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INTHE SUPREME COURT OF THE STATE OF WASHINGTON

INTHE MATTER OF THE DISCIPLINARYPROCEEDING AGAINST: Lori A. Petersen, Certified Professional Guardian No. 9713, Petitioner. ) ) ) ) ) ) ) ) )



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## ____.) No. 88513-3 EnBane
Filed 

### JUL 03 2014 GONZALEZ, J.---The Certified Professional Guardianship Board (Board) has asked us to suspend guardian Lori Petersen for actions stemming from her guardianship ofD.S. and J.S. Petersen contends that this sanction is improper and suggests the Boardhas run afoul ofseparation ofpowers principles, violated the appearance offairness doctrine, impermissibly lowered the evidentiary standard, and failed to considerthe proportionality ofthe sanction. We agree with Petersen

as to her last contention. She has questioned, albeit obliquely, the proportionality ofthe sanction, and so the Board should have consideredthe sanction's magnitudeIn re Petersen, No. 88513-3 relative to those imposed in other cases. Accordingly, we remand to the Boardto conduct a consistency analysis pursuantto its internal regulations and this opinion. FACTS AND PROCEDURAL HISTORY Petersen has been a certified professional guardian since 2001. She owns and operates Empire Care and Guardianship, a large agency serving over 60 wards. She served on the Board from 2003 until 2009 and sat on the Standards ofPractice Committee (SOPC). 1 From December 2009 until April 2010, the Boardreceived a number ofgrievances and complaints regarding Petersen's treatment ofthree wards who were all, at one point, housed at Peterson Place, an adult family home. Followingprotocol, the SOPC opened files for each grievance and informed Petersen that an investigation would be forthcoming. According to Petersen, CommissionerValente, who was the chair ofthe SOPC and had served on the Board with Petersen,2 encouragedthe SOPC to conduct a factual inquest to see ifthe charges were substantiated. Thoughthe

1Among other duties, the SOPC reviews grievances that have been filed withthe Board. Certified Prof'l Guardianship Bd. (CPGB) Program Rules 506.1 (Disciplinary Regulation (DR) 506.1). For electronic access to currentDRs, see note 3, infra. When examining a grievance, the SOPC can (1) request further information from the Administrative Office ofthe Courts (AOC), (2) dismiss the grievance, (3) request thatthe board file a formal complaint, (4) requestthat the Board enter into an agreementregarding discipline, or (5) direct that AOC contactthe professional guardian to discuss a minor disciplinary issue. !d. The SOPC may also "direct AOC to obtain the statement ofany person believed to have information relevant to the grievance." DR 506.1.1. 2 Petersen believes her confrontational relationship with CommissionerValente during her tenure onthe Boardprecipitated his actions. Opening Br. ofLori Petersen at 30-31. 2In re Petersen, No. 88513-3 record is silent on this point, presumablythe SOPC agreed because Commissioner Valente conducted an inquest hearing in his courtroom on July 15, 2010. Atthis hearing, Petersen was sworn in, was represented by counsel, and was given the opportunity to present testimony and offer evidence. CommissionerValente also questioned Petersen at length with no objections from Petersen's attorney. As a result ofthese hearings, CommissionerValente composed several written opinion letters that he sentto Petersen and others involved inthe proceeding. To the Board, he recommended that a complaintbe filed. The Board agreed and served Petersen with a complaint on Apri125, 2012. In it, the Board charged Petersen with violating nine different standards ofpractice (SOPs). 3 Petersen filed a timely

answer that denied all the allegations and set out affirmative defenses. Petersen also sought to have the complaint dismissed with prejudice and to be reimbursed for costs and attorney's fees. When attempts to reach an agreed settlement failed, the Board served Petersen with a notice ofhearing. Two and a halfdays ofhearings were held in late October 2012 before Hearing Officer Roderick Simmons. Each side was allowed to submitbriefing. The Boardpresented seven witnesses, and Petersen called four, including herself,

3 The SOPs have been renumbered since this action began. Because the CPGB Guardianship Program Rules ch. 400 (SOPs) are not available under the former codification, we cite the current numeration as long as the substance ofthe standard has remained substantiallythe same. In cases where the standards have been amended, they are cited as former SOP and a footnote with the text ofthe standard is provided. Current SOPs and DRs are available at http://www.courts.wa.gov/programs_orgs/Guardian/?fa=guardian.display&fileName=rulesindex. 3In re Petersen, No. 88513-3
to the stand. Ajointbinder ofexhibits was also admitted. Thehearing officer considered all the evidence and testimony and entered findings offact, conclusions oflaw, and a recommendation. A. FindingsRegarding the Guardianship of D.S. D.S. was an elderlywoman who suffered from dementia. She was placed at Peterson Place whenher granddaughter could no longerprovide adequate care. Petersenbecame D.S.'s guardian in March 2009. InAugust 2009, D.S.'s granddaughter asked Heidi Peterson4 to obtain new glasses for D.S. because D.S.

