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Filed
Washington State
Court of Appeals
Division Two
February 22, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARK ANDREW HIESTERMAN, an No. 54171-8-II
individual,
Appellant/Cross-Respondent,
v.
STATE OF WASHINGTON DEPARTMENT ORDER GRANTING MOTION
OF HEALTH, TO PUBLISH
Respondents/Cross-Appellants.
Respondent, Department of Health, moved this court to publish its December 13, 2022
opinion. After consideration, we grant the motion. it is now
ORDERED that the final paragraph in the opinion which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports, but will
be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further
ORDERED that the opinion will now be published.
Panel: Jj. Cruser, Veljacic, Worswick.
FOR THE COURT:
Veljacic, J.
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Filed
Washington State
Court of Appeals
Division Two
December 13, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARK ANDREW HIESTERMAN, an No. 54171-8-II
individual,
Appellant/Cross-Respondent,
v.
STATE OF WASHINGTON DEPARTMENT UNPUBLISHED OPINION
OF HEALTH,
Respondents/Cross-Appellants.
VELJACIC, J. — Mark A. Hiesterman was arrested twice for driving under the influence
(DUI). He was reported to the Board of Osteopathic Medicine and Surgery (Board), which
received two complaints. He was also reported to the Board by the Washington Physicians Health
Program (WPHP) after he voluntarily sought program assistance and then refused to comply with
its recommendation. The Board conducted an investigation and issued charges. Eventually it
suspended Hiesterman’s license to practice medicine. As required by statute, the Board reported
his charges and later suspension to the public via a news release. It incorrectly stated that he had
been convicted of DUI. Hiesterman sued the Department of Health (DOH), arguing he was owed
damages due to its error in reporting he was convicted of DUI. DOH moved for summary
judgment dismissal, arguing it was immune from suit under RCW 18.130.300(1). The trial court
granted DOH’s motion.
Hiesterman appeals, arguing that RCW 18.130.300(1) violates the Washington
Constitution. He also argues that Janaszak v. State, 173 Wn. App. 703, 297 P.3d 723 (2013),
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54171-8-II
which interpreted RCW 18.130.300(1) and expanded its immunity to DOH, was incorrectly
decided. He also argues that RCW 18.130.300(1) does not protect administrative acts like DOH’s
reporting in this case. We decline to consider Hiesterman’s constitutional challenges under RAP
2.5(a)(3) because he failed to preserve this argument for appeal and the alleged constitutional
errors are not manifest. We also conclude that the plain language of RCW 18.130.300(1) provides
immunity to the Board and those performing the reporting function on its behalf. We affirm the
trial court’s summary judgment order.
FACTS
Hiesterman practices osteopathic medicine and is licensed to practice in Washington.
Hiesterman was arrested twice for DUI, once in Michigan and once in Idaho. For the Michigan
charge, he pleaded guilty to driving while intoxicated. For the Idaho charge, he pleaded guilty in
exchange for a withheld judgment. The Idaho charge was eventually dismissed.
Hiesterman self-referred to the Washington Physicians Health Program (WPHP), an
organization that assists doctors who present with a condition that may affect their ability to
practice. After a consultation, WPHP directed Hiesterman to undergo a “comprehensive
evaluation at a WPHP-approved facility.” Clerk’s Papers (CP) at 61. He chose the Betty Ford
Center’s clinical diagnostic evaluation. The Betty Ford team concluded that Hiesterman required
90 days of residential chemical dependency treatment. Hiesterman refused to follow the
recommendation, and WPHP gave him the opportunity to have an additional evaluation conducted.
He never sought an additional evaluation.
Around the time Hiesterman received his Betty Ford evaluation and recommendation, the
Board received two complaints about Hiesterman. One complaint pertained to his arrest for DUI
in Idaho. Meanwhile, WPHP informed Hiesterman that he was required to undergo treatment or
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54171-8-II
seek an additional evaluation, and that if he failed to comply, WPHP would contact the Board.
WPHP contacted the Board after Hiesterman failed to either seek treatment or reevaluation.
The Board conducted an investigation and issued a statement of allegations. The Board
later sent Hiesterman a statement of charges. Pursuant to RCW 18.130.110(2)(c),1 the Board
issued a news release, that included the inaccurate sentence: “Hiesterman was convicted of driving
while intoxicated in 2006 in Michigan and in 2013 in Idaho.” CP at 144.
Following a hearing, the Board suspended Hiesterman’s license. The Board issued another
news release informing the public that Hiesterman’s license was suspended. Eventually, the Board
reinstated Hiesterman’s license and removed all conditions. It issued a news release informing the
public of the reinstatement.
