Batty v. Az Medical Brd

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TRENT W. BATTY, Appellant,

v.

ARIZONA MEDICAL BOARD, Appellee.

No. 1 CA-CV 21-0021
FILED 5-10-2022

Appeal from the Superior Court in Maricopa County
No. LC 2019-000394-001
The Honorable Sigmund G. Popko, Judge Pro Tempore

AFFIRMED

COUNSEL

Mitchell Stein Carey Chapman PC, Phoenix
By Andrew R. Breavington, Stephen W. Myers
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Mary DeLaat Williams
Counsel for Appellee
 BATTY v. AZ MEDICAL BRD
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 This appeal arises from the superior court’s order affirming
the Arizona Medical Board’s decision that Dr. Trent Batty committed
professional misconduct by engaging in sexual conduct with a patient, in
violation of A.R.S. § 32-1401(27)(aa)(ii). Dr. Batty argues the court erred in
finding that (1) the statute does not include a specific sexual intent
requirement, (2) the statute is not void for vagueness, and (3) the Board’s
decision is supported by substantial evidence. Because the superior court
did not err, we affirm.

BACKGROUND

¶2 Dr. Batty is a board-certified family medicine physician
practicing in Arizona. In February 2018, J.L. became a patient of Dr. Batty
and was treated for mental health issues. Both of them lived in the same
rural town, and Dr. Batty had known J.L. for several years. Soon after
treatment began, they quickly developed a friendship, which included
frequent text messages and social visits. At the time, J.L. was 22 years old,
and Dr. Batty was in his early forties.

¶3 J.L. began to feel troubled by the relationship and confided in
his clergyman. On J.L.’s behalf, the clergyman filed a complaint with the
Board. In the complaint, and as confirmed in a subsequent interview with
the Board, J.L. alleged various instances of inappropriate behavior,
including text messages from Dr. Batty that made J.L. uncomfortable.

¶4 In response, Dr. Batty disclosed his and J.L.’s text history.
Many of Dr. Batty’s texts covered sexual topics and were unrelated to any
treatment Dr. Batty was providing. During the Board’s investigation,
Dr. Batty disclosed an incident with another male patient, C.S., also in his
twenties. Similar to his relationship with J.L., Dr. Batty and C.S. developed
a social relationship. On one occasion while Dr. Batty and C.S. were
traveling together, Dr. Batty noticed that C.S. appeared to have an erection.
Dr. Batty then touched C.S.’s penis over the clothes. Dr. Batty later

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Opinion of the Court

explained this was not sexually motivated and only intended to be a
“juvenile prank.”

¶5 In July 2018, Dr. Batty submitted to a polygraph examination.
He answered “No” to questions about whether he had ever touched a
patient for sexual purposes, including specific questions about J.L. and C.S.
The test indicated he was truthful. Later that month, Dr. Batty underwent
a psychological evaluation, which indicated he was sexually attracted to
women, and nothing suggested he suffers from sexual dysfunction or a
desire disorder. The evaluator opined that Dr. Batty had blurred
professional lines, and “it was possible that there are other issues related to
sexuality and intimacy that may have driven some of his behavior.”
Ultimately, however, the evaluator concluded Dr. Batty “did not engage in
any predatory, coercive, or manipulative behavior which exploited his
position of authority.” The evaluator also noted there was no reason to
suspect Dr. Batty could not safely continue to practice medicine, although
she recommended Dr. Batty undergo a professional course in recognizing
boundaries.

¶6 As ordered by the Board, Dr. Batty had a second evaluation
to determine his fitness to practice, conducted by Acumen Assessments. In
reviewing the text messages, Acumen determined “the nature of the text
messages resembled those between two college students, which would be
entirely inappropriate between a doctor and a patient.” Acumen opined
that Dr. Batty was not a predator, explaining that the evidence revealed
“poor professional boundaries and interpersonal judgment rather than
sexual misconduct,” but also recognized that the Board would ultimately
“have to make a ruling regarding the finding of facts in this case.” Acumen
recommended Dr. Batty enter a “robust Boundary Protection Plan,” and in
January 2019 he agreed to an interim consent order requiring him to
undergo professional boundary training.

