IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35647

IN THE MATTER OF THE BOARD OF PSYCHOLOGIST EXAMINERS’ FINAL ORDER CASE NO. PSY

- P4B

- 01

- 010

- 002 RE: DR. EILEEN WRIGHT.

_______________________________________ DR. EILEEN WRIGHT ,

Petitioner

- Appel lant ,

v.

THE BOARD OF PSYCHOLOGICAL EXAMINERS ,
Respondent

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise , January 2010 Term

2010 Opinion No. 7

Filed: January 28, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Second Judicial District of the State of Idaho, in and for Nez Perce County. The Hon. Jeff M. Brudie , District Judge

.

The decision of the district court is affirmed in part and reversed in part

.
Edwin L. Litteneker, Lewiston, for appellant.

Naylor & Hales, P.C., Boise, for r espondent. Bruce Castleton argued.

EISMANN, Chief Justice. This is an appeal from the judgment of the district court on a petition for judicial review of agency action. The district court held that the appellant could not challenge an earlier final

o rder of the agency and it upheld the subsequent final order. We affirm the first holding and

reverse the second.

I. FACTS AND PROCEDURAL HISTORY Dr. Eileen Wright was licensed to practice psychology in Idaho on February 1, 1995 , and she began working i n private practice as a psychologist in 1998 . On December 10, 1999, the judge presiding over a contentious domestic relations case appointed Wright to conduct a2

parenting evaluation of the parties in that case. The y had been divorc ed on February 5, 1999,

with mother being awarded sole legal custody of their two minor children due to father being a habitual perpetrator of domestic violence. The father was awarded periods of visitation with the

children , and h e had instituted contempt proceedings against t he mother, contending that she had wrongfully denied him visitation. On April 4, 2000, Wright submitted her parenting evaluation to the judge. Her report was critical of the mother and recommended that the parents have joint legal custody of their childr en and that the father have increased visitation. On June 23, 2000, the judge issued an order finding the mother in contempt and adopting Wright‟s custody recommendations. A few months later, Wright began a sexual relationship with the father.

The mothe r reported Wright to the Idaho State Board of Psycholo gist Examiners (Board), and on May 15, 2003, it commenced disciplinary proceedings against Wright. The matter was tried before a hearing officer, who made recommended findings regarding Wright‟s “sexua l

intimacies” with the father

. On April 22, 2005, t he Board issued a final order (“2005 Order”) adopting those findings and concluding that Wright‟s “actions constitute a violation of I daho

Code Sections 54

- 2909(d) and (e), and specifically Sections 4.07( a) and (b) of the 1992 Eth ical Principles of Psychologists and Code of Conduct published by the American Psychology

Association. ” As a result, the Board suspended Wright‟s license to pra ctice psychology for five years and ordered Wright to pay , within nin ety days

, costs and attorney fees incurred in the sum

of $17,558.61 and a fine in the amount of $1,000.00. The Board also ordered that Wright‟s license could be reinstated after three years if she had paid the costs, attorney fees, and fine and had compli ed with other listed conditions.

On August 18, 2005, the Board issued an order to show cause alleging that Wright had failed to pay

, within ninety days

, the sums she had been ordered to pay. It alleged, “Respondent‟s failure to comply with the terms of t he Final Order constitutes grounds for additional discipline against Respondent‟s license.” On September 26, 2005, the Board issued an

amended order to show cause that was identical to the first order to show cause except that it

added the allegation, “In addition, according to the affidavit of Allen Funk filed herein, Respondent has practiced psychology without a valid license after the date of her license suspension on April 22, 2005. ”

The amended order to show cause was heard by a hearing officer who m ade recommended findings that Wright had failed to pay the sums ordered and had continued to3

practice psychology after her license was suspended. In a final order issued on April 19, 2006, (“2006 Order”) the Board adopted the hearing officer‟s findings an d found “[t]hat Respondent‟ s actions in failing to pay those costs in the order and continuing to practice psychology constitutes
[sic] a violation of the Final Order dated April 22

, 2005. ” It determined that “[t] hese violations constitute grounds for a dditional disciplinary action against her license to practice psychology in

the state of I daho pursuant to Idaho Code Sec tions 54

- 2305 and 54

- 2309, and I DAPA

24.12.01.375 ,” and it suspended her license “ for a period of five (5) years from the date of this

order. ” On May 16, 2006, Wright filed a petition for judicial review in the district court. She sought to challenge both the 2005 Order and the 2006 Order . The district court held that Wright had not filed a timely petition for judicial review with resp ect to the 2005 O rder and the court

therefore had no jurisdiction to review that O rder. The court affirmed the 2006 O rder on the ground that the Board could impose the penalty as a violation of Idaho Code § 54

- 2310, which

make s practicing psychology witho ut a license a misdemeanor. Wright then appealed to this

Court.

