Johnston Ambulatory Surgical Associates, Ltd. v. Nolan

60(b) summary issue; however, judgment Family different on because the Clark, 449, grounds); Ahlburn v. emergency properly Court exercised its (R.I.1999) (same). jurisdiction Brittany over under the UC- yet has emergency CJA and because 22, Since the order of December abate, appeal his is denied. order entered, the mother remains still is appealed papers from affirmed. The missing; consequently, grandmother are to that court for remanded a determi- custody temporary has retained custody nation of father’s motion for Although child. Juvenile Colorado accordance with this decision. has issued demand Court various orders state, return of Brittany to that any provisions no time were her for care transportation

and made to such facilitate Thus,

orders. is not clear that Island Family emergency

Rhode Court’s

jurisdiction Moreover, ever has abated. the emergency

even if had situation abat ed, father, by filing his concurrent JOHNSTON AMBULATORY legal motion for custody Brittany here ASSOCIATES, SURGICAL Island, personal Rhode has conferred LTD. jurisdiction in the Family over his Court petition seeking legal custody. See v. Houtchens, Houtchens 488 A.2d NOLAN, capacity Patricia her (R.I.1985) (filing a temporary motion for as Director the Rhode Island and custody personal conferred Department of Health et al. jurisdiction on the Family spite filing the concurrent of a motion dismiss Joseph St. Health Services of Rhode Is jurisdictional on grounds pursuant Inc., land, doing Joseph business as St. UCCJA). Hospital Specialty for Care and Our Consequently, we jus- affirm the trial Lady Hospital v. of Fatima tice’s denial the father’s motion to va- cate, but for reasons other as relied than Nolan, capacity Patricia in her as

upon by justice, trial remand we Director the Rhode Island Court, the case the Family where that Department of Health et al. proceed court shall expedit- conduct an ed outstanding merits on the 98-512-M.P., Nos. 98-493-M.P. custody matter.2 Recognizing, we Court of Supreme Rhode Island. must, preference this state’s keeping for (see parents children with their Carr v. July 2000. Prader, (R.I.1999)), Family to assist the determining Court in child, interests of best we direct communicate

judge presiding over the case in Colo- request

rado Juvenile Court to his or her custody

input on issue. reasons, foregoing

For the the father’s

appeal sustained the Rule concerning therefrom, juncture requesting at this appealing We note tic Relations 54(b) pursuant delayed final to Rule father further final resolution Family legal custody Court Rules of Procedure Domes- issue. Rocha, Providence, Randolph

Patricia Totten, Plaintiffs. Bart for Warwick, Miller, Peter J. Joseph G. McGinn, Providence, for Defendants. BOURCIER, LEDERBERG, Present: GOLDBERG, FLANDERS, JJ. OPINION by A must be issued CON prior expansion to the establishment LEDERBERG, Justice. facility health care in the State of petitions These consolidated for certio- Island, pursuant chap- Rhode to G.L.1956 rari sought our review of decisions two pro- title regulations ter 28 and the successive Department Rhode Island 15, 1994, mulgated July thereunder.1 On Health (department) applica- directors on in accord with 23-15-6 and section 10.1 (CON) tions for ap- certificate need regulations, Joseph St. intervened proval operate ambulatory surgical and made a formal facility. In petitions, request one of the An public hearings. the de- adminis- partment adjudication trative sought portion of that officer held fifteen review public hearings to consider the that vacated 27, 1994, July between department’s October grant Am- Johnston bulatory Surgical Associates Limited (Johnston Ambulatory) of a es- hearings, After the a committee of the freestanding ambulatory

tablish a surgical (council) Health Services Council reviewed center) (surgical Johnston, center (the record, compiled report Rhode Island. petition, the other report), and recommended appli- that the sought review of 28, approved. cation be On November the Superior entire Court judgment, and 1994, approved report the council in particular, that part judgment of the four, by a vote of eleven to with five affirming a decision of the department abstentions. The council’s recommenda- that denied Johnston Ambulatory’s prior tion was forwarded to the then department application (DeBuo- for a director, DeBuono, M.D., CON to establish the Barbara no). surgical center. Joseph St. Health twenty-page Ser- decision issued on Island, Inc., 3, 1994, vices of rejected Rhode December doing business DeBuono the as St. Joseph Hospital for council’s recommendation and denied Specialty Care (St. Ambulatory’s and Johnston Lady application. Our John- Hospital Fatima Ambulatory appealed ston that decision objected Joseph), petitions both and officer, a hearing pursuant to section 17 of asked us to affirm judgment the of the regulations. the The hearing up- officer Superior In denying Court. certiorari held applica- DeBuono’s denial of the 1994 eases, both we discuss the doctrine of ad- tion, 29, 1995, September and on Johnston ministrative applicability and its Ambulatory appealed this to the decision here, and we delineate the conditions that Court, Superior pursuant to G.L.1956 must obtain an applicant may before reap- § 42-35-15. ply to an that has rejected the applicant’s previous applica- appeal While its of the denial of the 1994 tion. pending, was still Johnston filed a second for a History

Facts and Procedural (1995 CON in 1995 application). June This 1994, In June Johnston Ambulatory filed application essentially was identical to the (1994 application) for CON application. Again, inter- Joseph St. seeking department’s the approval to es- requested hearing. vened and a formal tablish in a surgical Johnston center con- hearings July Thirteen were held between rooms, taining 28, 1995, three operating pro- three January and 1996. On June rooms, 4, 1996, recovery cedure report thirteen beds. the council voted to issue a During proceedings changes 1. the course the before tions also were renumbered. These Court, department Superior and the cer- were not relevant to material issue before Accordingly, through- tain subsections and subdivisions of G.L.1956 Court in this case. chapter opinion regu- 15 of title 23 were renumbered. P.L. out this we cite the statute and addition, regula- they currently ch. 1. In lations as exist. application, and that identical to

