Opinion
No. 29658-6-II.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 99-2-02186-7. Judgment or order under review. Date filed: 11/22/2002. Judge signing: Hon. Wm Thomas McPhee.
Counsel for Appellant(s), Patricia and Roger Timot Beal (Appearing Pro Se), 8007 143rd Ct NW, Gig Harbor, WA 98329.
Counsel for Respondent(s), Peter John Helmberger, Aty General Office Torts Div, 629 Woodland Square Loop SE, PO Box 40126, Olympia, WA 98504-0126.
Patricia and Roger Beal (`the Beals') sued the Department of Social and Health Services (DSHS), DSHS Secretary Lyle Quasim, and Amanda Carmier, an administrator for DSHS programs related to Adult Family Homes (AFH), alleging due process violations, interference with business relations, deprivation of the right to earn a living, retaliation and harassment, negligent and intentional infliction of emotional distress, defamation, and interference with consortium. The claims were based on DSHS's investigation and suspension of licenses for the Beals' AFHs in Tacoma and Puyallup. The trial court granted DSHS summary judgment and the Beals filed an appeal pro se. The Beals assert these claims again on appeal but only provide argument on two claims: negligent investigation and lack of notice. We address only those claims argued to the trial court and supported by argument or authority on appeal. RAP 10.3(a)(5). Finding summary judgment proper on these claims, we affirm.
The Beals have not provided us with a transcript of the proceedings before the trial court and we are unable to determine what issues the Beals argued below.
FACTS
The Beals owned and operated two AFHs, one in Tacoma and one in Puyallup. DSHS licensed the AFHs under chapter 70.128 RCW. In November 1996, DSHS issued both revocation and stop placement notices for both homes. DSHS investigated and revoked the Beals' licenses for the Tacoma AFH on June 24, 1998. The orders were based on several findings, including that (1) the Tacoma AFH's resident manager, Kathleen Morris, had abused an AFH resident by pushing and slapping him/her; (2) this resident expressed fear of further abuse; and (3) two residents of the Beals' Tacoma home often argued with each other and these arguments frequently escalated and required intervention, usually by Morris. To avoid revocation of the Beals' license, DSHS required that Morris be supervised when in the residents' presence.
Revocation is defined as `[a]n annulment, cancellation, or reversal, usu. of an act or power.' Black's Law Dictionary 1321 (7th. ed. 1999). (Note: the statute does not define revocation.)
By imposing a stop placement, DSHS is `[s]uspend[ing] admissions to the adult family home.' RCW 70.128.160(2)(e).
But when AFH licenser Robert Stroh went to the Tacoma AFH on June 10, 1998, Morris appeared to be alone with the residents and one resident was in an unkempt condition. DSHS sent the Beals a statement of deficiencies indicating that the residents were in imminent danger of harm and summarily revoked the Beals' licenses. The Beals appealed this decision to an Administrative Law Judge (ALJ), who affirmed the license suspensions. The Beals then appealed to the DSHS Board of Appeals Review Judge. Before the Review Judge issued the final decision, the Beals filed this law suit against DSHS in Thurston County Superior Court, claiming that their license was suspended without due process, that the suspension deprived them of their livelihood, and that DSHS's actions had negligently and intentionally inflicted emotional distress on them. The Review Judge reversed the suspension and reinstated the Beals' licenses on March 9, 2000. The superior court then granted DSHS's motion for summary judgment.
The Beals claimed that another caregiver was in the kitchen of the house at the time and when Morris opened the door, the investigator improperly assumed Morris was alone.
The licenser found that `[t]he provider's failure to ensure that residents were not left alone with a resident manager who physically abused at least one resident, placed residents in imminent danger of harm.' Clerk's Papers (CP) at 114.
No findings regarding the Puyallup AFH are included in our record. But the Beals' Puyallup AFH license was also suspended. On January 17, 1997, the Puyallup AFH license was reinstated, but the stop placement order remained.
The Beals appeal. ANALYSIS
When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437. Questions of law in summary judgment are reviewed de novo. Mains Farm Homeowners v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wn.2d at 13. The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
In this case, DSHS raised several grounds in support of its summary judgment motion. On appeal, the Beals only argue that summary judgment was improper because material issues of disputed fact exist proving that (1) DSHS failed to give the Beals proper written notice of suspension and a meaningful opportunity to correct the errors alleged in their operation of their licensed AFHs; (2) DSHS negligently investigated the Beals; and (3) their due process rights were violated. Thus, we address these three claims.
In their motion for summary judgment, DSHS argued that (1) DSHS's employees and agents were entitled to qualified immunity; (2) the Beals have no claims under procedural due process, equal protection, or the Washington Constitution; and (3) the Beals have no cause of action for the torts of defamation, interference with business expectations, negligent infliction of emotional distress, and outrage.