was an avid reader and her old glasses were scratched and broken. Petersen did not think D.S. needed a new pairbutpermittedHeidi Peterson to lookinto the matter. Heidi Peterson tookD.S. to the optometrist for an initial appointment. But there was no follow up, and the optometrist's office could not reach Petersen. This resulted in a considerable delaythat the Hearing Officer found inexcusable and unnecessary. Ex. 10, at 830 (Findings ofFact (FF), Conclusions ofLaw (CL), & Recommendations to Bd. for Action). He determined that Petersen was dismissive ofthe need to replace the glasses and that "she exhibited little enthusiasm for completing the steps necessaryto facilitate this activity ofdaily living that is so

4 Heidi Petersonis the owner ofPeterson PlaceAdult FamilyHome, where D.S. was living at the time that Petersen was her guardian. 4In re Petersen, No. 88513-3 enjoyed by D.S." 

### !d. at 829. The hearing officer determined this was a violation ofSOP 402.25 and 405.1.6 In October 2009, Heidi Peterson notified PetersenthatD.S.'sphysical condition had worsened and Petersen authorized a trip to the hospital. Petersen failed to inform D.S.'s family ofthese events until after the hospitalization began, which the hearing officer determined to be a violation ofSOP 402.2 and 405.1. Towardthe end ofOctober 2009, Petersen decided to move D.S. from PetersonPlace. Petersen claimed the move was necessary because the facility did not provide 24-hour nursing care. The hearing officer foundthatPetersen made "no showing that any quality ofcare issues could not have been addressed by discussion and communication." 

### !d. at 830. Also, the hearing officer found that Petersen was dismissive ofand incommunicative with D.S.'s family members. Because Petersen did not havejustification to move D.S. and because she did not seek input from D.S.'s friends and family, Hearing Officer Simmons found she violated SOP 402.2 and 405.1.

5 "The guardian, where appropriate, shall consider the views and opinions of**profession~ls,** relatives, and friends who are knowledgeable about the incapacitatedperson." SOP 402.2. 6 "The primary standard for decision-making is the Substituted Judgment Standard based upon the guardian's determination ofthe incapacitated person's competentpreferences,i.e. whatthe incapacitated person would have decided when he or she had capacity. The guardian shall make reasonable efforts to ascertain the incapacitatedperson's historic preferences and shall give significant weightto such preferences. Competentpreferences may be inferred from past statements or actions ofthe incapacitatedperson when the incapacitated person had capacity." SOP 405.1. 5In re Petersen, No.**88513~3** B. Findings Regarding the Guardianship of JS. J.S. was 18 years old when Petersen became his guardian. He suffered from

a hereditary spinocerebellar ataxia disorder that caused muscle spasticity and blindness, rendered him wheelchair bound, and shortened his lifeexpectancy. Despite these physical limitations, J.S. was able to express his desires and was

aware ofthe terminal nature ofhis disease. He was moved from a family member's house, where he was being abused, into Peterson Place inMay 2009. The hearing officer found that Petersen knew how deeply J.S. was affectedbythis

move.Nonetheless, on October 30,2009, Petersen's staffmoved J.S. out of Peterson Place and into a hospice facility. The move occurred nine days after a petitionto replace Petersen as J.S.'s guardian was filed. Petersen believedthe

move was necessary due to an order J.S.'s doctor issued on October 29, 2009 that recommendedthat J.S. receive hospice care or be putin a skilled nursing facility. No one spoke to J.S. about the move nor soughtto learn his wishes. Melody Hayashi-Taisy, J.S.'s teacher, friend, and advocate, came to Peterson Place as soon as she learned ofthe pending move. She described the

scene as chaotic. J.S. was upsetthat he was being moved and understood that hospice care was for terminally ill patients. During this process, Petersenwas not atPeterson Place and did not directly oversee the move.
6In re Petersen, No. 88513-3 Ultimately, J.S. was taken to the hospice facility without his reclining wheelchair, which was a source ofsecurity for him and where he preferred to spend substantial time. Once there, J.S. sobbed, screamed, and was disruptive. Staffat the facility did not know what to do and could notreach Petersen, so they called Hayashi-Taisy instead. Hayashi-Taisy broughtJ.S. his wheelchair and stayed with him until he wentto sleep. On November 4, 2009, Petersen was replaced as J.S.'s guardian. With his doctor's consent, the new guardian moved J.S. back into PetersonPlace and arranged for 24-hour nursing care there. The hearing officer found that Petersen exhibited no regard for J.S.'s interests or opinions in moving him to hospice care. Petersen did not explain why she failed to considerplacing J.S. in a skilled nursing facility or arrange for appropriate care at Peterson Place. The hearing officer found that this lack of regard for J.S.'s wishes and needs, especially during days that were then-perceived

