                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                          WENDI CLECKNER,
                           Plaintiff/Appellant,

                                   v.

                     ARIZONA DEPARTMENT OF
                      HEALTH SERVICES, et al.,
                         Defendants/Appellees.

                          No. 1 CA-CV 17-0749
                            FILED 1-10-2018


          Appeal from the Superior Court in Maricopa County
                         No. CV2015-053512
              The Honorable John R. Hannah, Jr., Judge

                              AFFIRMED


                               COUNSEL

Law Office of Julie Gunnigle, PLLC, Scottsdale
By Julie R. Gunnigle
Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix
By Aubrey Joy Corcoran
Counsel for Defendants/Appellees



                               OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.
          CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                       Opinion of the Court

J O H N S E N, Judge:

¶1           A midwife appeals the superior court's dismissal of her
complaint challenging rules the Arizona Department of Health Services
issued regulating the practice of midwifery. We conclude the Department
had authority to issue the rules and affirm.

              FACTS AND PROCEDURAL BACKGROUND

¶2              Under Arizona law, anyone other than a registered nurse, a
licensed physician or someone supervised by a physician usually must be
licensed as a midwife to deliver a baby or to provide "health care related to
pregnancy, labor, delivery and postpartum care of the mother and her
infant." Ariz. Rev. Stat. ("A.R.S.") §§ 36-751 (2018), -752 (2018).1 The
legislature has granted the Department broad authority to "[d]efine and
describe . . . the duties and limitations of the practice of midwifery [and]
[a]dopt standards with respect to the practice of midwifery designed to
safeguard the health and safety of the mother and child." A.R.S. § 36-755(B)
(2018). In 1994, the Department issued detailed rules for the licensing of
midwives, circumscribing the services a midwife may perform and
imposing requirements for documenting and reporting patient
information. See generally Ariz. Admin. Code ("A.A.C.") R9-16-101 to -117.

¶3             In 2012, after lobbying by the Arizona Association of
Midwives, the legislature passed and the governor signed House Bill
("H.B.") 2247, which, in relevant part, provided as follows:

        A. On or before July 1, 2013, the [Department] shall consider
        adopting rules regarding midwifery that concern the
        following:

        1. Reducing the regulatory burden on midwives who are
        licensed [by the Department] . . . and streamlining the
        regulation process.

        2. Consistent with the requirements of title 36, chapter 6,
        article 7, Arizona Revised Statutes, revising the midwifery
        scope of practice pursuant to subsections B, C and D of this
        section.



1       Absent material revision, we cite the current version of a statute or
rule.


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         CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                      Opinion of the Court

                              *      *      *

      B. Any party that is interested in increasing the scope of
      practice of midwifery must submit a report to the director of
      the [Department] that contains the following:

      1. A definition of the problem and why an increase in the
      scope of practice is necessary.

      2. The available evidence-based research that demonstrates
      that the interested current practitioners are competent to
      perform the proposed scope of practice.

      3. The extent to which an increase in the scope of practice may
      harm the public.

      C. On receipt of the report prescribed in subsection B of this
      section, the director shall appoint a midwifery scope of
      practice advisory committee to assist the director in adopting
      and amending rules related to midwifery scope of practice.

H.B. 2247, 2012 Ariz. Sess. Laws, ch. 93, § 1 (2d Reg. Sess.). The measure
also provided that, upon receipt of a report proposing an increase in the
scope of practice, the "scope of practice advisory committee" must hold a
public meeting to receive comments and thereafter must make
recommendations concerning "proposed rules relating to a change in the
scope of practice." H.B. 2247 § 1(C) & (E). Finally, upon receipt of the
advisory committee's recommendations, the Department "shall conduct a
public meeting to receive comment on the final draft of the proposed rules."
H.B. 2247 § 1(E).

¶4           After receiving two reports urging expansion of the
midwifery scope of practice, the Department created an advisory
committee and ultimately issued revised regulations in 2013. See 19 Ariz.
Admin. Reg. ("A.A.R.") 1805 (eff. July 1, 2013); 2012-2013 Scope of Practice
Advisory                 Committee                   –               Home,
https://www.azdhs.gov/licensing/special/midwives/index.php#commi
ttees-spac-home (last visited Nov. 28, 2018). Wendi Cleckner, a midwife,
challenged the rules by filing a complaint in superior court alleging the
regulations exceeded the Department's authority under H.B. 2247.2 She

2      Cleckner was a member of the advisory committee the Department
created to consider the revisions. The advisory committee met seven times



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         CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                      Opinion of the Court

asserted the revised rules narrow the midwifery scope of practice and
thereby violate A.R.S. § 41-1030(C) (2018) because H.B. 2247 authorized the
Department only to increase the midwifery scope of practice, not to narrow
it.

¶5          The Department moved to dismiss the complaint pursuant to
Arizona Rule of Civil Procedure 12(b). Over Cleckner's objection, the
superior court dismissed four of her eight claims and entered final
judgment under Arizona Rule of Civil Procedure 54(b). Cleckner timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2018) and -2101(A)(1)
(2018).