Lack of Notice
The Beals claim that DSHS failed to give them written notice before suspending their AFH licenses. The Beals cite RCW 43.20A.205, which states that `[DSHS] shall give written notice of revocation, suspension, or modification of a license to the licensee or his or her agent.' The Beals claim that the DSHS Review Judge found that DSHS failed to give the Beals written notice. But the finding cited by the Beals states that `[DSHS] did not provide [Beals] with any written guidance or written restrictions on Ms. Morris' duties.' Clerk's Papers (CP) at 125. This finding does not address written notice of suspension. Moreover, there are two letters in the record entitled `Notice of Summary Suspension, License Revocation and Stop Placement' for the Tacoma AFH. CP at 110, 116. The Review Judge found that the Beals were served personally with both a written notice dated June 6, 1998, and an amended notice dated June 24, 1998. The record establishes that the Beals received written notice and that, therefore, DSHS did not violate RCW 43.20A.205. There is no issue of fact that the Beals received written notice of the license suspension/revocation. Summary judgment for DSHS was proper on this ground.
Negligent Investigation
The Beals and DSHS dispute two issues regarding negligent investigation, namely whether there is an implied cause of action for negligent investigation and whether public policy supports the tort of negligent investigation. Because this is a question of law, our review is de novo. Mains Farm Homeowners, 121 Wn.2d at 813. Tyner v. Department of Social and Health Services, 141 Wn.2d 68, 1 P.3d 1148 (2000), sets out the test for implied causes of action. The three elements of the Tyner test are as follows:
[F]irst, whether the plaintiff is within the class for whose `especial' benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.
Tyner, 141 Wn.2d at 77-78 (quoting Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990)).
Applying the first prong requires that we review the statute to determine whether the Beals are members of the class that the statute was designed to protect. See Tyner, 141 Wn.2d at 78. The Beals claim that they are members of the protected class because AFH statutes (chapter 70.128 RCW et. seq.) protect both residents and owners of AFHs. The Beals also rely on chapter 43.20A RCW for support. DSHS asserts that the legislature intended that these statutes protect developmentally disabled adults who are AFH residents and not AFH owners. We evaluate the legislative intent by first looking to the statute's purpose statement to determine whether the Beals were part of the statutorily protected class. Tyner, 141 Wn.2d at 78.
Chapter 43.20A RCW directs DSHS to `integrate and coordinate all those activities involving provision of care for individuals who, as a result of their economic, social or health condition, require financial assistance, institutional care, rehabilitation or other social and health services.' RCW 43.20A.010. RCW 43.20A.205 addresses the procedures that DSHS must follow when denying, revoking, suspending, or modifying a license. Although the statute creates a licensing process, it does not create a protected class of AFH owners.
The legislature specifically addressed AFHs in former RCW 70.128.005 (1995) and former RCW 70.128.007 (1995) and set out findings, intents, and purposes. First, the legislature found that AFHs are important to the state's long-term care system and that the population in AFHs has differing needs that must be accommodated. Former RCW 70.128.005. More recently, the legislature found that the AFH population is vulnerable and that the State has a `compelling interest' in protecting this resident population. RCW 70.128.005. The clear legislative purpose of these statutes is to establish standards for AFHs to ensure that they are safe and humane, as well as to ensure that AFH residents receive quality care and a long-term care plan. Former RCW 70.128.007. Under these statutes, the legislature directs AFH owners to protect these residents; it does not create a protected class of AFH owners. The first prong of the Tyner test is not satisfied.
The second prong directs us to consider whether the legislative intent provides a cause of action, either implicitly or explicitly. Tyner, 141 Wn.2d at 80. In Tyner, the Court addressed a negligent investigation claim brought by a parent of a child investigated for abuse by the DSHS. 141 Wn.2d at 71. The Tyner Court found an implied remedy because of the close and deeply important relationship between a parent and child. 141 Wn.2d at 80. But there is no similar relationship between AFH owners and residents. The statutes the Beals rely on only protect AFH residents and there is no indication that the legislature intended these statutes to protect AFH owners. The second prong of the Tyner test is not satisfied.
To satisfy the third prong, the cause of action must be consistent with the legislative purpose of the statute. Tyner, 141 Wn.2d at 80. As noted above, the purposes of regulating AFHs are to ensure quality care for AFH residents and to establish standards of quality care for AFH residents. Former RCW 70.128.005; former RCW 70.128.007. Creating a cause of action for an AFH owner exceeds the scope of these statutes and undermines the purpose of protecting residents. The elements of the Tyner test are not satisfied. An AFH owner does not have a cause of action for negligent investigation against DSHS.
The Beals also argue that public policy supports an action for negligent investigation. The Beals claim that AFH owners are an exception to the public policy against actions for negligent investigation. In general, the tort of negligent investigation does not exist in Washington common law. Pettis v. State, 98 Wn. App. 553, 558, 990 P.2d 453 (1999). But negligent investigation has been found in cases of child abuse investigations because of the duty owed to protecting children and the due process rights of parents. Rodriguez v. Perez, 99 Wn. App. 439, 444-45, 994 P.2d 874, review denied, 141 Wn.2d 1020 (2000). Negligent investigations have been upheld against DSHS only in investigations of child abuse or foster care decisions. See, e.g., Babcock v. State, 116 Wn.2d 596, 606, 809 P.2d 143 (1991) (recognizing negligent foster care investigation); Waller v. State, 64 Wn. App. 318, 334, 824 P.2d 1225 (recognizing negligent investigation of child abuse by DSHS), review denied, 119 Wn.2d 1014 (1992). The Beals' position as owners of an AFH to the residents is not analogous to a parent-child relationship and public policy does not give an AFH owner standing to bring a negligent investigation action.
