CHIEF CIVIL JUDGE With Oral Argument IN THE SUPERIOR COURT … · With Oral Argument IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING JONATHAN J. WRIGHT,

CHIEF CIVIL JUDGE HEARING DATE: February 27, 2013

HEARING TIME: 1:30 pm With Oral Argument

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING

JONATHAN J. WRIGHT, M.D., No.: 12-2-12132-0

Plaintiff,

v.

STATE OF WASHINGTON, STATE OF WASHINGTON DEPARTMENT OF HEALTH, et. cal.

Defendants.

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 AND RCW 7.16.300

I. RELIEF REQUESTED

The Washington Medical Quality Assurance Commission (the Commission) is

proceeding illegally against Plaintiff Dr. Wright in a Constitutionally-improper, futile and

retaliatory administrative proceeding. Exhaustion of administrative remedies is no longer

required or proper.

Pursuant to RCW 7.16.300, Plaintiff requests a writ prohibiting the Commission from

proceeding on the procedural charge of non-cooperation, a charge entirely premised upon the

Commission's unconstitutional administrative seizures. Further, pursuant to RCW 7.16.160,

Plaintiff requests a writ of mandamus compelling the Commission to dismiss the only

substantive charge alleging Dr. Wright aided and abetted the unlawful practice of medicine.


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1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397 Telephone: 206.292.8930

1 II. INTRODUCTION

2 The Commission' has charged Dr. Wright with: (1) aiding and abetting the unlawful

3 practice of medicine; and (2) failure to cooperate in the Commission's investigation. In an

4 attempt to levy the aforementioned aiding and abetting charge against Dr. Wright, the

5 Commission, with specific knowledge, allowed an unlicensed doctor to treat patients in Dr.

6 Wright's clinic.

7 Regarding the non-cooperation charge, the Commission has employed a per se

8 unconstitutional administrative seizure scheme, through WAC 246-919-620, against Dr.

9 Wright in an effort to obtain legally protected patient records in support of its self generated

10 investigation. The fact that Dr. Wright was subject of the Commission's investigation was

11 hidden from him. Although compliant with the numerous requests of the Commission over a

12 period of 15 months, Dr. Wright was charged with the non-cooperation when he questioned

13 the constitutionality of the Commission's attempted seizure of patient medical records

14 without explanation. The Commission must be prohibited from moving forth with its non-

15 cooperation charge where the basis for proceeding on those charges is predicated upon a per

16 se unconstitutional rule.

17 The Presiding Officer has disregarded Dr. Wright's pleas for intervention in this

18 matter. WAC 246-10-602 prohibits the Presiding Officer from ruling on the constitutionality

19 of the Commission's administrative seizure. Furthermore, the Presiding Officer has issued

20 contradictory rulings, most recently stating on the record that, "[t]he Commission can ask for

21 whatever it wants." Dr. Wright is forced to turn to this Court for relief.

22 Next, the Commission amended its original non-cooperation charges to add a

23 substantive charge for aiding and abetting the unlicensed practice of medicine. This Brief

e explains the circumstances in detail below. In response to Dr. Wright's motion to dismiss

equis

26 1 The Medical Quality Assurance Commission includes employees of the Department of Health used for the purposes of approving medical licenses, an authority solely vested with the Medical Quality Assurance Commission. Infra.

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 2 BullivantlHouserlBailey PC

MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397

AND RCW 7.16.300 Telephone: 206.292.8930

1 this charge, the Presiding Officer held: (1) that the Commission had the burden of proving by

2 clear, cogent and convincing evidence that Dr. Wright had knowledge of his aiding and

3 abetting; and (2) that as a matter of law, the Commission put forth no evidence that Dr.

4 Wright had such knowledge that an unlicensed physician was practicing in his clinic.

5 Nevertheless, the Presiding Officer refused to dismiss the aiding and abetting charge, and has

6 implicitly created a negligence claim for the Commission related to clinic-management — a

7 charge that is not stated in the Amended Statement of Charges and for which the

8 Commission has disclosed no evidence and no witnesses.

9 The Commission is acting beyond the enabling statutes, and thus exceeding its right

10 to charge Dr. Wright. This Court must intervene and issue the requested writs.

11 III. FACTS

12 A. Background.

13 As the chronology below explains, the Commission contacted Dr. Wright about an

14 investigation, purportedly involving the pending Washington physician's license application

15 of Dr. Roby Mitchell. By the time the Commission contacted Dr. Wright about Mitchell's

16 Washington application, Mitchell had already left Dr. Wright's Clinic, and apparently had

17 left Washington State, as well.

18 Before arriving in Washington State, Dr. Mitchell had been licensed in Texas. While

19 his Washington license was pending, Dr. Mitchell worked as an independent contractor with

20 Dr. Wright. Unbeknownst to Dr. Wright, Dr. Mitchell's license had been revoked in Texas,

21 a fact that the Commission knew full well, but refused to disclose to Dr. Wright until after

22 the Commission filed charges against him. In fact, the Commission overtly deceived Dr.

23 Wright about the purpose of its investigation, withheld from Dr. Wright required information

24 attendant with its administrative seizure, and violated patient privacy in demanding medical

25 records that had no consequence — the Commission had long held the information it

26 purportedly sought from the medical records. The Commission's sole purpose was to levy


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charges against Dr. Wright.

B. Facts Concerning Dr. Mitchell's Licensing Status.

Sept. 12, 2007: Dr. Roby Mitchell signed an independent contractor agreement with

the Tahoma Clinic to provide health care services for Tahoma Clinic patients. Dr. Wright is

the medical director of the Clinic. The agreement required Mitchell to keep his

license/application in good standing. 2 To induce the Clinic into the independent contractor

agreement, Dr. Mitchell made affirmative representations to Dr. Wright that he was licensed

to practice medicine in the state of Texas, and that he had a pending application for the

issuance of a medical license with the Washington State licensing authorities. 3

2007-2008: To Dr. Wright's knowledge during Mitchell's time at the Clinic, Dr.

Mitchell was visiting Washington State in 2008 as a Texas resident and licensed Texas

physician.4 Based on Dr Mitchell's representations, Mitchell was exploring licensure in the

state of. Washington while trying to decide where to reside in the Pacific Northwest. 5

Mitchell's efforts included an active application for his medical license with the

Commission, the existence of which the Commission has acknowledged in sworn testimony. 6

During this time, Clinic staff verified with the Commission that Dr. Mitchell's

application for a medical license existed and was active.' Subsequently thereafter, during the

duration of Mitchell's stay at the Tahoma clinic, at sixty (60) day intervals, Clinic staff

verified the status of Dr. Mitchell's application with the Commission. 8

Late 2008: Dr. Mitchell departed the Clinic for unknown reasons and to an unknown

destination.

2 McCormack Dec., Exhibit A (Commission's Investigative File INV 000190). 3 McCormack Dec. Exhibit H (Wright Dec. at ¶5) . 4 id. 5 McCormack Dec. Exhibit A (Comm. Inv. File at INV.0000171-172); Exhibit H (Wright Dec. at ¶9) 6 McCormack Dec., Exhibit B (Deposition of Betty Elliott p. 45, 1. 1-8 through p. 63) 7 McCormack Dec., Exhibit A (Comm Inv. File at INV.000190-191); Exhibit H (Wright Dec. at ¶5) 8 Id.


