Fl LE 

IN CLERKS OFFICE 

IUPReME ccurrr, STATE OF WASH1NG1Q11 

DATE 1\1\ Q 3 2014 

=ttw hMvif . ~ . ~ Cle:JUimt:ll 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

IN THE MATTER OF THE 

DISCIPLINARY PROCEEDING 

AGAINST: 

Lori A. Petersen, 

Certified Professional 

Guardian No. 9713, 

Petitioner. 

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No. 88513-3 

En Bane 

Filed JUL 0 3 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 Board has run afoul of separation of powers principles, violated the 

appearance of fairness doctrine, impermissibly lowered the evidentiary standard, 

and failed to consider the proportionality of the sanction. We agree with Petersen 

as to her last contention. She has questioned, albeit obliquely, the proportionality 

of the sanction, and so the Board should have considered the sanction's magnitude 
In re Petersen, No. 88513-3 

relative to those imposed in other cases. Accordingly, we remand to the Board to 

conduct a consistency analysis pursuant to 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 of Practice 

Committee (SOPC). 1 From December 2009 until April 2010, the Board received a 

number of grievances and complaints regarding Petersen's treatment of three 

wards who were all, at one point, housed at Peterson Place, an adult family home. 

Following protocol, the SOPC opened files for each grievance and informed 

Petersen that an investigation would be forthcoming. 

According to Petersen, Commissioner Valente, who was the chair of the 

SOPC and had served on the Board with Petersen,2 encouraged the SOPC to 

conduct a factual inquest to see if the charges were substantiated. Though the 

1 Among other duties, the SOPC reviews grievances that have been filed with the Board. 

Certified Prof'l Guardianship Bd. (CPGB) Program Rules 506.1 (Disciplinary Regulation (DR) 

506.1). For electronic access to current DRs, 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 that the board file a formal complaint, (4) request that the 

Board enter into an agreement regarding discipline, or (5) direct that AOC contact the 

professional guardian to discuss a minor disciplinary issue. !d. The SOPC may also "direct 

AOC to obtain the statement of any person believed to have information relevant to the 

grievance." DR 506.1.1. 

2 Petersen believes her confrontational relationship with Commissioner Valente during her tenure 

on the Board precipitated his actions. Opening Br. of Lori Petersen at 30-31. 

2 
In re Petersen, No. 88513-3 

record is silent on this point, presumably the SOPC agreed because Commissioner 

Valente conducted an inquest hearing in his courtroom on July 15, 2010. At this 

hearing, Petersen was sworn in, was represented by counsel, and was given the 

opportunity to present testimony and offer evidence. Commissioner Valente also 

questioned Petersen at length with no objections from Petersen's attorney. As a 

result of these hearings, Commissioner Valente composed several written opinion 

letters that he sent to Petersen and others involved in the proceeding. To the 

Board, he recommended that a complaint be filed. The Board agreed and served 

Petersen with a complaint on Apri125, 2012. In it, the Board charged Petersen 

with violating nine different standards of practice (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 of hearing. 

Two and a half days of hearings were held in late October 2012 before 

Hearing Officer Roderick Simmons. Each side was allowed to submit briefing. 

The Board presented 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 of the standard has remained substantially the same. 

In cases where the standards have been amended, they are cited as former SOP and a footnote 

with the text of the standard is provided. Current SOPs and DRs are available at 

http://www. courts. wa. gov /programs_ orgs/Guardian/?fa=guardian. display &fileN ame=rulesindex. 

3 
In re Petersen, No. 88513-3 

to the stand. A joint binder of exhibits was also admitted. The hearing officer 

considered all the evidence and testimony and entered findings of fact, conclusions 

of law, and a recommendation. 

A. Findings Regarding the Guardianship of D.S. 

D.S. was an elderly woman who suffered from dementia. She was placed at 

Peterson Place when her granddaughter could no longer provide adequate care. 