¶7 In June 2019, the Board formally interviewed Dr. Batty. See
A.R.S. § 32-1451(H) (giving the Board authority to conduct a formal
interview if its investigation reveals potential merit). He admitted touching
C.S., but explained he “thought it was going to be funny, I was going to kid
him about it. You know, hey, looks like you are having too much fun here,
ha.” He also acknowledged his text messages with J.L. were inappropriate.
At the conclusion of the interview, the Board found that Dr. Batty
participated in unprofessional conduct in violation of § 32-1401(27)(aa),
which prohibits a physician from “[e]ngaging in sexual conduct with a

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Opinion of the Court

current patient.”1 The discipline imposed included a formal reprimand,
probation for two years, and compliance with any additional
recommendations resulting from a pending re-evaluation.

¶8 In July 2019, Acumen conducted the re-evaluation, which
included another polygraph test. The results showed that Dr. Batty
truthfully reported he did not have sexual activity with patients since his
first polygraph test. The evaluator opined that the tests indicated Dr. Batty
demonstrated “the absence of any sexual misconduct,” and he took “full
responsibility for all the non-sexual boundary violations in the past with
patients.”

¶9 In August 2019, the Board issued its written decision
memorializing its prior determination that Dr. Batty’s actions constituted
unprofessional conduct. Dr. Batty filed a motion for rehearing, citing in
part his July 2019 re-evaluation by Acumen. The Board denied the motion.

¶10 Dr. Batty appealed to the superior court, asserting in part that
the Board’s decision was not supported by substantial evidence because the
Board’s own experts opined that Dr. Batty’s behavior was not sexually
motivated. Alternatively, he argued § 32-1401(27)(aa) was void for
vagueness. In a detailed ruling, the superior court affirmed the Board’s
decision under the specific subsection § 32-1401(27)(aa)(ii), which defines
sexual conduct to include words or actions of a sexual nature. The court
explained that “the legislature determined that proper professional
boundaries between a doctor and a patient included prohibiting a doctor
from engaging in any conduct, either physical or verbal, of a sexual nature
regardless of the doctor’s lack of a sexual mens rea.” The court also rejected
Dr. Batty’s vagueness challenge and concluded that substantial evidence
supported the Board’s decision that he engaged in physical and verbal acts
that were plainly sexual in nature, as commonly defined. Dr. Batty timely
appealed to this court, and we have jurisdiction under A.R.S.
§ 12- 2101(A)(1).

1 The Board also found that Dr. Batty’s unprofessional conduct
included violations of A.R.S. § 32-1401(27)(e) (“Failing or refusing to
maintain adequate records on a patient”) and 27(r) (“Committing any
conduct or practice that is or might be harmful or dangerous to the health
of the patient or the public”). Neither of those violations were challenged
in the superior court.

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DISCUSSION

¶11 The superior court must affirm an agency action unless it is
“contrary to law, is not supported by substantial evidence, is arbitrary and
capricious or is an abuse of discretion.” A.R.S. § 12-910(F). The superior
court reviews questions of law decided by the agency de novo, “without
deference to any previous determination that may have been made on the
question by the agency.” Id.; see also Pima Cnty. v. Pima Cnty. Law Enf’t Merit
Sys. Council, 211 Ariz. 224, 227, ¶ 13 (2005). “We engage in the same process
as the superior court when we review its ruling affirming an administrative
decision.” Gaveck v. Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436,
¶ 12 (App. 2009).2

A. Sexual Intent/Motivation

¶12 Dr. Batty argues § 32-1401(27)(aa)(ii) must be read to require
that a physician act with “sexual intent” before the Board can impose
discipline for engaging in conduct of a sexual nature. To determine a
statute’s meaning, we look first to its text. See State v. Jurden, 239 Ariz. 526,
530, ¶ 15 (2016). If it is unambiguous, we apply the text as written without
employing other methods of statutory interpretation. Id. When construing
a particular provision, we consider “the context and related statutes on the
same subject.” Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019).

¶13 The Board has the authority to discipline a physician for
“unprofessional conduct,” A.R.S. §§ 32-1403(A)(5), 32-1451(A), which
includes “[e]ngaging in sexual conduct with a current patient or with a
former patient within six months after the last medical consultation,” § 32-
1401(27)(aa). “[S]exual conduct” is defined by statute to include, among
other things, “[m]aking sexual advances, requesting sexual favors or

2 Historically, Arizona’s courts have afforded deference to the factual
findings of an administrative agency. See, e.g., Gaveck, 222 Ariz. at 436, ¶ 11.
But the legislature has now indicated otherwise, see § 12-910(F), stating that
“the court shall decide all questions of fact without deference to any
previous determination that may have been made on the question by the
agency.” 2021 Ariz. Legis. Serv. Ch. 281 (S.B. 1063). This amendment
became effective in September 2021, after the superior court issued its
ruling and after briefing in this appeal. See A.R.S. § 12-910 (2021). Neither
party has filed a notice of supplemental authority or sought to provide
additional briefing on the effect, if any, of the amendment on this case. In
any event, we need not decide whether it applies here because the essential
facts are undisputed.