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1 July 2011: Dr. Wright learned for the first time — only after the Commission filed the

2 present charges, and from his newly employed national counsel, Jacques G. Simon, Esq.

3 (admitted pro hac vice in the administrative proceeding) - that Dr Mitchell's Texas license

4 has been revoked by the Texas Medical Board in August 2005. 9

5 C. Facts Concerning the Commission's Investigation.

6 2007-2009 Commission staff knew, during the entire course of Mitchell's practice

7 at the Tahoma Clinic, that Mitchell's Texas license had been revoked. This information

8 came to light with the Commission as soon as Mitchell applied for his Washington medical

9 license in September 2007. 1° It is the Commission's practice to pull applicant profile

10 information from the National Practitioner's Data Bank or the AMA; such information

11 immediately reveals the status of a license revocation in another state. 11

12 At the same time the Commission staff learned via Mitchell's license application that

13 he was not licensed in Texas, the Commission also learned that Mitchell was working in the

14 Tahoma Clinic. In fact, the Commission knew as early as February 2008 that Mitchell was

15 working at the Clinic. 12

16 The Commission never disclosed the fact Dr. Mitchell was not licensed in Texas

17 despite the Clinic's many inquiries. 13 Dr. Mitchell's application was left on open status until

18 2009. 14 Dr. Mitchell disappeared from the Clinic in March 2009. 15

19 April 16, 2009: The Commission received a phone call from a Clinic patient

20 inquiring about the licensing status of Dr. Mitche11. 16 The Commission requested the patient

21 9 McCormack Dec. Exhibit H (Wright Dec. at ¶13)

22 10 McCormack Dec., Exhibit B (Deposition of Betty Elliott .44, 1. 24-25 and p. 25, 1. 1-8); Id., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶1.6).

23 11 Id., Exhibit B(Deposition of Betty Elliott p. 14, 1. 1-18 and p. 13) (Order Denying Plaintiff's Motion for Summary Judgment '11.6-1.7)

24 12 McCormack Dec., Exhibit D (MQAC's answer to interrogatories No. 16); Id. at Ex. A (Investigative File INV. 000044); Id. Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.7). 13 Id., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment 1.7).

25 14 Id., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.8). 15 Id.

26 16 Id., Exhibit A (Comm Inv. File at INV.000190-191); Id., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.9).


MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle,

AND RCW 7.16.300 Washington 98101-1397 Telephone 206.292.8930

1 fax a complaint and insurance billing information. 17

2 It is unclear whether the patient ever faxed a complaint to the Commission. When

3 asked about the existence of the complaint, none of the Commission's CR 30(b)(6)

4 representatives could explain what the complaint was, how it was phrased, what issues it

5 raised and what the complainant actually said. 18

6 On April 30, 2009: Commission investigator Smith signed an initiating form letter to

7 Dr. Wright. 19 The initiating letter was the first communication from the Commission to Dr.

8 Wright regarding the initiation of the investigation. 20 The initiating form letter gave Plaintiff

9 notice for the first time that an investigation was opened under Case No. 2009-135654MD,

10 but the notice gave no further details. 2 '

11 D. Response of Dr. Wright to the Investigation

12 May 4 2009: Following Smith's announcement of the investigation, MQAC

13 investigator Joy Johnson wrote to Dr. Wright regarding Dr. Mitchell and his role at the

14 Clinic.22 Specifically, Ms. Johnson described the complaint that initiated the investigation as

15 follows:

16 [MQAC] has received a complaint alleging that you have Roby Mitchell, MD, working at your Tahoma Clinic in Renton, WA

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and billing for his medical services; however, to date, Dr. Mitchell is not currently licensed by the Washington State

18 Department Health [sic] to practice as a medical physician.

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17 Id., Exhibit A (Commission's Investigative File at INV.000104) ("I told that he was not licensed and please

21 fax us the complaint. She had an insurance billing invoice that had his name on the form." (Emphasis added).) 18 In 30(b)(6) depositions taken of Commission representatives in this case, none of the Commission representatives could explain what the complaint was, how it was phrased, what issues it raised and what the complainant actually

22 said. McCormack Dec., Exhibit E (Deposition of James Smith (When asked under oath about the existence of the email complaint, Commission investigator Smith could not fmd it. (p. 21, 1. 5-25 and p. 22.) Smith went on to state

23 under oath that there was a complaint but he does not know the form of it (p.24, 1. 1-25 and p. 25, 1. 1-10); that there was an email complaint and the email was omitted from the file (p. 25, 1. 9-12); that the Commission "memo"

24 regarding the patient telephone call was not a complaint (p. 25, 1. 15-25)); Id., Exhibit F (Deposition of Commission Attorney Mike Balm. 43-44)(The Commission staff attorney who handled this matter at the Commission level never

25 saw the actual complaint and could not recollect if he has ever seen it. ) 19 Id., Exhibit A (Comm Inv. File at INV 0000165); Id., Exhibit. F, (Deposition of Balm p. 46, 1. 23-25). 20

26 21 - ia. Exhibit G (Deposition of Bahn p. 46-47). Id., Exhibit A (Comm Inv. File at INV.000165).

22 Id. at Exhibit A (Comm Inv. File at INV000166-000167). PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 6 BullivantlHouserlBailey PC

MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397 AND RCW 7.16.300 Telephone: 206.292.8930

20

1 Significantly, Johnson had known since February 4, 2008 that Dr Mitchell was

2 working at the Tahoma Clinic. 23

3 May 14, 2009 Through his attorney, Dr. Wright requested from Ms. Johnson

4 MQAC's file and the Commission's determination of merit to investigate. 24

5 May 21, 2009: Ms. Johnson refused Dr. Wright's request for MQAC's file and

6 further indicated that a determination of merit was not required because her "investigation

7 does not pertain to malpractice." 25 A determination of merit had in fact been authorized by

8 the Commission a month prior on April 21, 2009. 26

9 May 29, 2009. Dr. Wright responded fully to Ms. Johnson's requests for information

10 in a letter. This letter explained Dr. Wright's understanding that Mitchell was a Texas

11 licensed physician who "practiced temporarily at the Tahoma Clinic under the authority of

12 "RCW 18.17.030(6)," and that during Mitchell's time at the Tahoma Clinic, Mitchell had

13 applied for licensure in Washington State which was pending during his time at the Clinic. 27

14 Dr. Wright further stated that patients seen by Dr Mitchell were advised of his status before

15 appointments were made. 28

16 The Commission's staff attorney stated under oath that this response from Dr. Wright

17 fully satisfied Johnson's inquiry of May 3, 2009. 29 Equally significant, upon receipt of Dr.

18 Wright's May 29th response, Johnson noted in the file that Dr. Wright's response indicated

19 that neither the respondent nor his attorney were aware that Dr Mitchell's Texas license was

20 revoked. 3°

21 Dec. 17, 2009: More than six months later, Dr. Wright's attorney received an email

22 from MQAC staff attorney Bahn, asking five (5) questions concerning Dr. Mitchell: (i)

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24 23 24 Id., Exhibit H (Commission Responses to Interrogatories No. 16) Id. , Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.11).