Petersen became D.S.'s guardian in March 2009. In August 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 pair but permitted Heidi Peterson to look into the 

matter. Heidi Peterson took D.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 delay that 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 

of the need to replace the glasses and that "she exhibited little enthusiasm for 

completing the steps necessary to facilitate this activity of daily living that is so 

4 Heidi Peterson is the owner of Peterson Place Adult Family Home, where D.S. was living at the 

time that Petersen was her guardian. 

4 
In re Petersen, No. 88513-3 

enjoyed by D.S." !d. at 829. The hearing officer determined this was a violation 

of SOP 402.25 and 405.1.6 

In October 2009, Heidi Peterson notified Petersen that D.S. 's physical 

condition had worsened and Petersen authorized a trip to the hospital. Petersen 

failed to inform D. S. 's family of these events until after the hospitalization began, 

which the hearing officer determined to be a violation of SOP 402.2 and 405 .1. 

Toward the end of October 2009, Petersen decided to move D.S. from 

Peterson Place. Petersen claimed the move was necessary because the facility did 

not provide 24-hour nursing care. The hearing officer found that Petersen made 

"no showing that any quality of care issues could not have been addressed by 

discussion and communication." !d. at 830. Also, the hearing officer found that 

Petersen was dismissive of and incommunicative with D.S. 's family members. 

Because Petersen did not have justification 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 incapacitated person." SOP 402.2. 

6 "The primary standard for decision-making is the Substituted Judgment Standard based upon 

the guardian's determination of the incapacitated person's competent preferences, i.e. what the 

incapacitated person would have decided when he or she had capacity. The guardian shall make 

reasonable efforts to ascertain the incapacitated person's historic preferences and shall give 

significant weight to such preferences. Competent preferences may be inferred from past 

statements or actions of the incapacitated person when the incapacitated person had capacity." 

SOP 405.1. 

5 
In 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 life expectancy. 

Despite these physical limitations, J.S. was able to express his desires and was 

aware of the terminal nature of his disease. He was moved from a family 

member's house, where he was being abused, into Peterson Place in May 2009. 

The hearing officer found that Petersen knew how deeply J.S. was affected by this 

move. 

Nonetheless, on October 30,2009, Petersen's staff moved J.S. out of 

Peterson Place and into a hospice facility. The move occurred nine days after a 

petition to replace Petersen as J.S. 's guardian was filed. Petersen believed the 

move was necessary due to an order J.S.'s doctor issued on October 29, 2009 that 

recommended that J.S. receive hospice care or be put in a skilled nursing facility. 

No one spoke to J.S. about the move nor sought to learn his wishes. 

Melody Hayashi-Taisy, J. S.' s teacher, friend, and advocate, came to 

Peterson Place as soon as she learned of the pending move. She described the 

scene as chaotic. J.S. was upset that he was being moved and understood that 

hospice care was for terminally ill patients. During this process, Petersen was not 

at Peterson Place and did not directly oversee the move. 

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In re Petersen, No. 88513-3 

Ultimately, J.S. was taken to the hospice facility without his reclining 

wheelchair, which was a source of security for him and where he preferred to 

spend substantial time. Once there, J.S. sobbed, screamed, and was disruptive. 

Staff at the facility did not know what to do and could not reach Petersen, so they 

called Hayashi-Taisy instead. Hayashi-Taisy brought J.S. his wheelchair and 

stayed with him until he went to 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 Peterson Place 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 consider placing 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 

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In re Petersen, No. 88513-3 

to be his last, was in violation of SOP 403.1 7 and 402.2 and former SOP 401.12,8 

401.15,9 and 404.5. 10 

C. Recommended Sanctions 

The hearing officer found that the SOPs that Petersen violated involved the 

paramount duty of a 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 considered the relevant 

aggravating and mitigating factors and the weight that each factor should be given 

in making his recommendation to 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 of her 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 of the incapacitated person shall be protected. The independence 

and self-reliance of the incapacitated person shall be maximized to the greatest extent consistent 

with their protection and safety. The guardian shall protect the personal and economic interests 

of the incapacitated person and foster growth, independence, and self-reliimce." SOP 403.1. 

