Gray, ed.D. v. Abpe

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STEVEN R. GRAY, ED.D,
Plaintiff/Appellant,

v.

STATE OF ARIZONA BOARD OF PSYCHOLOGIST EXAMINERS,
Defendant/Appellee.

No. 1 CA-CV 19-0337
FILED 3-26-2020

Appeal from the Superior Court in Maricopa County
No. CV2016-012091
The Honorable Lori Ash, Judge Pro Tempore

AFFIRMED

COUNSEL

Renaud Cook Drury Mesaros, PA, Phoenix
By Steven G. Mesaros, Charles S. Hover, III
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael Raine
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Dr. Steven Gray appeals the superior court’s order declining
special action jurisdiction and denying declaratory relief. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Arizona Board of Psychologist Examiners (the “Board”)
licenses and regulates the practice of psychology in Arizona. The Board
licensed Dr. Gray to practice psychology in 1976. As relevant here, Dr.
Gray’s practice “consists primarily of the evaluation, treatment and
psychoeducation of persons” charged with or convicted of criminal sexual
offenses in Arizona.

¶3 In April 2016, the Board received an anonymous complaint
from “A Concerned Citizen” about Dr. Gray’s alleged “unethical practices”
and “exploit[ation]” of psychology students, warning the alleged conduct
“could create a dangerous situation that puts someone’s safety at risk.” The
complaint asked the Board to investigate Dr. Gray’s overreliance on
students to “provide treatment to specialized groups” without proper
knowledge or supervision, which “is more worrisome because the patients
under his care are sex offenders.” The complaint suggests the Board might
get more information from either the probation department or Dr. Gray’s
student assistants and patients, unless afraid of retaliation.

¶4 The Board sent a copy of the complaint to Dr. Gray with an
explanation of the process going forward. Dr. Gray first needed to
“respond to the allegations in as much detail as possible” and provide any
relevant patient records. From there, the Board’s “Complaint Screening
Committee” would consider the matter in July 2016 and “either vote to
dismiss the case if it determines that there is no evidence of violation of
statute or rule, or refer the complaint to the full Board for further review
and action, or conduct additional investigation.” The Board “assure[d]” Dr.
Gray that an investigation does not “imply the presumption of
unprofessional conduct on your part,” and explained the Board needs to

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“fairly and thoroughly process all requests for investigation in accordance
with its legislative mandate.”

¶5 Dr. Gray responded through counsel in a letter to the Board,
“object[ing]” to the anonymous complaint as “violat[ing] the guarantees of
due process and equal protection” because Dr. Gray cannot “assess the
knowledge and bias” of the complainant, and describing the allegations as
“so vague and generalized that an informed response is nearly impossible
to provide.” Dr. Gray argued that anonymous complaints “make[] it more
difficult to show that the Board lacks jurisdiction to entertain [the
complaint] under A.R.S. § 32-2081(B) if it was brought by” a sex offender,
which “can be inferred” because the complaint states that “patients under
his care are sex offenders.” Even so, Dr. Gray “unequivocally denie[d]
engaging in any unethical practices” and explained how his practice uses
and supervises students.

¶6 The Board invited Dr. Gray to attend the Complaint Screening
Committee meeting in July 2016. He did not attend. The Board then voted
to reschedule the screening meeting to August 10, and again asked Dr. Gray
to attend. But on August 9, one day before the rescheduled screening
meeting, Dr. Gray sued the Board for special action relief in the superior
court, alleging “[t]he Board’s refusal to dismiss [the anonymous] Complaint
. . . was arbitrary and capricious or an abuse of discretion.” Dr. Gray alleged
the Board’s “enabling statutes do not grant it the right to accept, investigate
and adjudicate [anonymous] complaints,” and “[t]he Board’s refusal to
dismiss [the anonymous] Complaint” violated his due process rights and
A.R.S. § 41-1010. He also requested a declaratory judgment that the Board’s
“practice of accepting, investigating and adjudicating complaints filed
against licensed psychologists by unidentified complainants” represents an
invalid “rule” under the Administrative Procedure Act (the “APA”). See
A.R.S. §§ 41-1034(B), -1030(A), (C).