25 Id., Exhibit A (Comm Inv. File at 1NV000169-000170) 25 26 -• Id. , Exhibit A (Comm. Inv. File at INV.000171-72 )

27 Id 28 Td.

26 29 Id, Exhibit F (Deposition of Bahn p. 49,1.18-25 and p. 50,1. 11-17). 30 Id Exhibit A (Comm Inv. File at INV.000080).

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 7 BullivantlHouseriBailey PC

MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, site 1810, Seattle, Washington 98101-1397 AND RCW 7.16.300 Telephone: 206.292.8930

1 Mitchell's start date; (ii) Mitchell's end date; (iii) the scope of his care for Clinic patients;

2 (iv) Mitchell's current status and location; and (v) how does the Clinic check credentials for

3 someone in Dr. Mitchell's situation? 31 None of those questions asked for medical records.

4 None of his questions asked about specific patient treatment.

5 Feb. 26, 2010: Dr. Wright responded to Balm by letter in which Dr. Wright answered

6 every question. Dr. Wright's answers included statements indicating the Dr. Mitchell had

7 seen and treated patients under Dr. Wright's supervision. 32 Mr. Balm has testified that Dr.

8 Wright's February 26th response answered Balm's Dec. 17th questions in full and without

9 evasion. 33 Balm responded that same day by email, stating

10 It appears that during Dr. Mitchell's contractual service with the Tahoma Clinic, his application for a WA license was open and

11 incomplete, therefore pending acceptance. Thus your periodic license checks never showed anything but an open application

12 and no denial. I will discuss this with the reviewing Commission member and we'll re-present the case on Dr.

13 Wright at the MQAC meeting next week.

14 March 9, 2010: Dr. Wright's attorney received an email from Balm:

15 Please provide us with a more detailed explanation of how Dr. Wright interacted with Dr. Mitchell to provide supervision.

16 Also, please forward a sample of patient records that would show Dr. Wright's supervisory input on the patients that Dr.

17 Mitchell saw during this period. You can redact the patient names as that is not material to our inquiry. 34

18 March 26, 2010: Dr. Wright's attorney responded to Balm in a letter, which included

19 the answer to Balm's request for a detailed explanation. That letter concluded with the

20 following observation and request:

21 In closing, I believe Dr. Wright and the Clinic have answered all

22 material questions posed to us about Dr. Mitchell's status. If there is some other basis for the Commission's investigation

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25 21 Id., (Comm. Inv. File at INV000185) 22 Id, (Comm. Inv. File at INV000190-000191)

26 33 Id., Exhibit G (Deposition of Bahn p 58, lines 1, 14-25 and p. 59-60). 34 Id, Exhibit A (Comm Inv. File at INV000193)

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 8 BullivantlHouserMailey PC


now other than Dr. Mitchell's status, please advise. (Bold added for emphasis.) 35

March 26, 2010: Bahn responded that same day by email regarding the request for

records, he stating as follows:

[I]n this particular matter, the Tahoma Clinic could provide us with records, reflecting Dr. Mitchell's involvement, that have the patient names elided, i.e. redacted, since we are not interested in the patients per se. 36

April 14, 2010: Dr. Wright again responded to Bahn with an extensive set of

objections and questions about the basis for the records request. 37 This letter repeated Dr.

Wright's willingness to cooperate, although with concern about whether the request for

medical records was authorized and lawful. 38 That letter included an express statement that

Dr. Wright's legal team was "in the dark" about what the Commission was investigating, and

requested clarification in order to "find a way around this current dilemma." 39

April 23, 2010: Balm responded in a letter that concentrated on inapplicable HIPAA

issues, while ignoring the statutory and constitutional issues raised in Dr. Wright's April 14,

2010 letter. 4°

At no time until compelled by the Presiding Officer in this case, did the Commission

disclose the real basis for its investigation.

May 6, 2010: Dr. Wright's attorney wrote to Balm in preparation for record redaction

and transmittal of medical records. The communication included the following:

My redaction will be very thorough (just so you know in advance) and the records will be provided under ER 408 and a complete reservation of rights. 41

Balm's response that same day said as follows:

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24 35 Id. (Comm. Inv. File at 1NV000198-000199) 36 McCormack Dec. Exhibit I

25 37 Id. (Comm. Inv. File at INV000201-000202) 38 Id. (Comm Inv. File at INV000201-000202)

26 39 Id (Comm Inv. File at INV000201-000202) 4° Id (Comm Inv. File at INV000203-000204). 41 Id. (Comm Inv. File at INV000206).


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BullivantlHouseriBailey PC

1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397 Telephone: 206192.8930

1 [T]hanks for the update. As I indicated to you before, we are not really interested in the names/identities of the patients that

2 came through the system when Dr. Mitchell was working there. So redacting out the identifiers is fine, but the records should at

3 least be segregated patient by patient and show what providers gave input on their care, and, of course, what care was given. 42

4 Balm and the Commission still had not explained the basis for its medical records

5 request at this time. The only disclosure Balm had made was that the Commission wanted

6 proof that Dr. Wright had supervised Dr. Mitche11. 43

7 July 15, 2010: Dr. Wright supplied redacted records of three (3) Clinic patients to

8 Bahn.44 Those records showed the Clinic letterhead and document "crest", the date,

9 reference to Dr. Mitchell's notations and reference to Dr. Wright's review. 45 The documents

10 provided included redaction of all references to patient name and the patient's personal

11 medical information. 46

12 Mr. Balm testified under oath that this production responded to Balm's request for

13 production of records. 47

14 August 30, 2010: Ms. Johnson now wrote to Dr. Wright's attorney, demanding a

15 complete list of patients seen at the Clinic by Mitchell, along with copies of (30) thirty

16 unredacted and unaltered medical records of patients seen by Dr. Mitche11. 48

17 Balm testified under oath that as of this date, Dr. Wright had responded to all of the

18 Commission's questions and requests. 49 Balm admits that the Johnson letter of August 30,

19 2012 says nothing about MQAC's new course of the investigation looking at the practice of

20 an individual with a revoked Texas license at the Tahoma Clinic. 50 Balm admitted that the

21 Commission put nothing in the record to Dr. Wright to explain any deficiency in his

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23 42 Id. (Comm. Inv. File at INV000206).

24 43 Id. (Comm Inv. File at 1NV000206). 44 Id. (Comm Inv. File at INV000211-000222) 45 Id (Comm Inv. File at INV000211-000222

25 46 Id (Comm. Inv. File at 1NV000211-000222) 47 Id, Exhibit G (Deposition of Bahn p. 77,1.23-25; p. 78; p. 79, 1. 1-3).

26 48 Id at Exhibit A (Comm. Inv. File at INV.000230-231) 49 Id., Exhibit G (Deposition of Bahn p. 80,1. 5-13). 5° Id, (Deposition of Bahn p. 81, 1. 5-9).

