*1 588 P.2d COHEN, Appellant, M.
Leonard Arizona, of Arizona
STATE of Examiners, Chairman,
Virginia Maresca, K. Harriet
Beck, Kerr, Nancy Diers Wallace Biglin, Appellees.
James
No. 1 CA-CIV 3164. Arizona, Appeals
Court of
Division
Department C.
Dec. 1977.
Rehearing Denied Jan. 1978. April 1978.
Review Granted *2 Zalut, by Henry
Shoob & Zalut L. Phoe- nix, for appellant.
Bruce Gen. J. Mi- Babbitt, Atty. E. Gen., Phoenix, Low, Atty. chael Asst. appellees.
OPINION FROEB, Judge, Division 1. Chief This case involves the effort of to obtain certification in psy- Arizona as a chologist. In our review of the record and our analysis relating of the laws and rules certification, we conclude that incorrectly has been denied certification be- parts cause of the certification statutes vague unconstitutionally ambiguous and because the Board of Ex- misinterpreted aminers has its own rules remaining valid statutes. synopsis
A of the law involved in this appeal appropriate point. seems at this Ti- (Professions tle Occupations), Chap- ter 19.1 of the Arizona Revised Statutes and, passed in 1965 amendments, together in sec- with found through tions 32-2061 32-2087. The laws establish a Board of Psychologist Examin- (§ 32-2062); ers define certain terms (§ 32-2061); provide the Board with rule- (§ 32-2063); making powers quali- establish procedures fications and (§§ through 2074); regulate psy- the conduct of certified 32-2081); chologists (§ provide hearings (§ 32-2082); recognize exemptions certain (§ 32-2083); practice bar the of medicine (§ 32-2084); recognize by psychologists (§ 32-2085), privileged communications provide criminal sanctions for certain con- (§ 32-2087). duct pass ex- need not the “credentials directly We are most concerned in this provisions with amination.” relating case certifi 32-2072.1 cation found A.R.S. §§ say We shall about have more 1(c) of agraph Par 32-2071 sets here anomaly; suffice it to state require forth the academic and of three added factor *3 psychologist. a for certification as It ments the impact very little experience has general which furnishes a standard in terms well be mean- may and certification specific by rules Board can make more the statutory scheme. present the ingless under rule-making No power. enacted under its presented qualifications the We turn to experience given of a number professional a holds He to the Board. appellant by qualifi is these years necessary of to meet (D.S.Sc.) awarded of science social doctorate cations; graduate presumably, a recent Re- Social by the New in 1948 School academic achievements required with the The New York state. located in search certification, provided aca the can obtain the nor- Ph.D. is that a evidence indicates up to stan measure demic “credentials” pro- prerequisite for admission mal by Board. dards established the Research for Social gram New at the School requirement was waived D, paragraph but that the Ph.D. provides, in Section 32-2072 cred- experience and years pro- appellant’s of because of applicant if an has three School for Social New a He the in addition to satis- its. entered experience fessional undergraduate an earning “the board after background, Research factory academic master’s University and a degree at Clark credentials examination. shall waive" the of at the Nevertheless, an paragraph requires degree D degree from Pittsburgh. As his doctorate category have an academic applicant was Research School for appli- the New Social background equivalent to that of science, sought in social of awarded cant without three academic that his on the basis only difference the experience. The applicant training adequacy provides: to determine of § 1. A.R.S. 32-2071 experience. and psy- The board shall issue a certificate as applicant An B. whose credentials exami- chologist any person who: unsatisfactory may is found to re- nation quest hearing be by 1. Submits evidence verified oath and hearing a before the board. Such a satisfactory the board that he: days requested sixty shall be within (a) good Is moral of character. of time of that his credentials the notification (b) Is a citizen of the United States or has unsatisfactory. A decision on examination becoming legally of declared his intention sixty hearing such shall be rendered within such citizen. days completion hearing. after degree (c) based received the doctoral Has applicant An who fails the credentials C. program of which on a of studies the content may register for another exami- examination primarily psychological, or substan- was reapplication shall be accom- nation. Each panied subject equivalent matter tial thereof in both reappliction prescribed by the fee as training, an edu- and extent obtained from in 32-2074. § pro- graduate having a cational institution gram shall waive examination D. The board by psychologi- the American accredited by requirement prescribed and this article as association, or where the educational in- cal upon payment the the grant by shall a certificate approved the north cen- stitution has been 32-2074, provided prescribed fee secondary as colleges and tral association prescribed qualifications schools, accrediting recog- meets by any agency (a) 32-2071, 1, paragraph subdivisions regents. by nized board equiva- (b), degree or original application a doctoral and lent thereof from an institution Pays fee for an 2. accredited, as prescribed in 32-2074. 