7In re Petersen, No. 88513-3
to be his last, was in violation ofSOP 403.1 7 and 402.2 and former SOP 401.12,8 401.15,9 and 404.5. 10 C. RecommendedSanctions The hearing officer found that the SOPs that Petersenviolated involvedthe paramount duty ofa guardian--to actively seek information and input from the ward and others close to the ward to ensure appropriate care and residential placement decisions. Hearing Officer Simmons also consideredthe relevant aggravating and mitigating factors and the weightthat each factor should be given in making his recommendationto the Board. Specifically, he determined that Petersen's significant experience as a guardian, her failure to aclmowledge her wrongful conduct, her prior disciplinary history, and the vulnerability ofher wards

were all aggravating circumstances that should be given significant weight. Though he determined that Petersen's cooperation and her willingness to take

7 "The civil rights and liberties ofthe incapacitated person shall be protected. The independence and self-reliance ofthe incapacitated person shall be maximized to the greatest extent consistent with their protection and safety. The guardian shall protectthe personal and economic interests ofthe incapacitated person and foster growth, independence, and self-reliimce." SOP 403.1. 8 "Whenpossible, the guardian will defer to an incapacitatedperson's autonomous capacityto make decisions." Former SOP 401.12. 9 "Guardians ofthe Person shall have meaningful in-person contactwiththeir clients as needed and shall maintain telephone contact with careproviders, medical staffand others who manage aspects ofcare as needed an appropriate. Meaningful in-person contact shall provide the opportunity to observe the incapacitatedperson's circumstances and interactions withcare providers." Former SOP 401.15. · 10 "The guardian, shall, to the extentpossible, selectresidential placements which enhance the quality oflife ofthe incapacitated person, provide the opportunityto maximize the independence ofthe incapacitated person, and provide for physical comfort and safety." Former SOP 404.5. 8In re Petersen, No. 88513-3

cases from AdultProtective Services were mitigating circumstances, Hearing Officer Simmons did not afford these factors much weight. Finally, he found that both D.S. and J.S. suffered actual, significant injuries. Given these findings, Hearing Officer Simmons determined that a letter of reprimand was insufficient. Instead, he recommended that Petersen be (1) suspended for one year for her misconductregarding the relocation ofD.S. and J.S.; (2) concurrently prohibited from taking new cases for 3 months for the delay in obtaining new glasses for D.S.; (3) subjectedto a probationary period of24 months postsuspension, where any relocation decision wouldbe reviewedby a different certifiedprofessional guardian; and (4) required to pay costs of proceedings. The hearing officer's findings offact, conclusions oflaw, and recommendation as well as Petersen's objection were submitted to the Bo.ard. The Administrative Office ofthe Courts also submitted a declaration that documented the fees and costs associated with the disciplinary matter, which totaled $40,366.16. The Board consideredthe matter at its January 30,2013 meeting. The board members who did not have a conflict ofinterest voted sixto one to adoptthe hearing officer's recommended sanctions. They declinedto impose thecosts associated with hiring the hearing officer, lowering the fees to $32,393.66. The lone dissenting board member argued that no fees should be imposed because the

9In re Petersen, No. 88513-3 hearing officer did not state a basis for imposing fees, he did not knowthe amount

. . . . offees that would be imposed, and that the imposition offees and costs shouldbe equitable and in proportion to the misconduct. The Board submittedthe record and its recommendation for our review. Petersenpetitionedthis court to permit briefing and oral argument. We grantedthe petition and now affirm in part and remand for further proceedings consistentwith this opinion. ANALYSIS Standard of review Petersentakes issue both with Hearing Officer Simmons's factual findings and his conclusions oflaw. We give "ahearing officer's findings offact 'considerable weight,'

