        Fl LE
       IN CLERKS OFFICE
IUPReME ccurrr, STATE OF WASH1NG1Q11

     DATE      1\1\ Q 3      2014
  =ttw hMvif .~ .
~ Cle:JUimt:ll




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON


IN THE MATTER OF THE                           )
DISCIPLINARY PROCEEDING                        )
AGAINST:                                       )
                                               )   No. 88513-3
                   Lori A. Petersen,           )
                   Certified Professional      )   En Bane
                   Guardian No. 9713,          )
                                               )
                             Petitioner.       )   Filed     JUL 0 3 2014
 _______________ ____.)                    .



          GONZALEZ, J.---The Certified Professional Guardianship Board (Board) has

asked us to suspend guardian Lori Petersen for actions stemming from her

guardianship ofD.S. and J.S. Petersen contends that this sanction is improper and

suggests the Board has run afoul of separation of powers principles, violated the

appearance of fairness doctrine, impermissibly lowered the evidentiary standard,

 and failed to consider the proportionality of the sanction. We agree with Petersen

 as to her last contention. She has questioned, albeit obliquely, the proportionality

 of the sanction, and so the Board should have considered the sanction's magnitude
In re Petersen, No. 88513-3


relative to those imposed in other cases. Accordingly, we remand to the Board to

conduct a consistency analysis pursuant to its internal regulations and this opinion.

                       FACTS AND PROCEDURAL HISTORY

       Petersen has been a certified professional guardian since 2001. She owns

and operates Empire Care and Guardianship, a large agency serving over 60 wards.

She served on the Board from 2003 until 2009 and sat on the Standards of Practice

Committee (SOPC). 1 From December 2009 until April 2010, the Board received a

number of grievances and complaints regarding Petersen's treatment of three

wards who were all, at one point, housed at Peterson Place, an adult family home.

Following protocol, the SOPC opened files for each grievance and informed

Petersen that an investigation would be forthcoming.

       According to Petersen, Commissioner Valente, who was the chair of the

SOPC and had served on the Board with Petersen, 2 encouraged the SOPC to

conduct a factual inquest to see if the charges were substantiated. Though the




1
  Among other duties, the SOPC reviews grievances that have been filed with the Board.
Certified Prof'l Guardianship Bd. (CPGB) Program Rules 506.1 (Disciplinary Regulation (DR)
506.1). For electronic access to current DRs, see note 3, infra. When examining a grievance, the
SOPC can (1) request further information from the Administrative Office ofthe Courts (AOC),
(2) dismiss the grievance, (3) request that the board file a formal complaint, (4) request that the
Board enter into an agreement regarding discipline, or (5) direct that AOC contact the
professional guardian to discuss a minor disciplinary issue. !d. The SOPC may also "direct
AOC to obtain the statement of any person believed to have information relevant to the
grievance." DR 506.1.1.
2
  Petersen believes her confrontational relationship with Commissioner Valente during her tenure
on the Board precipitated his actions. Opening Br. of Lori Petersen at 30-31.
                                                2
In re Petersen, No. 88513-3


record is silent on this point, presumably the SOPC agreed because Commissioner

Valente conducted an inquest hearing in his courtroom on July 15, 2010. At this

hearing, Petersen was sworn in, was represented by counsel, and was given the

opportunity to present testimony and offer evidence. Commissioner Valente also

questioned Petersen at length with no objections from Petersen's attorney. As a

result of these hearings, Commissioner Valente composed several written opinion

letters that he sent to Petersen and others involved in the proceeding. To the

Board, he recommended that a complaint be filed. The Board agreed and served

Petersen with a complaint on Apri125, 2012. In it, the Board charged Petersen

with violating nine different standards of practice (SOPs). 3 Petersen filed a timely

answer that denied all the allegations and set out affirmative defenses. Petersen

also sought to have the complaint dismissed with prejudice and to be reimbursed

for costs and attorney's fees. When attempts to reach an agreed settlement failed,

the Board served Petersen with a notice of hearing.

       Two and a half days of hearings were held in late October 2012 before

Hearing Officer Roderick Simmons. Each side was allowed to submit briefing.

The Board presented seven witnesses, and Petersen called four, including herself,


3 The SOPs have been renumbered since this action began. Because the CPGB Guardianship
Program Rules ch. 400 (SOPs) are not available under the former codification, we cite the
current numeration as long as the substance of the standard has remained substantially the same.
In cases where the standards have been amended, they are cited as former SOP and a footnote
with the text of the standard is provided. Current SOPs and DRs are available at
http://www. courts. wa. gov /programs_orgs/Guardian/?fa=guardian. display &fileN ame=rulesindex.
                                               3
In re Petersen, No. 88513-3


to the stand. A joint binder of exhibits was also admitted. The hearing officer

considered all the evidence and testimony and entered findings of fact, conclusions

of law, and a recommendation.