Hiesterman sued the DOH in tort for damages because it reported he had been convicted
of driving while intoxicated in Idaho.2 DOH moved for summary judgment, arguing it was
immune from suit under RCW 18.130.300(1).
Hiesterman never challenged the constitutionality of RCW 18.130.300(1) or the
constitutionality of the Janaszak holding in the trial court. The trial court granted DOH’s motion
for summary judgment. Hiesterman appeals.
ANALYSIS
I. THE DEPARTMENT OF HEALTH’S DISCIPLINARY PROCESS
In passing the Uniform Disciplinary Act (UDA), the legislature intended to standardize the
licensing and disciplinary procedures for health care professions. RCW 18.130.010. The UDA
1
RCW 18.130.110(2)(c) requires the Board to report to the public via a news release any time it
issues a statement of charges or a final order.
2
Hiesterman asserted claims of negligence, defamation, tortious interference with business
expectancy, and invasion of privacy.
4
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54171-8-II
established boards to oversee the licensure and discipline of such professions, including the Board
relevant here. RCW 18.57.003. The Board oversees the licensure and discipline of osteopathic
medical professions pursuant to the UDA. RCW 18.57.005(1); RCW 18.57.011. The Board does
not have its own staff and instead relies on DOH to provide staff.
The Board, as a disciplining authority, receives complaints made against medical
professionals and determines whether such complaints merit investigation. RCW
18.130.080(1)(a), (2). DOH must report the issuance of charges or a final order to the public via
a press release sent to local news media and major news wire services. RCW 18.130.110(2)(c).
After a hearing and a finding that a professional has acted unprofessionally, the Board may
discipline the professional through revocation or suspension of their license. RCW 18.130.160.
The UDA also includes an immunity provision that states in relevant part, “The secretary,
members of the boards or commissions, or individuals acting on their behalf are immune from suit
in any action, civil or criminal, based on any disciplinary proceedings or other official acts
performed in the course of their duties.” RCW 18.130.300(1).
II. CONSTITUTIONALITY OF RCW 18.130.300
Hiesterman argues that RCW 18.130.300(1) is facially unconstitutional because it provides
absolute immunity, which is barred by article I, section 8 of the Washington Constitution. DOH
first argues that Hiesterman failed to preserve his constitutional claims. Alternatively, it argues
that RCW 18.130.300(1) is constitutional. We decline to address Hiesterman’s facial challenge to
RCW 18.130.300(1) because he failed to preserve his constitutional claims and the claimed error
is not a manifest error affecting a constitutional right.
We consider only the issues and evidence the parties called to the trial court’s attention on
the motion for summary judgment. RAP 9.12. But we will consider an issue raised for the first
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54171-8-II
time on appeal if the claimed error is a manifest error affecting a constitutional right. RAP
2.5(a)(3); Vernon v. Aacres Allvest, LLC, 183 Wn. App. 422, 427, 333 P.3d 534 (2014). An error
is manifest if it results in actual prejudice to the defendant or the defendant makes a “‘plausible
showing . . . that the asserted error had practical and identifiable consequences in the trial of the
case.’” State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting State v. Lynn,
67 Wn. App. 339, 345, 835 P.2d 251 (1992)). “The court previews the merits of the claimed
constitutional error to determine whether the argument is likely to succeed.” State v. Walsh, 143
Wn.2d 1, 8, 17 P.3d 591 (2001).
Lynn sets out a four-step approach to determining whether an error claimed for the first
time on appeal amounts to a manifest constitutional error requiring review:
First, the reviewing court must make a cursory determination as to whether the
alleged error in fact suggests a constitutional issue. Second, the court must
determine whether the alleged error is manifest. Essential to this determination is
a plausible showing by the defendant that the asserted error had practical and
identifiable consequences in the trial of the case. Third, if the court finds the alleged
error to be manifest, then the court must address the merits of the constitutional
issue. Finally, if the court determines that an error of constitutional import was
committed, then, and only then, the court undertakes a harmless error analysis.
67 Wn. App. at 345.
First, Hiesterman’s claim that RCW 18.130.300 violates article I, section 8 of the
Washington Constitution clearly suggests a constitutional issue. Second, the alleged error is
manifest because the immunity provided by RCW 18.130.300 is a core issue resulting in judgment
for DOH here. But Hiesterman stumbles on the third step because a consideration of the merits of
the constitutional issue does not result in relief to Hiesterman. That is because Hiesterman must
“by argument and research, convince the court that there is no reasonable doubt that the statute
violates the constitution.” Island County. v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998).