1, 32-2071, paragraph provided subdivi- satisfactory § exami- credentials 3. Passes granted, (c), degree at the time psychological preparation sion as de- nation in program content on a studies the based scribed in 32-2072. primarily psychological, sub- provides: or the which 32-2072 subject applicants thereof both under this stantial A. Examinations for training, in addition by matter and extent chapter each shall be held the board twice professional experi- years of year. has had three of an The examination shall consist satisfactory to the board. ence of credentials evaluation submitted March The and his “substan- 1974. Board evaluated training were the on school tran- appellant’s courses shown tial of a “doctoral equivalent” scripts whether fell within as to on a of studies the content the Board found area of Since See was primarily psychological.” inconclusive, ap- it asked course titles 32-2072. pellant the schools and obtain to contact original application for certi- Appellant’s he descriptions those courses was considered fication categorized psychologi- claimed should Examiners December meeting August At a held on cal. later ground 1973. It was denied on the that his considered the materials the Board training was A hear- inadequate. academic specific made submitted Board, by appel- requested before concerning findings the allowed and disal- 32-2072(B), held on pursuant lant credits.2 court lowed course *4 following pro- questions 2. The “answers” to c) Pittsburgh: Credits University —Cont’d pounded to the State Psych-Training Problems in “findings” and Industry Examiners constitute Business 2 Psych-Advanced Statistics 1 relating to Board the academic credentials Psych-Introduction to Psycho- M. Leonard Cohen: Diagnosis logical and Profes- Question given 1 credit Courses Mr. Cohen was Techniques sional 2 for: listed and amount of Psychology Universities Psych-History 2 given. Psych-Seminar General Psych. _1 credit Total 23 a) Pittsburgh: Credits University of granted: judged to Total be in areas considered 63 in credits courses Psych-Pre-School Child psychological. Evaluation 2 Following were courses Mr. Cohen was Psych-Statistical 2 Methods for, granted judged Psych-Tests for Special credit because 2 were Aptitude Psych-Psychological-Educational not to be in area of Adjustment of Exceptional Child 2 Credits Psych-Individual Psych. Not Techniques 2 a) Pittsburgh: Granted University Psych-Animal 2 Math-Theory of Statistics 3 Psych-Residency 2 Problems E121 Industry-Lab 2 Psych-Thesis 3 E101 Industry-Industry 2 Psych-Statistical 2 Methods Management Industry-Personnel Psych-Current Psych. 2 Literature E123 2 Psych-Individual Psych. Industry-Industrial Relations 2 Technique E122 2 2 Principles Psych-History Management Industry-Personnel 2 Psych-Internship E124 2 Psych-Thesis 3 Economics-Comparing Economic Psychology Psych-Field Work in 3 SSI 13 System 2 33 Total of Three History-Peoples Con- Asia Europe, tinents: b) Credits New School for Social Research: Africa 2 Psychology II; Basic Problems in Chemistry-Organic 31 Chemistry-Organic 32 4 Motivation the Group, 4 Personality. 2 Physics-General Physics-Engineering 4 to Psychodynamics Introduction 5 Projective 2 Techniques Chemistry 4 Psychology 2 History of English 3 Psychology _L Seminar General Greek 3 7 Total Oriental I Political Science 3 following originally granted, were Note: These credits Education 1 Physical granted were tran- credits after of another receipt Chemistry English 4 Pittsburgh. from the script University of 3 Greek 3 Pittsburgh: c) Credits Oriental 1 Psychology 2 Political Science Psych-Social 3 2 Education Psych-Abnormal Physical I 2 Classics 1 Psych-Current Psych. Literature Economics Psych-Tests for 2 3 Special Aptitudes English 3 Psych-Individual Psych. 2 Greek Withdrew Techniques-Verbal Greek 2 1 Psych-Advanced Statistics Psych 2 3 Psych-Abnormal Speech 3 Psychometric Psych-Individual 2 Economics 3 Techniques 24
