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Michael v. Delaware Board of Nursing

Supreme Court of Delaware

February 22, 2018

MAIA KATHRYN MICHAEL, Appellant Below, Appellant,
v.
DELAWARE BOARD OF NURSING, Appellee Below, Appellee.

          Submitted: February 7, 2018

         Court Below: Superior Court of the State of Delaware C.A. No. N17A-02-003-JRJ

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

          ORDER

          Leo E. Strine, Jr. Chief Justice.

         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 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]

         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 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 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 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 ...


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