recommending approval appli- one, finali- cation with five the doctrine of administrative by a vote eleven under 14, 1996, ty, subsequent On June the new could be abstentions. Nolan, department, Patricia director of had been a granted only there substan- M.D., (Nolan), rec- accepted council’s change in circumstances since the first tial approved applica- ommendation examining After deci- application. Nolan’s Nolan’s Joseph tion. appealed St. application, the trial grant sion to officer, upheld hearing grant who no determined that there had been 19,1996, Joseph of the St. CON. On March demonstration of a substantial appealed hearing officer’s decision Accordingly, circumstances. he deter- §to 42-35- pursuant granting appli- that the mined appeal consolidated with 15. This erroneous, and he cation was vacated deni- Ambulatory’s appeal approval. al of the 1994 Johnston Ambula- justice, Johnston Ambu- Before petitions filed for certiorari tory each latory claimed that the denial of the 1994 review of the seeking this Court because, argued, application was error justice, §to pursuant 42-35-16. our decision Environmental Scientific Ambula- The writ was issued on Johnston (R.I.1993), Corp. Durfee, 621 A.2d 200 24, 1999, on and on tory’s petition March great required give DeBuono to deference on department’s petition May the council. recommendation of St. 12, 1999, On November this Court ordered hand, Joseph, asserted that other consolidated for brief- petitions that the did not Environmental Scientific argument. and oral in an this case because the council acts and argument In their memoranda be- adju- rather than as an advisory capacity, Court, re- parties essentially this the fore dicative fact-finder. in the peated positions presented their Joseph ap- St. that Nolan’s contended Superior Court. Johnston 1995 error proval application of the was the that decision on contended DeBuono’s give that did not defer- because decision in error she 1994 was because reject ence DeBuono’s the decision the deference to grant did not sufficient application. response, depart- 1994 In the council, that of the recommendation ment that 1994 record was claimed the 1995 approval Nolan’s of the substantially different from the 1995 rec- the doctrine of .appropriate because was ord and that there was sufficient evidence ap- finality should not be Nolan’s grant on the record Joseph plied process. St. the application. 1995 contrary position took the on each decision, In a thirty-four-page argued department claims. The these justice affirmed denial of the 1994 the the denied appropriately that DeBuono grant the of the application and vacated that was suffi- application, but there 1994 respect 1995 the 1994 application. With time 1995 cient new evidence at the of the justice the first deter- application, grant approval. for Nolan to mined the owed no special that director re- presented Additional facts will of the deference to recommendations dis- quired legal analysis the issues then DeBuono’s council. He examined cussed. sup- that it written decision and found was ported competent by sufficient evidence. Standard of Review basis, On that he denied Ambula- an reviewing tory’s on the 1994 appeal the decision Superior Court agency, The trial then found “an certi- essentially is limited to examination of the that

805 (the fied record to determine if there is existence of a contract question is a legally competent Court); evidence therein sup by law reviewed de novo Le port agency’s Co., rington decision.” Bar vine v. Eaton Bess Donut Flour (R.I.1998) School Committee v. (statutory Rhode Island State A.2d inter Board, Labor Relations pretation question 608 A.2d is a of law that (R.I.1992). novo). In conducting that Court de re reviews view, not, “the Court fact,

questions of Standing Department judgment substitute its for that of the agency whose action is reaching Before the substantive is review,” under Rhode Island Public Tele bar, sues of at the case we must address Authority communications v. Rhode Is Joseph’s St. claim department Board, land State Labor Relations standing lacks under pursue 42-35-16 to (R.I.1994), even a case in petition its before 42- this Court. Section which the court “might be inclined to view 35-16 provides any party in interest differently evidence and draw infer may petition this Court for a writ of certio ences different from agency.” those of the rari “if aggrieved by a final judgment of * * * Id. If there is sufficient competent evi the [S]uperior Joseph [C]ourt.” St. record, dence the court uphold must in asserting correct agency’s Barrington decision. School technically is not “aggrieved,” that the “ Committee, 608 A.2d at court Superior Court does not ‘ad however, may, versely in a substantial affect[] manner “reverse, modify, or agen- remand the personal property some or right of the

cy’s decision the decision is violative of party or impose[ upon it some ] burden or constitutional statutory or provisions, is obligation.’” Liguori v. Casualty Aetna in excess of statutory authority of Co., 875, 880, and Surety 119 R.I. agency, is made pro- unlawful (1978). Nevertheless, we have cedure, by is affected other errors of long recognized exception to this stan law, is clearly erroneous view of the by dard permitting public rehable, probative, and substantial evi- head of to seek review in this “ dence record, on the whole or is arbi- ‘if public has an interest trary or capricious and is therefore char- issue stake which reaches beyond out acterized an abuse of discretion.” Id. that of the immediate parties’ or (citing § 35—15(g)). judgment of the lower tribunal would oth 42— erwise escape (citing review.” Id. Altman When this Court examines the Committee, 399, 403, v. School 115 R.I. 347 judgment Superior of the Court in admin (1975)). 37, A.2d 39 proceedings, istrative we are restricted by § 42-35-16 to a “any questions case, review of present In the department’s of law involved.” Rhode Island Public applications decisions on the 1994 and 1995 Authority, Telecommunications 650 A.2d a public evaluated whether need existed at 485. We do not weigh the evidence that for outpatient surgical additional facilities was justice, before the trial merely but in the general state. It is clear that the examine the record to public determine whether an has interest such and facilities his or her supported by decision was com that such facilities produce posi- both petent Barrington evidence. School negative provision Com tive and effects on the mittee, Therefore, 608 A.2d at 1138. When the deci of health care in the state. sion of law, or of the is under our case agency responsible upon questions law, based as it regulating clearly was for this area has stand- case, this we findings review those de to seek review of the See, novo. e.g., City See, Nonnenmacher v. Superior e.g., 119 Liguori, Court. Warwick, (R.I.1999) 722 880-81, A.2d (holding R.I. at at bar, in the controlling is case at had that State Insurance Commissioner Scientific first to conclude that the standing Superior to seek review we would judgment denying commissioner deci- Court’s CON statute calls for two-tiered reinstated); to order authority insurance we sion-making process, and would then Ferri, A.2d 106 R.I. hold that the recommendation of have to Buffi (1969) (holding Human primarily on a deter- council based standing Rights had to seek Commission It is our credibility. mination of witness judgment over review of that neither of these condi- determination turning commission’s cease and desist or obtained, did tions and therefore DeBuono case). in a housing der discrimination rec- any special not to the owe deference re- of the council when she ommendation Deference