a) University of b) c) .Withdrew Philosophy-Ded. & Psych-Experimental Psych-Psychological Psych-Experimental Speech Classics-Greek Psychopathology German-Elementary Psych-Advanced Graduate Psych-ln Clark Classics-Greek Psych-Mental Methods Social Case Public Welfare I German-Elementary Field Work Psych-Psychology Social Case Sociology-Introduction Social Psych-Ed Sociology-Introduction Biology-General Psych-General French-Elementary English-Composition Social Case Social Field Work Psych-Developmental Biology-General Health Disease Understanding Math-Trigonometry, Albegra & Psych German-Elementary Indiana English German-Second Psych-Measure Psych-Advanced Math-Fr. Math Sociology-Principles Biology-General English-The Field Work Field Speech-Discussion Biology-General Psych-Industrial Psych-Social Biology-Mech. Social Case Work The Patient Research Children Public Welfare English English Traits Geometry Measure) Problems fare Social Service: Work III University: Group Work Organization Service and the & University: relation in Foster Care School of Division Seminar (Mental & Social 10-19-54 II IV I in Person Social Research Work Work Work II and His Care Modem Psych Pittsburgh: Hygiene & Literature Literature Human Behavior II of Physiology Year Psych Experimental Experiments Reaction Social Wel- Personality 1 III IV of Business Logic Methods I Psychiatry Tests Novel (Medical) Schools —Cont’d of Granted Granted Credits Credits Granted Credits Not Not -2 159 41 _5 Withdrew Vi Vi Vi Not [2] 3 [2] 3 [2] 3 [2] [2] [2] 3 Auditor 2 Withdrew 5 5 [2] 2 Withdrew 2 Withdrew 2 Withdrew 5 2 Withdrew 1 1 1 [2] [2] 4 3 [2] [2] [2] [2] 4 4 [2] 3 3 5 [2] 4 3 3 [2] 4 3 3 3 Finished Total of all credits Note courses Credits Original Credits Granted: and was being Cohen’s D.D.Sc. appropriate Note Note: and degree years is primarily Cohen received Questions 4 and 5 logical degree, No credit was bachelor’s University of experience because This does not meet c) d) New Degree, M.Litt. University of Degree, M.S. University of Research New School graduate 2) Clark Advanced Research 1) Social descriptions: Labor Law Labor Problems General Seminar: Current Prob- Music-Survey Course Psych-Dynamics *5 Current Labor Events Seminar Social History German-Third Math-Algebra and Psych-Special Math-Freshman Psych-Child Sociology of Labor Psych-Honors Psych-Experimental Psych-Guidance of Seminar: Advanced Research Psych-Statistical experience Psych-Tests Psych-Industrial Psych-Honors psychological Credits were not at Clark granted based on a ology as a being History of lems of the Social Sciences in nature. Behavior Morale major judged they were interpreted The title At the New degree School University: psychological. Change entitled “A Critical Pittsburgh of clearly courses that the his after granted University for Social Sociology no credit for his “credentials” or Pittsburgh Pittsburgh are designated Psych granted: 63 and Measurements Discipline in Ideas degree of the applicant’s program the Board [There Honors Work Work Year Any receiving psychological. Security undergraduate hours. Social Research: the addition Math of Abnormal Methods taken for —Cont'd mean social work nature, School for Social Research granted requirement for courses at Indiana Trig. and Adolescents graduate course listed II: Soci- and the are Military Work of Total Total sociology. Clark requirement Total to not course studies the content which no the although appearing sociology, Study for undergraduate questions University of school of Social undergraduate granting thesis for of a minimum three of Job Evaluations” any way qualify as Granted Granted and Credits Credits Not 2 Not -1 33 40 63 23 Psych 26 .2 Ü 65% Vi VS % % V4 H 17 taken for Vi of a doctoral [2] 3 3 Auditor 3 3 and Withdrew 3 1 1 1 1 not Pittsburgh. University bachelor's of psycho- 3.] courses. Science degree at the to be past Mr. Mr. review, and, and, thus, after its experience a trial de novo denied case of claims and law. The rejected appellant’s process denies him due affirmed profes- His order of the Board. this. demonstrates exceeding three experience, sional far Appellant issues, presents several each of years, an issue in the case.3 was never requires he contends reversal of the decision of the Board of Psychologist Exam- 32-2072(D) requires doctor’s de- Section judgment iners and the Yet, gree or is also equivalent. its general, court. questions these relate to 32-2071(lXc) requires. In each case what § (1) the constitutionality pro- of the statutes mean that the construe the statute to we certification; viding (2) validity must be based on degree or its Board; (3) rules of the application the content of which program “a of studies Board, the statutes and the rules and psychological.” If the doc- primarily (4) composition Psychol- the Board of equivalent may tor’s or its ogist Examiners. We up take them in that “primarily psy- which is not program on a order. substantially equiv- which is chological”but subject and extent of “in both matter alent
Do A.R.S.