                               DISCUSSION

A.     Standard of Review.

¶6             We review de novo a superior court's ruling on a motion to
dismiss. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8 (2012). In
determining whether a complaint states a claim for relief, "Arizona courts
look only to the pleading itself." Cullen v. Auto-Owners Ins. Co., 218 Ariz.
417, 419, ¶ 7 (2008). Courts must "assume the truth of the well-pled factual
allegations" and resolve all reasonable inferences in the plaintiff's favor. Id.
Mere conclusory statements, however, "are insufficient to state a claim
upon which relief can be granted." Id. Dismissal of a complaint for failure
to state a claim is appropriate if "as a matter of law . . . the plaintiff would
not be entitled to relief under any interpretation of the facts." Bunker's Glass
Co. v. Pilkington PLC, 202 Ariz. 481, 484, ¶ 9 (App. 2002).

B.     The Department's Rulemaking Power Under H.B. 2247.

¶7             As an initial matter, this court sought supplemental briefs
concerning the relevance to this appeal, if any, of A.R.S. § 12-910(E), as
amended in 2018. See 2018 Ariz. Sess. Laws, ch. 180, § 1 (2d Reg. Sess.). In
their briefs, the parties disagree about whether the amendment to § 12-
910(E) applies when a regulated party challenges an agency's rulemaking
power. We need not decide that issue, however, because we conclude that
whether the rules the Department issued are within its authority under H.B.
2247 is a question we review de novo, without deference to the Department.
See Dioguardi v. Superior Court (Ariz. Bd. of Med. Exam'rs), 184 Ariz. 414, 417

between November 2012 and June 2013 and analyzed data on patient
outcomes, evaluated academic literature on midwifery, discussed draft
rules and received comments from the public.


                                       4
          CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                       Opinion of the Court

(App. 1995), as corrected on reconsideration (Dec. 29, 1995), corrected (Jan. 17,
1996).

¶8             "[T]he powers and duties of administrative agencies . . . are
strictly limited by the statute creating them." Boyce v. City of Scottsdale, 157
Ariz. 265, 267 (App. 1988). Under A.R.S. § 41-1030(C)(1) and (C)(2), "[a]n
agency shall not . . . [m]ake a rule under a specific grant of rulemaking
authority that exceeds the subject matter areas listed in the specific statute
authorizing the rule" or "[m]ake a rule under a general grant of rulemaking
authority to supplement a more specific grant of rulemaking authority."
Whether an agency's rule is within the agency's statutory charter is a
question "of statutory interpretation, which is the subject of de novo judicial
review." Dioguardi, 184 Ariz. at 417.

¶9              In interpreting a statute, we look first to its language, In re
Estate of Jung, 210 Ariz. 202, 204, ¶ 12 (App. 2005), and try to give meaning
to each word, phrase, clause and sentence so that no part of the legislation
will be void, inert or trivial, see Ariz. State Univ. Bd. of Regents v. Ariz. State
Ret. Sys., 242 Ariz. 387, 389, ¶ 7 (App. 2017). We seek to apply a sensible
construction that avoids absurd results. State v. Gonzales, 206 Ariz. 469, 471,
¶ 12 (App. 2003). "If the statutory language is unambiguous, we must give
effect to the language and do not use other rules of statutory construction."
Jung, 210 Ariz. at 204, ¶ 12.

¶10          Cleckner argues H.B. 2247 allowed the Department only to
issue rules increasing the midwifery scope of practice but that the
Department's new rules do the opposite.3 She points to § 1(A) of H.B. 2247,
which directed the Department to "revis[e] the midwifery scope of practice

3       Cleckner's complaint alleged that the new rules effectively allow a
midwife to care only for women with normal menstrual periods because it
links many required tasks to the duration of gestation, which the regulation
defines as "the length of time from conception to birth, as calculated from
the first day of the last normal menstrual period." See A.A.C. R9-16-101(20);
see also AA.C. R9-16-108(I). Cleckner also alleged other changes in A.A.C.
R9-16-108(B), (D)(2) and (J)(4) reduce the scope of practice by imposing new
certification requirements for a midwife to attend a breech birth and by
requiring cervical exams at specified intervals during labor.            The
Department argued in the superior court that the regulations do not narrow
the permissible scope of the midwifery practice, but we will assume the
truth of Cleckner's contrary allegations without deciding them. See Cullen,
218 Ariz. at 419, ¶ 7.



                                        5
         CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                      Opinion of the Court

pursuant to subsections B, C and D," and asserts that directive permitted
the Department only to increase the scope of practice – not to decrease it –
because § 1(B) contemplated an "increase" but not a "decrease." H.B. 2247 §
1(A)(2), (B). The Department, on the other hand, argues the word "revise"
in § 1(A)(2) granted it broad authority to change the rules and that
subsections B, C and D merely described the process it would need to
follow if someone proposed an increase in the scope of the practice of
midwifery.