Administrative jected Advisory to Bodies are It true that there similarities be- Ambulatory claimed that DEM in appellate review the tween rejection of the 1994 application DeBuono’s Environmental and the decision- give was error because she did suffi Scientific in the process department making cient deference the recommendation is an present case. In each there instance council, required by was allegedly as (the hearing officer in the case individual Scientific, in Environmental our (the DEM) case group or council in the In Environmental at 206-08. evi- department) that reviews the process we examined the used Scientific makes presented dence and a recommen- by the of Environmental Man Department (DEM) In director. agement to decide administrative dation permits procedure, DEM’s each the ultimate decision-mak- appeals of denials director) (the Id. reject or alter 202-03. er is authorized freshwater wetlands. and writing, § process modify That is set out in G.L.1956 42- recommendation 17.7-6, be rejection such or modification can which directs that administra only upon of a rationale hearing presentation tive officer shall conduct hear made evidence, for this con- ing, change. Despite apparent and make written receive procedures easily gruity, departments’ proposed findings proposed of fact First, distinguished. Legisla- can findings of law. These conclusions explicitly proceed- then that in conclusions are submitted the di ture has stated CON, review, ings for and the to consider an for rector of DEM director body,” “advisory reject these the council is to act as modify is authorized 23-15-7, solely “to and that its role is findings long as such modifica proposed department. Sec- rejection is in consult advise” the writing tion or and states 23-17-14(3). contrast, in the rejec tion modification or rationale scheme, Scientific, this DEM’s administrative review In Environmental tion. “adjudicatory pro- hearing officer conducts process, Court held that this two-tiered 42-17.7-2, clearly and is required give ceedings,” DEM the director of was findings with role. Section hearing charged quasi-judicial officer’s deference Further, in hearing of officer determinations witness 42-17.7-6. upon relied hearings However, conducts the Id. at if the the DEM scheme credibility. necessarily directly observes all rely did findings hearing officer not and of presented. Sec- credibility, testimony the di evidence of determinations the CON respect was tion 42-17.7-6. rector of DEM authorized to review not findings de Id. process, the council does conduct novo. 206-07. those Thus, agree required present and is not to be hearings in order this Court Regulations, sec. 10. Of that Environmental at them.2 CON 10.3(b) hearing provide officer conduct regulations does shall 2. Section hearings statute, the four on application by the 1994 ed which states that “[i]f for which in agency proposes attendance was noted the state to render a deci- record, no than twenty-two more six contrary sion to the recommenda- which council members part council, attended at least tion of the health services the state hearing. In making its recommenda- doing must render its reasons for approve tion to the 1994 application, 15—4(f)(8)(ii). so in writing.” Section 23— council relying was not on first-hand ob- rejected report When DeBuono the 1994 servation testimony, evidence and council, twenty-page she did so relying but instead was on the same “cold opinion written that thoroughly presented by record” reviewed DeBuono when she rejection the rationale her behind reject decided to application. Therefore, council’s recommendation. her council in simply this case did not have the deny decision to the 1994 was role hearing same as that of the DEM not error. Scientific, officer Environmental Finality Administrative

the deferential standard articulated in that not applicable case is to the case before us. point The main of contention regarding grant decision to the 1995 Even this Court were to hold that the was any way whether Nolan was bound in decision-making process in this case was reasoning the outcome or of DeBuono’s the same type of two-tiered process that reject decision to application. the 1994 was at issue in Scientific, Environmental The trial found that the doctrine of DeBuono would special have owed no def- should applied, be erence the council’s recommendation to grant the decision to the 1995 applica- approve the 1994 application. As we noted doctrine, and, comply tion did not with this Scientific, Environmental in a two-ti- therefore, that Nolan’s decision on the ered process, the ultimate precluded by DeBuo- decision-maker owes deference to the rec- no’s Ulti- ommendations the first-tier decision- below, mately, as we shall discuss we only maker if those recommendations were However, agree with this conclusion. be- based on determinations of witness credi- cause several distinct doctrines were con- bility. 621 A.2d at 206. If the recommen- Court, in argument flated before this dations were based on credibility de- terminology subject because our on the terminations, the ultimate decision-maker jurisdic- differs from that used other may review the recommendations on a de tions, briefly we shall general discuss the novo basis. Id. at 206-07. Our careful govern rules that the deference that an review of the council’s recommendation to deci- owes to earlier approve the 1994 application revealed not sions. a single finding that relied on the credibili- ty any witness. Neither was there judicial There are three doc witnesses, indication that the credibility of require give varying trines that courts to thereof, or lack in any way contributed to degrees judicial of deference to earlier de the council’srecommendation that the 1994 cisions. The doctrine of stare decisis dic Hence, approved. even un- adopt tates that courts should the reason Scientific, der the rule of Environmental judicial if the earlier decisions permitted DeBuono was to review the points again litigation. prin arise This council’srecommendation de novo. absolute, however, ciple is not and courts only The limitation on may previously adopted DeBuono’s review abandon rules of provid- right of the council’s recommendation is law under circumstances. See hearings, hearing only but this officer acts dation or the director’s review of the council’s capacity in a ministerial and is not involved in recommendation. the council's determination of its recommen- 808 (R.I. (1961). 1010, 136, 140, 136, Werner, A.2d 139 v. 615 1014 R.I. 167