32-2071 and
32-2072
what
wholly unclear
training,” then it is
Violate Due Process of Law Because
might be.
They
Vague
Ambiguous?
32-2071(l)(c) is
reading of
We think our
Appellant
contends
that A.R.S.
legislature.
We
what was intended
vague
are so
require
provision
do not understand
ambiguous
cannot be understood
degree.
a doctor’s
doctor’s
therefore,
they,
deny
equiva-
substantial
We read it to allow
due
of law under the
long as the
degree so
lent of a doctor’s
state and the federal constitutions. After
In the
psychological.”
“primarily
content is
statutes,
study
careful
of these
partially
we
authorizing certifica-
context of a statute
agree. The certification statutes are set
illogical to
it would be
psychologists,
tion of
forth in footnote 1.
*6
it
be
permit
but
to
require a doctor’s
provide
to
appear
The statutes involved
“primarily psychologi-
something less than
One, set forth
two avenues to certification.
cal.”
32-2071(l)(c),
and
purely
in
is
academic
§
other,
32-2072(D),
in
is aca-
set forth
§
vague
ambiguous provision
and
Another
professional.
demic and
It would be rea-
to the “credentials
is that which relates
years
sonable to assume that the three
32-2072(A) de-
examination.”
Section
in
professional experience called for
§
pur-
for the
scribes the examination to be
2072(D)
applicants having
would enable
train-
“adequacy of
pose
determining
required experience to be certified with
the examina-
experience.”
and
Since
lesser academic credentials than those seek-
who
applicant
tion is “waived” as to an
32-2071(lXc).
ing certification under
based on three
would seek certification
Otherwise,
no
to
purpose
there would be
uncertain
wholly
it is
experience,
Yet,
32-2072(D).
literally,
read
applicant
how
of an
“experience”
similar,
identical,
2072(D)
if not
requires
if he is
32-2071(l)(c) should be evaluated
vagueness
(unless
is
experience
academic credentials. The
it
required
not
to have
32-2072(D),
“experience”
ap-
present in
there-
to
whatever
ambiguity
examine
fore,
plicant
uncertain and
have obtained in satisfaction
may
makes certification
certification).
speculative
having
required
three
academic criteria
for an
extensively
Appellant’s postdoctoral experience
a clinical
He has worked
psychologist
both as
3.
in the
psychology
period
psychology spans
of over 25
and as a consultant
field
a
years.
foreign
During
taught psychol-
countries.
this time he has
the United States and
profes-
ogy
abroad,
memberships in numerous
at various levels in
United States and
He has held
organizations relating
psychology and
established the curricula at various
sional
to
fifty publications in the
schools and acted as the chairman of the de-
is the
of some
author
partment
universities.
at two
field.
put
failure to
it
its
Moreover,
into
or for
concept waiving
the cre-
effect
maladministration,
everyone
seeking
so that
applicants
dentials examination for
reading
his
32-2072(D)
illogical
is
the law what
certification
know
may
under §
compelling
operate
it
it shall
when
rights
since would seem all the more
are and how
execution;
experience
cannot
put
to evaluate work
and academic
and the court
into
training under an alternate certification
omissions.
material and essential
supply
qualifica-
which is not
academic
fitting
to our
this statement
We think
it
our function
tions alone. While
is not
to
3 of A.R.S.
paragraph
determination that
law,
question the wisdom of such a
D
paragraphs A and
32-2071 and
legislative
vagueness
intent is shrouded in
unconstitutionally
32-2072 are
A.R.S. §
ambiguity.
vague
ambiguous.
impossible
summary, we think it
to
and 32-2072 Consti-
Do
A.R.S. §
intent, as it re-
legislative
determine the
Legis-
Delegation of
tute an Unlawful
certification,
para-
to
lates
criteria for
to an Administrative
Authority
lative
paragraphs
3 of
graph
Agency?
A and D
32-2072.
It follows
of A.R.S. §
leg
would likewise be un-
that the
It is well established
required
delegate
power
able to tell
for certifica-
its
to make
what
may
islature
body,, except
find that
tion. Reluctant as we are to
or
any
person
laws to
other
level of
ambiguities
legislation
rise
the Constitution.
when authorized
salvage
Frohmiller, 45
45 P.2d
unconstitutionality, we cannot
Ariz.
v.