Instead, Hiesterman asserts in conclusory fashion that RCW 18.130.300 grants irrevocable
6
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54171-8-II
immunity, which denies plaintiffs recourse, which in turn “‘runs contrary to the most fundamental
precepts of our legal system.’” Br. of Appellant at 8 (quoting Lutheran Day Care v. Snohomish
County, 119 Wn.2d 91, 105, 829 P.2d 746 (1992)). This argument fails to show that there is no
reasonable doubt that the statute violates the constitution.
Hiesterman fails in the Lynn four-step approach, and therefore, fails to show that the alleged
constitutional error was manifest. RAP 2.5(a). Accordingly, we decline to consider Hiesterman’s
constitutional challenge to RCW 18.130.300(1).
III. HIESTERMAN’S JANASZAK CHALLENGE
Hiesterman also argues for the first time on appeal that Janaszak violates article II, section
26 of the Washington Constitution. But we consider only the issues and evidence the parties called
to the trial court’s attention on the motion for summary judgment. RAP 9.12. However, as stated
above, we will consider an issue raised for the first time on appeal if the claimed error is a manifest
error affecting a constitutional right. RAP 2.5(a)(3); Vernon, 183 Wn. App. at 427. Also as set
out above, we review Hiesterman’s argument under the four-step approach set forth in Lynn. We
conclude that as to the first step, his argument suggests a constitutional issue because it alleges a
conflict with a state constitutional provision, article II, section 26. Second, if Janaszak, and its
application of liability to DOH in that case, is prohibited by article II, section 26, then it would
have a practical and identifiable consequence to Hiesterman’s case below. But as to the third
factor, again, Hiesterman would not be entitled to relief. That is because we agree with Janaszak
and its reasoning.
Hiesterman argues that the Janaszak court violated article II, section 26 of the Washington
Constitution and ignored RCW 4.92.090 because it granted immunities to the State and its
departments when interpreting RCW 18.130.300. He next argues that the Janaszak decision
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54171-8-II
conflicts with Savage v. State, 127 Wn.2d 434, 899 P.2d 1270 (1995). We conclude that Janaszak
was correctly decided.
When examining whether to extend the immunity protections of a given statute, courts
must conduct a “detailed policy-oriented factual inquiry.” Lutheran Day Care, 119 Wn.2d at 100.
Relying on conclusory holdings alone “carries with it the risk of finding immunity based on
analogy to a case where the title held by the relevant official is the same as the one at issue, but
the functions, procedures, and inherent protections available are quite different.” Id. at 100-01.
The Janaszak court specifically examined RCW 18.130.300(1) and its grant of statutory absolute
immunity. 173 Wn. App. at 713-14. The court concluded that the statute “grants absolute
immunity for acts performed in the course of a covered individual’s duties.” Id. at 714. It also
considered whether the statute granted immunity to the state and DOH. Id. at 717-18.
The court examined the statutory scheme of the UDA, which covers the investigation and
regulation of the practice of medicine. Id. at 718. It concluded that when it passed the UDA,
including RCW 18.130.300(1), the legislature intended to provide absolute immunity “for the
secretary of health, members of the commissions, and individuals acting on their behalf for official
acts performed by any of these individuals in the course of their duties under the act.” Id. Because
the investigative and enforcement duties of such roles mirrored prosecutorial and judicial roles,
the court determined it should examine cases addressing the extension of prosecutorial and judicial
immunity. Id.
Its examination revealed that the policy protecting prosecutors and judicial staff was not
intended solely to protect individuals (though it certainly has that effect), but rather to protect “‘the
public and to insure active and independent action of the officers charged with the prosecution of
crime, for the protection of life and property.’” Id. (internal quotation marks omitted) (quoting
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54171-8-II
Creelman v. Svenning, 67 Wn.2d 882, 884, 410 P.2d 606 (1966)). The court explained that the
Washington Supreme Court has stated that such immunity should be extended to the state and the
“entity employing the prosecutor.” Janaszak, 173 Wn. App. at 719. The court concluded that the
same policy considerations applied to RCW 18.130.300(1) because that statute was also not
intended to protect individuals but to protect the integrity of the disciplinary process. Id. at 719.
The court held that the absolute immunity in RCW 18.130.300(1) applied to the state and DOH.
Id.
We agree with the Janaszak decision and adopt its reasoning here.
Hiesterman asserts that Janaszak violated the Washington Constitution because only the
legislature may grant immunity under article II, section 26.3 However, he relies on Savage which
contradicts his position because it provides that courts may extend immunity upon the appropriate
policy examinations. See 127 Wn.2d 440-41. Janaszak is consistent with Savage.