A. Findings Regarding the Guardianship of D.S.

       D.S. was an elderly woman who suffered from dementia. She was placed at

Peterson Place when her granddaughter could no longer provide adequate care.

Petersen became D.S.'s guardian in March 2009. In August 2009, D.S.'s

granddaughter asked Heidi Peterson4 to obtain new glasses for D.S. because D.S.

was an avid reader and her old glasses were scratched and broken. Petersen did

not think D.S. needed a new pair but permitted Heidi Peterson to look into the

matter. Heidi Peterson took D.S. to the optometrist for an initial appointment. But

there was no follow up, and the optometrist's office could not reach Petersen. This

resulted in a considerable delay that the Hearing Officer found inexcusable and

unnecessary. Ex. 10, at 830 (Findings ofFact (FF), Conclusions ofLaw (CL), &

Recommendations to Bd. for Action). He determined that Petersen was dismissive

of the need to replace the glasses and that "she exhibited little enthusiasm for

completing the steps necessary to facilitate this activity of daily living that is so




4
  Heidi Peterson is the owner of Peterson Place Adult Family Home, where D.S. was living at the
time that Petersen was her guardian.
                                               4
In re Petersen, No. 88513-3


enjoyed by D.S." !d. at 829. The hearing officer determined this was a violation

of SOP 402.2 5 and 405.1. 6

       In October 2009, Heidi Peterson notified Petersen that D.S. 's physical

condition had worsened and Petersen authorized a trip to the hospital. Petersen

failed to inform D. S. 's family of these events until after the hospitalization began,

which the hearing officer determined to be a violation of SOP 402.2 and 405 .1.

       Toward the end of October 2009, Petersen decided to move D.S. from

Peterson Place. Petersen claimed the move was necessary because the facility did

not provide 24-hour nursing care. The hearing officer found that Petersen made

"no showing that any quality of care issues could not have been addressed by

discussion and communication." !d. at 830. Also, the hearing officer found that

Petersen was dismissive of and incommunicative with D.S. 's family members.

Because Petersen did not have justification to move D.S. and because she did not

seek input from D.S.'s friends and family, Hearing Officer Simmons found she

violated SOP 402.2 and 405 .1.



5
  "The guardian, where appropriate, shall consider the views and opinions of profession~ls,
relatives, and friends who are knowledgeable about the incapacitated person." SOP 402.2.
6
  "The primary standard for decision-making is the Substituted Judgment Standard based upon
the guardian's determination of the incapacitated person's competent preferences, i.e. what the
incapacitated person would have decided when he or she had capacity. The guardian shall make
reasonable efforts to ascertain the incapacitated person's historic preferences and shall give
significant weight to such preferences. Competent preferences may be inferred from past
statements or actions of the incapacitated person when the incapacitated person had capacity."
SOP 405.1.
                                               5
In re Petersen, No.   88513~3



B. Findings Regarding the Guardianship of JS.

        J.S. was 18 years old when Petersen became his guardian. He suffered from

a hereditary spinocerebellar ataxia disorder that caused muscle spasticity and

blindness, rendered him wheelchair bound, and shortened his life expectancy.

Despite these physical limitations, J.S. was able to express his desires and was

aware of the terminal nature of his disease. He was moved from a family

member's house, where he was being abused, into Peterson Place in May 2009.

The hearing officer found that Petersen knew how deeply J.S. was affected by this

move.

        Nonetheless, on October 30,2009, Petersen's staff moved J.S. out of

Peterson Place and into a hospice facility. The move occurred nine days after a

petition to replace Petersen as J.S. 's guardian was filed. Petersen believed the

move was necessary due to an order J.S.'s doctor issued on October 29, 2009 that

recommended that J.S. receive hospice care or be put in a skilled nursing facility.

No one spoke to J.S. about the move nor sought to learn his wishes.

        Melody Hayashi-Taisy, J. S.' s teacher, friend, and advocate, came to

Peterson Place as soon as she learned of the pending move. She described the

scene as chaotic. J.S. was upset that he was being moved and understood that

hospice care was for terminally ill patients. During this process, Petersen was not

at Peterson Place and did not directly oversee the move.


                                           6
In re Petersen, No. 88513-3


       Ultimately, J.S. was taken to the hospice facility without his reclining

wheelchair, which was a source of security for him and where he preferred to

spend substantial time. Once there, J.S. sobbed, screamed, and was disruptive.