II. ISSUES ON APPEAL 1. Did the district court err in holding that Wright cannot challenge the 2005 O rder?

2. Did the district court err in upholding the 2006 O rder? 3. Is either party entitled to an award of attorney fees on appeal?

III. ANALYSIS

“ When the district court acts in its appellate capacity, we review the decision of the district court to determine whether it correctly decided the issues presented to it on appeal. ”

Idaho Dept. of Health and Welfare v. Doe , 148 Idaho 124, 126, 219 P.3d 448, 450 (2009).

A. Did the District Court Err in Holding that Wright Cannot Challenge the 2005 Order? Wright seeks to raise various challenges to the 2005 O rder, contending that it is not based upon the record, is arbitrary and capricious, is in excess of the Board‟s authority, and is based upon the violation of an ethical code that is unconstitutionally vague. However, Wright did not4

timely seek judicial review of th at O rder. She conten ds that the district court should have

reviewed the O rder anyway . Her entire argument on this issue in her opening brief is as follows:

It is impossible for the Court to engage in Judicial Review of the Amended Order of the Board of April 19, 2006 withou t inquiry into and reviewing the original Order of the Board of April 22, 2005. If the Board has the authority to amend it ‟ s [sic] order to add additional discipline for a violation of the April 22, 2005 Order, it is appropriate for the Court to review th e Order of April 22, 2005. The Board should not be heard to argue that it can enter an order and then amend the order without the entirety of the amended order being sub ject to review. Is the Board going to argue that the Court can only review part of th e April 19, 2006 Order, only that part that is amended, suggesting that the parts of the April 22, 2005 Order incorporated in the April 19, 2006 Order are not subject to the Court ‟ s review? The Board should not be heard to argue that it can amend a prior order to provide additional discipline and then claim that the entirety of the amended order is not subject to revi ew. Dr. Wright ‟ s substantial right in continuing to practice psychology is at risk without the Court reviewing all of the actions of the Boa rd, particularly when the only basis found by the Board for additional discipline in April 2006 is the alleged violation of the Order of April 2005. If the Board would have filed a new proceeding intending to impose additional sanctions on Dr. Wright ‟ s ab ility to practice, the prior orders of the Board would not have been reviewable. However, based on the unique action of the Board to amend its prior order, Dr. Wright is entitled to this Court ‟s review of the April 22, 2005 O rder of the Board.

Other tha n making the s e assertion s , Wright does not include in her opening brief any legal argument or authority supporting her contention that the district court had jurisdiction to

review the 2005 O rder

. “We will not consider issues cited on appeal that are not supported by propositions of law, authority , or argument .” Callaghan v. Callaghan , 142 Idaho 185, 190, 125 P.3d 1061, 1066 (2005). Although Wright does present argument and authority in her reply brief, “ this Court will not consider arguments raised for the first time in the appellant‟ s reply

brief .” Myers v. Workmen’s Auto Ins. Co. , 140 Idaho 495, 508, 95 P.3d 977, 990 (2004). “ A reviewing court looks only to the initial brief on appeal for the issues presented because those are the arguments and autho rity to which the respondent has an opportunity to respond in the responde nt‟ s brief. ” Suitts v. Nix , 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).

B. Did the District Court Err in Upholding the 2006 Order?5

Wright challenges the 2006 O rder by contendi ng, “ The Board does not have the authority to discipline a psycholog ist for not following the Board‟ s orders. ” T he district court affirmed the

O rder on the ground that the Board had authority to discipline Wright for violating Idaho Code §

54

- 2310. 1 The first issue is what did the Board charge Wright with violating

— the 2005 O rder or

the statute ? The Board issued an order to show cause, which it later amended. The Board‟s procedures are governed by IDAPA 04.11.01 .000

- 860 , which are the Idaho Rules of

Adm inistrative Procedure of the Attorney General adopted pursuant to Idaho Code § 67

- 5206(2)

- (4) . Those rules define the pleadings in contested cases as being “ applications or claims or appeals, petitions, complaints, protests, motions, answers, and consent agreements. ” IDAPA

04.11.01.210. 2 An order to show cause is not mentioned in the rules. The Board has also

1 The statute provides:

Any person who shall practice or attempt to offer to practice psychology, as defined in this act, without having at the time of so doing a valid, unexpired, unrevoked, and unsuspended license issued under this act shall be deemed guilty of a misdemeanor and shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment for not more than six (6) months or both for each violation. We express no opinion as to wh ether the Board has the authority to impose sanctions for a violation of Idaho Code § 54

- 2310 as opposed to merely considering evidence of a violation of that statute in connection with an application to obtain a license.

2 The various types of pleadings are defined in the administrative rules as follows:

220. APPLICATIONS/CLAIMS/APPEALS

-- DEFINED

-- FORM AND CONTENTS (RULE 220). 01. Applications/Claims/Appeals Defined . All pleadings requesting a right, license, award or authority from the agency are called “applications” or “claims” or “appeals.”