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 10 BullivantpouseriBailey PC

MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, site 1810, Seattle,

AND RCW 7.16.300 Washington 98101-1397 Telephone: 206.292,8930

1 responses to the Commission's inquiries that had now extended over 15 months. 51

2 September 30, 2010: Dr. Wright's attorney wrote to Ms. Johnson. The first part of

3 the letter sets forth the chronology of the investigation as described above here. The letter

4 requested specific information based on Washington law in order to "fairly consider [Dr.

5 Wright's] rights and responsibilities." The request included: (1) a copy of the complaint (2)

6 an explanation as to the reversal of the Commission's position about seeking personal

7 information regarding Tahoma Clinic patients; (3) an explanation as to the relevancy and the

8 scope of the thirty unredacted records, consistent with RCW 70.02.050(2)(a), in order for Dr.

9 Wright to determine compliance with state licensure laws or needed to protect public health;

10 (4) a copy of the rules and security policies regarding receipt and safe keeping of health care

11 records pursuant to RCW 70.02.050(3); and (5) an explanation regarding the retaliatory

12 nature of the recent request in response to Plaintiff's protection of the privacy of Tahoma

13 Clinic patients. 52 The Commission never responded to the September 30th letter.

14 E. Statement of Charges

15 March 16, 2011: The Commission filed a Statement of Charges against Dr. Wright,

16 charging him with violation RCW 18.130.180 (8), which defines unprofessional conduct as:

17 Failure to cooperate with the disciplining authority by:

18 (a) Not furnishing any papers, documents, records, or other items;

19 (b) Not furnishing in writing a full and complete explanation

20 covering the matter contained in the complaint filed with the disciplining authority. 53

21 For over a year, Dr. Wright litigated this proceeding without knowing the actual basis

22 for charges against him was premised upon the charge of aiding and abetting the unlawful

23 practice of medicine.

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26 51 Id., (Deposition of Bahn p. 82-83). 52 /d., Exhibit A (Comm Inv. File at INV.000243-245). 53 Id., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.13).



September 20, 2011: The Commission initially withheld portions of the

investigative file, including the substance to which it was investigating Dr. Wright, until the

Presiding Officer ordered Dr. Wright was entitled to know the basis for the Commission's

investigation. 54 It was only at this time that it became apparent the Commission's sole focus

in the investigation was developing an aiding and abetting charge against Dr. Wright, despite

what the Commission had represented to him. 55

June 25, 2012: The Commission amended the Statement of Charges against Dr.

Wright adding a charge for aiding or abetting an unlicensed person to practice when a license

is required. 56

F. Commission Proceedings

October 5, 2012: Dr. Wright filed a motion for summary judgment to dismiss the

non-cooperation charges against him, and striking untruthful allegations within the Statement

of Charges. 57

November 12, 2012: Dr. Wright filed a motion for summary judgment for dismissal

of charges for aiding or abetting the unlicensed practice of medicine.

December 24, 2012: The Presiding Officer denied Dr. Wright's motions for

summary judgment. Among other factual findings, the Presiding Officer found the

following: (1) the Commission knew the day that Dr. Mitchell filed for a Washington license,

(2) the Commission knew Dr. Mitchell's Texas license was revoked, 58 (3) the Commission

never revealed this fact to Dr. Wright or his staff 59, and (4) the Commission knew Dr.

Mitchell was practicing in Washington. 6° The Presiding Officer also made the following

54 Id., Exhibit G (Transcript of recorded proceedings before Frank Lockhart on Sept. 20, 2011) 55 See generally id., Exhibit A (Comm. Inv. File) 56 Id, Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.14). 57 The Commission was granted various continuances by the Presiding Officer. The Commission was not required to respond to Dr. Wrights motion regarding the non-cooperation charges until after Dr. Wright filed his motion dismiss the aiding and abetting charge. 58 Id, Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.7). 59 Id, (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.9). 60 Id


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1 relevant conclusions of law: (1) the charge of aiding or abetting requires knowledge and

2 intent and (2) there is "no document or evidence before the Presiding Officer that [shows Dr.

3 Wright] knew Dr. Mitchell's Texas license had been revoked. 61

4 In a subsequent prehearing conference, the Presiding Officer, Frank Lockhart, has

5 gone as far as saying "The Commission can ask for whatever it wants." 62

6 IV. ISSUES

7 1. Must Dr. Wright exhaust administrative remedies in challenging the per se unconstitutionality of WAC 236-919-620 and misconduct of the Commission

8 in the prosecution of its claims?

9 2. Is WAC 236-919-620 facially unconstitutional, therefore, warranting a writ prohibiting the Presiding Officer from moving forward with its proceedings

10 against Dr. Wright?

11 3. Does the Commission's lack of evidence regarding Dr. Wright's knowledge that Dr. Mitchell's Texas license was revoked warrants a writ of mandamus

12 compelling the Commission to dismiss the aiding and abetting charge?

13 V. EVIDENCE RELIED UPON

14 This motion is based upon the Declaration of Michael McCormack in support of

15 Plaintiffs Motion for Writs of Mandamus and Prohibition, the Declaration of Dr. Wright in

16 Support of Plaintiffs Motion for Writs of Mandamus and Prohibition, filed

17 contemporaneously with this motion.

18 VI. ARGUMENT

19 Dr. Wright brings this motion pursuant to RCW 7.16.160 and RCW 7.16.300. Under

20 RCW 7.16.160, an applicant for a writ of mandamus is required to satisfy three elements

21 before a writ will issue: (1) the party subject to the writ is under a clear duty to act; (2) the

22 applicant has no plain, speedy and adequate remedy in the ordinary course of law; and (3) the

23 applicant is beneficially interested. 63

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25 61 Id. (Order Denying Plaintiff's Motion for Summary Judgment ¶ 2.9).

26 62 Id. Exhibit J (Pre-Hearing Conference held January 28, 2013) (Emphasis added). 63 Eugster v. City of Spokane, 118 Wn.App. 383, 402, 76 P.3d 741, review denied 151 Wn.2d 1027, 94 P.3d 959 (2003).


MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle,

AND RCW 7.16.300 Washington 98101-1397 Telephone: 206.292.8930

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A writ of prohibition is the counterpart of a writ of mandate. 64 The writ of prohibition

arrests proceeding in any tribunal when the proceedings are without or in excess of

jurisdiction. 65 A writ of prohibition is proper when: (1) the party to whom writ is issued

must be acting without or in excess of its jurisdiction; and (2) there is an absence of plain,

speedy, and adequate remedy in ordinary course of legal procedure. 66

Dr. Wright is not required to exhaust administrative remedies prior to the Court

issuing the requested writs. Further, Dr. Wright has met the necessary elements for a writ of

mandamus and prohibition to be issued as discussed below. Therefore, Dr. Wright

respectfully request the court grant this motion and issue writs (1) compelling the Presiding

Officer to dismiss aiding and abetting charges and (2) prohibiting the Commission's use of

an unconstitutional warrantless administrative seizure scheme, WAC 246-919-620, in the

prosecution of claims against Dr. Wright.

A. Dr. Wright is not Required to Exhaust Administrative Remedies for the Court to Grant the Requested Writs.

Dr. Wright bases his request for a writ of prohibition on the Commission's use of

unconstitutional warrantless administrative seizures in the prosecution of its claims.

