         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MAIA KATHRYN MICHAEL,      §
                           §
    Appellant Below,       §                      No. 368, 2017
    Appellant,             §
                           §                      Court Below: Superior Court
    v.                     §                      of the State of Delaware
                           §
DELAWARE BOARD OF NURSING, §                      C.A. No. N17A-02-003-JRJ
                           §
    Appellee Below,        §
    Appellee.              §

                              Submitted: February 7, 2018
                              Decided:   February 22, 2018

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

                                     ORDER

      In this order, we explain why we affirm the decision of the Superior Court

upholding the Board of Nursing’s decision to deny Maia Michael’s applications for

licensure.1

      In 2008, Maia Michael impersonated a doctor to obtain Xanax, a prescription

medication, for herself.2 Michael pled guilty to one count of Obtaining Controlled

Substances by Misrepresentation or Fraud, Forgery, or Deception, and her

conviction became effective when she failed to comply with the terms of her drug




1
  Michael v. Delaware Board of Nursing, C.A. No. N17A-02-003-JRJ, 2017 WL 3980540 (Del.
Super. Sept. 8, 2017).
2
  Id. at *1.
diversion program.3 In 2011, the Board of Nursing suspended Michael’s nursing

licenses because of her conviction for a crime substantially related to the practice of

nursing and violation of various Board regulations.4 While her appeal of the Board’s

decision was pending, and her suspension was still in place, Michael worked as a

nurse for eight months.5 The Board then permanently revoked Michael’s licenses

for failure to comply with the suspension order and practicing without a valid

license.6 Michael did not appeal the Board’s decision to permanently revoke her

licenses.7

        In 2015, the Governor pardoned Michael’s criminal conviction, and a year

later, Michael applied for licensure by reinstatement and by examination.8 The

Board denied Michael’s applications, finding that its order of permanent revocation

made her ineligible for a nursing license, and that her pardon did not restore her

eligibility because the Board permanently revoked her licenses for practicing nursing

without a license, not because of her criminal conviction that was pardoned.9




3
  Id.
4
  Id. at *2.
5
  Id.
6
  Id.
7
  Id.
8
  Id.
9
  Id.
                                          2
       In this case, the Superior Court upheld the Board of Nursing’s decision to

deny Michael’s applications for licensure.10 On appeal, Michael does not contest

that the words “permanently revoke” mean permanent.11 But Michael argues that

her pardon for the crime of Obtaining Controlled Substances by Misrepresentation

or Fraud, Forgery, or Deception overrides the statutes governing the Board’s power

to discipline licensed nurses and evaluate nursing license applicants, per our decision

in Heath v. State,12 and restores her ability to seek a new nursing license.13

       We do not reach the question of whether, if the conduct underlying a

conviction was the sole basis for an order of permanent revocation, the pardon statute

would require the Board to consider Michael’s applications. Here, the Superior

Court properly found that the Board’s determination to permanently revoke

Michael’s licenses was not based on the same conduct underlying the conviction that



10
   Id. at *3.
11
   Oral Arguments: Michael v. Board of Nursing, DELAWARE SUPREME COURT (Feb. 7, 2018), at
3:25–3:44, https://livestream.com/accounts/5969852/events/8044928/videos/169903020 (“Are
you then conceding for purposes of appeal that permanently revoke means there is no ability on
the part of the Board to ever allow a person who has suffered an order of permanent revocation to
apply anew for a nursing license?” “We are, Your Honor.”).
12
   983 A.2d 77, 84 (Del. 2009) (holding that Heath’s gubernatorial pardon for Second Degree
Unlawful Sexual Conduct extinguished his statutory sex offender registry requirements).
13
   Appellant’s Opening Br. at 19–20 (“The Board ignored the substantial evidence regarding the
pedigree of the Pardon or the effect of a Pardon. Further, by holding that ‘the Board did not revoke
Ms. Michael’s licenses simply because she had been convicted of a crime substantially related to
the practice of nursing,’ the Board ignored the fact that her conviction was the well-spring for all
of the violations that followed. To ignore that was to ignore the substantial evidence that the effect
of Michael’s unconditional gubernatorial Pardon was as if that conviction had never occurred,
making it an error of law for the Board to hold that ‘the pardoning of her crime is not sufficient to
undo the permanent revocation of her nursing licenses.’” (citing January 12, 2017 Order of the
Board of Nursing)).
                                                  3
was pardoned.14 Instead, it had to do with her defying the Board’s suspension order

and practicing nursing without a license for eight months.15 When the Board

originally considered her case, it suspended Michael’s licenses for five years with a

chance to convert her suspension to probation after two years.16 It was only when

she violated this order that she had her licenses permanently revoked. In the face of

that decision, Michael did not appeal.17 As the Superior Court therefore properly

held, the permanent revocation of Michael’s licenses was based on conduct

unaffected by the pardon.18 Because Michael does not challenge that “permanent”

means permanent, her appeal fails.