State A.2d 1992) & Light Power Co. v. “overruling precedent See also Florida (holding (Fla.1993) Beard, 660, 662 justified motivating purpose (ap if to 626 So.2d is is inconsistency plying finality re administrative to Florida’s eliminate and anomalous Commission). sults”). Under this estoppel rigid Collateral is a more Public Service doctrine, doctrine, litigation of an when an administrative in that “bars determined an for relief de issue when that issue has been receives it, subsequent application a judgment.” a valid and final DeCiantis nies (R.I.1995). State, 410, granted absent relief not be a v. 666 A.2d 412 same a circum adjudicata showing has an of material doctrine of res even effect, preclusive during in that “it makes the time between two greater stances Coletti, v. 539 applications. in a civil action between Audette A.2d prior judgment (R.I.1988). 520, applies This rule parties regard the same to 521-22 conclusive as as in each any litigated prior long sought issues that were the outcome or, similar, action, substantially presented May- could been have Lekas, Realty Appeals v. v. Board litigated Day Corp. therein.” ElGabri of of (R.I.1996). Thus, Pawtucket, 235, 237, 400, 271, 107 A.2d A.2d 275 R.I. 267 “[a] 681 (1970), if the applications in one cannot main 401-02 even two party defeated action legal rely action on a each on different theories. Cos ground tain second based (R.I.1983). been, 310, Gagnon, was ta v. 455 A.2d 313 properly which could have but however, final, not, is not forth and the for Administrative action set relied Wholey was invalid. Hester v. (quoting mer action.” Id. v. Co the first decision 384, Co., 376, 637, Timothy, 108 R.I. 275 lumbian National Insurance 69 Life (1943)). (1971) 254, 791, 262, (declining apply to administra R.I. 795 641 32 A.2d finality the first was Because the actions of administrative tive when mem quasi-judicial only in denied on a for which four agencies frequently are vote nature, zoning present, have it useful board were courts found bers five requiring violation of statute all judicial each of these doctrines adminis- See, present). Astoria be agencies. e.g., trative Feder v. Savings Loan al & Association Solimi It is that neither collateral clear 107-08, 2166, no, 104, 111 501 S.Ct. U.S. issue in nor decisis were at estoppel stare (discuss (1991) 96, 2169, 115 L.Ed.2d however, parties, at bar. The the case estoppel application of collateral ing adjudicata wheth disputed whether res or adjudicata of administra res decisions apply. er administrative should Atchison, agencies); Topeka & tive Santa Moreover, parties and the v. Board Railway Fe Co. Wichita of interchangeably, these terms used latter Trade, 800, 807-08, 93 S.Ct. U.S. meaning. though they had (1973) (applying 37 L.Ed.2d related, the two doctrines are Although of decisis to decisions Interstate stare They are related in that each distinct. Commission); Department Commerce partially wholly an preclude one acts Rhode Island v. Corrections State revisiting from (R.I.1995) (hold Tucker, But, despite this similari earlier decision. adjudicata applied that res should difference be ty, important there is an quasi-judicial to decisions adjudicata functions as them. Res tween tribunals). bar to a second cause action absolute actually raised matters that were judicial addition to these in the doctrines, could been raised first at least one or that have Rhode Island and Tucker, A.2d at 549 proceeding. jurisdiction a doc See promulgated other (holding employee former abso finality. Day trine Cranston, pursuing any claim be- lutely barred from Zoning Review Board

809 fore courts, the Commission for Rights reacting preclu- Human Some to the strict that was raised or that could adjudicata have been sion that res requires, have raised in prior his claim before Per- apply declined to the doctrine in at least Board). sonnel Appeal fi- Administrative types some of administrative proceedings nality, hand, on the other provides for a by determining, example, for that when qualified and preclusion, limited wherein a agency making administrative is a de- second substantially for similar public termination of convenience neces- or outcome from an agency administrative is sity, adjudicata apply. res does not See barred unless the applicant can demon- Northern National v. Banking Bank strate a change in material circumstances Board, 135, 253, Colo.App. 37 547 P.2d applications. between the two (1975) (holding adjudicata that res does apply to decision to deny bank charter Johnston Ambulatory depart- and the required where is “pub to consider ment essentially contended that applica- lic need and advantage”); Empire Electric tion of the adjudicata doctrine of res Association, Inc. v. Public Service Com process would be too restrictive mission, 930, (Utah 1979) 604 P.2d prevent because would department, (declining adjudicata res to issu having once denied Johnston Ambulatory’s ance of certificates convenience and ne open Johnston, the center in utilities). cessity public for See also Pan again from ever considering appli- another cation, handle Eastern Pipe Line Co. v. Federal regardless subsequent of a critical Commission, (3d Power public 236 F.2d need or substantially changed cir- Cir.1956) (“the [adjjudicata cumstances. doctrine of res agree We applica- strict adjudicata tion of res can have no to a proceeding would have such a * * * preclusive effect. which Application involves a determination of of adminis- however, trative finality, present public or future would not convenience or have such an necessity effect on respect agen- administrative continuance cy, service”). because Johnston or abandonment of natural gas would be permitted to subsequent however, submit a applica- approach problematic, This is be- provided tion demonstrated it provides cause no clear-cut preclusive material principle circumstances from by which an agen- administrative those that obtained at the time prior cy of the rejected should reassess a formerly ap- plication. Applying public convenience necessity exception adjudicata to res jurisdictions Because most do not apply arbitrary could result and capricious a rule of finality,3 administrative the only by decision-making agen- administrative principle precluding repetitive claims perhaps cies or to outcomes driven by administrative jurisdictions relief in those subjective considerations. adjudicata. res In determining whether to apply adjudicata res jurisdictions applied Other have res ad- proceedings, courts have responded judicata two qualified permits form that ways, neither of which is satisfactory to us. an agency to revisit a former decision if jurisdictions 3. Other judicial have used the term “ad- claim for relief accrues and the stat finality” ministrative but imbued it with begins ute of limitations to run. Wilson v. meanings. example, different For in New County Board Commissioners Weld Coun doctrine, aspect York it ripeness is an 1999). ty, (Colo.Ct.App. 992 P.2d In quasi-judicial body wherein decision of a waiver, Pennsylvania, it is related to such that must achieve finality before it aggrieved party appeal that does not by be reviewed a court. Daniel v. New action of an administrative is barred Housing YorkState Division and Communi- finality from later contest Renewal, ty 404, 179 Misc.2d 683 N.Y.S.2d Department that action. Environmental Colorado, (N.Y.Sup.Ct.1998). ad- City Philadelphia, Protection v. point ministrative marks which (Pa.Commw.Ct. 1997). complete, an administrative action is so that a 810' Ambulatory and the dis change been a in Johnston

