Mark A. Hiesterman, Appellant/cross-res V. Wa State Dept. Of Health, Respondent/cross-app

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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),

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.”

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.

For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.