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In re License of Thompson

Court of Appeals of Minnesota

September 23, 2019

In the Matter of the License of Herman Thompson, M.Eq., L.P. License No. LP2769

          Minnesota Board of Psychology File No. OAH 71-0907-34423

          Larry E. Reed, Minneapolis, Minnesota (for relator Herman Thompson)

          Keith Ellison, Attorney General, Nicholas Lienesch, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Board of Psychology)

          Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Klaphake, Judge. [*]

         SYLLABUS

         1. The Minnesota Board of Psychology is authorized to commence and maintain a disciplinary proceeding against, and to impose discipline on, a psychologist whose license no longer is valid because it was not renewed, so long as the license has not been terminated.

         2. There is no limit on the time in which the Minnesota Board of Psychology may commence a disciplinary proceeding against a licensed psychologist if the complaint alleges the type of sexual misconduct described in section 148.941, subdivision 7(b)(2), of the Minnesota Statutes. The seven-year limitation period in section 148.941, subdivision 7(a), does not apply to such a complaint.

          OPINION

          JOHNSON, JUDGE.

         The Minnesota Board of Psychology revoked Herman Thompson's license to practice psychology based on a finding that he engaged in sexual misconduct toward a patient. Thompson argues that the board did not have authority to discipline him because his license had expired, that the board's disciplinary proceeding is barred by a statute of limitation, and that the board's decision is not supported by substantial evidence. We reject each of his arguments and, therefore, affirm.

         FACTS

         Thompson was first licensed by the board as a psychotherapist in 1985. He thereafter renewed his license at two-year intervals. Between August 2003 and May 2005, Thompson treated a patient, J.W., who was between the ages of 16 and 17 years old. In 2016, when J.W. was 28 years old, the board received two complaints that Thompson had sexually abused J.W. while he was a patient and shortly after the therapeutic relationship ended. One complaint was filed by J.W.'s then-current therapist; the other complaint was filed by a sergeant with the Minneapolis Police Department.

         The board conducted an investigation. On May 30, 2017, the board's complaint-resolution committee served a notice of contested-case hearing on an attorney who had been communicating with the board on Thompson's behalf. Thompson did not make any attempt to renew his license by June 30, 2017, the last day on which the license was valid.

         On August 2, 2017, the attorney who was representing Thompson appeared before the board and asserted that Thompson had not authorized him to accept service of the notice and that the board's complaint-resolution committee should serve the notice on Thompson personally. The board's complaint-resolution committee did so two days later.

         Thereafter Thompson and his attorney made several attempts to dismiss the disciplinary proceeding without an evidentiary hearing. In August 2017, he moved to dismiss on two grounds: (1) that the board lacks jurisdiction over him because his license had expired and he had retired, and (2) that the disciplinary proceeding is time-barred. An administrative-law judge (ALJ) denied the motion. Thompson filed a motion for reconsideration and amended findings, which the ALJ denied. In April 2018, Thompson filed a motion for summary disposition based on the same grounds as his motion to dismiss. The ALJ denied that motion for the same reasons. In May 2018, Thompson petitioned this court for a writ of prohibition or a writ of mandamus to require the dismissal of the disciplinary proceeding. This court denied the petition. In re License of Thompson, No. A18-0710 (Minn.App. May 15, 2018) (order).

         The ALJ conducted a three-day evidentiary hearing in July and August of 2018. The board called seven witnesses, including J.W. and Thompson, and introduced six exhibits. Thompson called one witness, J.W.'s foster parent in 2003, and introduced one exhibit, his records of J.W.'s treatment.

         In October 2018, the ALJ issued a 30-page report and memorandum with findings of fact, conclusions of law, and a recommendation. The ALJ concluded that the board's complaint-resolution committee had satisfied its burden of proof with respect to its factual allegations. The ALJ recommended that the board take disciplinary action against Thompson.

         In December 2018, the board held a hearing at which the attorneys for the board's complaint-resolution committee and for Thompson presented oral arguments and responded to questions from the board. Later that month, the board issued an order in which it adopted the ALJ's findings of fact and conclusions of law in their entirety and revoked Thompson's license to practice psychology. Thompson appeals by way of a writ of certiorari.

         ISSUES

         I. Does the board of psychology have authority to discipline Thompson in light of the fact that his license to practice psychology ...


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