... and will uphold the findings where they are supported by 'substantial evidence."' In re DisciplinaryProceedingAgainstFerguson, 170 Wn.2d 916, 927, 246 P.3d 1236 (2011) (quotingIn re DisciplinaryProceeding AgainstBotimer, 166 Wn.2d 759,767, 214 P.3d 133 (2009)). The burden is on the party challenging the findings offact to properly assign error and to establish that specific challenged findings are not supportedby the record. See In re DisciplinaryProceedingAgainstKronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134 (2005) (quoting In re DisciplinaryProceedingAgainstKagele, 149 Wn.2d 793, 814, 72 P.3d 1067 (2003); In re DisciplinaryProceedingAgainstHaskell, 136

10In re Petersen, No. 88513-3 Wn.2d 300, 311, 962 P.2d 813 (1998)). Because Petersenhas failed to properly assign error to the hearing officer's factual findings, we do not disturb them. We review legal questions and the Board's conclusions oflaw de novo. See In re DisciplinaryProceedingAgainst Whitt, 149 Wn.2d 707, 717, 72 P.3d 173 (2003). A. Separation of powers "Our constitution does not contain a formal separation ofpowers clause." Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009) (citing CONST. art. II,§ 1, art. III, § 2, art. IV, § 1; Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173 (1994)). '"Nonetheless, the very division ofour government into different branches has beenpresumedthroughout our state's history to give rise to a vital separation ofpowers doctrine."' Id. (quoting Carrick, 125 Wn.2d at 135). "'The doctrine serves mainly to ensure that the fundamental functions ofeachbranch remain inviolate."' Id. (quoting Carrick, 125 Wn.2d at 135). At its crux, "'[t]he question to be asked is not whether two branches ofgovernment engage in coinciding activities, but rather whether the activity ofone branchthreatens the independence or integrity or invades the prerogatives ofanother."' Carrick, 125 Wn.2d at 135 (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975)). A delegation ofauthority must involve (1) standards to guide the agency and (2)

11In re Petersen, No. 88513-3 procedural safeguards to control for abuse ofdiscretionary power. State v. Simmons, 152 Wn.2d 450, 455, 98 P.3d 789 (2004). Petersen does not claim thatthe Board has been provided no standards to guide its actions. Instead, she argues thatthe Boardhas been delegated executive, legislative, andjudicial power in violation ofseparation ofpowers because of insufficient procedural safeguards to control its administrative action. See Opening Br. ofLori A. Petersen at 17. She concludes that separation ofpowers and her due process rights have beenviolated because her disciplinary proceeding did not mirror the one approved in Simmons, which concernedthe legislature's delegation ofrule making authority to the Department ofCorrections (DOC). This is not an apt comparison. Not only is Simmons distinguishable but also adequate process has beenprovided. Most importantly, none ofthe powers delegated to the Board threaten the integrity, independence, or prerogatives ofany otherbranch of government. 

### 1. The Board's authority andstructure To be regulated by the Board, a guardian must first fall under the statutory definition of"certifiedprofessional guardian" in RCW 11.88.008. 11 GR 23(a).

11 "Asused inthis chapter, 'professional guardian' means a guardian appointed under this chapter who is not a member ofthe incapacitated person's family and who charges fees for carrying outthe duties ofcourt-appointed guardian ofthree or more incapacitated persons." RCW 11 .88.008. 12In re Petersen, No. 88513-·3 But '"guardianships are equitable creations ofthe courts and itis the courtthat retains ultimate responsibility for protecting the ward's person and estate."' In re Guardianship o.fLamb, 173 Wn.2d 173, 184,265 P.3d 876 (2011) (quotingIn re Guardianship of Hallauer, 44 Wn. App. 795, 797, 723 P.2d 1161 (1986)). The Board was created by this courtto oversee the certification,regulation, and discipline ofprofessional guardians and related agencies. See id. at 185. We select the Board's members, oversee the Board's actions, ratify the Board's decisions, and enforce the Board's orders. See GR 23(c)(1)(i), (iii), (2)(v), (x)(c), (3). Despite our oversight offinal decisions, we delegated numerous regulatory and rule making tasks to the Board. As part ofits duties, the Board must adopt and implement SOPs that govern the minimum standards thatprofessional guardians must meet. 12 GR23(c)(2)(ii). The Board must also adopt and implement procedures for reviewing grievances and imposing disciplinary sanctions when professional guardians fail to comply with relevant standards, statutes, duties, or otherrequirements. GR 23( c)(2)(viii). The Board can investigate potential

12 In Guardianship of Lamb, we summarized the purpose ofSOP provisions: These standards direct guardians to provide timely and accurate reports to the court, act