Due Process
The Beals also claim that DSHS's failure to follow statutory procedures violated their due process rights. In their opposition to summary judgment, the Beals claimed that DSHS failed to comply with `due process safeguards of notice and hearing found in RCW 43.20A.205' (CP at 82), as well as the `procedural safeguards of RCW 70.128.' CP at 86. The due process clause of the Fourteenth Amendment prohibits the state from depriving `any person of life, liberty, or property, without due process of law.' U.S. Const. amend. XIV. Professional licenses are considered `quasi-criminal' in nature and are a `constitutionally protected property interest which must be afforded due process.' Nguyen v. Dep't of Health Med. Quality Assurance Comm'n, 144 Wn.2d 516, 523, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904 (2002); Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 474, 663 P.2d 457 (1983). But if the state agent fails to follow established state procedure, due process is not violated if there is an adequate post-deprivation remedy. Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The Review Judge found that DSHS failed to follow proper procedures when suspending the Beals' licenses and ordered that DSHS reinstate the Beals' licenses.
The Beals rely on Estate of Kepl v. Department of Social and Health Services, 34 Wn. App. 5, 659 P.2d 1108 (1983). Although Kepl is factually similar to the Beals' stated claim, their reliance is misplaced. The main holding in Kepl is that a nursing home operator whose license is wrongfully terminated and then reinstated (as was the case with the Beals) is not deprived of due process if the State has provided a remedy to correct the deprivation. 34 Wn. App. at 11. The Kepl court held that chapter 4.92 RCW provided an adequate procedural remedy and that, therefore, due process was not denied. 34 Wn. App. at 11; see also Joshua v. Newell, 871 F.2d 884, 887 (9th Cir. 1989) (under Washington law, there is an adequate post-deprivation remedy to recover damages under chapter 4.92 RCW for violations of due process), cert. denied, 493 U.S. 994 (1989). RCW 4.92.090 allows individuals to pursue tort claims against state agencies:
The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.
In this case, the Beals pursued their remedy under chapter 4.92 RCW by arguing various tort claims against DSHS. But chapter 4.92 RCW does not create an independent implied cause of action as the Beals suggest. In their opposition to DSHS's motion for summary judgment and on appeal, the Beals argued only (1) lack of notice, (2) negligence, (3) failure to follow statutory procedures, and (4) negligent investigation. Of these, the only claims briefed and argued for our review are those involving lack of notice and negligent investigation. We have already addressed these arguments. The fact that the Beals' lawsuit was unsuccessful does not mean that there was no adequate remedy available or that the Beals were denied due process. See Soundgarden v. Eikenberry, 123 Wn.2d 750, 768, 871 P.2d 1050 (due process requires notice and opportunity to be heard), cert. denied, 513 U.S. 1056 (1994).
Carmier's `Hit List'
Finally, we note that the Beals' declarations provided some evidence that Carmier had a `hit list' of AFHs that she wanted to shut down and that the Beals' AFH was on that list. Presumably the Beals offer this as evidence of the negligent investigation claim that we have addressed above. The Beals have not specified another cause of action to which Carmier's list might apply. When reviewing a summary judgment motion, we only consider arguments made and considered by the trial court. RAP 2.5(a); RAP 9.12; Chen v. State, 86 Wn. App. 183, 189 n. 1, 937 P.2d 612, review denied, 133 Wn.2d 1020 (1997). Moreover, because the Beals failed to support their `hit list' claim against Carmier with argument or legal authority, we cannot consider their claim further. RAP 10.3(a)(5). Such other claim, if any, is not before us on appeal. Summary judgment for DSHS was proper and we affirm.
In their brief, DSHS refers to this claim as a possible cause of action under 42 U.S.C. § 1983 (`section 1983'), which provides for remedies against individuals who violate a person's constitutionally protected state rights by `acting under color of state law.' Crisman v. Pierce County Fire Prot. Dist. No. 21, 115 Wn. App. 16, 24-25, 60 P.3d 652 (2002) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 So. Ct 2018, 56 L.Ed.2d 611 (1978)). In a section 1983 claim, there is no respondeat superior liability and a plaintiff can only pursue causes of actions against individuals. Crisman, 115 Wn. App. at 25 (citing Kitzman-Kelley v. Warner, 203 F.3d 454, 458 (7th Cir. 2000)). Moreover, a plaintiff cannot pursue section 1983 claims against the state. Edgar v. State, 92 Wn.2d 217, 221, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077 (1980). While the Beals asserted a section 1983 claim in their complaint, they did not claim that Carmier's `hit list' violated section 1983 in their opposition to summary judgment or on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, and ARMSTRONG, JJ., concur.