms, all requiring different levels of
“personal investment” and with differing levels of “personal attachment.” Conferring
greater due process protection on some licensees and not on others on the basis of the
personal investment required for acquisition of the license creates an ad hoc analysis and
unpredictable results. Is an engineer entitled to proof by clear, cogent, and convincing
evidence before the Board of Registered Professional Engineers may deprive him or her
an engineering license? See Nims v. Bd. of Registration for Prof’l Eng’rs & Land
Surveyors, 113 Wn. App. 499, 53 P.3d 52 (2002). What about dental hygienists or
cosmetologists, whose licenses require great personal investment? Do we classify them
as professionals, to which a higher standard of proof applies, or do we somehow
distinguish them from physicians, despite their personal investment in their licenses? See
RCW 18.29.021; RCW 18.16.060. A license may be every bit as necessary and
important to the individual who needs it to engage in long-haul trucking as it is to one
who needs it to practice law or medicine. The lead opinion acknowledges that our courts
are struggling to articulate consistent standards of proof for the administrative revocation
of licenses across a wide range of occupations. Lead opinion at 10-11. Far from
providing helpful clarification, however, the lead opinion fails to offer any clear guidance
for determining the standard of proof that will be required. Moreover, it fails to provide a
6
No. 83728-7
valid basis for concluding that different standards should apply in the first place.
The lead opinion’s attempt to distinguish Nguyen rather than overrule it makes no
sense. First, in Nguyen, the court overestimated the private interest at stake, given the
limited nature of the right to pursue the particular profession. Ongom, 159 Wn.2d at 14748 (Madsen, J., dissenting). This mistake undermined our application of the Mathews
test, since we expressly recognized the private interest as our “primary concern” and as
the “most important[]” factor. Nguyen, 144 Wn.2d at 523-26. Second, the court
undervalued the weight of the governmental interest in protecting the public. The
governmental interest, when considered in the balance, should have been given more
weight than the license holder’s individual interest. Ongom, 159 Wn.2d at 148 (Madsen,
J., dissenting). Distinguishing Nguyen rather than overruling it invites courts to make the
same mistakes based on the characteristics of the particular occupation at issue. This is
not what due process requires, nor is it fair to those whose careers require licenses that a
court may not designate as “professional.”
CONCLUSION
Like Ongom, Nguyen was wrongly decided. Rather than adopting an unjustifiable
distinction to save Nguyen, we should overrule it as well. Nevertheless, because the lead
opinion finds that RCW 43.215.300(2) does not violate Ms. Hardee’s due process rights,
I concur in the result.
7
No. 83728-7
AUTHOR:
Chief Justice Barbara A. Madsen
WE CONCUR:
Justice Mary E. Fairhurst
Justice Charles W. Johnson
Justice Debra L. Stephens
8