. within the scope ofthe appointed guardianship, consult with the incapacitatedperson and

deferto that person's autonomous decision-making capacity when possible, cooperate withprofessional caregivers and relatives ofthe incapacitatedperson, and seek independentprofessional evaluations and opinions when necessary to identify the incapacitated person's best interests. 173 Wn.2d at 185. 13In re Petersen, No. 88513-3 violations on its own initiative and has authority to conducthearings and issue enforceable orders. GR 23(c)(2)(ix)-(x). To help carry outthese duties, the Board has promulgated rules and regulations, SOPs, and Disciplinary Regulations (DRs). 2. Thepowers delegated to the Boarddo not undermine the integrity, independence, orprerogatives of any other branch Petersen challenges our delegation ofa quasi-legislative power (rule making), quasi-executive power (investigation and prosecution), and quasi-judicial power (conducting hearings) to the Board. This, however, is insufficient to maintain a separation ofpowers violation. Like attorneys, guardians are officers of the court. See Seattle-FirstNat'!Bankv. Brommers, 89 Wn.2d 190, 200, 570 P.2d 1035 (1977) ("The court havingjurisdiction ofa guardianship matter is said to be the superior guardian ofthe ward, while the person appointed guardian is deemed to be an officer ofthe court."). Like with attorney discipline, with guardian discipline "[w]e have 'the inherentpower to promulgate rules ofdiscipline, to interpret them, and to enforce them."' In re DisciplinaryProceedingAgainst Haley, 156 Wn.2d 324,333, 126 P.3d 1262 (2006) (emphasis omitted) (quoting in

re DisciplinaryProceedingAgainstStroh, 97 Wn.2d 289, 294, 644 P.2d 1161 (1982)). With such broad plenarypower over guardianship practice, our delegation of rule making, investigation and prosecution, and adjudication to the Board does not

run afoul ofseparation ofpowers principles. Furthermore, combining suchpowers 14In re Petersen, No. 88513-3 in a disciplinary and regulatory board is well precedented. See In re Disciplinary ProceedingAgainstDeming, 108 Wn.2d 82, 106-07, 736 P.2d 639 (1987) ("The failure to strictly adhere to a complete separation ofthe investigatory, prosecutory and adjudicatory phases is not always a violation ofdue process."). Here, the Board's authority does not impinge on the legislature's prerogative to statutorily define "certifiedpublic guardian" or the executive's ability to investigate and prosecute guardians under the law. All ofthe Board'sregulatory authority is that within the province ofthejudiciary, and so the delegation is proper. 3. There are enoughproceduralsafeguards to ensure that thepower delegated by this court is not abusedor arbitrarily administered Though the Board's procedures do not mirror those approved in Simmons, they are sufficientto satisfy due process considerations in guardianship discipline. Simmons concernedthe legislature's delegation ofrule making authority to the DOCthat effectively allowed the agency to define criminal conduct, traditionally a
core legislative function. 152 Wn.2d at 452, 457. Simmons, who was in the custody ofthe DOC, was charged with persistentprison misbehavior under RCW 9.94.070. 

### ld. at 452. He argued thatthe statute impermissibly delegated legislative authority to the DOC. 

### Jd. 13 We disagreed because "[t]he DOC afforded Simmons with access to the disciplinary code upon his admission into custody, the

13 The statute in question allowed the DOC to enactrules that defined the serious infractions that would constitute criminal misbehavior. 15In re P_etersen, No. 88513-3 right to appeal any adverse disciplinary hearing findings to the prison superintendent, and the constitutional rights attendantto a criminal proceeding." Id. at 458. Here, the Board is not criminalizing behavior or defining terms in a statutory scheme, and so the cases present very different concerns. Nonetheless, the Board has enacted a set ofprocedures that give comparable protections to guardians facing discipline. The Board (1) provides sufficient notice ofall regulations to certified professional guardians; 14 (2) treats a hearing officer's findings offact and conclusions oflaw in discipline cases as arecommendation; 15 and (3)judicial review is mandatory for cases thatresult in suspension or decertification. 16 The Board's structure and authority do notviolate any separation ofpowers principles. Ourplenary authority over guardianships, our delegation ofexclusively