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engaging in any other verbal conduct or physical contact of a sexual nature.” § 32-
1401(27)(aa)(ii) (emphasis added).

¶14 In affirming the Board’s decision, the superior court found
that § 32-1401(27)(aa)(ii) “does not require proof that [a physician] acted
with a sexual mens rea.” Dr. Batty argues this was error, asserting a common
sense and plain reading of § 32-1401(27)(aa)(ii) requires that a physician act
with a specific, sexual intent. He contends that “engage” is an action verb,
which implies intentionality, and therefore a person cannot “engage” in
conduct or contact of a sexual nature without sexual motivation.

¶15 The common definitions of “engage,” as applied here,
include: “to begin and carry on an enterprise or activity.” Engage, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2014); see State v. Takacs, 169 Ariz.
392, 397–98 (App. 1991) (noting we may look to dictionary definitions to
determine a term’s meaning). A reasonable construction of the term
“engage” in the context of § 32-1401(27)(aa)(ii) means that the physician
intended to participate in certain conduct. But nothing in the language of
§ 32-1401(27)(aa)(ii) requires proof that such conduct was sexually
motivated. Cf. State v. Holle, 240 Ariz. 300, 303, ¶¶ 17–18 (2016) (declining
to infer that sexual motivation is an element in child molestation and sexual
abuse offenses because, in part, the plain language of the underlying statute
does “not mention, imply, or require sexual motivation”). Had the
legislature intended such a requirement, we presume it would have made
that intention plain in the statute. See State v. Hood, 251 Ariz. 57, 60, ¶ 9
(App. 2021).

¶16 Moreover, other portions of this same statute show that the
legislature will include an express intent requirement when it wishes to do
so. For example, within a related subsection of the same statute, the
legislature included an intent requirement, stating that a physician engages
in sexual conduct by “[i]ntentionally viewing a completely or partially
disrobed patient in the course of treatment if the viewing is not related to
patient diagnosis or treatment under current practice standards.” A.R.S.
§ 32-1401(27)(aa)(iii) (emphasis added). The legislature’s inclusion of an
express intent requirement under subsection (aa)(iii) weighs against
reading a specific sexual intent requirement into subsection (aa)(ii). See
Garcia v. Butler ex. rel Cnty. of Pima, 251 Ariz. 191, 195, ¶ 16 (2021) (“The
legislature’s use of restrictive language in one section of the statute but not
in the other section indicates that it intended the restriction to apply only
where it was designated.”); see also State v. Burgess, 245 Ariz. 275, 279, ¶ 15
(App. 2018) (“[W]e will not ‘judicially impose a requirement the legislature
has intentionally chosen not to require.’” (citation omitted)).

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¶17 Further, we are not persuaded by Dr. Batty’s reliance on other
areas of the law addressing sexual misconduct. He argues that, because
sexual harassment law under Title VII of the Civil Rights Act requires a
showing of specific sexual intent, § 32-1401(27)(aa)(ii) must be construed
the same way. See 42 U.S.C. § 2000e-2(a) (prohibiting employer
discrimination on the basis of sex). However, the United States Supreme
Court has specifically stated that “harassing conduct need not be motivated
by sexual desire to support an inference of discrimination on the basis of
sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
Dr. Batty also asserts that Arizona’s criminal laws governing sex crimes
require a specific sexual intent. See, e.g., A.R.S. § 13-1404(A) (sexual abuse
expressly requires intentionally or knowingly engaging in sexual contact).
But when our statutes have been silent on the matter, we have declined to
add either sexual intent or motivation as a necessary element. See State v.
Simpson, 217 Ariz. 326, 328–29, ¶¶ 18–19 (App. 2007) (holding that the
statute governing child molestation did not require the state to prove the
act was motivated by sexual intent); State v. Sandoval, 175 Ariz. 343, 347
(App. 1993) (holding that the statute governing indecent exposure did not
require a showing that defendant was motivated by sexual intent).