Crane
Nevertheless,
legisla
(1935).
these
of the
statutes
where the
primary
by judicial
interpretation,
do so
and fixes
policies
ture declares
confer
statute, may validly
is not our
legislation
would itself be
it
standards
power
of the diffi-
fill in
function. We are well aware
officers
on administrative
facing
setting
promote
out
culty
by prescribing
rules
the details
practice
qualifications
complete
legislation
and its
spirit
See, for
Security
in the field of
exam-
operation.
Commis
Employment
Growers,
v. Industrial
ple,
opinion
Bilbrey
our
61 Ariz.
sion v.
Citrus
Arizona
Gee,
Commission, Ariz.App.
to determine which universities were
Nevertheless,
he does
academic career.
proved
as to their
and to decide
Since
possess a doctorate
equivalent degree”
what constituted “an
have
doctoral
appellant does not
“[a]
psychology,
the field of
all violated
con-
the content
based on a
of studies
legisla-
principle requiring
stitutional
he
psychological,”
primarily
which was
ture to fix
In view of our deter-
standards.
To a
certification.
sought equivalency
mination that
of the Arizona law
proceedings before
large extent
grounds,
are unconstitutional on
we
other
investigation of the
Board
devoted to
were
will not
unlawful
undertake to dwell
appellant to
content of the courses taken
that,
delegation
except
say
issue
within the field
if the courses fell
determine
law,
objectionable
Arizona
we do not find
other academic disci
or some
power given
to the Board to define the
pline.
psychological
courses of a
Numerous
meaning
phrases “primarily psycho-
be
by the Board
nature were discounted
logical”
and “substantial
of a
by appellant while
cause
were taken
degree.”
doctoral
(see the
undergraduate degree
earning his
just
question 4 in the
appearing
note
before
holding
To summarize our
on the
Board which are set forth
findings of the
constitutionality,
para
issue of
we find
Moreover,
determining
2).
footnote
graph
paragraphs
3 of
in the
allowed credits
percentage that the
vague
A
Dand
of A.R.S. 32-2072 to be
*8
credits
bear to the total
psychological area
and, therefore, unconstitu
ambiguous
Board,
instead
by appellant,
earned
the
denying appellant
tional as
due
hours,
the total
used
using 90 semester
decid
obtaining
law in
In so
certification.
as the divi
by appellant
all credits earned
remaining paragraphs of
ing,
uphold
we
the
this, but the
upon
sor. We shall elaborate
the
under both
§
who,
applicant
an
penalize
effect is to
and the
constitu
Arizona
United States
re
completing the minimum
addition to
the Board to
holding
tions. This
will allow
general educa
pursued his
quirements, has
applications
psycholo
as
certify
continue to
other
courses in
further and taken
background
tion
gists on the basis of academic
study.
fields of
but will bar consideration of
“primarily
be
psychological.”
Rules
and 2 of
the courses
effect
Board
during
proceedings
ask,
the Board4
what? We
per
before
We must
cent of
at
point,
deciding,
must be considered
since the
that
assume,
shall
without
appellant
Board determined that
failed to
divisor should
as the
number to be used
the standards which
establish.
study
meet
pursued
after
only include courses
undergraduate degree.6 Ac-
obtaining the
1 purports
Rule
to define a
as
appel-
Board
cording
findings
to
of the
per
if
“primarily psychological”
cent of
certifi-
lant
63 credits toward
granted
department
credits are
“in a
either
clearly has
He
cation. See footnote 2.
psychology”
“essentially psychologi-
or are
for academic
than 90 credits
earned more
Although
not expressly
the rule does
cal.”
obtaining his
pursued after
under-
work
apply
state whether these criteria
to
to
then,
issue,
is
graduate degree. The
wheth-
equiv-
application
upon substantial
an
based
er,
per
necessary
arriving
at the 65
cent
alency
application
as well as to an
certification,
appropriate
it is
for the
degree
upon
psychology,
a doctoral
it is
any
apparent
great-
Board to
as a divisor
number
that the Board
these criteria
use
used
evaluating
equivalency
We
it would not be
substantial
er than 90.
hold that
application
For
defy
submitted
do
com-
appellant.
appropriate, since to
so would
purposes
appeal
accept
of this
shall
and,
previ-
we
have
logic
mon sense and
as we
apply
these criteria and
them ourselves.
said,
applicant
an
who has
ously
penalize
than the minimum re-
taken more courses
Rule 2
to
purports
define “substantial
Therefore,
Rule 2 the correct
quired.
and is thus
to under-
equivalency”
essential
is 63 based
is
dividend
divisor
the correct
standing
the action taken
the Board in
Board,
the result-
findings
on the
this case.5 It is clear that a master’s
cent under
quotient
Seventy per
is 70.
required.
from an accredited institution
appellant to
the rules of the Board entitles
It is also clear that the
Appellant has this.
requirements
as
long
certification so
90 semester
must have
total of
1(b) of
32-2071 are
1(a)
paragraphs
work,
course
which includes the
hours’
We, therefore,
judg-
reverse the
satisfied.
degree.
hours earned toward the master’s
it
and direct
to
court
ment of the
considerably
has this and
more.