there has circumstances. each that the doctrine of Rhema Center v. District sent asserted See Christian not finality ap Zoning Adjustment, administrative should Columbia Board of for. (holding plied applications to successive a CON. (D.C.App.1986) past had that if can It true that in the we have applicant changed show is circumstances, in only will to the doctrine adjudicata res not bar occasion invoke How involving regulation. land-use application); Pequinot second Allen cases ever, nothing is in case that Appeals, Board there our law County Zoning (hold doctrine to that field. (Ind.Ct.App.1983) would restrict N.E.2d Further, opinion it is that there is no ing that the of “administrative res our doctrine judicata” requires applicant an to reason that the rule should not be demon- inherent circumstances). generally applicable to areas of ad changed ap- This most strate purpose of regulation. a' proach provides agencies and courts with ministrative consistency in promote rule that a the doctrine is to governing preclusive effect that decision-making, such prior giv- administrative decision must be en, underlying origi it is it problematic but still because the circumstances to in nal the decision in.deciding changed, confusion which decision have could lead in a agencies are will not be revisited later circumstances administrative goal a subject adjudicata clearly as worthwhile in to strict res when This is they zoning context it is context. comply must with the more limited CON as Tucker, Ambulatory’s cir allegation we form. As stated Rhode quickly much more preclusive adjudi- Island the effect of res cumstances they to area of health services than do apply cata should those decisions ren- likely is correct. agency when an has the area of land use most dered Tucker, it not render quasi-judicial capacity. acted in a But such conclusion does to administrative final inappropriate A.2d there need ity decisions on is to whether It is our conclusion the Rhode Is Rather, giv for health services. additional finality land doctrine of administrative en ser the current fluid context health navigates safely between these obstacles. vices, imposed by administra the burden prevents repetitive applica It duplicative requiring only is that an finality fight, tive relief, thereby tions for the same conserv identify circum applicant demonstrate the resources the administrative changed materially that have since stances parties third interested a/fireviously rejected application. State, may intervene. Palazzolo v. See I (R.I.2000), particularly that it is petition argues 710-11 The dissent for (U.S. 2000) (No. fi- apply administrative inappropriate cert. 99- to June filed (the 2047) process because parcel nality of a of land filed owner fifing “implicitly endorses nearly applications identical for statute numerous during subsequent applications successive twenty-three-year relief over Only an periods. applicant when period). finality Administrative also limits review filed previously reconsideration of a arbitrary and administrative de capricious s^sks application satisfy certain statuto- cision-making, preserving while still must ry ^requirements warranting such reconsid- an earlier deci ability of revisit dissent that agree erante.” We changed. sions when circumstances have file permitted successive applicant Finally, requiring decision-makers pe- review during subsequent changed applications circumstances that articulate riods, satisfy long applications as as those decision on subse different administrative finality requirements of quent application, As by identifying changed circumstances. judicial review of provides effective 23-15-6(b)(9) out, § points dissent these decisions. permits applicant parties seek reconsidera- Joseph such St. that could be rejected tion of a application in the same materially affected by grant a of a CON period. review But imposes the statute would not rely be able to on a decision to restrictions on that reconsideration that CON, deny a constantly but would be clearly are prevent agency intended to prospect depart- faced with the that the from reconsidering rejected application any ment would revisit that decision at in an arbitrary capricious manner. For time, regardless any of a lack of material instance, applicant may seek reconsid- change in circumstances. We therefore rejected eration of a if application ap- hold that the doctrine of administrative plicant can demonstrate “that there have finality applied pro- should be to the CON been significant changes in factors or cir- cess.

cumstances relied upon by agen- the state noted, As we have the doctrine

cy in reaching its decision.” Section 23- finality requires administrative that 6(b)(9)(H).The position dissent’s basic 15— when an agency administrative receives an argument amounts to an Legisla- that the it, application and denies the same subse ture bars from arbitrarily re- quent application may granted not be ab considering in one review sent a of a showing material or substantial period permits but to arbitrari- circumstances the time inter ly reconsider the in a vening between the two applications. Au second period, review a position with dette, 539 A.2d at 521-22. places This rule which we do agree. a burden on the applicant identify view, In our applying administrative fi- substantial changes prior since the applica nality to the process CON will not have a tion. What constitutes a material change chilling provision effect on the of new will depend on the context the particular Island, health care services in Rhode as scheme and the relief argued. dissent has agree We do sought by the applicant and should be it would be unwise to severely limit the statutes, determined with reference to the ability of health care providers to offer regulations, and case govern law that new services to people of the state. specific changed field. The circumstances However, it is our belief that the applica- could be application, internal to the tion of finality has no such when an applicant seeks the same relief preclusive effect. There is nothing our but makes important changes appli decision that prevent would Johnston Am- cation to expressed address the concerns bulatory from immediately filing a new Or, in the denial of its earlier CON, for a if the application external circumstances could a change demonstrates in material circum- changed, applicant zoning as when an for a stances since the rejection time of the exception demonstrates that the essential the previous application. Similarly, the nature of land use in the immediate vicini precluded is not issuing from ty changed previous applica has since the decision that contradicts an earlier deci- Finally, tion. there is a burden on the reject sion to application, provided CON administrative decision-maker to articulate that decision finding includes a of fact that in its specific materially decision the changed circumstances had points changed that warrant circumstances rever specific evidence to finding. sal of an earlier denial of the relief sought. This minor burden on the appli cant and on the agency can be contrasted Having parameters, set forth the with the effect other parties affected we examine the of the doctrine finality were not applied appli of administrative to the 1995 process. theory CON Under the cation. There can no dispute advanced Ambulatory, applications Johnston third 1994 and 1995 requested iden- relief, sought inadequate tical in that for Nolan’s each because operation surgical of a center contain- finding respect contained no rooms, proce- three operating three changed warranting rever- circumstances rooms, recovery beds. dure thirteen ap- sal of DeBuono’s decision on justice thoroughly The trial reviewed the plication. two that “there applications and concluded the de very little re- difference between their argued that new evidence was partment [,and] spective [t]he contents differences during hearings the 1995 presented the any that do do exist not reflect substantial application and that this evidence demon change or in material circumstances.” relevant to the strated that circumstances justice the cogently presented trial statutory affordability criteria of need and