Hiesterman also argues the policy of protecting the disciplinary process under RCW
18.130.300(1) does not warrant extending immunity to the state or DOH. But the Janaszak court
spent considerable time analyzing the policy reasons that do warrant extending the immunity of
RCW 18.130.300(1) to DOH and the state. 173 Wn. App. at 718-19.
Hiesterman’s assertion that Janaszak is contrary to article II, section 26 of the Washington
Constitution, RCW 4.92.090, and the Supreme Court’s Savage decision fails. Accordingly, step
three of the Lynn four-step approach is unmet and the alleged constitutional error is not manifest.
Because it is not manifest, we do not review the issue per RAP 2.5(a)(3).
3
WASH. CONST. art. II, § 26 states: “The legislature shall direct by law, in what manner, and in
what courts, suits may be brought against the state.”
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54171-8-II
IV. ADMINISTRATIVE VERSUS QUASI-JUDICIAL ACTIONS UNDER RCW 18.130.300(1)
Hiesterman argues “DOH’s reporting at the conclusion of the disciplinary proceedings is
an administrative act outside the immunity provided by RCW 18.130.300.” Br. of Appellant at
12. Further, he argues that because RCW 18.130.300(1) provides immunity for quasi-judicial
action, it should not be applied to DOH’s reporting action here because such action was
administrative. DOH argues that by its plain language RCW 18.130.300(1) applies to the reporting
at issue here. We agree with DOH.
A. Legal Principles
The primary goal of statutory construction is to determine and give effect to the
legislature’s intent. SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377,
398, 377 P.3d 214 (2016). To decipher legislative intent, we examine the plain language of the
statute, the context of the statute in which the provision is found, and related statutes. Id. at 398.
“‘[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning
as an expression of legislative intent.’” Green v. Pierce County, 197 Wn.2d 841, 850, 487 P.3d
499 (2021) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4
(2022)).
RCW 18.130.300(1) states, “The secretary, members of the boards or commissions, or
individuals acting on their behalf are immune from suit in any action, civil or criminal, based on
any disciplinary proceedings or other official acts performed in the course of their duties.”
B. Analysis
RCW 18.130.300(1) is unambiguous. It applies to the reporting action required of DOH.
Hiesterman spends most of his brief discussing why RCW 18.130.300(1) should not apply to
DOH’s action here based on the distinction between administrative and quasi-judicial actions, in
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54171-8-II
that the reporting of his DUI history was an administrative action, rather than a quasi-judicial
function. He does so at the expense of any interpretation of RCW 18.130.300(1) itself. We hold
that DOH’s fulfillment of its reporting duty is conduct protected by statutory immunity under
RCW 18.130.300(1).
Hiesterman’s reliance on the administrative policy underlying DOH’s actions in this case
is misplaced because RCW 18.130.300(1) makes no distinction between the investigative and
administrative work of DOH staff. Hiesterman directs our attention to a purpose of the statutory
immunity as discussed in the Janaszak opinion, he misreads the point of the Janaszak court.
Hiesterman asserts that the immunity in RCW 18.130.300(1), is not intended to protect the
individual, but instead to protect only the decision making process, and that immunity therefore
should not extend to those performing acts that are non-quasi-judicial, such as reporting.
While it is true that an underlying policy is to protect the decision making process, we will
not read the policy to nullify the plain unambiguous language of the statute, which grants immunity
to “[t]he secretary, members of the boards or commissions, or individuals acting on their behalf .
. . based on any disciplinary proceedings or other official acts performed in the course of their
duties.” RCW 18.130.300(1). And since notification via press release is an official act performed
in the course of their duties, those performing those non-quasi-judicial acts on behalf of the Board
are also protected by the statutory immunity.
The immunity under RCW 18.130.300(1) includes the reporting mandate of RCW
18.130.110(2)(c). We affirm the trial court’s summary judgment order.4
4
DOH conditionally cross-appeals, arguing that Hiesterman’s affidavit includes inadmissible
evidence that should be stricken. DOH concedes that we should only review this argument if it
reverses the trial court’s summary judgment order. Because we affirm the trial court’s summary
judgment order, we do not consider DOH’s conditional cross-appeal.
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54171-8-II
CONCLUSION
We decline to consider Hiesterman’s constitutional challenges under RAP 2.5(a)(3)
because the alleged constitutional errors are not manifest. We also conclude that the plain language
of RCW 18.130.300(1) provides immunity to the Board and those performing the reporting
function on its behalf. We affirm the trial court’s summary judgment order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Worswick, J.P.T.
Cruser, A.C.J.
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