Bruggeman v. South Dakota Chemical Dependency Counselor Certification Board

1997 SD 132, 571 N.W.2d 851, 1997 S.D. LEXIS 133, 1997 WL 758807

• Court: South Dakota Supreme Court
• Decided: December 10, 1997
• Docket: 19662
• Status: Published

Opinions

SABERS, Justice

(on reassignment).

[¶ 1.] Circuit court dismissed appeal of a South Dakota Chemical Dependency Counselor Certification Board decision, ruling it was not an agency for purposes of an administrative appeal. We reverse and remand.

PACTS

[¶ 2.] James Bruggeman worked in Belle Fourehe as director of program development at the Addiction Family Resource Center, an alcohol prevention and treatment facility co-founded by Bruggeman and accredited by the Division of Drug and Alcohol Abuse (Division). Bruggeman was first certified as a chemical dependency counselor by the South Dakota Chemical Dependency Counselor Certification Board (CCB) in the 1980’s and his certification was current when this matter arose.

[¶3.] CCB is a South Dakota nonprofit corporation. Its stated purpose is to “credential alcohol and drug professionals with generally accepted standards of professionalism and competence, using valid and reliable examinations; and the promotion of professional development.”

[¶ 4.] In early 1995, two women filed complaints concerning Bruggeman with CCB’s Ethics Committee. Criminal charges were brought with respect to the allegations of one of the women. That ease went to trial, at which Bruggeman was acquitted on charges of second degree rape and sexual penetration by a psychotherapist.

[¶ 5.] CCB’s Ethics Committee revoked Bruggeman’s certification following a hearing. He appealed to CCB’s Board of Directors, which affirmed the revocation. Bruggeman appealed to the circuit court under the South Dakota Administrative Procedures Act (APA), SDCL ch. 1-26. CCB moved to dismiss the appeal, arguing that it was not an “agency” subject to the APA, and therefore, that the circuit court was without jurisdiction to conduct an appeal. The circuit court agreed with CCB and dismissed the appeal for lack of jurisdiction.

STANDARD OF REVIEW

[¶ 6.] We review jurisdictional challenges de novo. Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993) (citing State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991)). This appeal requires us to construe SDCL ch. 1-26 and various statutes and administrative rules which govern 1) the certification of chemical dependency counselors and 2) the facilities which employ those counselors. The construction of statutes and administrative rules present questions of law, also reviewed de novo. Kern v. City of Sioux Falls, 1997 SD , 560 N.W.2d 236, 237; Hieb v. Opp, 458 N.W.2d 797, 800 (S.D.1990).

[¶ 7.] WHETHER CCB IS AN AGENCY AND ITS DECISIONS SUBJECT TO JUDICIAL REVIEW.

[¶ 8.] We must analyze South Dakota statutes to determine whether Bruggeman has a right of appeal from CCB’s decision. “[T]he right to appeal is statutory and no appeal may be taken unless a statute clearly authorizes one.” Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 865-66 (S.D.1994) (collecting cases). SDCL 1-26-30 provides, in relevant part:

A person who has exhausted all administrative remedies available within any agency or a party who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.

[¶ 9.] Where the term “agency” is defined by statute, the statutory definition is controlling. Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 371 (S.D.1978). “Agency” is defined as

each association, authority, board, commission, committee, council, department, division, office, officer, task force, or other agent of the state vested with the authority to exercise any portion of the state’s sovereignty. ...

SDCL 1-26-1(1) (emphasis added). Division is an agency within the Department of Human Services. SDCL 1-36A-1.3(3). The Legislature has authorized Division to adopt rales for, among other areas, “staff qualifications.” SDCL 34-20A-27(5). Accordingly, Division adopted ARSD 44:14:27:05, which provides:

Agency staff providing chemical dependency counseling must meet the standards for a Level I, II, or III counselor published by CCB as of January 1, 1985. A certificate issued by CCB is evidence of meeting the standards for a counselor. Counselor trainees may provide chemical dependency counseling provided that the trainee meets the standards published by CCB as of January 1, 1985. A certificate of recognition issued by CCB is evidence of meeting the standards for a trainee.

(Emphasis added). By vesting the power to set the staff qualifications for chemical dependency counselors with CCB, Division adopted these standards as its own rales. See SDCL 1-26-6.6.¹ Accordingly, any action taken under those rales is an exercise of the “state’s sovereignty” (SDCL 1-26-1(1)), and is governed by SDCL ch. 1-26. See SDCL 34-20A-40: “The division [of drag and alcohol abuse] in the adoption of standards and in the promulgation of other rules and regulations shall be governed by the provisions of chapter 1-26.”²

[¶ 10.] The import of being “governed by the provisions of chapter 1-26” is obvious; the revocation of a license is a “contested case.” “Contested case” is defined as “a proceeding, including rate-making and licensing,³ in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing_” SDCL 1-26-1(2). Judicial review is available in a contested ease.⁴ SDCL 1-26-30.