Staff at the facility did not know what to do and could not reach Petersen, so they

called Hayashi-Taisy instead. Hayashi-Taisy brought J.S. his wheelchair and

stayed with him until he went to sleep. On November 4, 2009, Petersen was

replaced as J.S.'s guardian. With his doctor's consent, the new guardian moved

J.S. back into Peterson Place and arranged for 24-hour nursing care there.

       The hearing officer found that Petersen exhibited no regard for J.S. 's

interests or opinions in moving him to hospice care. Petersen did not explain why

she failed to consider placing J.S. in a skilled nursing facility or arrange for

appropriate care at Peterson Place. The hearing officer found that this lack of

regard for J.S.'s wishes and needs, especially during days that were then-perceived




                                            7
In re Petersen, No. 88513-3


to be his last, was in violation of SOP 403.1 7 and 402.2 and former SOP 401.12, 8

401.15, 9 and 404.5. 10

C. Recommended Sanctions

       The hearing officer found that the SOPs that Petersen violated involved the

paramount duty of a guardian--to actively seek information and input from the

ward and others close to the ward to ensure appropriate care and residential

placement decisions. Hearing Officer Simmons also considered the relevant

aggravating and mitigating factors and the weight that each factor should be given

in making his recommendation to the Board. Specifically, he determined that

Petersen's significant experience as a guardian, her failure to aclmowledge her

wrongful conduct, her prior disciplinary history, and the vulnerability of her wards

were all aggravating circumstances that should be given significant weight.

Though he determined that Petersen's cooperation and her willingness to take



7
  "The civil rights and liberties of the incapacitated person shall be protected. The independence
and self-reliance of the incapacitated person shall be maximized to the greatest extent consistent
with their protection and safety. The guardian shall protect the personal and economic interests
of the incapacitated person and foster growth, independence, and self-reliimce." SOP 403.1.
8 "When possible, the guardian will defer to an incapacitated person's autonomous capacity to

make decisions." Former SOP 401.12.
9
  "Guardians of the Person shall have meaningful in-person contact with their clients as needed
and shall maintain telephone contact with care providers, medical staff and others who manage
aspects of care as needed an appropriate. Meaningful in-person contact shall provide the
opportunity to observe the incapacitated person's circumstances and interactions with care
providers." Former SOP 401.15. ·
10
   "The guardian, shall, to the extent possible, select residential placements which enhance the
quality of life of the incapacitated person, provide the opportunity to maximize the independence
of the incapacitated person, and provide for physical comfort and safety." Former SOP 404.5.
                                                8
In re Petersen, No. 88513-3


cases from Adult Protective Services were mitigating circumstances, Hearing

Officer Simmons did not afford these factors much weight. Finally, he found that

both D.S. and J.S. suffered actual, significant injuries.

       Given these findings, Hearing Officer Simmons determined that a letter of

reprimand was insufficient. Instead, he recommended that Petersen be (1)

suspended for one year for her misconduct regarding the relocation ofD.S. and

J.S.; (2) concurrently prohibited from taking new cases for 3 months for the delay

in obtaining new glasses for D.S.; (3) subjected to a probationary period of24

months postsuspension, where any relocation decision would be reviewed by a

different certified professional guardian; and (4) required to pay costs of

proceedings.

       The hearing officer's findings of fact, conclusions of law, and

recommendation as well as Petersen's objection were submitted to the Bo.ard. The

Administrative Office of the Courts also submitted a declaration that documented

the fees and costs associated with the disciplinary matter, which totaled

$40,366.16. The Board considered the matter at its January 30,2013 meeting. The

board members who did not have a conflict of interest voted six to one to adopt the

hearing officer's recommended sanctions. They declined to impose thecosts

associated with hiring the hearing officer, lowering the fees to $32,393.66. The

lone dissenting board member argued that no fees should be imposed because the


                                            9
In re Petersen, No. 88513-3


hearing officer did not state a basis for imposing fees, he did not know the amount
                                       . .        .            .

of fees that would be imposed, and that the imposition of fees and costs should be

equitable and in proportion to the misconduct. The Board submitted the record and

its recommendation for our review. Petersen petitioned this court to permit

briefing and oral argument. We granted the petition and now affirm in part and

remand for further proceedings consistent with this opinion.