8 "When possible, the guardian will defer to an incapacitated person's autonomous capacity to 

make decisions." Former SOP 401.12. 

9 "Guardians of the Person shall have meaningful in-person contact with their clients as needed 

and shall maintain telephone contact with care providers, medical staff and others who manage 

aspects of care as needed an appropriate. Meaningful in-person contact shall provide the 

opportunity to observe the incapacitated person's circumstances and interactions with care 

providers." Former SOP 401.15. · 10 "The guardian, shall, to the extent possible, select residential placements which enhance the 

quality of life of the incapacitated person, provide the opportunity to maximize the independence 

of the incapacitated person, and provide for physical comfort and safety." Former SOP 404.5. 

8 
In re Petersen, No. 88513-3 

cases from Adult Protective 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 misconduct regarding 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) subjected to a probationary period of24 

months postsuspension, where any relocation decision would be reviewed by a 

different certified professional guardian; and (4) required to pay costs of 

proceedings. 

The hearing officer's findings of fact, conclusions of law, and 

recommendation as well as Petersen's objection were submitted to the Bo.ard. The 

Administrative Office of the Courts also submitted a declaration that documented 

the fees and costs associated with the disciplinary matter, which totaled 

$40,366.16. The Board considered the matter at its January 30,2013 meeting. The 

board members who did not have a conflict of interest voted six to one to adopt the 

hearing officer's recommended sanctions. They declined to 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 

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In re Petersen, No. 88513-3 

hearing officer did not state a basis for imposing fees, he did not know the amount 

. . . . 

of fees that would be imposed, and that the imposition of fees and costs should be 

equitable and in proportion to the misconduct. The Board submitted the record and 

its recommendation for our review. Petersen petitioned this court to permit 

briefing and oral argument. We granted the petition and now affirm in part and 

remand for further proceedings consistent with this opinion. 

ANALYSIS 

Standard of review 

Petersen takes issue both with Hearing Officer Simmons's factual findings 

and his conclusions of law. We give "a hearing officer's findings of fact 

'considerable weight,' ... and will uphold the findings where they are supported 

by 'substantial evidence."' In re Disciplinary Proceeding Against Ferguson, 170 

Wn.2d 916, 927, 246 P.3d 1236 (2011) (quoting In re Disciplinary Proceeding 

Against Botimer, 166 Wn.2d 759,767, 214 P.3d 133 (2009)). The burden is on the 

party challenging the findings of fact to properly assign error and to establish that 

specific challenged findings are not supported by the record. See In re 

Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134 

(2005) (quoting In re Disciplinary Proceeding Against Kagele, 149 Wn.2d 793, 

814, 72 P.3d 1067 (2003); In re Disciplinary Proceeding Against Haskell, 136 

10 
In re Petersen, No. 88513-3 

Wn.2d 300, 311, 962 P.2d 813 (1998)). Because Petersen has 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 of law de novo. See 

In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 717, 72 P.3d 173 

(2003). 

A. Separation of powers 

"Our constitution does not contain a formal separation of powers 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 of our government into different 

branches has been presumed throughout 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 of each branch 

remain inviolate."' Id. (quoting Carrick, 125 Wn.2d at 135). At its crux, "'[t]he 

question to be asked is not whether two branches of government engage in 

coinciding activities, but rather whether the activity of one branch threatens the 

independence or integrity or invades the prerogatives of another."' Carrick, 125 

Wn.2d at 135 (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975)). 

A delegation of authority must involve (1) standards to guide the agency and (2) 

11 
In re Petersen, No. 88513-3 

procedural safeguards to control for abuse of discretionary power. State v. 