Moreover, Dr. Wright presents his request for a writ of mandamus based on the

Commission's and the Presiding Officer's failure to dismiss baseless charges.

1. No exhaustion is required because the Commission's administrative search procedures are unconstitutional per se.

Although RCW 34.05.534 generally requires exhaustion of administrative remedies,

the Washington Supreme Court has stated certain exceptions to the exhaustion requirement

exist where the exhaustion requirement is outweighed by "consideration of fairness or

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64 RCW 7.16.290. 65 Id

26 66 County of Spokane v. Local No. 1553, American Federation of State, Wn.App. 765, 768, 888 P.2d 735 (1995).


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County and Mun. Employees, AFL-CIO, 76

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BullivantinouserMailey PC


practicality. ' 67 The Supreme Court has approved one such exception where a "party is

challenging [the] constitutionality of agency's action or of agency itself, [the] exhaustion

requirement will be waived. 68

The non-cooperation charges against Dr. Wright are based the Commission's

unconstitutional warrantless administrative seizures. Dr. Wright challenges the

constitutionality of the warrantless administrative seizures. 69 Based on this challenge, Dr.

Wright is not required to exhaust administrative remedies in moving for a writ of prohibition

from the Court.

2. No Exhaustion is Required for a Writ of Mandamus because Participation in further Commission Proceedings would be Futile.

The Washington Supreme Court has also acknowledged an exception to the

exhaustion requirement where participation in administrative procedures would be futile. 7° If

administrative remedies are in "vain and useless" public policy outweighs the exhaustion

requirement. 71

The adjudicatory hearing will be vain and useless. In his order denying Dr. Wright's

motion for summary judgment, the Presiding Officer found: (1) as a matter of law aiding and

abetting the unlawful practice of medicine requires knowledge and intent; 72 and (2) "there is

no document or evidence before the Presiding Officer that [shows Dr. Wright] knew that Dr.

Mitchell's Texas license was revoked. 73 Because the Presiding Officer effectively found the

aiding and abetting charge to be baseless as a matter of law, consideration of fairness and

practicality, and notions of futility, support exhaustion is not required.

67 South Hollywood Hills Citizens Ass'n for Preservation of Neighborhood Safety and Environment v. King County, 101 Wn.2d 68, 74, 677 P.2d 114 (1984). 68 Id. 69 infra 70 South Hollywood Hills Citizens Ass'n for Preservation of Neighborhood Safety and Environment, 101 Wn.2d at 74. 71 Orion Corp. v. State, 103 Wn.2d 441, 693 P.2d 1369 (1985). 72 McCormack Dec., Exhibit C (Order Denying Plaintiff's Motion for Summary Judgment ¶ 1.7). 73 Id.




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Further, neither the WAC nor the Administrative Procedure Act, RCW 34.05, provide

administrative procedures to be exhausted other than participation in the Commission's

disciplinary proceeding. Because the Presiding Officer of this proceeding has allowed the

Commission to prosecute baseless charges against Dr. Wright, his participation in the

meritless disciplinary proceeding is futile.

B. WAC 236-919-620 is Facially Unconstitutional per se, Therefore, Warranting a Writ Prohibiting the Presiding Officer from Moving Forward with its Proceedings against Dr. Wright.

Demands for patient medical records are seizures under Washington law. 74 WAC

236-919-620 requires that a physician, licensed by the Commission, comply with a demand

for patient medical records, protected under RCW 70.02.050. 75 Under WAC 236-919-

620(1)(b), if a physician fails to comply with the Commission's demand within a specific

time period under the rule, "a statement of charges shall be filed. . ." Next, the Commission

13 may self-generate complaints against physicians. 76 Because the process under WAC 236-

14 919-620 is unchecked and does not provide a warrant's certainty or regularity in application,

15 the Commission's administrative seizures are unfettered, without accountability and there

16 unconstitutional. Such a procedural scheme violates due process and must be prohibited by

17 this Court.

18 A writ of prohibition is the appropriate vehicle to prohibit the Commission from

19 proceeding on charges based upon unconstitutional administrative seizures. A writ of

20 prohibition is proper when: (1) the party to whom writ is issued must be acting without or in

21 excess of its jurisdiction; and (2) there is an absence of plain, speedy, and adequate remedy

22 in ordinary course of legal procedure. 77 Writs of prohibition may be invoked to prohibit

23 judicial, legislative, executive, or administrative acts if an official or body to whom it is

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25 74 Seymour v. Dept. of Health & Dental Qualty Assur. Com'n, 152 Wn.App. 156, 171, 216 P.3d 1039 (2009).

2676

WAC 236-919-620(1). RCW 8.130.080(2).

77 Local No. 1553, American Federation of State, County and Mun. Employees, AFL-CIO, 76 Wn.App. at 768. PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 16 BullivantlHouseriBailey PC


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directed is acting in excess of its power. 78 A writ of prohibition will lie to prohibit an act

done under the color of an office, trust, or station. 79

1. The Commission is Acting in Excess of its Jurisdiction Through its use of Unconstitutional Administrative Seizures.

The dispositive issue is whether the Commission is authorized, under the limited

power granted to it by the Washington Legislature, to conduct unchecked administrative

seizures without limitations in its request for health care records. Washington case law

clearly indicates the answer is no. As result, the Commission is acting in excess of its

jurisdiction through its prosecution of Dr. Wright predicated upon an unconstitutional rule

allowing for unchecked administrative seizures of records. Therefore, judicial intervention

through a writ of prohibition is necessary.

a. The Commission's jurisdiction is constrained by due process.

Washington case law is clear that an agency's investigative powers in a disciplinary

proceeding are constrained by due process concerns. 80 As such, if the Commission is acting

beyond those constraints through enactment of a rule, such as WAC 246-919-620, that

directly violates due process, the Commission is acting beyond is jurisdiction.

In Client A. v. Yoshinaka, the Department of Health started an investigation of a

psychologist based on a complaint from the mother of a patient. 81 The Department requested

the patient's treatment records under the authority of RCW 70.02.050(2) and the Uniform

Disciplinary Act. The psychologist cooperated by providing information to the investigator

and by answering questions, but he refused to turn over records. A lawsuit ensued

concerning the Constitutional and statutory issues involved in the Department's request.