       Nor do we find any error in the Superior Court’s consideration of Michael’s

constitutional claim, which is based on the argument that she has been denied her

right to equal protection. In the Superior Court, Michael made a confusing argument

that the permanent revocation of her licenses is a constitutional tort because she “is

a member of an ‘identifiable class’ who was ‘intentionally treated differently than




14
   Michael, 2017 WL 3980540, at *5.
15
   Id. (“[T]he Board permanently revoked Michael’s nursing licenses because Michael practiced
nursing without a license for eight months. Michael’s decision to practice nursing without a license
is entirely separate from her conviction, and her pardon.”).
16
   Id. at *2; App. to Appellant’s Opening Br. at A6 (May 12, 2011 Order of the Board of Nursing).
17
   Michael, 2017 WL 3980540, at *2.
18
   Id. at *4 (“[R]egardless of whether a pardon could result in the reissuance of a professional
license under other circumstances, the Board correctly determined that it did not have the authority
to reinstate Michael’s licenses or to issue her new ones because Michael’s license was not revoked
solely as the result of her conviction.”).
                                                 4
others similarly situated,’ and there was ‘no rational basis’ for the difference in

treatment,” which the Superior Court rejected.19

       Before us, Michael has focused on a different aspect of her argument. To wit,

Michael argues that the General Assembly has acted irrationally by giving the Board

of Nursing only the right to either suspend licenses or to revoke them permanently.

All other professional licensure boards are either given the discretion simply to

revoke licenses, or in other cases to either “revoke” or “permanently revoke”

licenses. Only the Board of Nursing is limited to only having the power of

“permanent revocation.”           According to Michael, this decision of the General

Assembly is irrational and cannot withstand equal protection review, either facially,

or as applied to her.20 But, we do not embrace this argument for two reasons. First

of all, it was not fairly presented to the Superior Court and that alone compels its

rejection. As important, however, the argument is without merit. As the Superior

Court properly found, the difference in language among the various statutes must be


19
   Id. at *6 (citing Opening Br. on Appeal to the Superior Court at 26).
20
   Oral Arguments: Michael v. Board of Nursing, DELAWARE SUPREME COURT (Feb. 7, 2018), at
5:25–6:23, https://livestream.com/accounts/5969852/events/8044928/videos/169903020 (counsel
for Michael clarifying that Michael is making both a facial and as-applied challenge to the
constitutionality of the Nurse Practice Act, and suggesting that this argument may have been
misapprehended by the Superior Court because of a focus before that court on establishing
Michael’s status as a “class of one,” as articulated in Village of Willowbrook v. Olech, 528 U.S.
562 (2000)); Michael, 2017 WL 3980540, at *6 (rejecting Michael’s constitutional tort argument
because unlike the plaintiffs in Willowbrook, “Michael is a member of an identifiable class—
nurses who have had their licenses permanently revoked and have reapplied for licensure” and she
is not a ‘class of one’ because she was not treated differently than others in that class: “all members
of Michael’s class are unable to seek licensure as a result of the permanent revocation of their
nursing license(s)”).
                                                  5
assumed to have been intended.21 Given the special importance of the nursing

profession and its sensitive role in treating vulnerable patients, subjecting licensed

nurses only to “permanent revocation” bears a rational relationship to the State’s

legitimate interest in “the protection of the public health, safety and welfare.”22

       With this explanation, we affirm the judgment of the Superior Court of

September 8, 2017.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is hereby AFFIRMED.

                                              BY THE COURT:
                                              /s/ Leo E. Strine, Jr.
                                              Chief Justice




21
   Michael, 2017 WL 3980540, at *6.
22
  24 Del. C. § 1901 (“The General Assembly hereby declares the practice of nursing by competent
persons is necessary for the protection of the public health, safety and welfare and further finds
that the levels of practice within the profession of nursing should be regulated and controlled in
the public interest.”); Prices Corner Liquors, Inc. v. Delaware Alcoholic Beverage Control Com’n,
705 A.2d 571, 575–76 (Del. 1998) (“When examining statutory distinctions that do not involve
suspect classifications or limit fundamental rights, our inquiry is confined to whether the
legislative decision is rationally related to any legitimate governmental objective or purpose.
Furthermore, a conceivable objective underlying a challenged statute may not necessarily be the
basis actually used by the legislature (even if that basis could be ascertained). As long as there is
some rational relationship between a classification and a legitimate state interest, the statute will
not be deemed unconstitutional.”); see also Oral Arguments: Michael v. Board of Nursing,
DELAWARE           SUPREME         COURT         (Feb.       7,      2018),       at      5:18–5:24,
https://livestream.com/accounts/5969852/events/8044928/videos/169903020              (counsel     for
Michael agreeing that Michael’s equal protection claim should be evaluated under rational basis
review).
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