. . . . 230. PETITIONS

-- DEFINED

-- FORM AND CONTENTS (RULE 230). 01. Petitions Defined . All pleadings requesting the fo llowing are called “petitions.”

a. Modification, amendment or st ay of existing or ders or rules; b. Clarification, declaration or construction of the law administered by the agency or of a party‟s rights or obligations under law administered by the agency;

c. The initiation of a contested case not an application, claim or complaint or otherwise taking action that will lead to the issuance of an order or a rule; d. Reconsideration; or

e. Intervention.

. . . . 240. COMPLAINTS

-- DEFINED

-- FORM AND CONTENTS (RULE 240). 01. Complaints Defined . All pleadings charging other perso n(s) with acts or omissions under law administered by the agency are called “complaints.”

. . . . 250. PROTESTS

-- DEFINED

-- FORM AND CONTENTS (RULE 250). 01. Protests Defined . All pleadings opposing an application or claim or appeal as a matter of r ight are called “protests.”6

adopted a set of rules pursuant to the authority gran ted it by Idaho Code § 54

- 2305(b ) . IDAPA

24.12.01. 000

- 550. An order to show cause is not me ntioned in those rules. Although the Board‟s orders to show cause stated that it was proceeding under “the Idaho Rules of the Administrative Procedure of the Attorney General, promulgated at IDAPA 04.11.01” and that copies of those rules “may be obtained at the Idaho State Law Library,” the Board apparently failed to read those rules before issuing its orders to show cause. Under the applicable rules, a proceeding charging the violation of a statute would constitute a complaint

. “ All pleadings charging o ther person(s) with acts or omissions under law

adminis tered by the agency are called „ complaints. ‟ ” IDAPA 04.11.01.240.01. A complaint must “[r] efer to statutes, rules, orders or other controlling law involved .” IDAPA

04.11.01.240.02.c.

The amended or der to show cause alleged: On April 22, 2005, a Final Order was entered agains t Res pondent in t his

case whereby Respondent ‟ s license was suspended for five years with two years stayed conditioned upon her compliance with the Final Order. A true and corre ct copy of the April 22, 2005, Final Order is attached hereto as Exhibit 1. In addition, Respondent was ordered to pay $17,558.61 in investigative costs and attorney fees and a $1,000.00 administrative fine, for a total of $18,558.61, within 90 days of en try of the Board ‟ s Order, or by July 21, 2005. According to the Affidavit of Budd Hetrick filed herein, Respondent has failed to pay any portion of the $18,558.61 she was ordered to pay. Respondent‟ s failure to comply with the terms of the Final Order co nstitutes grounds for additional discipline against Respondent ‟ s license. In addition, according to the Affidavit of Allen Funk filed

. . . . 260. MOTIONS

-- DEFINED

-- FORM AND CONTENTS

-- TIME FOR FILING (RULE 260). 01. Motions Defined. All other pleadings requesting the agency to take any other action in a contested case, except consent agreements or ple adings specifically answering other pleadings, are called “motions.”

. . . . 270. ANSWERS

-- DEFINED

-- FORM AND CONTENTS

-- TIME FOR FILING (RULE 270). All pleadings responding to the allegations or requests of applications or claims or appeals, complain ts, petitions, protests, or motions are called “answers.”

. . . . 280. CONSENT AGREEMENTS

-- DEFINED

-- FORM AND CONTENTS (RULE 280). 01. Consent Agreements Defined . Agreements between the agency or agency staff and another person(s) in which one (1) or more person(s) agree to engage in certain conduct mandated by statute, rule, order, case decision, or other provision of law, or to refrain from engaging in certain conduct prohibited by statute, rule, order, case decision, or other provision of law, are called “consent agreements.”

. . . .7

herein, Respondent has practiced psychology without a valid license after the date of her license suspension on April 22, 2005. Accordingly, pursuant to title 54, chapter 23, Idaho Code, and of the duly promulgated rules of the Idaho State Board of Psychologist Examiners, Respondent is hereby notified and requested to appear before the Board, or its duly appointed hearing o fficer,

. . . to show cause, if any, why the Board should not impose additional disciplinary action, which may include further suspens ion or revocation of Respondent‟ s license.