[¶ 11.] The very definition of “chemical dependency counselor” demonstrates that CCB certification is required of chemical dependency counselors at accredited facilities. See SDCL 34-20A-2(4): “ ‘Chemical dependency counselor,’ [is defined as] a level II or III counselor certified by the South Dakota chemical dependency counselor certification board, ineorporated[.]” Even Division acknowledges that “[t]o be eligible to work as a chemical dependency counselor within a State accredited alcohol and drug program in South Dakota, you must be certified by [CCB].” (Emphasis added).⁵ This explains why ARSD 44:14:22:02(9) provides that any agency seeking Division accreditation must provide the certification status of its chemical dependency counselors. See also SDCL 36-32-11: “No person may represent himself as a licensed or certified chemical dependency counselor (CCDC) unless he is certified by the South Dakota chemical dependency counselor certification board.”

[¶ 12.] Because Bruggeman cannot practice as a chemical dependency counselor in the absence of certification' by CCB, he has a right of appeal. This court previously noted that

the revocation of a license of a professional man carries with it dire consequences. It not only involves necessarily disgrace and humiliation, but it means the end of his professional career. In a proceeding so serious, due process of law requires a definite charge, adequate notice and a full, fair and impartial hearing.

In re Schramm, 414 N.W.2d 31, 35 (S.D.1987) (citation omitted). It is axiomatic that due process of law requires proper judicial review. Compare Cary v. City of Rapid City, 1997 SD 18, ¶23, 559 N.W.2d 891, 896, where we recently stated:

The ultimate determination of the public’s best interest is for the legislative body, not a minority of neighboring property owners. Delegations of legislative authority which allow this ultimate decision to be made by a minority of property owners without an opportunity for review are unlawful.

(Citation omitted); cf. Schramm, 414 N.W.2d at 36-37 (reversing and remanding so expert testimony could be put in the record in suspension of license by South Dakota State Board of Dentistry):

[T]his court adopts the rationale of the majority of jurisdictions and holds that where the issues of competence and negligence are of a complicated nature, expert testimony is required to establish the proper “competency standards” and whether or not they are met. To do otherwise would render this appellate court’s review meaningless, as absent expert testimony, we cannot, by telepathy, act as mind readers determining from an empty record the factual determinations of the Board members. Administrative expertise would then be on its way to becoming a monster which rules with no practical limite on its discretion.

(Citations & footnote omitted). If revocation of Bruggeman’s certification were allowed to go unreviewed, then CCB would have achieved the status of “a monster which rules with no practical limits on its discretion.” Id. Accordingly, we reverse and remand.

[¶ 13.] MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur. [¶ 14.] ROEHR, Circuit Judge, dissents. [¶ 15.] ROEHR, Circuit Judge, sitting for KONENKAMP, J., disqualified.

1 .SDCL 1-26-6.6 provides:

An agency may adopt other comprehensive regulations as its own by making reference to them in a rule, but only when the comprehensive regulations are published by an organization which is not part of the state government and only when the publication is generally available to the public at a reasonable cost. A rule which incorporates material by reference shall describe the exact section or portion of the publication which is being incorporated. Immediately following a rule which incorporates published material by reference, other than material contained in the code of federal regulations, the federal register, the United States code or the United States statutes at large, the agency shall place a reference note which identifies the publication by its title, date of publication or enactment and author, and which states where the publication may be obtained and its cost, if any. A statement shall be attached to the face of the publication which shall state the agency's name, the section number of the rule which incorporates the material within and the date the rule was served pursuant to § 1-26-4 or § 1-26-5 or filed pursuant to § 1-26-6.

2 . Additionally, to the extent that CCB promulgates standards for certification, it acts as Division’s agent. Therefore, its decisions made while acting in that capacity would he chargeable to Division, an agency from which an appeal can indisputably be brought.

3 . "Licensing” includes the revocation of a license, and "license" includes "certificate." SDCL 1-26-1(4) & (5).

4 . Even if we were to conclude that CCB is not an agency, which it clearly is, Bruggeman would still be entitled to a hearing subject to appellate review. In Carlson v. Hudson, 277 N.W.2d 715, 718 (S.D.1979), this court noted the three ways that a hearing can be required by law: 1) a statutory requirement, 2) an agency rule requirement, or 3) a due process constitutional requirement. It is settled law that one who has secured a license to practice his or her profession has a property right in that license which cannot be taken away without due process of law. See, e.g., In re Zar, 434 N.W.2d 598, 600 (S.D.1989); In re Schramm, 414 N.W.2d 31, 34 (S.D.1987); SDCL 1-26-29.

5 . This is a quote from a letter concerning Brug-geman written by the Director of Division. The certification requirement is further evidenced by the many instances where only a certified chemical dependency counselor may act. See, e.g., SDCL 34-20A-72; 34-20A-75; 34-20A-76.1; 34-20A-86; 36-32-11; see also ARSD 44:14:27:05; 44:14:27:13; 44:14:31:02; 67:16:11:03.04(2); 67:16:11:03.17(2).