¶18 Because the statute is unambiguous, we reject Dr. Batty’s
invitation to employ other methods of statutory construction, such as the
rule of lenity, which might be applied in narrow circumstances, but only in
in criminal cases. See Taylor v. Cruikshank, 214 Ariz. 40, 46, ¶ 25 (App. 2006)
(explaining that the rule may apply “in a criminal case” involving an
ambiguous statute such that doubts of statutory construction are resolved
in favor of the defendant). We affirm the superior court’s conclusion that
§ 32-1401(27)(aa)(ii) does not require that the physician’s conduct be
motivated by a specific sexual intent, at least when the Board considers
imposing discipline under the theory that the physician engaged in conduct
of a sexual nature.

B. Vagueness

¶19 Alternatively, Dr. Batty argues that if § 32-1401(27)(aa)(ii)
does not include a mens rea requirement, then it must be void for
vagueness. We review the constitutionality of a statute de novo but
“presume that the statute is constitutional and must construe it, if possible,
to give it a constitutional meaning.” State v. McMahon, 201 Ariz. 548, 550,
¶ 5 (App. 2002). Dr. Batty “has the heavy burden of overcoming that
presumption.” Id. “A statute is unconstitutionally vague if it does not give
persons of ordinary intelligence a reasonable opportunity to learn what it
prohibits and does not provide explicit instructions for those who will

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apply it.” Id. at 551, ¶ 7; see also Golob v. Ariz. Med. Bd. of the State, 217 Ariz.
505, 512–13, ¶ 28 (App. 2008). Additionally, “[t]he degree of vagueness that
the Constitution tolerates . . . depends in part on the nature of the
enactment,” and we must take into consideration the severity of the
penalty. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498 (1982).

¶20 Dr. Batty argues that “[w]ithout a specific mens rea
requirement, a [physician] is not able to discern exactly what behavior the
statute prohibits.” He contends that a person of ordinary intelligence
cannot discern whether the statute prohibits any conduct that may be
perceived as sexual, or if it only prohibits conduct “sexually motivated or
intended for a sexual purpose.” Noting the opposing positions pressed by
counsel at oral argument and the significant time spent addressing
statutory interpretation, Dr. Batty contends the statute must be vague,
given that “three knowledgeable and experienced legal professionals could
not agree on its meaning after significant debate.” Given the severity of the
penalty, Dr. Batty also argues we should apply a stricter form of the
vagueness test.

¶21 We are not persuaded. To avoid unconstitutional vagueness,
a statute need not “be drafted with absolute precision,” and must only
“convey a definite warning of the proscribed conduct.” McMahon, 201 Ariz.
at 551, ¶ 8 (quoting Fuenning v. Super. Ct. ex rel. Maricopa Cnty., 139 Ariz.
590, 598 (1983)); see also Golob, 217 Ariz. at 513, ¶ 29. As already explained,
the plain language of § 32-1401(27)(aa)(ii) only applies to non-accidental
conduct, and does not require a specific sexual intent. Thus, Dr. Batty’s
primary concern that physicians are unable to discern whether the statute
prohibits conduct based on intent or perception is unfounded.

¶22 Further, § 32-1401(27)(aa)(ii) applies only to behavior that is
“of a sexual nature.” “Sexual” is commonly defined as “of, relating to, or
associated with sex or the sexes.” Sexual, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2014). “Nature,” as relevant here, is defined as “the
inherent character or basic constitution of a person or thing.” Nature,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2014). As explained by
the superior court, these standard definitions are sufficient to give
physicians “notice of what constitutes unprofessional conduct.” See State v.
Johnson, 243 Ariz. 41, 44, ¶ 9 (App. 2017) (explaining that a statute is not
void for vagueness simply because it has undefined terms, and in such
situations, “[w]e may also look to dictionary definitions, both legal and
otherwise, to determine a word’s meaning”). And contrary to Dr. Batty’s
assertions, opposing interpretations offered in litigation do not compel a

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finding that a statute is unconstitutionally vague. See, e.g., Glazer v. State, 244 Ariz. 612, 614, ¶ 12 (2018) (“A statute is not ambiguous merely because
the parties disagree about its meaning.”). Even assuming we must apply a
stricter test of vagueness given the severity of the potential penalty, the
language of § 32-1401(27)(aa)(ii) is sufficient to forewarn physicians of
prohibited conduct. We affirm the superior court’s determination that
§ 32-1401(27)(aa)(ii) is not void for vagueness.