There is no allegation in the amended order to show cause that Wright violat ed Idaho
Code § 54

- 2310

. The only contention is that she failed to comply with the 2005 O rder. That is how the hearing officer construed the amended order to show cause. Wright argued to the hearing officer that the proceedings were in the nature of con tempt proceedings and that the Board did not have statutory authority to institute contempt proceedings. In rejecting that argument, the hearing officer wrote in her conclusions of law,

“ This action is not a contempt action, but rather is an enforcement a ction for further disciplinary sanctions for noncompliance with the Final Order. ” (Emphasis added.) The hearing officer‟s reference to possible “further disciplinary sanctions” was to the fact in the 2005 O rder the Board had suspended Wright‟s license fo r five years, with two years of that suspension stayed upon the

conditi on that Wright comply with the O rder . The O rder provided, “ If Respondent fails to comply with the terms of her probation and this Order, the two (2) year stayed license suspension

shal l be immediately imposed by the Board after notice and an opportunity to be heard. ”

In its 2006 O rder, the Board ordered “[t] hat the Hearing Officer‟s Findings of Fact and Conclusions of Law are hereby adopted and incorporated herein by reference. ” Thus, the Board adopted the hearing officer‟s conclusion of law that this was “ an enforcement action for further disciplinary sanctions for noncompliance with the Final Order

. ” That is consistent with the fact

that the order to show cause , the amended order to show cause, and the 2006 Order all have the

same Board case number as the 2005 Order. That is also consistent with the language of the 2006 Order stating that Wright‟s failure to pay the sums of money and continuing to practice psychology constituted a v iolation of the 2005 O rder. It held:

That Respondent‟ s actions in failing to pay those costs in the order and continuing to practice psychology constitutes a violation of the Final Order dated April 22, 2005. These violations constitute grounds for addi tional disciplinary action against her license to practice psychology in th e state of Idaho pursuant to Idaho Code Sections 54

- 2305 and 54

- 2309, and I DAPA 2 4.12.01.375. (Emphasis added.)8

In its 2005 Order, the Board imposed a five

- year suspension comme ncing on April 22,

2005 , with two years of that suspension stayed. In its 2006 Order, the Board did not purport to merely impose the two years of the suspension that had been stayed. Rather, the Board imposed

a n ew five

- year license suspension commencing on April 19, 2006. The Board‟s action either extended Wright‟s suspension for three years (if the two years stayed in the original suspension

were not imposed) or for one year. Thus, the next issue is whet her the Board has the authority to impose a new sanction for violating its prior order. 3
“An administrative agency is a creature of statute, limited to the power and authority granted it by the Legislature . . . .” Welch v. Del Monte Corp ., 128 Idaho 513, 514, 915 P.2d
1371, 1372 (1996). Idaho Code § 54

- 2305(d ) authorizes the Board “[t] o conduct hearings upon complaints concerning violations of the provisions of, and the rules adopted pursuant to, this chapter and cause the prosecution and enjoinder of all such violations. ” Idaho Code § 54

- 2309(d ) pr ovides that “ a license previously issued may be revoked, suspended, restricted or otherwise disciplined if

. . . the person licensed be: Found by the board to be in violation of any provision of this chapter or any of the rules adopted pursuant to this ch apter .” IDAPA

24.12.01.375

, adopted by the Board

, provides that for a violation of Idaho Code § 54

- 2309, the Board may impose a fine and costs and fees incurred in investigating and prosecuting the

violation . There is no provision of Chapter 23, Title 54 , Idaho Code or of any rule adopted by the Board that authorizes “additional disciplinary action” for violating an order issued by the

Board. The Board does not contend on appeal that it had the authority to impose a new sanction for violating its order. Rather, it ar gues, “ The Board rested not upon its ow n Order, but upon

state statute

— I.C. § 54

- 2310

— in finding a violation in Appellant ‟ s actions. ” This argument is clearly not supported by the record.

C. Is Either Party Entitled to an Award of Attorney Fees on Appeal?

3 We express no opinion as to whether the Board has the authority to impose probationary conditions on a suspended license, as opposed to merely suspending or revoking a license and announcing conditions that must be complied with before it will consider an application to issue or renew a license.9

Both Wright and the Board seek an award of attorney fees on appeal pursuant to Idaho
Code § 12

- 117 (1)

. That statute provides:

Unless otherwise provided by statute, in any administrative or civil judicial proceeding involving as adverse parties a state agency, a city, a county or other taxing district and a person, the court shall award the prevailing party reasonable attorney ‟ s fees, witness fees and reasonable expenses, if the court finds that the party against whom the judgment is rend ered acted without a reasonable basis in fact or law.

In this case , both parties have prevailed in part on appeal. Wright successfully challenged the 2006 Order, but failed in her challenge to the 2005 Order. Conversely, the Board successfully

defended its 2005 Order, but not its 2006 Order. Therefore, because both parties have prevailed in part on appeal, neither of them is the prevailing party. Keller v. Inland Metals All Weather Conditioning, Inc

., 139 Idaho 233, 241, 76 P.3d 977 , 985 (2003)

.

IV. CONCLUSION

We affirm the district court‟s holding that it had no jurisdiction to review th e 2005 O rder

and we reverse the judgment of the district court uph olding the 2006 Order. We do not award either party costs or attorney fees on appeal.

Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR

.