¶11            We begin with the first sentence of the measure, which
directed the Department to "consider adopting rules regarding midwifery
that concern . . . revising the midwifery scope of practice pursuant to
subsections B, C and D of this section." H.B. 2247 § 1(A)(2).4 Notably, the
measure did not require the Department to issue any new or amended rules,
but only to "consider adopting" rules. Moreover, contrary to Cleckner's
contention, nothing in that mandate specified that the Department must
increase "the midwifery scope of practice."

¶12            Cleckner's argument is anchored in § 1(A)(2)'s reference to §
1(B), which she contends reflected the legislature's intent that the
Department adopt rules that would expand the permissible scope of
midwifery practice, not restrict it. Section 1(B) stated that "[a]ny party that
is interested in increasing the scope of practice of midwifery must submit a
report" to the Department that identifies "the problem and why an increase
in the scope of practice is necessary," including how it would benefit
consumers and the "extent to which an increase in the scope of practice may
harm the public." H.B. 2247 § 1(B)(1), (3). Upon submission of such a report,
§ 1(C) required the Department to "appoint a midwifery scope of practice
advisory committee to assist the director in adopting and amending rules
related to midwifery scope of practice." H.B. 2247 § 1(C). And § 1(D)
provided that advisory committee members would not be compensated.
H.B. 2247 § 1(D).

¶13           As shown, subsections B, C and D only imposed procedural
requirements on the Department's rulemaking; they did not limit its
discretion in determining the substance of any new or amended rules.

4      The measure also directed the Department to consider adopting
rules "[r]educing the regulatory burden" on licensed midwives and
"streamlining the regulation process," H.B. 2247 § 1(A)(1). It further
directed the Department to consider "adopting national licensure testing
standards," H.B. 2247 § 1(A)(3). On appeal, Cleckner makes no argument
concerning those provisions.


                                      6
         CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                      Opinion of the Court

Cleckner relies on the use of the word "increase" in § 1(B), but that provision
merely ensured that advocates of expanding midwifery services would
have a voice in the rulemaking process the measure contemplated. H.B.
2247 § 1(B). Cleckner's argument is further undermined by § 1(E), which
provided that the advisory committee would recommend proposed rules
"relating to a change in the scope of practice" without specifying the nature
of that change. H.B. 2247 § 1(E). In other words, contrary to Cleckner's
contention, the measure did not direct the Department to expand the
midwifery scope of practice, but instead allowed the Department to
exercise its discretion to increase or decrease the scope of practice within
the limits imposed by other law. See supra ¶ 2.

¶14            Cleckner, however, asserts the legislature made plain that it
intended the Department to expand the scope of midwifery when
lawmakers set out the procedures (report, advisory committee, hearing) the
Department must follow when it received a request to increase the scope of
practice. We do not construe those provisions in H.B. 2247 as a legislative
mandate to expand the scope of midwifery. To the contrary, when
midwives and their supporters lobbied for an expanded scope of practice,
the legislature responded by establishing a process by which the
Department would apply its particular skill and expertise in considering
the issues the midwives raised. Cf. Sec. & Exch. Comm'n v. Chenery Corp.,
332 U.S. 194, 209 (1947) (administrative agencies are "best equipped to
make" decisions that require "administrative experience, appreciation of the
complexities of the problem, realization of the statutory policies, and
responsible treatment of the uncontested facts"); State v. Ariz. Mines Supply
Co., 107 Ariz. 199, 205 (1971) ("[D]ue to the complexity of our social and
industrial activities, [courts have upheld] the authority conferred upon
commissions and boards to formulate rules and regulations and to
determine the state of facts upon which the law intends to make its action
depend. . . . [The legislature] may . . . authorize others to do those things
which it might properly, yet cannot understandingly or advantageously do
itself.").

¶15            Cleckner further argues that those who lobbied the legislature
to enact H.B. 2247 were universally supportive of midwives, and asks why
each of them "would enthusiastically lobby against their own interest."
Because the language is clear and unambiguous, we need not consider the
measure's legislative history and other means of statutory interpretation.
See Wade v. Ariz. State Ret. Sys., 241 Ariz. 559, 561, ¶ 10 (2017). If we were to
examine the legislative history, however, we would focus on the words and
actions of the legislature, not on the words of those who urged the
legislature to act. See Hayes v. Continental Ins. Co., 178 Ariz. 264, 269 (1994)


                                       7
         CLECKNER v. AZ DEPT. OF HEALTH SERVICES, et al.
                      Opinion of the Court

("When seeking to ascertain the intent of legislators, courts normally give
little or no weight to comments made at committee hearings by
nonlegislators.").

¶16          In sum, the new and amended midwifery rules issued in 2013
do not violate the statutory limits on the Department's rulemaking
authority under A.R.S. § 41-1030(C)(1) or (C)(2), which, as applied here, are
functionally identical. In issuing the rules, the Department neither
"exceed[ed] the subject matter areas" of the authorizing statute, § 41-
1030(C)(1), nor used a "general grant of rulemaking authority to
supplement a more specific grant of rulemaking authority," § 41-1030(C)(2).

                              CONCLUSION

¶17           For the foregoing reasons, we affirm the superior court's
dismissal of Cleckner's claims challenging the new rules.




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




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