¶7 The superior court granted Dr. Gray’s request to stay the
administrative proceeding pending the special action. See A.R.S. § 12-
911(A)(1). Dr. Gray moved for summary judgment, arguing “that the
[Board] lacks authority to accept and investigate anonymous complaints.”
The Board moved for judgment on the pleadings. The court ruled against
Dr. Gray, declining special action jurisdiction and denying declaratory
relief because (1) Dr. Gray had “an adequate and timely remedy in this case
[and] has not yet availed himself of the Board’s process,” and (2) the Board
could investigate anonymous complaints and no Board rule was necessary.
Dr. Gray timely appealed. We have jurisdiction under A.R.S. § 12-
120.21(A)(1) and (A)(4).

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DISCUSSION

Dr. Gray argues the superior court erred by declining special
action jurisdiction and denying his request for declaratory judgment.

I. Special Action Jurisdiction.

¶8 Dr. Gray first argues the superior court erred by declining
special action jurisdiction to decide whether the Board may accept
anonymous complaints. We review the declination of special action
jurisdiction for an abuse of discretion. Stapert v. Ariz. Bd. of Psychologist
Exam’rs, 210 Ariz. 177, 182, ¶ 22 (App. 2005). Special action relief is
extraordinary relief and the decision to accept or decline special action
jurisdiction is highly discretionary. Pompa v. Superior Court, 187 Ariz. 531,
533 (App. 1997). “Jurisdiction is generally accepted only in those cases in
which ‘justice cannot be satisfactorily obtained by other means.’” Id.
(quoting King v. Superior Court, 138 Ariz. 147, 149 (1983)).

¶9 The superior court declined special action jurisdiction
because Dr. Gray had ignored an “adequate and timely remedy” through
the administrative process. Dr. Gray counters that special action
jurisdiction was essential because the Board’s enabling statute specifically
prohibits the Board from accepting or investigating anonymous complaints
of unprofessional conduct against psychologists “arising out of a judicially
ordered evaluation, treatment or psychoeducation of a person charged with
[sex crimes] . . . unless the court ordering the evaluation has found a
substantial basis to refer the complaint for consideration by the board.”
A.R.S. § 32-2081(B).

¶10 The superior court got it right. The Board’s enabling statute
directs the Board to form a “complaint screening committee” that “shall
review all complaints” before deciding whether to dismiss the complaint or
refer it to the board “based on the information provided.” A.R.S. § 32-
2081(H) (emphasis added). But Dr. Gray sued before the complaint
screening committee could perform its statutory duty and before it even
met to consider the complaint or determine whether it “aris[es]” from a
court-ordered evaluation, treatment or psychoeducation of a sex offender.
Dr. Gray could have raised his present arguments directly to the screening
committee, which twice asked him to attend and postponed its threshold
consideration of the complaint when he did not. He could have explained
that much of his practice is devoted to sex offenders and sex crimes, which
means the Board must first ensure the complaint can proceed without a

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court order. Because he did not, the superior court did not abuse its
discretion.

¶11 Dr. Gray’s argument that the Board’s investigation of
anonymous complaints “violate[s]” A.R.S. § 41-1010 fails on similar
grounds. Section 41-1010 provides that “the name of the complainant shall
be a public record unless the affected agency determines [that such] may
result in substantial harm to any person.” Id. (emphasis added). As noted,
Dr. Gray sued the Board before it could investigate or consider the issue.

¶12 Dr. Gray next argues that forcing him to defend against an
anonymous complaint violates his due process and equal protection rights,
alleging “that it precludes him from ascertaining the credibility of the
complainant.” But the statute commands that the Board “shall not disclose
the name of the person providing information unless this information is
essential to proceedings.” A.R.S. § 32-2081(E). And here again, Dr. Gray
refused an invitation to appear before the complaint screening committee,
where he could have argued that the complainant’s name “is essential to
proceedings” and he cannot formulate an intelligent defense without that
information.