                                    ANALYSIS

Standard of review

       Petersen takes issue both with Hearing Officer Simmons's factual findings

and his conclusions of law. We give "a hearing officer's findings of fact

'considerable weight,' ... and will uphold the findings where they are supported

by 'substantial evidence."' In re Disciplinary Proceeding Against Ferguson, 170

Wn.2d 916, 927, 246 P.3d 1236 (2011) (quoting In re Disciplinary Proceeding

Against Botimer, 166 Wn.2d 759,767, 214 P.3d 133 (2009)). The burden is on the

party challenging the findings of fact to properly assign error and to establish that

specific challenged findings are not supported by the record. See In re

Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184, 191, 117 P.3d 1134

(2005) (quoting In re Disciplinary Proceeding Against Kagele, 149 Wn.2d 793,

814, 72 P.3d 1067 (2003); In re Disciplinary Proceeding Against Haskell, 136




                                             10
In re Petersen, No. 88513-3


Wn.2d 300, 311, 962 P.2d 813 (1998)). Because Petersen has failed to properly

assign error to the hearing officer's factual findings, we do not disturb them.

       We review legal questions and the Board's conclusions of law de novo. See

In re Disciplinary Proceeding Against Whitt, 149 Wn.2d 707, 717, 72 P.3d 173

(2003).

A. Separation ofpowers

       "Our constitution does not contain a formal separation of powers clause."

Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009) (citing CONST. art. II,§

1, art. III, § 2, art. IV, § 1; Carrick v. Locke, 125 Wn.2d 129, 134-35, 882 P.2d 173

(1994)). '"Nonetheless, the very division of our government into different

branches has been presumed throughout our state's history to give rise to a vital

separation ofpowers doctrine."' Id. (quoting Carrick, 125 Wn.2d at 135). "'The

doctrine serves mainly to ensure that the fundamental functions of each branch

remain inviolate."' Id. (quoting Carrick, 125 Wn.2d at 135). At its crux, "'[t]he

question to be asked is not whether two branches of government engage in

coinciding activities, but rather whether the activity of one branch threatens the

independence or integrity or invades the prerogatives of another."' Carrick, 125

Wn.2d at 135 (quoting Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975)).

A delegation of authority must involve (1) standards to guide the agency and (2)




                                           11
In re Petersen, No. 88513-3


procedural safeguards to control for abuse of discretionary power. State v.

Simmons, 152 Wn.2d 450, 455, 98 P.3d 789 (2004).

       Petersen does not claim that the Board has been provided no standards to

guide its actions. Instead, she argues that the Board has been delegated executive,

legislative, and judicial power in violation of separation of powers because of

insufficient procedural safeguards to control its administrative action. See Opening

Br. of Lori A. Petersen at 17. She concludes that separation of powers and her due

process rights have been violated because her disciplinary proceeding did not

mirror the one approved in Simmons, which concerned the legislature's delegation

of rule making authority to the Department of Corrections (DOC). This is not an

apt comparison. Not only is Simmons distinguishable but also adequate process

has been provided. Most importantly, none of the powers delegated to the Board

threaten the integrity, independence, or prerogatives of any other branch of

government.

1. The Board's authority and structure

       To be regulated by the Board, a guardian must first fall under the statutory

definition of "certified professional guardian" in RCW 11.88.008. 11 GR 23(a).




11
  "As used in this chapter, 'professional guardian' means a guardian appointed under this
chapter who is not a member of the incapacitated person's family and who charges fees for
carrying out the duties of court-appointed guardian of three or more incapacitated persons."
RCW 11 .88.008.
                                               12
In re Petersen, No. 88513-·3


But '"guardianships are equitable creations of the courts and it is the court that

retains ultimate responsibility for protecting the ward's person and estate."' In re

Guardianship o.fLamb, 173 Wn.2d 173, 184,265 P.3d 876 (2011) (quoting In re

Guardianship of Hallauer, 44 Wn. App. 795, 797, 723 P.2d 1161 (1986)). The

Board was created by this court to oversee the certification, regulation, and

discipline of professional guardians and related agencies. See id. at 185. We select

the Board's members, oversee the Board's actions, ratify the Board's decisions,

and enforce the Board's orders. See GR 23(c)(1)(i), (iii), (2)(v), (x)(c), (3).

         Despite our oversight of final decisions, we delegated numerous regulatory

and rule making tasks to the Board. As part of its duties, the Board must adopt and

implement SOPs that govern the minimum standards that professional guardians

must meet. 12 GR 23( c)(2)(ii). The Board must also adopt and implement

procedures for reviewing grievances and imposing disciplinary sanctions when

professional guardians fail to comply with relevant standards, statutes, duties, or

other requirements. GR 23 (c)(2)( viii). The Board can investigate potential


12
     In Guardianship of Lamb, we summarized the purpose of SOP provisions:

          These standards direct guardians to provide timely and accurate reports to the court, act
        . within the scope of the appointed guardianship, consult with the incapacitated person and
          defer to that person's autonomous decision-making capacity when possible, cooperate
          with professional caregivers and relatives of the incapacitated person, and seek
          independent professional evaluations and opinions when necessary to identify the
          incapacitated person's best interests.