14 The Board is required to provide notice whenever any regulation is being adopted, repealed, or modified. CPGB Guardianship Program Rules 602.1 (Procedure for Adoption Amend. & Repeal ofRegulations (Reg.) 602.1). All notices must have the text ofthe proposed change. Reg. 602.1.1. All proposed changes must also be posted on the Board's web site as well as sent electronically to the Washington Association ofProfessional Guardians and all certified professional guardians individually to facilitate public comment. Reg. 602.2.1, 602.2.2, 602.2.3. 15 By regulation, a hearing examiner's findings offact and recommendation is merely a recommendation to the Board, which has an opportunity to reviewthe findings and to accept, reject, or modify them. DR 512. The record adequately shows thatthe Boardreviewed the recommendation in Petersen's case. Ex. 17, at 1616-17 (Bd. Special Called Exec. Session Meeting). And so, like the litigant inSimmons whose case was reviewed by the superintendent, Petersen did receive a second look from an administrative source. 16 This court must review all disciplinary cases that result in a recommendation ofsuspension or decertification. DR 513.2. Although we generally do not accept briefing or hear oral arguments in such cases, we do review a complete record andhave the authority to adopt, modify, or reverse the Board's findings by written order. DR 513.3. 16In re Petersen, No. 88513-3 judicial authority, and the adequacy ofthe procedures afforded during the disciplinary process permitthe melding ofquasi-legislative, quasi-judicial, and quasi-executive powers in this context. B. Appearance of fairness doctrine Petersen believes that CommissionerValente's actions as a member ofthe SOPC and his persistence inpursuing the disciplinary actiori violate the appearance offairness doctrine. See Opening Br. ofLori A. Petersen at 30. She also claims that Hearing Officer Simmons's financial interest in being retained for future disciplinary proceedings also runs afoul ofthis doctrine. See id. at 32. We disagree. We apply the appearance offairness doctrine to quasi-judicial proceedings in two circumstances: "(1) when an agency has employedprocedures that create the appearance ofunfairness and (2) when one or more acting members ofthe decisionmaking bodies have apparent conflicts ofinterest creating an appearance ofunfairness or partiality." City of-Hoquiam v. Pub. Emp 'tRelations Comm 'n, 97 Wn.2d 481,488, 646 P.2d 129 (1982) (citation omitted). That said, "we detect no inherent unfairness in the mere combination ofinvestigative and adjudicative functions, withoutmore, that would prompt invocation ofthe appearance of fairness doctrine. [Also, w]e mustpresume the board members acted properly and legally performedtheir duties until the contrary is shown." Wash. Med.
17In re Petersen, No. 88513-3 DisciplinaryBd. v. Johnston, 99 Wn.2d 466, 479, 663 P.2d 457 (1983) (emphasis added). Though Commissioner Valente's inquest may be characterized as prosecutorial andtherefore exempt from the appearance offairness doctrine, 17 to

an outside observer the hearing bore many hallmarks ofajudicial or quasHudicial proceeding. The hearing was conducted in his courtroom during courthours, and Petersen was representedby counsel and gave testimony under oath. Accordingly, inthis instance, we apply the appearance offairness inquiry to the inquest. Petersen characterizes Commissioner Valente's inquest as "unprecedented crusading" and essentially contends that the disciplinary action is a result ofhis personal vendetta and bias against her. See Opening Br. ofLori A: Petersen at 30. Nothing inthe record, otherthan Petersen's allegations, supports this contention. In fact, the hearing officer found that "[t]he transcripts from the hearings [CommissionerValente] conducted and the written opinion letters he issued demonstrate he acted fairly in all particulars related to these grievances." Ex. 10, at 828 (FF, CL, & Recommendations to Bd. for Action). Without any material evidence suggesting impropriety or properly assigning error to the hearing officer's finding, Petersen fails to satisfy the "something more" requirementthat is

17 The doctrine does not apply to executive functions such as prosecutorial inquests or coroner inquests. See State v. Finch, 137 Wn.2d 792, 809-10, 975 P.2d 967 (1999); Carrick, 125 Wn.2d at 140-43. 18In re Petersen, No. 88513-3 necessary for an appearance offairness violation and so her charge against CommissionerValente must fail. See Johnston, 99 Wn.2d at 479. The same can also be said ofPetersen's charge against Hearing Officer Simmons. Thatthe Boardpaidthe hearing officer for his services is not sufficient to maintain an appearance offairness violation. We presume thatjudicial hearings andjudges are fair. In re Disciplinary ProceedingAgainstKing, 168 Wn.2d 888, 904, 232 P.3d 1095 (2010). "Hearing officers are notjudges, but we trust and empower them to preside over proceedings, take evidence, make findings offact, and do other duties analogous to the role ofajudge. The presumption offairness forjudges likewise applies to hearing officers in attorney disciplinary proceedings." Id. When an attorney facing discipline brought a similar charge against his hearing examiner, we summarily rejected this argument. See In re DisciplinaryProceedingAgainst Marshall, 167 Wn.2d 51, 69,217 P.3d 291 (2009). 18 We extend this logic and apply it in guardian discipline as well. Petersen has failed to adduce facts that prove Hearing Officer Simmons was biased, had a conflict ofinterest, or would

seem unfair to a reasonable observer, and so this claim must also fail.