minor the applica- differences between two time of 1994 changed had since the the tions. believe that there is sufficient We evi application.5 Were we to examine the support finding to his that these evidence therefrom, we dence and draw conclusions were nor differences neither substantial Hence, might had conclude that circumstances was material. there no internal changed sufficiently warrant a reversal change in 1994 to circumstances between the applications. appli- application. In the of the on the 1994 1995 1995 decision cation, Court, However, ex- Ambulatory Johnston did not it is not the role this any plicitly change justice, discuss material in the nor is it the role of the trial to Rather, that external circumstances obtained engage analysis. in our such application.4 the the its time of earlier On limited to a review is determination face, therefore, application 1995 did competent whether was ev there sufficient imposed by not meet the the doc- burden findings by support idence made finality. trine of administrative agency. Barrington administrative School Committee, 608 at 1138. The deter Nolan’s decision on the 1995 mination whether circumstances also did not meet the facial burden of substantially or suffi materially changed finality, requires which ciently reversal of an earlier to warrant to articulate decision-maker must in finding decision is a that be made changed circumstances that warrant by first instance the administrative prior reversal of the decision. Nolan’s by and not this Be decision-maker Court. no what- two-page made mention findings Nolan made no respect cause soever of the 1994 The coun- application. be change into a material in circumstances report, incorporated cil’s which was decision, applications, two we shall not specifically that tween the Nolan’s stated to con- delve into the record to determine whether was irrelevant Thus, present.6 Consequent- changes sideration of such were centers, surgical surgery justice performed 4. The that was one at other trial found there Ambulatory alleged in the be- and evidence that Johnston difference circumstances applications. by other tween the 1994 In the would be reimbursed insurers and and 1995 Ambulatory payors Joseph St. for the application, con- at a lower rate than Johnston surgical procedures. center was tended that different per- performing procedures fewer than it had suggested has that we remand 6.The dissent Ambulatory's formed at the time Johnston department permit ad- the case to the surgical that because center opportunity to ministrative decision-maker an conducting complex, was more time-consum- findings previ- were not make the fact that ing procedures by agree We 1995. department ously In case the made. that justice trial that was not a material this year decide would constrained to in the change in circumstances. substantial supported issu- 1995 data whether CON, incompatible clearly with the particular, ance of a In concern, share, such department pointed projections which we that to different dissent’s surgical "health-policy must be made about facilities in considerations” the utilization state, we have outpatient in a “time-sensitive” manner. As evidence of the volume of however, ly, justice’s we affirm the finding finality, trial that does not face such a Rather, approval Nolan’s limit. the burden is on the appli- cant change to demonstrate a in material violated the doctrine of administrative fi- at the circumstances time of the second nality. application, regardless whether the first argues The dissent our decision application is being appealed.7 Because justice this case weigh invites a trial justice neither parties nor the evidence and reach his or her own conclu- distinctions, addressed these was sion about whether there change Joseph error for St. to refrain from mak- material circumstances that would warrant finality argument an administrative granting a CON that had earlier been the mistaken belief that such argument denied. agree We case, ripe. was not an examination has made a finding of fact that there had appeal complaint been a material in circumstances Joseph filed St. pointed evidence to revealed that while Joseph St. did not use finding, likely would abuse finality the terms administrative or res his or her by independently discretion re- adjudicata, only contention the com- viewing the rejecting evidence and the de- plaint was that Nolan’s decision did not partment’s finding. When the department give proper preclusive effect to DeBuono’s has not required finding, made such a inas Therefore, earlier decision. the substance case, this it cannot be said that the trial of argument upon by relied the trial justice has substituted his judgment or her justice raised him was before and could be for that of the administrative decision- considered this Court. maker. Conclusion

Finally, we must deal with a conclude, therefore, We the trial procedural matter. Johnston Ambulatory justice correctly determined DeBuono alleged raised the any special did not owe deference to the issue of finality sponte. sua recommendation of the council and there- Although argument was not presented fore that her deny decision to the 1994 us, directly to it could be claimed that application jus- was not error. The trial party because no raised fi correctly tice also of applied the doctrine nality Court, in the Superior it was not finality to determine that properly before us. In its brief and oral grant applica- Nolan’s decision to argument, Joseph St. contended that it did petitions tion was error. The for certiora- not argument raise the before the trial hereby ri are denied and The dismissed. justice because DeBuono’s denial of the quashed, writs heretofore issued are application could not preclusive may papers the case be remanded to effect until it was made final. Because the the Superior Court. denial of the 1994 application being was appealed Court, in the Superior that denial Chief Justice WEISBERGER did not could not be said be final until that participate. appeal finally decided. It is true that Justice, FLANDERS, part concurring adjudicata gives preclusive res effect only dissenting part to a final and that attempt entry raise the issue before of such judg Although agree portion I with that of generally ripe. ment is not De- opinion holding Administrative the Court’s that the noted, already appeal application is free to of If the the first is suc- cessful, reapply reapplication sought granted by for a CON. If such is and the relief is made, court, application will be able to make a of a is order second finality longer decision based on the most current informa- moot and administrative no tion. an issue. af- days notifying within 120 those (department) of Health has after partment § standing to seek See review 23-15- fected about the I judgment, respectfully Court’s dissent 6(b)(2). thereby implicit- act enabling application to its the doc- respect ly applica- filing endorses successive finality in trine of administrative this case. during subsequent periods. review tions deciding, assuming, Even without that the seeks Only applicant when an reconsidera- special director no def- department’s owed must tion filed previously erence to the recommendations statutory requirements it satisfy certain (council), I do Health Services Council not See warranting such reconsideration. believe that the doctrine of administrative 15—6(b)(9)(i)—(iv). § But reconsidera- 23— type this of admin- should matter than a refiling tion is a different depends proceeding, istrative which so during peri- a later review heavily showing on a of “demonstrated filing application altogeth- od or a a new place need time and and under the require er: the entire the first does not * * *.” proposed circumstances G.L.1956 refiled, and it avoids the added.) 23-15-4(f)(l). § (Emphasis Be- costs, paperwork, hearings, pro- and other in the rapidly cause volatile conditions new that a or requirements cedural refiled services, evolving market for health-care must significantly, meet. Most very new health-services propos- reconsiderations, new only refilings al that to win at one time approval fails subject satisfying are filings, need, place lack of succeed at 15—6(b)(9)(for ex- detailed in factors 23— place, a later time and condi- based in fac- showing “significant changes ample, application tions external to the itself. by the circumstances relied tors or changes These would include the rela- id. decision,” proposed agency reaching tive need for the health-care its state by project 23-15-6(b)(9)(ii)). as shown the variable market §at later prevailing appli- conditions when the Thus, ad- judicial imposition the of an considered, cation is well as how the as requirement suc- ministrative-finality on health-care authorities as- then-incumbent legalistic a applications imposes cessive in light the of such need. proposal sess draws process on the construct CON (CON) Here, en- the certificate-of-need legislation no from that creat- the abling requires that legislation time-sensi- chilling ed of the effect it. And because tive, considerations, policy health-care finality requirement imposes that such legalistic rather like collat- than doctrines initiatives, on I be- innovative health-care judicata, and res should con- estoppel eral blows, ill one lieve that it is an wind that applications trol like this one mer- whether entre- growth, that stunts economic stifles legislation approval. enabling The CON compe- and stultifies preneurial creativity, contains no restrictions on the successive dynamic rapidly and in an otherwise filing tition approval applications and sub- cycles depart- the market. sequent changing review after health-care has re- ment’s director denied initial long- disinters the dead hand of It also Indeed, legislation for the quest approval. department, of the since-departed director allows such implicitly subsequent at issue rejected were policy one whose views to be without the applications resubmitted initially by the council that recom- only any necessity demonstrating material surgical cen- proposed the JASA mended it re- in circumstances because ter, present council also but state to undertake quires director, both of whom have concluded pending review “no less applications and afford- project is both needed that this 15—6(b)(1), § year,” often than twice 23— and, therefore, able, approved. should be requires to the written notification Thus, majority of the Court allows final applicant agency’s review, court forbidding the of an health-care standard of parting absconding blow for that “substituting] judgment its long to kill from proposal again, director this weight repudiated policy after her should have of fact.” questions evidence been dead and buried. searching the administrative