Although the court never reached the constitutional arguments raised, the court found:

[T]he Board must balance the substantial privacy and confidentiality interests of health professionals and their patients

78 Brower v. Charles, 82 Wn.App. 53, 58, 914 P.2d 1202 (1966). 79 Local No. 1553, American Federation of State, County and Mun. Employees, AFL-CIO, 76 Wn.App. at 769. 80 See Infra. 81 Client A v. Yoshinaka, 128 Wash.App. 833, 836, 116 P.3d 1081 (2005)

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with the State's significant interest in protecting the public health. Any procedure must also ensure that the records are needed for a properly authorized investigation to determine compliance with state or federal licensing requirements. 82

In Carlson v. WA Dept. of Health, the Commission received an anonymous complaint

about Dr. Carlson, alleging the doctor had improper sexual relations with a patient. The

Commission issued written questions to Dr. Carlson and requested a complete copy of the

patient's file, which Carlson refused to provide. Soon thereafter, the investigator received an

anonymously-mailed envelope containing the patient's records. 83

The Court indicated that although authorization of an investigation does not implicate

due process concerns, the method in which the Commission investigates the claim may

implicate the Fourth Amendment. 84 The Court found that targeting medical records raises

constitutional concerns. 85 Importantly, as opposed to the Commission's request for records

under WAC 246-919-620, the request the investigator in Carlson subpoenaed Dr. Carlson's

medical records. 86 The Court stated the following about the subpoena process:

An administrative subpoena for records does not require a warrant, but the Fourth Amendment requires it to be "sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome." Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984) (quoting See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967)). The right of a person served with a subpoena to challenge it in court before compliance serves as an adequate safeguard of his or her Fourth Amendment rights. 87

The Court did not reach whether the investigator's action had violated Dr. Carlson's due

process rights because the investigator had done nothing to enforce his requests for records,

also unlike the current case. 88

82 Id. at 844. 83 Carlson v. WA Dept. of Health, 2008 WL 5068654 (W. D. Wash., 2008). 84 Id at *4. 85 Id. at *6. 86 Id. at *7. 87 Id 88 Id. *7-9.




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In Seymour v. Dept. of Health & Dental Quality Assur. Corn'n, the Washington

appellate court declared that DQAC improperly obtained medical records in a situation

similar to the case presented here. 89 DQAC first requested, then physically seized records

from Dr. Seymour's office. 9°

Referring extensively to the Yoshinaka decision, the Seymour court determined that

DQAC had not made a determination of merit into the complaint before launching its

investigation. 91 On that basis alone, DQAC's actions were improper. 92 But the court did not

stop there. It also addressed the Fourth Amendment issues. The following are highlights

from the Seymour court's decision in regard to the government's ability to collect records

from a health care provider:

• Demands for records are seizures under the Fourth Amendment. 93

A warrantless administrative search is valid only if authorized by a statute that adequately serves as a substitute for the protection afforded by the Fourth Amendment's warrant requirement. 94

• It is well established that "the Fourth Amendment's prohibition against

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unreasonable searches applies to administrative inspections of private commercial property." 95

16 • To be valid under the Fourth Amendment, a warrantless regulatory search or

17 administrative inspection must satisfy three criteria. Warrantless administrative searches are constitutional only:

18 (1) if there is a substantial governmental interest that informs

19 the regulatory scheme pursuant to which the inspection is made,

20 (2) if warrantless inspections are necessary to further the regulatory scheme, and (3) if the inspection program provides a

21 constitutionally adequate substitute for a warrant, in terms of certainty and regularity of its application. (Emphasis added.) 96

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25 92 93 Id. 152 Wn.App. at 171.

26 94 Id. 152 Wn.App. at 160. 95 Id. 152 Wn.App. at 164. 96 Id. 152 Wn.App. at 167.



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1 • A proper regulatory scheme, "rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers ... establishes

2 a predictable and guided ... regulatory presence." Donovan, 452 U.S. at 604.

3 Hence, the person subject to the inspection "is not left to wonder about the purposes of the inspector or the limits of his task." Biswell, 406 U.S. at 316.

4 The "regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being

5 made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. 97

6 • The requirement that DQAC make a finding of merit in order to authorize the

7 commencement of an investigation is designed to address two significant

8 Fourth Amendment concerns. First, the finding of merit is the statutory substitute for a judicial determination of probable cause. Second, the finding

9 of merit defines the possible violations, thus delineating the parameters of reasonableness to be applied to searches and seizures conducted during the

10 investigation that follows. Without such a finding, the discretion of executive

11 branch investigative officials is unchecked. 98

b. WAC 246-919-620 Violates the due Process Concerns Enumerated in

12 Yoshinaka, Carlson, and Seymore, and is Therefore Unconstitutional.

13 WAC 246-919-620 states, in relevant part:

14 (1) A licensee must comply with a request, under RCW 70.02.050, for health care records or documents from an

15 investigator who is acting on behalf of the disciplining authority pursuant to RCW 18.130.050(2) by submitting the requested

16 items within fourteen calendar days of receipt of the request by the licensee or the licensee's attorney, whichever is first. If the

17 licensee fails to comply with the request within fourteen calendar days, the investigator shall contact the licensee or the

18 licensee's attorney by letter as a reminder.

19 ***

20 (b) If the licensee fails to comply with the request within three business days after the receipt of the written reminder, a

21 statement of charges shall be issued pursuant to RCW

22 18.130.180(8)

23 From its clear terms, WAC 246-919-620 clearly imposes two constitutionally

24 problematic standards: (1) it requires compliance of an unchecked request by a Commission

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26II 97 Id. 152 Wn.App. at 167-168. 98 Carlson v. WA Dept. of Health, 2008 WL 5068654 at


MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397 AND RCW 7.16.300 Telephone: 206,292.8930

1 investigator and (2) it imposes strict liability, in that a charge of non-compliance will be

2 filed, if a physician fails to comply with the investigators request. Clearly this violates the

3 concerns enumerated in the above case law.

4 WAC 246-919-620 violates Yoshinaka because there is no procedure to ensure the

5 investigators unchecked demands are "needed for a properly authorized investigation." 99

6 WAC 246-919-620 violates Carlson because it does not protect the same due process

7 concerns as a subpoena. WAC 246-919-620 allows for an unchecked request that is not

8 "sufficiently limited in scope, relevant in purpose, and specific in directive so that

9 compliance [is] not over burdensome." loo Further, the investigator's unchecked request

10 cannot be challenged before a court as a subpoena can.

11 WAC 246-919-620 violates the due process concerns enumerated in Seymour for the

12 following reasons: (1) the enabling statute, RCW 18.130.050 and RCW 18.130.080 provide

13 no constitutional safeguards to protect due process in the absence of a subpoena, which

14 WAC 246-919-620 does not require to obtain patient medical records; (2) WAC 246-919-

15 620 provides no constitutionally adequate substitute for a warrant in terms of certainty and

16 regularity, it provides an investigator the power to demand unlimited amount of records

17 without providing any justification; and (3) WAC 246-919-620 is no way is connected to the

18 finding of merit. There are no parameters of reasonableness regarding the extent of records a

19 investigator can demand under WAC 246-919-620.

20 Because WAC 246-919-620 does not comport with the constitutional concerns

21 enumerated in Yoshinaka, Carlson, and Seymour, WAC 246-919-620 is per se

22 unconstitutional. 1°1 The Commission's unconstitutional administrative seizures cannot stand

23 as a basis for the charges against Dr. Wright. As such, Dr. Wright requests a writ prohibiting

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25 99 Yoshinaka, 128 Wash.App. at 844. 10° Carlson v. WA Dept. of Health, 2008 WL 5068654 at *7.

26 101 The Commission has subpoena power, a statutory mechanism that subjects the Commission to judicial scrutiny and accountability for its searches and seizures. Of course, in order to avoid that scrutiny, the Commission employs warrantless administrative searches to which the threat of mandatory sanctions is attached.


MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 1700 Seventh Avenue, Suite 1810, Seattle, Washingt, on 98101-1397 AND RCW 7.16.300 Telephone: 206.292.8930

1 the Commission from moving forth with the prosecution of Dr. Wright premised upon an

2 unconstitutional administrative rule.

3 c. The Commission's Investigation in this case Provides Insight into the Extent WAC 246-919-620 is used to Violate due Process Rights.

4 As enumerated in the FACTS section, Dr. Wright received a request for medical

5 records by the Commission pursuant to WAC 246-919-620. The Commission never

6 disclosed the basis or the scope of the investigation. 102 Despite not knowing the scope of

7 investigation, Dr. Wright complied by providing redacted medical records of patients. 1°3 The

8 Commission was unsatisfied with the records provided by Dr. Wright, therefore it indicated

9 it required thirty more unredacted records. 104 At that point, Dr. Wright attempted to address

10 his due process concerns with the Commission. 105 His attempts were met with a Statement

11 of Charges from the Commission alleging non-cooperation. Further, even the Presiding

12 Officer has been complicit in the Commission's prosecution of the non-cooperation claim

13 based upon the unconstitutional administrative seizure as exemplified in his statement, "[t]he

14 Commission can ask for whatever it wants." 1°6 Clearly, the Commission cannot be

15 permitted to move forth with the prosecution of Dr. Wright premised upon a rule that permits

16 such egregious violations of due process.

17 2. Dr. Wright has no Plain, Speedy, and Adequate Remedy.

18 No party to the action, including the Presiding Officer, has the power to prohibit the

19 Commission's unconstitutional administrative seizures. Under WAC 246-10-602(3), "[t]he

20 presiding officer shall. . . [a]pply the first source of law governing an issue those statutes and

21 rules deemed applicable to the issue." Importantly, under WAC 246-10-602(4), "[i]f the

22 validity of any statute or rule is raised as an issue, the presiding officer may permit

23 arguments to be made on record concerning the issue for the purpose of subsequent

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25 102 McCoimack Dec., Exhibit C (Order Denying Plaintiffs Motion for Summary Judgment ¶ 1.7). 103 Id., Exhibit A (Comm Inv. File at INV000211-222) . 104 Id (Commission's Investigative File at INV.000243-245) 26 105 Id:, (Commission's Investigative File at INV.000243-245). 1°6 /d. Exhibit J (Pre-Hearing Conference held January 28, 2013)



review." (Emphasis added).

From WAC 246-10-602 it is clear that Presiding Officer cannot rule on the

constitutionality of WAC 246-919-620. The best that Dr. Wright can do under WAC 246-

10-602 is preserve his arguments for review by this Court. Further, WAC 246-10-602

provides the authority to the Presiding Officer to reject Dr. Wright's preservation of the issue

on record. As such, no plain, speedy, and adequate remedy exists. Therefore, a writ of

prohibition is appropriate to prohibit the Commission from pursuing the prosecution of Dr.

Wright premised upon an unconstitutional seizure.

C. The Commission's Lack of Evidence Regarding Dr. Wright's Knowledge that Dr. Mitchell Texas license was Suspended Warrants a Writ of Mandamus Compelling the Commission to Dismiss the Aiding and Abetting Charge.

As an administrative body, the Commission's powers are limited by statute. As such,

its ability to maintain an investigation against a physician and prosecute a physician must

comply with its enabling statutes. Because the enabling statutes only provide the

Commission the ability to investigate and pursue disciplinary claims against a physician

when it has reasons to believe it has violated a standard of professional conduct, in the

absence of evidence supporting violation of such a standard, the investigation and

disciplinary proceeding must be dismissed as a matter of law. Because the Commission has

failed to provide such a remedy, a writ of mandamus compelling dismissal is appropriate.

RCW 7.16.160 states, in relevant part:

[a writ of mandamus] may be issued by any court . . . to any inferior tribunal . . . to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board or person.

The applicant for a writ of mandamus is required to satisfy three elements before a

writ will issue: (1) the party subject to the writ is under a clear duty to act; (2) the applicant

has no plain, speedy and adequate remedy in the ordinary course of law; and (3) the applicant




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1 is beneficially interested. 107 Mandamus is an appropriate means to compel a state official to

2 comply with law when the claim is clear and there is a duty to act. 108

3 1. The Commission has a duty to Dismiss the Baseless Aiding and Abetting Charge Against Dr. Wright.

4 The Commission is an administrative agency. It is well established under

5 Washington law that laldministrative agencies are creatures of the legislature without

6 inherent or common-law powers and may only exercise those powers conferred either

7 expressly or by necessary implication." 109

8 RCW 18.130.080 is the enabling statute that provides the Commission authorization

9 to enact rules to proceed in investigating unprofessional conduct. It provides in relevant part:

10 If the disciplining authority determines that a complaint

11 submitted under subsection (1) of this section merits investigation, or if the disciplining authority has reason to

12 believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the

13 disciplining authority shall investigate to determine whether there has been unprofessional conduct." °

14 RCW 18.130.090 enables the Commission to act upon its investigation and serve the

15 physician with a statement of charges which may be disputed at hearing. Importantly, the

16 statement of charges and the subsequent hearing must only be conducted if the Commission

17 has "reason to believe a violation of RCW 18.130.180, defining unprofessional conduct, has

18 occurred!" Therefore, once the Commission no longer has reason to believe a violation of

19 RCW 18.130.180, the Commission has a duty to dismiss the Statement of Charges.

20 It is clear from the above statutory scheme that the Commission must have reason to

21 believe a violation of RCW 18.130.180 occurred to pursue (1) investigation and (2) the

22 prosecution of charges against Dr. Wright. The facts in this case are clear that the

23

24 107 Eugster v. City of Spokane, 118 Wn.App. 383, 402-403, 76 P.3d 741, 753 (2003).

25 108 Paxton v. City of Bellingham 129 Wn.App. 439, 444-445, 119 P.3d 373(2005). 109 State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440 (1979); State v. Pierce, 11 Wn. App. 577, 581, 523 P.2d

26 1201 (1974). 11° RCW 18.130.080(2). 111 RCW 18.130.090(1).



Commission does not have reason to believe, or evidence to support, that Dr. Wright had the

requisite knowledge for an aiding and abetting charge, therefore the Commission has a duty

to dismiss the aiding and abetting charge against Dr. Wright.

Throughout the investigation, the Commission acknowledged Dr. Wright did not

know Dr. Mitchell's Texas license was suspended. As early as May 29, 2009, the

Commission's staff attorney noted in the Commission's file that it did not appear that Dr.

Wright nor his attorney were aware Dr. Mitchell's Texas license was revoked. 112 It is clear

from this note that the Commission did not have reason to believe Dr. Wright possessed the

requisite knowledge for aiding and abetting the unlawful practice of medicine.