Appellant
that
judgment
enter
new
“appropriate practi-
requires
The rule also
32-2071(l)(c).
complied
A.R.S. §
with
experience.” There
no
cum of research
concerning this.
issue
have determined
Since we
of Rules 1
requirements
requirement of has satisfied
We now return to the
to
necessary in this case
per cent of
it is not
1 discussed earlier that 65
Rule
(D)(1)
(now
paragraph
32-2072.
R4-26-01) provides:
of A.R.S.
4.
Rule
altering its
without
statute
amended
Primarily psychological, as
in A.R.S.
used
subpara-
by deleting
the reference
substance
32-2071,
interpreted
mean a
be
§
program
shall
designa-
graph
paragraph
D.
correct
1 of
in a
or more of which is
de-
65%
32-2072(D).
tion
More
now
be A.R.S.
would
partment
depart-
psychology or
in other
however,
important,
rule
the flaw
ments if the content of the
deter-
course
equivalen-
only
substantial
which refers
essentially psychologi-
mined
the Board is
32-2072(D)
cy language
but not to
of A.R.S.
cal.
language
equivalency
of A.R.S.
the substantial
R4-26-02)
(now
provides:
2Rule
32-2071(l)(c).
conclude
We can
Equivalent
degree,
of a doctoral
as used
equivalency in both
Rule 2
substantial
defines
interpreted
32-2072(D)(l),
be
shall
statutes.
to be a master’s
institution
from
provided
in A.R.S.
accredited
ques-
open
plus
assumption
fully
2071(1)(D),
semester
itself is
sufficient
6. The
[sic]
express-
bring
total to 90 semes-
nor the rules
hours of credit to
the statute
tion. Neither
ly
work,
undergrad-
argued
provide.
shall include
hours’ course
It
be
ter
can
so
experi-
included,
practicum
appropriate
research
should
uate
particularly
courses
*9
where,
here,
applicant
ence.
has
as
psychology
graduate
while
taken
courses
paragraph
rule is confus-
5. The
reference
undergraduate.
ing.
was
Prior to 1974
correct reference
32-2072(D)
part:
m
provides
A.R.S.
from
either rule suffers
whether
consider
infirmity.
legal
or
board shall
constitutional
“D. The
waive the exami-
prescribed by this
as
requirement
nation
remain for
Two additional issues
a
.
.
grant
certificate
article and shall
whether the
The first
brief mention.
. has a
applicant
.
.
provided the
legal
was
Psychologist Examiners
equivalent
or
thereof
degree
doctoral
appel
upon
it acted
ly constituted when
accredited,
provid-
as
institution
from an
It is clear from the rec
application.
32-2071,
lant’s
subdivision
paragraph
ed in §
timely
not
raised
granted,
the issue was
(c),
ord that
at the time the
and, thus,
not con
we will
studies the content
program
the trial court
based on a
or the
primarily psychological,
is whether
appeal.
sider it on
The second
of which is
in both
equivalent
thereof
standing
the issue of
substantial
to raise
training,
and extent of
subject matter
constitutionality when he seeks affirmative
years
had three
and in addition has
question.
the statutes in
We
relief under
satisfactory to
professional experience
that he does.
hold in these circumstances
added)
(emphasis
the board.”
and remanded.
Reversed
credentials exami-
looking at the
Simply
waiver,
apparent
it is
its
nation and
a ludicrous
provides
statutory scheme
OGG, J., concurs.
of certification.
method
unworkable
JACOBSON, Judge, concurring in part;
First,
only applies to
“examination”
dissenting
part:
applicants
seeking certification
32-2071(l)(c) (academic qualifica-
with
my disagreement
In order to isolate
examination”
only).
tions
The “credentials
point
out the
majority,
necessary
it is
require
applicant
to take addi-
does not
agree.
do
areas where we
tests,
32-2072(A) simply
tional
for A.R.S. §
statuto-
of the two
pertinent portions
that, “The
shall con-
provides
examination
set forth
are
under consideration
ry sections
of credentials sub-
sist of an evaluation
comparison:
ade-
by
applicant
mitted
to determine
A.R.S. 32-2071
“The board shall issue
[******]
any person
provides
a
who:
certificate
part:
as
cant’s educational
ently, the board
determine whether
quacy
obtained
training
by
merely
history and
taking
the PHD
experience.” Appar-
reviews the
in psychology
internship to
prerequisite
appli-
psychological courses.1
“(c)
Has received the doctoral
shall be
examination
This credentials
the content
of studies
program
the board under A.R.S.