 173 Wn.2d at 185.
                                                 13
In re Petersen, No. 88513-3


violations on its own initiative and has authority to conduct hearings and issue

enforceable orders. GR 23( c)(2)(ix)-(x). To help carry out these duties, the Board

has promulgated rules and regulations, SOPs, and Disciplinary Regulations (DRs).

2. The powers delegated to the Board do not undermine the integrity,
independence, or prerogatives of any other branch

       Petersen challenges our delegation of a quasi-legislative power (rule

making), quasi-executive power (investigation and prosecution), and quasi-judicial

power (conducting hearings) to the Board. This, however, is insufficient to

maintain a separation of powers violation. Like attorneys, guardians are officers of

the court. See Seattle-First Nat'! Bank v. Brommers, 89 Wn.2d 190, 200, 570 P.2d

103 5 ( 1977) ("The court having jurisdiction of a guardianship matter is said to be

the superior guardian of the ward, while the person appointed guardian is deemed

to be an officer of the court."). Like with attorney discipline, with guardian

discipline "[w ]e have 'the inherent power to promulgate rules of discipline, to

interpret them, and to enforce them."' In re Disciplinary Proceeding Against

Haley, 156 Wn.2d 324,333, 126 P.3d 1262 (2006) (emphasis omitted) (quoting in

re Disciplinary Proceeding Against Stroh, 97 Wn.2d 289, 294, 644 P.2d 1161

(1982)).

        With such broad plenary power over guardianship practice, our delegation of

rule making, investigation and prosecution, and adjudication to the Board does not

run afoul of separation of powers principles. Furthermore, combining such powers
                                          14
In re Petersen, No. 88513-3


in a disciplinary and regulatory board is well precedented. See In re Disciplinary

Proceeding Against Deming, 108 Wn.2d 82, 106-07, 736 P.2d 639 (1987) ("The

failure to strictly adhere to a complete separation of the investigatory, prosecutory

and adjudicatory phases is not always a violation of due process."). Here, the

Board's authority does not impinge on the legislature's prerogative to statutorily

define "certified public guardian" or the executive's ability to investigate and

prosecute guardians under the law. All of the Board's regulatory authority is that

within the province of the judiciary, and so the delegation is proper.

3. There are enough procedural safeguards to ensure that the power delegated by
this court is not abused or arbitrarily administered

       Though the Board's procedures do not mirror those approved in Simmons,

they are sufficient to satisfy due process considerations in guardianship discipline.

Simmons concerned the legislature's delegation of rule making authority to the

DOC that effectively allowed the agency to define criminal conduct, traditionally a

core legislative function. 152 Wn.2d at 452, 457. Simmons, who was in the

custody of the DOC, was charged with persistent prison misbehavior under RCW

9.94.070. ld. at 452. He argued that the statute impermissibly delegated

legislative authority to the DOC. Jd. 13 We disagreed because "[t]he DOC afforded

Simmons with access to the disciplinary code upon his admission into custody, the


13
 The statute in question allowed the DOC to enact rules that defined the serious infractions that
would constitute criminal misbehavior.
                                               15
In re P_etersen, No. 88513-3


right to appeal any adverse disciplinary hearing findings to the prison

superintendent, and the constitutional rights attendant to a criminal proceeding."

Id. at 458.

       Here, the Board is not criminalizing behavior or defining terms in a statutory

scheme, and so the cases present very different concerns. Nonetheless, the Board

has enacted a set of procedures that give comparable protections to guardians

facing discipline. The Board ( 1) provides sufficient notice of all regulations to

certified professional guardians; 14 (2) treats a hearing officer's findings of fact and

conclusions of law in discipline cases as a recommendation; 15 and (3) judicial

review is mandatory for cases that result in suspension or decertification. 16

       The Board's structure and authority do not violate any separation of powers

principles. Our plenary authority over guardianships, our delegation of exclusively