Moreover, Instead of if (contrary even 23-15- material 6) any for evidence of record enabling legislation question had the former changed circumstances since required subsequent applications to original application, director denied changes in facts or significant evince justice, own initiative reviewing trial on his origi- circumstances that existed when the any request to do so from and without denied, nal this application hospital), de- party (including objecting relevant administrative record the doctrine termined that he should significant changes show that such did ex- overturn the of administrative Although Ambulatory Surgi- ist. present of this state’s health- judgment (JASA) cal Associates Limited’s 1994 and pro- policymakers care and find that the applications prayed 1995 CON for the posed surgical project center was a unwor- relief, contained thy approval. of their But when additional demonstrating material the exis- changes concluded that these instance, public tence of need. For were not JASA’s 1995 substan- supported 1995 Zimmerman update enough tial to warrant a reversal of the need for outpatient operat- nine additional previous denial of the earlier director’s period rooms during through request, he substituted his 1999. In its report, the health-ser- that of the current health-care officials vices council found this estimate to be ap- who found otherwise and who then “conservative at best.” Consistent with my proved judgment, finding, this JASA’s 1995 also legal had warrant to do he no business demonstrated that outpatient surgi- other so. cal care performing proce- centers were complicat- that, dures more often and of a more majority concedes it ever ed in previously nature 1995 than had been “to examine the evidence and draw were Thus, therefrom, expected. the might council concluded— conclusions we conclude and the director incorporated changed this conclu- that circumstances have suffi- by competent sion reference —that ciently “[t]he to warrant a reversal deci- testimony in the record It then application.” demonstrates the sion on the 1994 asserts, however, outpatient surgery need for the “it role of setting that is not the * * * Court, proposed by nor the of the trial JASA. Where JASA this is it role differ, Joseph’s justice, analysis,”8 and St. in engage [sic ] is on JASA’s to such an ability provide surgery only to the in determine “whether there was outpatient but to an innovative setting surgery competent where the is sufficient evidence to conducted more efficiently, benefiting findings by the the made the doctor, depart- patient agency.” Although and the and on a more cost neither the (Nolan) justice effective The trial nor the council basis.” acknowl- ment’s director circumstances, finding changed edged changed any explicit these but made such applica- concluded that the differences did not “re- circumstances vis-a-vis tion, estab- any they flect substantial or material in did find that JASA had conclusion, however, pro- need for its 1995 requisite circumstances.” This lished the enabling neither the inappropriate weighing posal. reflects an of this And because justice ruling of this Court prior evidence the trial that violated statute nor it was department had alerted the that applicable 42-35-15(g) G.L.1956 signifi- engage Department concerning the did in such of Health Note that changed analysis, substituting of these circumstances. his cance that is on the face required changed-circum- apparent make such a not to statute, I it hard fault them to an issue that no finding, pertains stances find to that Thus, seizing for this omission. instead of person or raised before party court, technicality on the Director Nolan’s reviewing and that or is con “inadequate decision was because it con- trary practice agen to the historical finding respect any changed to tained no question. Taglianetti v. cy Fon Cf. warranting De- circumstances reversal of taine, 596, 601, 609, 105 R.I. application,” Buono’s on the 1994 (1969) (stating, bail-proceeding con would, I reversing an alternative to as text, that [in to our decision “[p]rior justice, to direct case], the governing proceeding rules give remand this case to to and type were uncertain” [that] “[f]or it to make opportunity finding. such a reason, [that] Court] remand[ed] th[e] [the * ** ”). to superior cause court Oth As this Court stated Lemoine v. De Health, jurisdictions prefer er also remand partment Mental Retardation See, circumstances. 285, cases similar R.I. Hospitals, 113 320 A.2d 611 M.J.B., (1974), e.g., V.C. v. 163 N.J. a remand is (2000) (stating “[o]rdinarily, valve, safety as a permitting “intended Jersey Supreme [the when New Court] require reviewing court to a second standard, announces a new [it] remandfs] look at situations conditions which the case the trial court for which, reconsidera reversal, not warrant a but might tion”). record, reviewing the court would * * * to it that [agency] indicate however, respectfully suggest, I also may incomplete have acted on or inade- why that there reason the vast good is a information; quate failed to have majority jurisdictions other states give adequate consideration to an alter- no throughout country this adminis- * * native route *. trative-finality doctrine similar the one “A remand for further consideration is majority applies applicant in this [agency] a determination that the is rule, applied case. Such a adminis- wrong; but is indication that the type trative under this policymaking court, which disinterested has reviewed statute, law, enabling is bad need-based record, is not satisfied on the basis extreme, and, policy, to its bad taken [agency] right.” that the that record overly legalistic wrongly imposes an 291-92, A.2d at (quoting Id. at regime poli- technocratic on administrative Highway State ex rel. Gunstone State cymaking field of new protean in the Comm’n, 72 Wash.2d 434 P.2d any legislative health-care services without (1967)). 735 warrant to so. do record Given that the contains evidence jurisdictions majority “might against from the con- have warned which even Other exactly “too doctrinaire” appli that circumstances have this kind of changed clude rule, a cation of since the actions of sufficiently to warrant reversal of the this application,” agencies, the unlike those of decision on administrative courts, elevating “deciding involve ac simply usually Court is form over sub- issues cording interest that refusing public to direct the to a often stance present changes shifting this case to circumstances and Court to remand Communica passage director of the so can have of time.” McCaw she Florida, Clark, 679 tions Inc. v. to make what the Court So.2d opportunity of (Fla.1996). 1177, 1179 reason, the now For this says requisite finding is the based finality doctrine of administrative should changed these circumstances. Such agency an necessarily preclude a not from especially appropriate remand is when revisiting See id. announcing this a rule of law an earlier order. Court is new though Even admits, the CON. approve Is need to majority the Rhode As the and reviewed the record justice its trial land cases cites finality changes regarding of of the doctrine acknowledged adjudication need, land-use matters— involve determined he public evidence of board decisions appeals zoning such as enough to they were not substantial (Palazzo agency matters or environmental agency’s 1994 deci- justify a State, (R.I.2000), peti lo v. this weighing of But his obvious sion. 2000) (U.S. 21, tion cert. June “any com- the deferential ignored evidence for filed (No. 99-2047); Coletti, v. 539 A.2d Audette of review that standard petent evidence” (R.I.1988)) majori in which Thus, —areas applied. the court should ty’s application justice committed my judgment, more than it does arguably makes sense his when he substituted reversible error adjudication The of land-use dis here. issue. agency on this for stability putes requires greater need for Hearing Utility v. Public Capaldo In policy than predictability and need-based Board, 75 A.2d 77 R.I. mar- dynamic decisions in the health-care (1950), Utility the Public we held majority cites De today. ket of also preclude a rede- Hearing Board could partment Corrections the State Tucker, public need if the evidence Rhode Island termination of (R.I.1995), appeal which concerned existence of presented demonstrated the case, of the Per corrections officer of decision In this need at a later time. public Appeal sonnel Board of the state of administrative by applying the doctrine Human Rhode Island Commission for denial of an agency’s this initial finality to Tucker, however, Rights. did not involve may premature have been application that appeal body to the same that made the time when it was first or ahead of its decision, original as is the case here. denied, forecloses majority’s merely proposition Tucker stands for the public reassessment of department’s preclusion that claim should occur when an like this one proposals need for adjudicative decision of one administrative they are approval when ripe not be decision, to a appealed, after so denied but become first considered and Thus, it has no agency. applica different the existence later as more data establish policy tion to the kind of administrative however, it is a my judgment, In of need. decisions that are at issue here. finality to mistake to 42-35-15(g), Legislature in- that are policy decisions like this one reviewing court to defer to tended for the time-specific place-sensitive and based on a expertise of the administrative need. public assessments of fact questions on because the director finality is The virtue of administrative position are in a and the council better intervenor, judi- agency, to conserve to know under- than the repet- being from wasted cial resources affecting public’s the factors stand the same evidence on hearings itive and, proposals need for health-service redetermination of issues. But a thus, judge credibility, weight, health-care proposed for a public’s need additional evidence materiality of JASA’s undermine this does not project services applica- of its 1995 presented for these the need worthy goal because for this need exists public tion. Whether change and the subject rapid services is surgical-care primarily center is particular can be refiled hearings on policy of fact and of health-care question evidence limited to whatever confined and therefore, and, squarely fell within the pre- from that new or different of need is Director No- department. purview of also statute viously submitted. applica- that the 1995 specifically lan found by not such redeterminations public allows for evidence of tion contained sufficient denying its in later Director DeBuono’s precluding applications successive Moreover, depart- periods. review ability