Simmons, 152 Wn.2d 450, 455, 98 P.3d 789 (2004). 

Petersen does not claim that the Board has been provided no standards to 

guide its actions. Instead, she argues that the Board has been delegated executive, 

legislative, and judicial power in violation of separation of powers because of 

insufficient procedural safeguards to control its administrative action. See Opening 

Br. of Lori A. Petersen at 17. She concludes that separation of powers and her due 

process rights have been violated because her disciplinary proceeding did not 

mirror the one approved in Simmons, which concerned the legislature's delegation 

of rule making authority to the Department of Corrections (DOC). This is not an 

apt comparison. Not only is Simmons distinguishable but also adequate process 

has been provided. Most importantly, none of the powers delegated to the Board 

threaten the integrity, independence, or prerogatives of any other branch of 

government. 

1. The Board's authority and structure 

To be regulated by the Board, a guardian must first fall under the statutory 

definition of "certified professional guardian" in RCW 11.88.008. 11 GR 23(a). 

11 "As used in this chapter, 'professional guardian' means a guardian appointed under this 

chapter who is not a member of the incapacitated person's family and who charges fees for 

carrying out the duties of court-appointed guardian of three or more incapacitated persons." 

RCW 11 .88.008. 

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In re Petersen, No. 88513-·3 

But '"guardianships are equitable creations of the courts and it is the court that 

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) (quoting In re 

Guardianship of Hallauer, 44 Wn. App. 795, 797, 723 P.2d 1161 (1986)). The 

Board was created by this court to oversee the certification, regulation, and 

discipline of professional 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 of final decisions, we delegated numerous regulatory 

and rule making tasks to the Board. As part of its duties, the Board must adopt and 

implement SOPs that govern the minimum standards that professional guardians 

must meet. 12 GR 23( 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 

other requirements. GR 23 ( c )(2)( viii). The Board can investigate potential 

12 In Guardianship of Lamb, we summarized the purpose of SOP provisions: 

These standards direct guardians to provide timely and accurate reports to the court, act 

. within the scope of the appointed guardianship, consult with the incapacitated person and 

defer to that person's autonomous decision-making capacity when possible, cooperate 

with professional caregivers and relatives of the incapacitated person, and seek 

independent professional evaluations and opinions when necessary to identify the 

incapacitated person's best interests. 

173 Wn.2d at 185. 

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In re Petersen, No. 88513-3 

violations on its own initiative and has authority to conduct hearings and issue 

enforceable orders. GR 23( c )(2)(ix)-(x). To help carry out these duties, the Board 

has promulgated rules and regulations, SOPs, and Disciplinary Regulations (DRs). 

2. The powers delegated to the Board do not undermine the integrity, 

independence, or prerogatives of any other branch 

Petersen challenges our delegation of a 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 of powers violation. Like attorneys, guardians are officers of 

the court. See Seattle-First Nat'! Bank v. Brommers, 89 Wn.2d 190, 200, 570 P.2d 

103 5 ( 1977) ("The court having jurisdiction of a guardianship matter is said to be 

the superior guardian of the ward, while the person appointed guardian is deemed 

to be an officer of the court."). Like with attorney discipline, with guardian 

discipline "[ w ]e have 'the inherent power to promulgate rules of discipline, to 

interpret them, and to enforce them."' In re Disciplinary Proceeding Against 

Haley, 156 Wn.2d 324,333, 126 P.3d 1262 (2006) (emphasis omitted) (quoting in 

re Disciplinary Proceeding Against Stroh, 97 Wn.2d 289, 294, 644 P.2d 1161 

(1982)). 