¶13 Although an anonymous complaint may harm due process
rights, warranting special action relief, Dr. Gray has not shown that’s what
happened here. He did not even attend the complaint screening committee
meeting to assert or establish the argument, leaving the superior court and
this court without sufficient information to evaluate his generalized due
process claim. The superior court recognized that the Board had yet to even
assess whether the complaint came within its regulatory authority. See
Carrington v. Ariz. Corp. Comm’n, 199 Ariz. 303, 305, ¶ 8 (App. 2000) (“[An
agency] must be free without undue interference or delay to conduct an
investigation which will adequately develop a factual basis for a
determination as to whether particular activities come within the [agency’s]
regulatory authority.”) (citation and quotation marks omitted).

¶14 And last, we reject any general, facial challenge to the Board’s
jurisdiction to hear anonymous complaints. The legislature created the
Board of Psychologist Examiners and imbued it with statutory authority to,
among other things, review all complaints and investigate all evidence
“that a psychologist is psychologically incompetent, guilty of
unprofessional conduct or mentally or physically unable to safely engage
in the practice of psychology.” A.R.S. § 32-2081(A), (H) (“The board, on its
own motion, may investigate evidence that appears to show that a
psychologist is . . . guilty of unprofessional conduct,” and “any other person

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may[] report to the board information that appears to show that a
psychologist is . . . guilty of unprofessional conduct.”).

¶15 We find no abuse of discretion.

II. Declaratory Judgment Action Under A.R.S. § 41-1034(B).

¶16 Dr. Gray separately argues the superior court erroneously
denied his request for declaratory judgment because the Board’s “practice
of accepting, investigating and adjudicating [anonymous] complaints” is a
“de facto rule.” We review de novo whether agency action is a “rule” under
the APA. Ariz. State Univ. ex rel. Ariz. Bd. of Regents v. Ariz. State Ret. Sys.,
237 Ariz. 246, 250, ¶ 14 (App. 2015).

¶17 The APA allows any person “affected by an existing agency
practice or substantive policy statement that the person alleges to constitute
a rule [to] obtain a judicial declaration on whether the practice or
substantive policy statement constitutes a rule by filing an action for
declaratory relief in the superior court.” A.R.S. § 41-1034(B). The APA
defines a “rule” as “an agency statement of general applicability that
implements, interprets or prescribes law or policy, or describes the
procedure or practice requirements of an agency.” A.R.S. § 41-1001(19).

¶18 The Board’s practice of accepting and screening anonymous
complaints is not a “rule” under the APA. The Board has no written or
formal rule or statement on the subject. See, e.g., Ariz. State Ret. Sys., 237
Ariz. at 249, ¶ 6 (challenging System’s written “Policy on Employer Early
Termination Incentive Programs”); Ariz. Soc’y of Pathologists v. Ariz. Health
Care Cost Containment Sys. Admin., 201 Ariz. 553, 555, ¶ 4 (App. 2002)
(challenging AHCCCS policy statement announcing that it would follow
Medicare guidelines). At most, the Board’s investigation of anonymous
complaints is merely “part of the information-gathering process necessary
to enable the Board to make decisions” and a “method of obtaining data”
that “aid[s] it in exercising its discretion.” Shelby Sch. v. Ariz. State Bd. of
Educ., 192 Ariz. 156, 167, ¶ 48 (App. 1998).

¶19 We do not accept the superior court’s reasoning that the
practice is not a rule because “no rule is required for the Board to investigate
all complaints, including anonymous complaints.” Because we reach the
same holding, however, we affirm. “We will affirm the court’s decision if
it is correct for any reason, even if that reason was not considered by the
trial court.” Hill v. Safford Unified Sch. Dist., 191 Ariz. 110, 112 (App. 1997).

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CONCLUSION

¶20 We affirm the superior court’s order. Because he did not
“prevail[] by an adjudication on the merits,” we deny Dr. Gray’s request for
attorney fees and expenses under A.R.S. § 12-348(A)(3) and (4). See White
Mountain Health Ctr. v. Maricopa Cty., 241 Ariz. 230, 253, ¶ 87 (App. 2016).
His request for appellate costs under Arizona Rule of Civil Appellate
Procedure 21(a) is likewise denied. See Braillard v. Maricopa Cty., 224 Ariz.
481, 499, ¶ 60 (App. 2010).

AMY M. WOOD • Clerk of the Court
FILED: AA

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