14
   The Board is required to provide notice whenever any regulation is being adopted, repealed, or
modified. CPGB Guardianship Program Rules 602.1 (Procedure for Adoption Amend. & Repeal
of Regulations (Reg.) 602.1). All notices must have the text of the proposed change. Reg.
602.1.1. All proposed changes must also be posted on the Board's web site as well as sent
electronically to the Washington Association of Professional Guardians and all certified
professional guardians individually to facilitate public comment. Reg. 602.2.1, 602.2.2, 602.2.3.
15 By regulation, a hearing examiner's findings of fact and recommendation is merely a

recommendation to the Board, which has an opportunity to review the findings and to accept,
reject, or modify them. DR 512. The record adequately shows that the Board reviewed the
recommendation in Petersen's case. Ex. 17, at 1616-1 7 (Bd. Special Called Exec. Session
Meeting). And so, like the litigant inSimmons whose case was reviewed by the superintendent,
Petersen did receive a second look from an administrative source.
16
   This court must review all disciplinary cases that result in a recommendation of suspension or
decertification. DR 513 .2. Although we generally do not accept briefing or hear oral arguments
in such cases, we do review a complete record and have the authority to adopt, modify, or
reverse the Board's findings by written order. DR 513.3.
                                               16
In re Petersen, No. 88513-3


judicial authority, and the adequacy of the procedures afforded during the

disciplinary process permit the melding of quasi-legislative, quasi-judicial, and

quasi -executive powers in this context.

B. Appearance offairness doctrine

       Petersen believes that Commissioner Valente's actions as a member of the

SOPC and his persistence in pursuing the disciplinary actiori violate the appearance

of fairness doctrine. See Opening Br. of Lori A. Petersen at 30. She also claims

that Hearing Officer Simmons's financial interest in being retained for future

disciplinary proceedings also runs afoul of this doctrine. See id. at 32. We

disagree.

       We apply the appearance of fairness doctrine to quasi-judicial proceedings

in two circumstances: "(1) when an agency has employed procedures that create

the appearance of unfairness and (2) when one or more acting members of the

decisionmaking bodies have apparent conflicts of interest creating an appearance

of unfairness or partiality." City of-Hoquiam v. Pub. Emp 't Relations Comm 'n, 97

Wn.2d 481,488, 646 P.2d 129 (1982) (citation omitted). That said, "we detect no

inherent unfairness in the mere combination of investigative and adjudicative

functions, without more, that would prompt invocation of the appearance of

fairness doctrine. [Also, w ]e must presume the board members acted properly and

legally performed their duties until the contrary is shown." Wash. Med.


                                           17
In re Petersen, No. 88513-3


Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 479, 663 P.2d 457 (1983) (emphasis

added).

       Though Commissioner Valente's inquest may be characterized as

prosecutorial and therefore exempt from the appearance of fairness doctrine, 17 to

an outside observer the hearing bore many hallmarks of a judicial or quasHudicial

proceeding. The hearing was conducted in his courtroom during court hours, and

Petersen was represented by counsel and gave testimony under oath. Accordingly,

in this instance, we apply the appearance of fairness inquiry to the inquest.

       Petersen characterizes Commissioner Valente's inquest as "unprecedented

crusading" and essentially contends that the disciplinary action is a result of his

personal vendetta and bias against her. See Opening Br. of Lori A: Petersen at 30.

Nothing in the record, other than Petersen's allegations, supports this contention.

In fact, the hearing officer found that "[t]he transcripts from the hearings

[Commissioner Valente] conducted and the written opinion letters he issued

demonstrate he acted fairly in all particulars related to these grievances." Ex. 10,

at 828 (FF, CL, & Recommendations to Bd. for Action). Without any material

evidence suggesting impropriety or properly assigning error to the hearing officer's

finding, Petersen fails to satisfy the "something more" requirement that is


17
   The doctrine does not apply to executive functions such as prosecutorial inquests or coroner
inquests. See State v. Finch, 137 Wn.2d 792, 809-10, 975 P.2d 967 (1999); Carrick, 125 Wn.2d
at 140-43.
                                               18
In re Petersen, No. 88513-3


necessary for an appearance of fairness violation and so her charge against

Commissioner Valente must fail. See Johnston, 99 Wn.2d at 479.

       The same can also be said of Petersen's charge against Hearing Officer

Simmons. That the Board paid the hearing officer for his services is not sufficient

to maintain an appearance of fairness violation.

       We presume that judicial hearings and judges are fair. In re Disciplinary

Proceeding Against King, 168 Wn.2d 888, 904, 232 P.3d 1095 (2010). "Hearing

officers are not judges, but we trust and empower them to preside over

proceedings, take evidence, make findings of fact, and do other duties analogous to

the role of a judge. The presumption of fairness for judges likewise applies to

hearing officers in attorney disciplinary proceedings." Id. When an attorney

facing discipline brought a similar charge against his hearing examiner, we

summarily rejected this argument. See In re Disciplinary Proceeding Against

Marshall, 167 Wn.2d 51, 69,217 P.3d 291 (2009). 18 We extend this logic and

apply it in guardian discipline as well. Petersen has failed to adduce facts that

prove Hearing Officer Simmons was biased, had a conflict of interest, or would

seem unfair to a reasonable observer, and so this claim must also fail.