“waived”
or
psychological,
primarily
of which was
2072(D)
years
has three
applicant
if the
thereof in both
substantial
“satisfactory
professional experience
training,
and extent
subject matter
in an ac-
plus has taken courses
board”
educational institution
from an
obtained
program the content of
graduate
credited
program
having
graduate
[accredited
How
psychological.”
is “primarily
organizations.]
specified
by certain
whether an
able to determine
the board is
******
professional ex-
with three
ex-
graduate courses which
satisfactory
perience
Passes a
credentials
has taken
“3.
ex-
as
without
psychological preparation
“primarily psychological”
amination
college credentials
amining
applicant’s
32-2072.”
described in §
anything
logical.”
“pri-
Whether this rule means
1. The board
rule has determined that
doubtful,
analysis,
appears
marily psychological”
final
it
used in A.R.S.
board,
apparently subjectively, must determine
2071 means “a
of which
more
65%
“essentially psychologi-
department
is in a
departments
or in other
whether the course is
directly
validity
cal.” The
if the
of the course
of this rule is
content
essentially
psycho-
before us.
determined
the Board is
*10
difficult,
opinion
I am of the
is
legislation
simply beyond
Obviously,
is
me.
the same
do,
to
contemplated
legislature
is
intended
type of board evaluation
that what the
32-2072(D) applicants
required
agrees,
is
to
majority
which the
and with
§
32-2071(l)(c) applicants
and the statu-
certification—
process for
two-step
§
allow
tory concept of “waiver” of that evaluation
and the
on
credentials
one based
academic
is ridiculous.
achieve-
academic
on lesser
other based
ments,
complemented
but
glaring inadequacy,
Aside from
this
did not
legislature
That the
experience.
32-2072(D) applicant
present
must
three
§
step
accomplish the second
constitutionally
years professional experience “satisfactory
step,
The first
spoken to.
already been
my opinion,
In
this is an
board.”
remains,
qualifi-
however,
the academic
delegation
authority
unconstitutional
of
to
applicant may
required before
cations
general
statutory
board as not even
applicant] has
step
on
is that
trod
“[the
guidelines
provided to
what
determine
upon a
degree based
received the doctoral
See,
“satisfactory.”
be
Hernandez v.
would
is
the content of
studies
program of
Frohmiller,
68 Ariz.
I that the agree also with the can legislative intent that contrary any both 32- use of the term “doctoral” from this statute. gleaned 2071(l)(c) 32-2072(D) confusing and in § by a this conclusion I am bolstered short, In whatever hook ambiguous. of these two language comparison of the on, hang your hat A.R.S. you desire perti- 32-2071(l)(c) in sections. A.R.S. § 32-2072(D) is unconstitutional. part provides: nent my I have first point is at this It doctoral “Has received the majority. major disagreement with the the content program of studies based aon majority opinion holds or primarily psychological, which was 2071(l)(c) from the unconstitu- is severable in both thereof equivalent the substantial (The sever- tional statute. training extent subject matter and later.) The will be dealt with ability issue added) (emphasis . .”. interprets A.R.S. majority then 32~2072(D)provides pertinent 2071(l)(c) mean that certification part: given to who applicants can be that statute equiv- a doctoral “. . has but also PHD’s in have a pro- thereof . . alent equiv- “substantial applicants who have a of studies the content gram alent” the doctorate. or the substantial primarily psychological, interpreta- statutory The cardinal rule subject matter in both equivalent thereof intent. Ad- legislative tion is to determine (em- .” training . . . and extent of Bolin, 247 P.2d v. 74 Ariz. ams added) phasis Yates, 69 Ariz. (1952); City Phoenix sub- “or the opinion, phrase my (1949). readily While I P.2d used in thereof” leg- stantial attempting to ascertain admit that same mean- 32-2071(l)(c) has the garbled piece of A.R.S. islative intent from
31
ing
32-2072(D),
upon
as it does in
one based
academic
A.R.S.
that
achievement of a
is,
“program
it modifies
Psychology
studies” rather
PHD in
under A.R.S.