With such broad plenary power over guardianship practice, our delegation of 

rule making, investigation and prosecution, and adjudication to the Board does not 

run afoul of separation of powers principles. Furthermore, combining such powers 

14 
In re Petersen, No. 88513-3 

in a disciplinary and regulatory board is well precedented. See In re Disciplinary 

Proceeding Against Deming, 108 Wn.2d 82, 106-07, 736 P.2d 639 (1987) ("The 

failure to strictly adhere to a complete separation of the investigatory, prosecutory 

and adjudicatory phases is not always a violation of due process."). Here, the 

Board's authority does not impinge on the legislature's prerogative to statutorily 

define "certified public guardian" or the executive's ability to investigate and 

prosecute guardians under the law. All of the Board's regulatory authority is that 

within the province of the judiciary, and so the delegation is proper. 

3. There are enough procedural safeguards to ensure that the power delegated by 

this court is not abused or arbitrarily administered 

Though the Board's procedures do not mirror those approved in Simmons, 

they are sufficient to satisfy due process considerations in guardianship discipline. 

Simmons concerned the legislature's delegation of rule making authority to the 

DOC that 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 of the DOC, was charged with persistent prison misbehavior under RCW 

9.94.070. ld. at 452. He argued that the 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 enact rules that defined the serious infractions that 

would constitute criminal misbehavior. 

15 
In re P_etersen, No. 88513-3 

right to appeal any adverse disciplinary hearing findings to the prison 

superintendent, and the constitutional rights attendant to 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 of procedures that give comparable protections to guardians 

facing discipline. The Board ( 1) provides sufficient notice of all regulations to 

certified professional guardians; 14 (2) treats a hearing officer's findings of fact and 

conclusions of law in discipline cases as a recommendation; 15 and (3) judicial 

review is mandatory for cases that result in suspension or decertification. 16 

The Board's structure and authority do not violate any separation of powers 

principles. Our plenary authority over guardianships, our delegation of exclusively 

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 

of Regulations (Reg.) 602.1). All notices must have the text of the 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 of Professional 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 of fact and recommendation is merely a 

recommendation to the Board, which has an opportunity to review the findings and to accept, 

reject, or modify them. DR 512. The record adequately shows that the Board reviewed the 

recommendation in Petersen's case. Ex. 17, at 1616-1 7 (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 of suspension 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 and have the authority to adopt, modify, or 

reverse the Board's findings by written order. DR 513.3. 

16 
In re Petersen, No. 88513-3 

judicial authority, and the adequacy of the procedures afforded during the 

disciplinary process permit the melding of quasi-legislative, quasi-judicial, and 

quasi -executive powers in this context. 

B. Appearance of fairness doctrine 

Petersen believes that Commissioner Valente's actions as a member of the 

SOPC and his persistence in pursuing the disciplinary actiori violate the appearance 

of fairness doctrine. See Opening Br. of Lori A. Petersen at 30. She also claims 

that Hearing Officer Simmons's financial interest in being retained for future 

disciplinary proceedings also runs afoul of this doctrine. See id. at 32. We 

disagree. 

We apply the appearance of fairness doctrine to quasi-judicial proceedings 

in two circumstances: "(1) when an agency has employed procedures that create 

the appearance of unfairness and (2) when one or more acting members of the 

decisionmaking bodies have apparent conflicts of interest creating an appearance 

of unfairness or partiality." City of-Hoquiam v. Pub. Emp 't Relations 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 of investigative and adjudicative 

functions, without more, that would prompt invocation of the appearance of 

fairness doctrine. [Also, w ]e must presume the board members acted properly and 

legally performed their duties until the contrary is shown." Wash. Med. 

17 
In re Petersen, No. 88513-3 

Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 479, 663 P.2d 457 (1983) (emphasis 

added). 

Though Commissioner Valente's inquest may be characterized as 

prosecutorial and therefore exempt from the appearance of fairness doctrine, 17 to 

an outside observer the hearing bore many hallmarks of a judicial or quasHudicial 

proceeding. The hearing was conducted in his courtroom during court hours, and 

Petersen was represented by counsel and gave testimony under oath. Accordingly, 

in this instance, we apply the appearance of fairness inquiry to the inquest. 