18 We found the hearing officers' "salary does not bias him any more than the salary paidto any judgewho hears cases brought bythe State ofWashington. Additionally, [his] involvement and discussions relating to improving hearing officerperformance does not showbias or the appearance ofunfairness."Marshall, 167 Wn.2d at 69. 19In re Petersen, No. 88513-3 C. Proper evidentiarystandard Priorto the fall of2011, the Boardwas required to prove guardian misconduct by clear and convincing evidence before disciplinary sanctions could be imposed. During its September 2011 meeting, the Board considered changing its regulation to require apreponderance ofthe evidence standard ofproofin light ofour decision inHardee v. Dep 't of Soc. & Health Servs., 172 Wn.2d 1, 256 P.3d 339 (2011). Two months later, the Boardvoted to adopt the preponderance standard. Petersen claims this change violated her due process rights. She argues that the amount ofeducation and testing necessary to become a certified professional guardian entitles her to have the hearing examiner apply the clear and convincing evidence standard. Opening Br. ofLori A. Petersen at 33-34. Petersen argues that guardians should be treated like physicians for the purposes ofthis inquiry and thatNguyen v. Dep 't of Health, Med. QualityAssurance Comm 'n, 144 Wn.2d 516,29 P.3d 689 (2001), rather thanHardee, is controlling. She is mistaken. Applying the Mathews v. Eldridge three-partbalancing test, 19 we are satisfiedthat a preponderance ofthe evidence standard adequately protects

19 UnderMathews, we mustbalance (1) the private interest at stake, (2) the risk ofan erroneous deprivation ofthe interest and probable value ofadditional procedural safeguards, and (3) the government's interest including fiscal and administrative burdens that the additional procedures would entail. 424 U.S. at 335. 20In re Petersen, No. 88513-3 Petersen's property interest in continued certification. 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). 1. Mathews Test:private interest The private interest involved in certification is substantial, butnot as substantial as licensing for aphysician. To become a professional certified guardian, an applicant must (1) be over 18 years ofage and ofsuitable character; (2) have an associate's degree and four years' experience, have abachelor's degree and two years' experience, or have ahigher degree and one year's experience; and (3) have successfully completed a nine month certificate program. GR 23(d)(l). In comparison, "[b]ecoming a licensed physician requires a four year undergraduate degree, a four year postgraduate degree, and additional years of residency training. Physicians must pass multiple tests and examinations before licensure and maintain continuing educational requirements thereafter." Hardee, 172 Wn.2d at 13. The required work experience, nine month certificate program, and college degree are not commensurate with the requirements for medical practice. Furthermore, nothing butthe certificate requirement is specific to guardianship practice, which also diminishes the private interestto some degree. 2. Mathews Test: risk of erroneous deprivation The risk oferroneous deprivation ofa guardian's ability to practice may not be substantially decreased by a higher evidentiary standardbecause the Board's

21In re Petersen, No. 88513-3 disciplinary process already includes procedural safeguards that minimize the potential ofwrongful suspension or decertification. Virtually all procedural safeguards available in comparable professional discipline processes are afforded guardians. A copy ofa valid grievance is sent to the guardian who then has an opportunity to respond in writing. DR504.5. The SOPC thenreviews the grievance for merit and provides a recommendation to the Board. DR 505.1. Guardians can be represented by counsel at all stages ofthe proceeding. DR 509.1. Formal proceedings begin after the guardian has been served with a complaintthat sets out specific alleged violations and supporting facts. DR 510.1. The guardian may file aresponse to the complaint. DR 510.5, 510.7. Priorto any hearing, the parties must exchange witness lists and exhibits. DR 511.12. Boththe Board and the guardian may subpoena witnesses and present witness testimony at the hearing. DR 511.9, 511.11. Some discovery is available. DR 511.10. When considering what action to take, the Boardreviews the hearing officer's findings offact, conclusions oflaw, and recommendation alongside the guardian's statement in opposition and rebuttal, ifone is filed. DR 512.2, 512.3. Finally, this courtreviews all decisions that seekto suspend or decertify the guardian. DR 513 .2. Duringthis process, a guardian will not have his or her certification suspended unless there is a substantial risk ofinjury to the public or the guardian fails to cooperate. DR 519. An intermediate evidentiary standard
22In re Petersen, No. 88513-3 may well provide guardians facing discipline additional protections from the risk oferroneous deprivation. Nonetheless, we are satisfied that, given the other existing safeguards, this risk is sufficiently remote even with the preponderance standard. 3. Mathews Test: governmental interest The State's interest, on the otherhand, is very significant. The State is the ultimate guardian ofthe ward and bears responsibility for protectingthe ward's person and estate, while the appointed guardian isjust an officer ofthe court. See Guardianship of Lamb, 173 Wn.2d at 184; Brommers, 89 Wn.2d at 200. More importantly, guardians are appointed only for the most vulnerable individuals who