C. Substantial Evidence

¶23 Dr. Batty argues the Board’s decision is not supported by
substantial evidence, which is a question of law subject to our de novo
review. See Gaveck, 222 Ariz. at 436, ¶ 12. He contends the Board could not
properly determine whether he engaged in sexual conduct under § 32-
1401(27)(aa)(ii) without first deciding whether his conduct was sexually
motivated. He posits that such a determination necessarily involves
principles of behavioral and social science, and thus the Board could not
evaluate his conduct without relying on the expert opinions. And because
the experts unanimously concluded his behavior was not sexually
motivated, Dr. Batty concludes the Board erred in finding he committed
sexual conduct. But as explained above, because sexual motivation is not a
requirement under § 32-1401(27)(aa)(ii), the Board was not required to rely
on or defer to the experts’ opinions on Dr. Batty’s motivations.

¶24 Dr. Batty also argues, as a matter of law, that the Board could
not reach a conclusion contrary to the expert opinions. He points out that
Acumen, in its first report, opined that the evidence pushed “in the
direction of poor professional boundaries and interpersonal judgment
rather than sexual misconduct.” Then, in its second report, Acumen
characterized Dr. Batty’s behavior as “non-sexual boundary violations,”
and opined he was “demonstrating the absence of any sexual misconduct.”
Given these findings, Dr. Batty asserts the Board’s contrary decision was
not supported by the evidence. He also contends that reliance on expert
opinions is essential in ensuring the statute is applied uniformly, arguing
that reliance on the victim’s or the Board’s subjective opinions invites
random results.

¶25 The purpose of these expert evaluations, however, was not to
decide whether Dr. Batty had committed professional misconduct, but
rather to determine whether Dr. Batty was fit to practice. And more
importantly, whether Dr. Batty’s actions were “sexual in nature” was a legal
determination for the Board. In fact, Acumen itself acknowledged that the
Board needed to decide whether Dr. Batty’s actions constituted misconduct.

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Cf. Webb v. Omni Block, Inc., 216 Ariz. 349, 353–54, ¶¶ 14, 17 (App. 2007)
(explaining that expert opinions are often excluded as evidence when they
tell the factfinder how to decide the case, or when couched as legal
conclusions). Moreover, whether a physician’s conduct in a particular
situation is of a sexual nature is not so complicated a question as to require
expert deference. As noted, the standard definitions of “sexual” and
“nature” offer sufficient guidance to laypersons to understand the meaning
of those terms. Simply put, the Board members needed no expert opinions
to decide whether Dr. Batty’s conduct was sexual. He admitted to (1)
touching a patient’s penis because it was erect; and (2) sending J.L. text
messages concerning sex, masturbation, and ejaculation. As the superior
court properly concluded, this conduct is sexual in nature and therefore
substantial evidence supports the Board’s determination.

¶26 Finally, Dr. Batty asserts that even if the agency decision is
supported by substantial evidence, “it may nonetheless reflect arbitrary and
capricious action.” See Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 284 (1974); see also Am. Tunaboat Ass’n v. Baldrige, 738 F.2d
1013, 1016 (9th Cir. 1984) (“[E]ven though an agency decision may have
been supported by substantial evidence, where other evidence in the record
detracts from that relied upon by the agency we may properly find that the
agency rule was arbitrary and capricious.”). However, Arizona courts
interpreting Arizona administrative law have consistently held that an
agency decision is not arbitrary and capricious if it is supported by
substantial evidence. See, e.g., Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of
Health Servs., 242 Ariz. 62, 65, ¶ 8 (App. 2017); Callen v. Rogers, 216 Ariz. 499,
502, ¶ 9 (App. 2007); Smith v. Ariz. Long Term Care Sys., 207 Ariz. 217, 220,
¶ 14 (App. 2004). Because Dr. Batty provides no compelling reason for
abandoning this well-established interpretation of Arizona’s administrative
law, we do not disturb it here.3

3 Dr. Batty cites several federal cases interpreting federal
administrative law for the proposition that an agency decision is arbitrary
and capricious whenever it contradicts the opinion of its own expert. See
Defs. of Wildlife v. Babbitt, 958 F. Supp. 670, 685 (D.D.C. 1997); N. Spotted Owl
v. Hodel, 716 F. Supp. 479, 483 (W.D. Wash. 1988); Am. Tunaboat Ass’n, 738
F.2d at 1017. Those cases are not persuasive here, as each of them involved
complex factual questions about wildlife populations. In any event,
Dr. Batty’s unsuccessful defense hinges on the interpretation of what
constitutes sexual misconduct, a question of law.

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CONCLUSION

¶27 We affirm the superior court’s ruling that the Board’s decision
was not contrary to law, and it was supported by substantial evidence.
Because Dr. Batty has not prevailed on the merits of this appeal, we deny
his request for attorneys’ fees and costs under A.R.S. § 12-348.

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

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