18
  We found the hearing officers' "salary does not bias him any more than the salary paid to any
judge who hears cases brought by the State of Washington. Additionally, [his] involvement and
discussions relating to improving hearing officer performance does not show bias or the
appearance ofunfairness." Marshall, 167 Wn.2d at 69.
                                               19
In re Petersen, No. 88513-3


C. Proper evidentiary standard

       Prior to the fall of 2011, the Board was required to prove guardian

misconduct by clear and convincing evidence before disciplinary sanctions could

be imposed. During its September 2011 meeting, the Board considered changing

its regulation to require a preponderance of the evidence standard of proof in light

of our decision in Hardee v. Dep 't of Soc. & Health Servs., 172 Wn.2d 1, 256 P.3d

339 (2011). Two months later, the Board voted to adopt the preponderance

standard. Petersen claims this change violated her due process rights. She argues

that the amount of education and testing necessary to become a certified

professional guardian entitles her to have the hearing examiner apply the clear and

convincing evidence standard. Opening Br. of Lori A. Petersen at 33-34. Petersen

argues that guardians should be treated like physicians for the purposes of this

inquiry and that Nguyen v. Dep 't ofHealth, Med. Quality Assurance Comm 'n, 144

Wn.2d 516,29 P.3d 689 (2001), rather than Hardee, is controlling. She is

mistaken. Applying the Mathews v. Eldridge three-part balancing test, 19 we are

satisfied that a preponderance of the evidence standard adequately protects




 19
  Under Mathews, we must balance (1) the private interest at stake, (2) the risk of an erroneous
deprivation of the interest and probable value of additional procedural safeguards, and (3) the
government's interest including fiscal and administrative burdens that the additional procedures
would entail. 424 U.S. at 335.
                                               20
In re Petersen, No. 88513-3


Petersen's property interest in continued certification. 424 U.S. 319, 335, 96 S. Ct.

893, 47 L. Ed. 2d 18 (1976).

1. Mathews Test: private interest

       The private interest involved in certification is substantial, but not as

substantial as licensing for a physician. To become a professional certified

guardian, an applicant must ( 1) be over 18 years of age and of suitable character;

(2) have an associate's degree and four years' experience, have a bachelor's degree

and two years' experience, or have a higher degree and one year's experience; and

(3) have successfully completed a nine month certificate program. GR 23(d)(l).

In comparison, "[b ]ecoming a licensed physician requires a four year

undergraduate degree, a four year postgraduate degree, and additional years of

residency training. Physicians must pass multiple tests and examinations before

licensure and maintain continuing educational requirements thereafter." Hardee,

172 Wn.2d at 13. The required work experience, nine month certificate program,

and college degree are not commensurate with the requirements for medical

practice. Furthermore, nothing but the certificate requirement is specific to

guardianship practice, which also diminishes the private interest to some degree.

2. Mathews Test: risk of erroneous deprivation

       The risk of erroneous deprivation of a guardian's ability to practice may not

be substantially decreased by a higher evidentiary standard because the Board's


                                            21
In re Petersen, No. 88513-3


disciplinary process already includes procedural safeguards that minimize the

potential of wrongful suspension or decertification.

       Virtually all procedural safeguards available in comparable professional

discipline processes are afforded guardians. A copy of a valid grievance is sent to

the guardian who then has an opportunity to respond in writing. DR 504.5. The

SOPC then reviews the grievance for merit and provides a recommendation to the

Board. DR 505.1. Guardians can be represented by counsel at all stages ofthe

proceeding. DR 509.1. Formal proceedings begin after the guardian has been

served with a complaint that sets out specific alleged violations and supporting

facts. DR 51 0.1. The guardian may file a response to the complaint. DR 51 0.5,

510.7. Prior to any hearing, the parties must exchange witness lists and exhibits.

DR 511.12. Both the Board and the guardian may subpoena witnesses and present

witness testimony at the hearing. DR 511.9, 511.11. Some discovery is available.

DR 511.10. When considering what action to take, the Board reviews the hearing

officer's findings of fact, conclusions of law, and recommendation alongside the

guardian's statement in opposition and rebuttal, if one is filed. DR 512.2, 512.3.

Finally, this court reviews all decisions that seek to suspend or decertify the

guardian. DR 513 .2. During this process, a guardian will not have his or her

certification suspended unless there is a substantial risk of injury to the public or

the guardian fails to cooperate. DR 519. An intermediate evidentiary standard


                                           22
In re Petersen, No. 88513-3


may well provide guardians facing discipline additional protections from the risk

of erroneous deprivation. Nonetheless, we are satisfied that, given the other

existing safeguards, this risk is sufficiently remote even with the preponderance

standard.