are incapable ofmaking their own critical decisions, much less vindicating their rights. This factor weighs strongly in favor offinding the lower standard ofproof is sufficient in guardian discipline cases. Like the lead opinion concluded in Hardee, here too it is critical that the Board be able to effectively regulate guardians so as to protectthe most vulnerable individuals. See 172 Wn.2d at 12. We find no error inthe Board's decision to apply a preponderance standard to its disciplinary process: the private interest involved does not outweighthat of the State, and the Board has provided ample procedures to ensure thatthe risks of

erroneous deprivation are minimal. D. Proportionality analysis

23In re Petersen, No. 88513-3 Petersen questions whetherthe sanctions thatthe Boardrecommends are overly severe for the charged offense. See Opening Br. ofLori A. Petersen at 42- 43. Generally, the party facing discipline "bears the burden ofshowing the Board's recommended sanction is notproportionate." In re Disciplinary ProceedingAgainstPreszler, 169Wn.2d 1, 38, 232 P.3d 1118 (2010). Though we maintain this principle, we find sufficientreasons to depart from it in this particular

case. Petersen must bearthe burden ofproving disproportionality. Butwe remain mindful ofthe Board's regulations, which establish thatthe SOPs

are designed to promote: Consideration ofall factors relevant to imposing the appropriate level of sanction in an individual case; Consideration ofthe appropriate weight ofsuch factors in light ofthe stated goals ofguardian discipline; and Consistency in the imposition ofdisciplinary sanctions for the same or similar offenses." DR 501. Because this is a case offirst impression and the Board aspires to consistency with disciplinary sanctions, we remand to the Boardto consider whether the sanctions sought against Petersen, including the monetary fees, are consistent with those imposed in other cases. Hearing Officer Simmons explicitly discussed the relevant factors and the weighthe afforded them inreaching a recommendation ofsuspension and probation. He did not, however, consider 24In re Petersen, No. 88513-·3 whether this recommendation deviatef] significantly from other disciplinary actions. We believe the circumstances ofthis case and the severity ofthe sanctions and fees in light ofthe charges broughtby Petersen warrant an explicit proportionality inquiry.20 We remand for an explicitproportionality inquiry in large partbecausethis is the first case where we have had the opportunityto hold oral argument and enter

a written opinion. Henceforth, this court will considerproportionality only ifit is properly raised below. CONCLUSION Both in structure and in practice, the Board is constitutional. There has been

no violation ofseparation ofpowers, and, given the record before us, there has been no violation ofthe appearance offairness doctrine either. Moreover, considering the gravity ofthe governmental interest involved and the many procedural safeguards provided, we find apreponderance ofthe evidence to be a

20 This means the Board must considerthe penalties that were imposed in past cases that appear to involve similar violations ofregulations or similar punishments as that inthe present case. See, e.g., Inre Broom, CPGNo. 10300, CPGB No. 2011-014 (2012); In re Gaherin, CPGNo. 10330, CPGB Nos. 2010-020,2011-021 (2011); In re Nelson, CPGNo. 10082, CPGB Nos. 2010-025, 2011-005,2011-010 (2012). We acknowledge that most ofthe Board's prior cases were resolved by agreed settlement, and so they may well be distinguishable for that reason alone. We also acknowledge that not all cases involve the same aggrayating and mitigating circumstances, and therefore a deviatimi in punishment may bejustified. Nonetheless, the Board must provide its reasoning for its recommended sanction notjustin reference to the conduct of the guardian but also in reference to past disciplinary matters. ·This way we will be able to assess whether the recommended punishment is consistent with other similar cases and thus whether the directives ofDR 501 have been satisfied bythe Board. 25In re Petersen, No. 88513-3 constitutionally adequate evidentiary standard for disciplinary proceedings. Nonetheless, we remand this case to the Boardso it cah determine whetherthe sanctionthat it has asked us to impose promotes consistency.

26In re Petersen, No. 88513-3



### WE CONCUR:

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