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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


            JAMES MARTIN HOUSTON, Petitioner/Appellant,

                                        v.

 ARIZONA STATE BOARD OF EDUCATION, a political subdivision of
          the STATE OF ARIZONA, Respondent/Appellee.

                             No. 1 CA-CV 15-0706
                               FILED 1-5-2017


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000672-001
                  The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

James Martin Houston, Roseburg, OR
Petitioner/Appellant In Propria Persona

Arizona Attorney General’s Office, Phoenix
By Jordan T. Ellel
Counsel for Respondent/Appellee



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.
                           HOUSTON v. AZSBE
                           Decision of the Court

D O W N I E, Judge:

¶1           James Martin Houston appeals the superior court’s judgment
affirming a final decision by the Arizona State Board of Education
(“Board”). For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            The Arizona Department of Education (“ADE”) issued
Houston a substitute teaching certificate in 1986. The certificate initially
included no expiration date, though it was later reissued with an expiration
date of 2099.

¶3            In 2008, the Board denied Houston’s application for a special
education teaching certificate based on findings he had engaged in
unprofessional conduct. Specifically, the Board cited three driving under
the influence convictions, as well as convictions for disorderly conduct,
unlawful possession of a firearm, and phone harassment. Houston sought
review of that decision in the superior court, but his action was dismissed
after he failed to timely file an opening brief despite receiving several
extensions of time. Houston v. State Bd. of Educ., 1 CA-CV 10-0634, 2011 WL
5926675, at *2, ¶¶ 6, 9 (Ariz. App. Nov. 22, 2011) (mem. decision). This
Court affirmed the dismissal order, and the Arizona Supreme Court denied
Houston’s petition for review.

¶4            On September 15, 2009, Houston mailed his substitute
teaching certificate to the ADE, stating that he no longer “wish[ed] to
possess” it and “requesting that it be expired immediately.” In March 2010,
the Board filed a disciplinary complaint against Houston based on the
grounds it had relied on in denying his application for a special education
teaching certificate.

¶5            After a hearing about which Houston had notice, but did not
attend, the Board’s Professional Practices Advisory Committee
(“Committee”) recommended that the Board revoke Houston’s substitute
teaching certificate. The Board adopted the Committee’s recommendation
and revoked Houston’s substitute teaching certificate.         After an
unsuccessful motion for rehearing, Houston appealed to the superior court.


1      In addition to considering the record in these proceedings, we take
judicial notice of the facts set forth in this Court’s memorandum decision in
Houston v. State Bd. of Educ., 1 CA-CV 10-0634, 2011 WL 5926675 (Ariz. App.
Nov. 22, 2011) (mem. decision).


                                     2
                            HOUSTON v. AZSBE
                            Decision of the Court

See Ariz. Rev. Stat. (“A.R.S.”) § 12-904(A). The superior court affirmed the
Board’s decision, and Houston timely appealed. This Court has jurisdiction
pursuant to A.R.S. § 12-913; see also Svendsen v. Ariz. Dep’t of Transp., Motor
Vehicle Div., 234 Ariz. 528, 533, ¶ 13 (App. 2014) (construing A.R.S. § 12-913
as permitting review by the court of appeals).

                                DISCUSSION

¶6            This Court will affirm a judgment upholding the decision of
an administrative agency if it is supported by substantial evidence and is
not contrary to law or arbitrary and capricious. Webb v. State ex rel. Ariz. Bd.
of Med. Exam’rs, 202 Ariz. 555, 557, ¶ 7 (App. 2002); see also A.R.S.
§ 12–910(E). We review questions of law, including statutory interpretation
and constitutional claims, de novo. Webb, 202 Ariz. at 557, ¶ 7.

I.     The Board Could Pursue Disciplinary Action Against Houston

¶7            Houston contends the Board exceeded its statutory authority
by initiating disciplinary proceedings after he had returned his substitute
teaching certificate to the ADE. As relevant here, A.R.S. § 15-203(B)(5)
authorizes the Board to:

       Proceed with the disposal of any complaint requesting
       disciplinary action or with any disciplinary action against a
       person holding a certificate . . . after the suspension or
       expiration of the certificate or surrender of the certificate by the
       holder.

(Emphasis added.)

¶8             We reject Houston’s contention that A.R.S. § 15-203(B)(5) only
permits the Board to continue an existing disciplinary proceeding, not to
initiate disciplinary proceedings, after a certificate is surrendered. The
plain language of the statute imposes no such limitation. On the contrary,
it authorizes the Board to proceed with “any disciplinary action” against an
individual who has surrendered his or her certificate. See Premier Physicians
Grp., PLLC v. Navarro, 240 Ariz. 193, ___, ¶ 9 (2016) (plain language of a
statute is usually the best indicator of legislative intent and when it is clear,
courts apply the plain language unless it would lead to absurd or
unconstitutional results).