Petersen characterizes Commissioner Valente's inquest as "unprecedented 

crusading" and essentially contends that the disciplinary action is a result of his 

personal vendetta and bias against her. See Opening Br. of Lori A: Petersen at 30. 

Nothing in the record, other than Petersen's allegations, supports this contention. 

In fact, the hearing officer found that "[t]he transcripts from the hearings 

[Commissioner Valente] 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" requirement that 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. 

18 
In re Petersen, No. 88513-3 

necessary for an appearance of fairness violation and so her charge against 

Commissioner Valente must fail. See Johnston, 99 Wn.2d at 479. 

The same can also be said of Petersen's charge against Hearing Officer 

Simmons. That the Board paid the hearing officer for his services is not sufficient 

to maintain an appearance of fairness violation. 

We presume that judicial hearings and judges are fair. In re Disciplinary 

Proceeding Against King, 168 Wn.2d 888, 904, 232 P.3d 1095 (2010). "Hearing 

officers are not judges, but we trust and empower them to preside over 

proceedings, take evidence, make findings of fact, and do other duties analogous to 

the role of a judge. The presumption of fairness for judges 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 Disciplinary Proceeding Against 

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 of interest, 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 paid to any 

judge who hears cases brought by the State of Washington. Additionally, [his] involvement and 

discussions relating to improving hearing officer performance does not show bias or the 

appearance ofunfairness." Marshall, 167 Wn.2d at 69. 

19 
In re Petersen, No. 88513-3 

C. Proper evidentiary standard 

Prior to the fall of 2011, the Board was 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 a preponderance of the evidence standard of proof in light 

of our decision in Hardee v. Dep 't of Soc. & Health Servs., 172 Wn.2d 1, 256 P.3d 

339 (2011). Two months later, the Board voted to adopt the preponderance 

standard. Petersen claims this change violated her due process rights. She argues 

that the amount of education 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. of Lori A. Petersen at 33-34. Petersen 

argues that guardians should be treated like physicians for the purposes of this 

inquiry and that Nguyen v. Dep 't of Health, Med. Quality Assurance Comm 'n, 144 

Wn.2d 516,29 P.3d 689 (2001), rather than Hardee, is controlling. She is 

mistaken. Applying the Mathews v. Eldridge three-part balancing test, 19 we are 

satisfied that a preponderance of the evidence standard adequately protects 

19 Under Mathews, we must balance (1) the private interest at stake, (2) the risk of an erroneous 

deprivation of the interest and probable value of additional procedural safeguards, and (3) the 

government's interest including fiscal and administrative burdens that the additional procedures 

would entail. 424 U.S. at 335. 

20 
In 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, but not as 

substantial as licensing for a physician. To become a professional certified 

guardian, an applicant must ( 1) be over 18 years of age and of suitable character; 

(2) have an associate's degree and four years' experience, have a bachelor's degree 

and two years' experience, or have a higher 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 but the certificate requirement is specific to 

guardianship practice, which also diminishes the private interest to some degree. 

2. Mathews Test: risk of erroneous deprivation 

The risk of erroneous deprivation of a guardian's ability to practice may not 

be substantially decreased by a higher evidentiary standard because the Board's 

21 
In re Petersen, No. 88513-3 

disciplinary process already includes procedural safeguards that minimize the 

potential of wrongful suspension or decertification. 

Virtually all procedural safeguards available in comparable professional 

discipline processes are afforded guardians. A copy of a valid grievance is sent to 

the guardian who then has an opportunity to respond in writing. DR 504.5. The 

SOPC then reviews 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 complaint that sets out specific alleged violations and supporting 

facts. DR 51 0.1. The guardian may file a response to the complaint. DR 51 0.5, 

510.7. Prior to any hearing, the parties must exchange witness lists and exhibits. 

DR 511.12. Both the 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 Board reviews the hearing 

officer's findings of fact, conclusions of law, and recommendation alongside the 

guardian's statement in opposition and rebuttal, if one is filed. DR 512.2, 512.3. 