Arguably, the Commission was not required to dismiss the aiding or abetting charge

at this time if they believed knowledge was not an element of aiding and abetting. Yet, any

ambiguity regarding this element was clarified in the conclusions of law of the Presiding

Officer's Order Denying Summary Judgment which states, "to aid and abet requires

knowledge and intent." 113 The order further states, there was "no document or evidence

before the Presiding Officer that [shows Dr. Wright] knew Dr. Mitchell's Texas license had

been revoked. 114

The Commission's investigative file proves the Commission knew Dr. Wright lacked

the requisite knowledge about Dr. Mitchell's Texas status. The Commission has never had

evidence that Dr Wright possessed knowledge. The Presiding Officer has explicitly ruled as

such. Hence, the Presiding Officer and the Commission has a duty to dismiss the baseless

aiding and abetting charge against Dr. Wright. Failure to do so would permit the

Commission to prosecute charges against Dr. Wright beyond the enabling statutes of RCW

18.130.080 and RCW 18.130.090.

2. Dr. Wright has no Plain, Speedy and Adequate Remedy in the Ordinary course of law.

112 McCormack Dec., Exhibit A (Comm. Inv. File at INV.000080). 113 Id. Exhibit C. (Order Denying Plaintiffs Motion for Summary Judgment ¶2.9). 114 Id

PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF Page 25 MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 AND RCW 7.16.300

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The Court has the discretion to decide what constitutes plain, speedy, and adequate

remedy at law which would preclude writ of prohibition based upon the facts of a case. 115 A

writ may be appropriate where there is something in the nature of the action that makes it

apparent the litigants' rights will not be protected without the writ. 116

From the facts of the case it is apparent that Dr. Wright's rights will not be protected

by the Presiding Officer. The Presiding Officer has already found as a matter of law the

Commission did not present evidence in response to Dr. Wright's motion for summary

judgment indicating the Dr. Wright had the requisite knowledge Dr. Mitchell's license was

revoked. 117 Yet, the Presiding Officer has allowed the prosecution of the Commission

against Dr. Wright to proceed. No plain, speedy, and adequate exist either in the statutory

scheme regulating the Commission or the Administrative Procedure Act. Therefore, a writ

of mandamus compelling dismissal of the baseless aiding and abetting charge against Dr.

Wright is appropriate.

3. Dr. Wright is Beneficially . Interested in the Writ.

It cannot be contended that Dr. Wright is not beneficially interested in the

Commission's proceedings. Dr. Wright is the subject of the Commission's investigation and

Statement of Charges. Further, Dr. Wright may wrongfully be subject to discipline through

the Commission's proceedings. As such, the element of a writ of mandamus is fulfilled.

Because all elements of a writ of mandamus are fulfilled, Dr. Wright request this

Court compel the Commission to dismiss the baseless aiding and abetting charge that it has

levied against Dr. Wright.

VII. CONCLUSION

For the above mentioned reasons, Dr. Wight request the Court grant his motion for

writs to prohibit the Commission from prosecuting Dr. Wright premised upon an

26 115 Butts v. Heller, 69 Wn.App. 263, 267, 848 P.2d 213(1993). 116 City of Kirkland v. Ellis, 82 Wash.App. 819, 920 P.2d 206 (1996 117 McCormack Dec., Exhibit C. (Order Denying Plaintiffs Motion


for Summary Judgment112.9). Page 26 BullivantiHouserlBailey PC


1 unconstitutional administrative rule and compel dismissal of the baseless aiding and abetting

2 charge.

3 DATED: February 15, 2013.

4

5

6 Michael McCormack, WSBA# 15006

7 E-Mail: michael.mccormackbullivantcom Attorneys for Jonathan J. Wright, M.D.

8 Bullivant Houser Bailey PC 1700 Seventh Avenue, Suite 1810, Seattle,

9 Washington 98101-1397 206.292.8930

BULLIVANT HOUSER BAILEY PC

/s/ Michael McCormack

10

1 1 14023239.1

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Page 27

BullivantIllouseriBailey PC


via hand delivery via first class mail via facsimile via email

CERTIFICATE OF SERVICE

The undersigned certifies that on this 15 th day of February, 2013, I caused the

foregoing PLAINTIFFS MOTION FOR WRITS OF MANDAMUS AND PROHIBITION

PURSUANT TO RCW 7.16.160 AND RCW 7.16.300 to be served to:

Kim O'Neal Assistant Attorney General Office of the Attorney General P.O. Box 40100 Olympia, WA 98504-0100

I declare under penalty of perjury under the laws of the state of Washington this 15 th

day of February, 2013, at Seattle, Washington.

Eli beth Anderson, Legal Assistant




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EXHIBIT A

CHIEF CIVIL JUDGE HEARING DATE: February 27, 2013

HEARING TIME: 1:30 pm With Oral Argument

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING

JONATHAN J. WRIGHT, M.D., No.: 12-2-12132-0

Plaintiff,

v.

STATE OF WASHINGTON, STATE OF WASHINGTON DEPARTMENT OF HEALTH,

Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTRAORDINARY WRITS OF MANDAMUS AND PROHIBITION PURSUANT TO RCW 7.16.160 AND RCW 7.16.300

(Proposed)

This matter having come before the Court on Plaintiff's Motion for Extraordinary

Writs of Mandamus and Prohibition Pursuant to RCW 7.16.160 and RCW 7.16.300, and the

Court having considered the following:

1. Plaintiff's Motion for Extraordinary Writs of Mandamus and Prohibition

Pursuant to RCW 7.16.160 and RCW 7.16.300;

2. Declaration of Michael McCormack in Support of Plaintiff's Motion for

Extraordinary Writs of Mandamus and Prohibition Pursuant to RCW 7.16.160

and RCW 7.16.300;

3. Responsive pleadings by the Defendant, if any; and

4.

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTRAORDINARY Page 1 WRITS OF MANDAMUM AND PROHOBITION PURSUANT TO RCW 7.16.160 AND RCW 7.16.300



IT IS ORDERED that Plaintiff's Motion for Extraordinary Writs of Mandamus and

Prohibition Pursuant to RCW 7.16.160 and RCW 7.16.300.

A WRIT OF PROHIBITION SHALL BE ISSUED against the Commission

prohibiting the Commission from proceeding with its non-cooperation charge against the

Plaintiff.

A WRIT OF MANDAMUS SHALL BE ISSUED against the Commission

compelling the Commission to dismiss its aiding and abetting the unlicensed practice of

medicine charge against the Plaintiff.

Dated:

Chief Civil Judge King County Superior Court

Presented by:

BULLIVANT HOUSER BAILEY PC

By/s/ Michael McCormack Michael McCormack, WSBA# 15006 E-Mail: [email protected] Bullivant Houser Bailey 1700 Seventh Avenue, Suite 1800 Seattle, WA 98101 Office: (206) 292-8930 Fax: (206) 386-5130 Attorneys for Hartford Insurance Company, an Insurance Company

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTRAORDINARY Page 2 WRITS OF MANDAMUM AND PROHOBITION PURSUANT TO RCW 7.16.160 AND RCW 7.16.300

BullivantlHouseriBailey PC 1700 Seventh Avenue, Suite 1810, Seattle, Washington 98101-1397 Telephone: 206.292.8930

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Documents

CHIEF CIVIL JUDGE With Oral Argument IN THE SUPERIOR COURT … · With Oral Argument IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING JONATHAN J. WRIGHT,