¶9             Houston’s distinction between “surrender” of a license and
“return” of a license finds no support in statutory or case law authority and
is inconsistent with the Board’s purpose, as expressed by the legislature, of


                                        3
                           HOUSTON v. AZSBE
                           Decision of the Court

excluding unsuitable individuals from the teaching profession. See, e.g.,
A.R.S. §§ 15-203(A)(14) (Board shall “[s]upervise and control the
certification of persons” engaged in classroom instruction.); 15-550(A)–(B)
(requiring permanent revocation of teaching certificate upon holder’s
conviction of certain crimes); 15-534.02(A) (limiting circumstances under
which a person may apply for certification after his certificate has been
surrendered or revoked); cf. Simms v. Napolitano, 205 Ariz. 500, 503–06,
¶¶ 16–26 (App. 2003) (Department of Gaming may deny request to
withdraw application for gaming license and proceed to a final
determination because Department is legislatively mandated to protect the
public by excluding unsuitable individuals from gaming).2

¶10            Houston’s contention he was somehow disadvantaged
because his certificate did not expire until 2099, preventing him from
electing not to renew it, is unavailing. Even if his certificate had expired in
2009 and he chose not to renew it, the Board still could have filed the
disciplinary complaint against him. See A.R.S. § 15-203(B)(5) (The statute
authorizes the Board to proceed with disciplinary action “after the
suspension or expiration of the certificate or surrender of the certificate by
the holder.”).

II.    The Board Did Not Deny Houston Due Process

¶11          Houston also argues the Board denied him due process
because it did not allow him to be heard at the October 2010 Committee
hearing. The record does not support this contention.

¶12           A professional licensee maintains a property interest in his or
her license, and the State must afford due process before curtailing that
right. Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106,
¶¶ 18–19 (App. 1999). Due process is not a static concept, but generally
requires “notice and an opportunity to be heard” in a meaningful manner
and at a meaningful time. Id. at ¶ 20.

¶13          The Board was required to give Houston notice of the
Committee hearing, with a statement of the time, place, and nature of the
hearing and an opportunity to respond and present evidence. Ariz. Admin.
Code (“A.A.C.”) R7-2-703(A)–(B); see also R7-2-205(F)(6) (requiring


2      Nor does the Board’s purported willingness to allow Houston to
“return” his certificate in lieu of disciplinary action as part of a settlement
proposal control whether the Board was statutorily authorized to file a
complaint when no such agreement was finalized.


                                      4
                           HOUSTON v. AZSBE
                           Decision of the Court

Committee to conduct hearings pursuant to R7-2-701, et seq.). Houston does
not dispute that the Board complied with these requirements, but argues he
was deprived of due process because the October 2010 hearing proceeded
after he advised that he could not attend due to problems with his vehicle.

¶14           The Committee offered Houston ample opportunity to
participate in the hearing process and repeatedly rescheduled the hearing
at his request between May and October 2010. When the Committee
learned on the morning of the October hearing that Houston would not
attend in person, it made numerous attempts to reach him by telephone,
and it postponed the hearing for several hours based on a message Houston
left indicating he could appear telephonically later in the day. The
Committee was unable to reach Houston at the time he had designated, and
the hearing proceeded.

¶15            Houston had notice of the Committee hearing and an
opportunity to appear. “When [an] opportunity to be heard is granted to a
complainant who chooses not to exercise it, that complainant cannot later
plead a denial of procedural due process.” Watahomigie v. Ariz. Bd. of Water
Quality Appeals, 181 Ariz. 20, 27 (App. 1994). Contrary to Houston’s
assertion, the Committee was not required to ensure his participation. The
Code provision Houston cites states only that the Board may conduct all or
part of a hearing “by telephone, television, or other electronic means, as
long as each party has an opportunity to participate in the entire proceeding
as it takes place.” A.A.C. R7-2-713(A). As discussed supra, Houston had
the opportunity to participate in the hearing either in person or by phone.
Furthermore, Houston appeared and presented evidence to the Board —
the final decision-maker — when it considered the Committee’s
recommendation. See A.A.C. R7-2-205(A) (Committee acts in advisory
capacity to Board regarding disciplinary matters); A.A.C. R7-2-717(A)
(Committee shall prepare a recommended decision for the Board).

¶16           Under these circumstances, Houston has established no
violation of his due process rights.




                                     5
                        HOUSTON v. AZSBE
                        Decision of the Court

                           CONCLUSION

¶17        For the foregoing reasons, we affirm the superior court’s
judgment upholding the Board’s final decision.




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




                                     6