32-
degree.”
than “doctoral
other
2071(l)(c)
upon
and the
practical experience,
“equivalency” plus
un-
I must therefore conclude that certifica-
32-2072(D).
der
nothing
There is
A.R.S. §
32-2071(l)(c)
tion under A.R.S.
is limited
legislative history
in the
of this act which
to those who hold a PHD in psychology, the
legislature
would indicate that
would
equivalency being reserved to
A.R.S. §
the other and
have enacted one without
2072(D).
therefore,
find under the Arizona
I would
If my interpretation
correct,
is,
that
test
the entire certification scheme
that
only applicants holding a
doctoral
must fail.
psychology are entitled to certification un-
Moreover,
serious constitutional
there are
der
32-2071(lXc)
appellant
A.R.S.
and the
questions raised as to whether a statute
not having such a degree,
judgment
psychologists
which bases certification of
the trial court denying certification must be
alone,
upon
qualifications
academic
at least
affirmed.
engaged
practice
in the
psychologists
as to
However, I have
disagree-
a more basic
at the time of the enactment
ment with the majority and that
is the
requirements,
is valid.
certification
severability of
32-2071(l)(c)
A.R.S.
from
131
Taylor Hayes,
As was stated
v.
Ill.
the unconstitutional
32-2072(D).
305,
(1970):
App.2d
tion the
would not have enact-
also, Berger
See
v. Board of
other,
ed one without the
and the invalid
396,
Examiners,
U.S.App.D.C.
521 F.2d
portion was not the inducement of the
(1975)
and Whittle
State Board of
Id.,
599,
act.”
at
statute is held to be of no effect because of
I
legis-
therefore must conclude that the
unconstitutionality,
the whole statute will
lature
legisla-
would not
this
have enacted
be ineffectual
if
remaining
sections
32-2072(D) for
tion
to do
without A.R.S. §
would make little sense in expressing might
depriv-
so
unconstitutionally
result in
legislature.
intent of the
Barrows v.
process.
Gar-
of due
practicing psychologists
vey,
conclusion,
(1948).
Ariz.
title 32 Arizona Revised How- Statutes. ever, in a requested by appeal, on this but con- ap- opening since relief brief consideration of the our pellant in the court was that he text which made finding view of the unnecessary in psychologist, as a which issue receive certification entitled I would hold cannot be consti- the Board *12 appellee it is the referred to. Now tutionally granted present under the stat- credits ute, wrong appel- directs our attention I would affirm the dismissal of modify opinion transcript us to our and asks special proceedings. lant’s action may be held on hearing so a de novo that SUPPLEMENTAL OPINION question.
PROEB, Judge, Division 1. Chief prop- to If the credits referred appellant, right his to attributable to erly appellee Arizona clearly question. certification Examiners filed a opinion directed to our rehearing motion reason, modify previous we our For that 6,1977, appellant to which dated December which di- vacating portion opinion by objections. M. has filed Leonard Cohen judgment that to enter rects the trial court complied with A.R.S. appellant has regard- issue Appellee any does not raise Instead, judg- 2071(l)(c). we reverse ing the constitutional or analysis our and direct that superior court ment of the grant- legal questions which warrant would Psy- to Board remanded the case be rehearing. a hearing new chologist Examiners however, does, present to the Appellee qualifies question whether relating to the authen- court a serious issue for certification as ticity which the Board of of course credits findings of the 32-2071(l)(c). The had been Psychologist Examiners found and is are vacated it previously made Board University at the by appellant earned findings enter new consistent directed to light in Pittsburgh. The matter comes to opinion. with our earlier directing view our order appel- denying IT the motion judgment a new IS ORDERED court enter rehearing. with A.R.S. complied lant has 2071(l)(c). for the first time Appellee now contends OGG, J., concurs. psy- case 33 course credits JACOBSON, Judge, concurring: specially Pittsburgh
chology from the belong Board were found case, I opinion in this majority Under the credits earned reality appellant were in this supplemen- agree procedure that the Leonard having the name of person another However, pointed opinion proper. tal out that points Appellee M. Cohen. dissent, opinion my my previous out in the tran- and considered Board received statute exist- is no constitutional there realizing without script of these credits which would authorize ence conceding responds by Appellant mistake. psychologists. error, not make argues that it does but still because any difference for certification
enough qualify credits in our we announced
under the formula
opinion. once record reviewing present wrong
again, that the issue we find in the case al-
transcript present has been by either the adjudicated
though never appears It also superior court.
Board or the