3. Mathews Test: governmental interest

       The State's interest, on the other hand, is very significant. The State is the

ultimate guardian of the ward and bears responsibility for protecting the ward's

person and estate, while the appointed guardian is just an officer of the court. See

Guardianship of Lamb, 173 Wn.2d at 184; Brommers, 89 Wn.2d at 200. More

importantly, guardians are appointed only for the most vulnerable individuals who

are incapable of making their own critical decisions, much less vindicating their

rights. This factor weighs strongly in favor of finding the lower standard of proof

is sufficient in guardian discipline cases. Like the lead opinion concluded in

Hardee, here too it is critical that the Board be able to effectively regulate

guardians so as to protect the most vulnerable individuals. See 172 Wn.2d at 12.

       We find no error in the Board's decision to apply a preponderance standard

to its disciplinary process: the private interest involved does not outweigh that of

the State, and the Board has provided ample procedures to ensure that the risks of

erroneous deprivation are minimal.

D. Proportionality analysis


                                           23
In re Petersen, No. 88513-3


        Petersen questions whether the sanctions that the Board recommends are

overly severe for the charged offense. See Opening Br. of Lori A. Petersen at 42-

43. Generally, the party facing discipline "bears the burden of showing the

Board's recommended sanction is not proportionate." In re Disciplinary

Proceeding Against Preszler, 169Wn.2d 1, 38, 232 P.3d 1118 (2010). Though we

maintain this principle, we find sufficient reasons to depart from it in this particular

case.

        Petersen must bear the burden of proving disproportionality. But we remain

mindful of the Board's regulations, which establish that the SOPs

        are designed to promote:

        Consideration of all factors relevant to imposing the appropriate level of
        sanction in an individual case;

        Consideration of the appropriate weight of such factors in light of the stated
        goals of guardian discipline; and

        Consistency in the imposition of disciplinary sanctions for the same or
        similar offenses."

DR 501. Because this is a case of first impression and the Board aspires to

consistency with disciplinary sanctions, we remand to the Board to consider

whether the sanctions sought against Petersen, including the monetary fees, are

consistent with those imposed in other cases. Hearing Officer Simmons explicitly

discussed the relevant factors and the weight he afforded them in reaching a

recommendation of suspension and probation. He did not, however, consider
                                           24
In re Petersen, No. 88513-·3


whether this recommendation deviatef] significantly from other disciplinary

actions. We believe the circumstances ofthis case and the severity ofthe sanctions

and fees in light of the charges brought by Petersen warrant an explicit

proportionality inquiry. 20

       We remand for an explicit proportionality inquiry in large part because this

is the first case where we have had the opportunity to hold oral argument and enter

a written opinion. Henceforth, this court will consider proportionality only if it is

properly raised below.

                                        CONCLUSION

       Both in structure and in practice, the Board is constitutional. There has been

no violation of separation of powers, and, given the record before us, there has

been no violation of the appearance of fairness doctrine either. Moreover,

considering the gravity of the governmental interest involved and the many

procedural safeguards provided, we find a preponderance of the evidence to be a


20
  This means the Board must consider the penalties that were imposed in past cases that appear
to involve similar violations of regulations or similar punishments as that in the present case.
See, e.g., Inre Broom, CPG No. 10300, CPGB No. 2011-014 (2012); In re Gaherin, CPG No.
10330, CPGB Nos. 2010-020,2011-021 (2011); In re Nelson, CPG No. 10082, CPGB Nos.
2010-025, 2011-005,2011-010 (2012). We acknowledge that most ofthe Board's prior cases
were resolved by agreed settlement, and so they may well be distinguishable for that reason
alone. We also acknowledge that not all cases involve the same aggrayating and mitigating
circumstances, and therefore a deviatimi in punishment may be justified. Nonetheless, the Board
must provide its reasoning for its recommended sanction not just in reference to the conduct of
the guardian but also in reference to past disciplinary matters. ·This way we will be able to assess
whether the recommended punishment is consistent with other similar cases and thus whether the
directives of DR 501 have been satisfied by the Board.

                                                 25
In re Petersen, No. 88513-3


constitutionally adequate evidentiary standard for disciplinary proceedings.

Nonetheless, we remand this case to the Board so it cah determine whether the

sanction that it has asked us to impose promotes consistency.




                                         26
In re Petersen, No. 88513-3




WE CONCUR:




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