Finally, this court reviews all decisions that seek to suspend or decertify the 

guardian. DR 513 .2. During this process, a guardian will not have his or her 

certification suspended unless there is a substantial risk of injury to the public or 

the guardian fails to cooperate. DR 519. An intermediate evidentiary standard 

22 
In re Petersen, No. 88513-3 

may well provide guardians facing discipline additional protections from the risk 

of erroneous 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 other hand, is very significant. The State is the 

ultimate guardian of the ward and bears responsibility for protecting the ward's 

person and estate, while the appointed guardian is just an officer of the 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 of making their own critical decisions, much less vindicating their 

rights. This factor weighs strongly in favor of finding the lower standard of proof 

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 protect the most vulnerable individuals. See 172 Wn.2d at 12. 

We find no error in the Board's decision to apply a preponderance standard 

to its disciplinary process: the private interest involved does not outweigh that of 

the State, and the Board has provided ample procedures to ensure that the risks of 

erroneous deprivation are minimal. 

D. Proportionality analysis 

23 
In re Petersen, No. 88513-3 

Petersen questions whether the sanctions that the Board recommends are 

overly severe for the charged offense. See Opening Br. of Lori A. Petersen at 42-

43. Generally, the party facing discipline "bears the burden of showing the 

Board's recommended sanction is not proportionate." In re Disciplinary 

Proceeding Against Preszler, 169Wn.2d 1, 38, 232 P.3d 1118 (2010). Though we 

maintain this principle, we find sufficient reasons to depart from it in this particular 

case. 

Petersen must bear the burden of proving disproportionality. But we remain 

mindful of the Board's regulations, which establish that the SOPs 

are designed to promote: 

Consideration of all factors relevant to imposing the appropriate level of 

sanction in an individual case; 

Consideration of the appropriate weight of such factors in light of the stated 

goals of guardian discipline; and 

Consistency in the imposition of disciplinary sanctions for the same or 

similar offenses." 

DR 501. Because this is a case of first impression and the Board aspires to 

consistency with disciplinary sanctions, we remand to the Board to 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 weight he afforded them in reaching a 

recommendation of suspension and probation. He did not, however, consider 

24 
In 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 of the charges brought by Petersen warrant an explicit 

proportionality inquiry. 20 

We remand for an explicit proportionality inquiry in large part because this 

is the first case where we have had the opportunity to hold oral argument and enter 

a written opinion. Henceforth, this court will consider proportionality only if it is 

properly raised below. 

CONCLUSION 

Both in structure and in practice, the Board is constitutional. There has been 

no violation of separation of powers, and, given the record before us, there has 

been no violation of the appearance of fairness doctrine either. Moreover, 

considering the gravity of the governmental interest involved and the many 

procedural safeguards provided, we find a preponderance of the evidence to be a 

20 This means the Board must consider the penalties that were imposed in past cases that appear 

to involve similar violations of regulations or similar punishments as that in the present case. 

See, e.g., Inre Broom, CPG No. 10300, CPGB No. 2011-014 (2012); In re Gaherin, CPG No. 

10330, CPGB Nos. 2010-020,2011-021 (2011); In re Nelson, CPG No. 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 be justified. Nonetheless, the Board 

must provide its reasoning for its recommended sanction not just in 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 of DR 501 have been satisfied by the Board. 

25 
In re Petersen, No. 88513-3 

constitutionally adequate evidentiary standard for disciplinary proceedings. 

Nonetheless, we remand this case to the Board so it cah determine whether the 

sanction that it has asked us to impose promotes consistency. 

26 
In re Petersen, No. 88513-3 

WE CONCUR: 

~ ivt,(IVLJ, 1 . 9 . 

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