ment’s unfettered to reevaluate did Chief Justice WEISBERGER spe- vis-á-vis a public’s health-care needs participate. place proposal cific “at the time is crit- proposed” under the circumstances well-being of Rhode

ical to the health and If the benefits of the ad-

Island citizens.

ministrative-finality doctrine needed to be assurance of ade- against

balanced for our com-

quate health-care resources has come

munity, Legislature down Ruben DILONE Thus, judi-

squarely favor of the latter. cially force-feeding the doctrine of admin- finality istrative into Rhode Island’s health CONTAINER ANCHOR GLASS system prove pill care will a bitter et al. CORPORATION encouraging public to swallow. Instead of 98-439-Appeal. No. present their innovative applicants proposals health-services for certification Supreme of Rhode Island. available, they adminis- as soon as become July finality trative will tend to dissuade them they may, as a doing from so because matter, only ap-

practical get one shot they fail to win the di-

proval. And approval upon

rector’s his or her initial forever,

review, may fail they thereafter

because no matter how much market con- proposal

ditions and the need for such a time,

may change reviewing over some changes these think that significant

are not as as the state’s health- are, thereby policymakers say they

care

dooming proposals perpetual such re-

jection finality. because I would reverse the trial

Accordingly,

justice’s sua-sponte decision to ad-

ministrative to this situation be- substituting its

cause the court erred

judgment for that of the state’s current concerning administrators

health-care application was needed as

whether JASA’s Alterna- policy.

a matter of health-care

tively, I vacate the Court’s would it remand this

judgment and direct so that it can ana-

case

lyze and determine whether JASA’s changed circum-

application established reversal of

stances sufficient to warrant

Case Details

Case Name: Johnston Ambulatory Surgical Associates, Ltd. v. Nolan

Court Name: Supreme Court of Rhode Island

Date Published: Jul 12, 2000

Citation: 755 A.2d 799

Docket Number: 98-512-M.P., 98-493-M.P.

Court Abbreviation: R.I.