COURT OF APPEALS DECISION DATED AND RELEASED November 12, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3384
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
Peter J. Mehler,
Petitioner-Appellant,
v.
The State of Wisconsin
Examining Board
of Social Workers,
Marriage and Family
Therapists &
Professional Counselors,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Milwaukee County:
LAURENCE C. GRAM, JR., Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Peter J. Mehler appeals from the trial court
order affirming the decision of the Wisconsin Examining Board of Social
Workers, Marriage and Family Therapists, and Professional Counselors that
Mehler should not be certified as a rehabilitation counselor. We affirm.
The facts involved in
this case are undisputed. In 1984,
Mehler enrolled at the University of Wisconsin-Milwaukee to get a master's
degree in rehabilitation counseling. He
completed his course work and, in 1990, he presented his thesis. When the thesis committee concluded that he
needed only to make minor revisions, he did not complete the work or receive
his degree. As his brief explains,
“[p]iqued by UWM's refusal to reimburse the costs of mailing and printing
associated with his research, and realizing that obtaining his master's degree
meant nothing in terms of his intention to engage in a private practice of
rehabilitation counseling, Mehler declined to submit his thesis for final
approval and did not bother to graduate.”
As Mehler correctly
asserts, his “belief that his failure to obtain his degree had no practical
significance was correct at the time; no education or training requirements for
professional counselors were then in effect.”
Thus, he began to practice psychotherapy and rehabilitation counseling
in a clinical setting under supervision of a psychiatrist.
In 1992, however, the
legislature enacted 1991 Wis. Act 160, creating Chapter 457, which created the
Examining Board of Social Workers, Marriage and Family Therapists and
Professional Counselors. Chapter 457,
effective May 1, 1993, was enacted to regulate the certification of such
professionals. Further, as relevant
here, § 457.12(2) and (3), Stats.,
provide that:
The professional counselor section shall
grant a professional counselor certificate to any individual who ....:
(2) Submits evidence satisfactory to the
professional counselor section that he or she has received a master's or
doctorate degree in professional counseling or its equivalent from a program
approved by the professional counselor section.... [and]
(3) Submits evidence satisfactory to the
professional counselor section that he or she has ...:
(a)
After receiving a master's degree in professional counseling or its
equivalent, engaged in the equivalent of at least 2 years of full-time
supervised clinical professional counseling practice approved by the professional
counselors section.
By 1993, Mehler already
had spent more than two years in a full-time supervised clinical practice. Aware of the pending change in the law, he
decided to complete the steps to obtain his degree. He did so, had his thesis accepted, and received his master's
degree in rehabilitation counseling. He
then submitted his application for certification. The Professional Counselor Section, however, interpreted
§ 457.12(2) and (3), Stats.,
to require two years of post-master's supervised counseling practice and
rejected Mehler's application because his two years of clinical practice had
not been earned after receiving his degree.
Following Mehler's
appeal of the Section's decision, the Administrative Law Judge issued a
proposed decision that would have approved Mehler's application. The Examining Board, however, rejected the
ALJ's decision and denied Mehler's application.
The Board held that
“[t]he Professional Counselors Section has consistently read that phrase [‘or
its equivalent’] to require a master's or doctoral degree in professional
counseling, or a master's or doctoral degree in a field closely related to
professional counseling.”[1] The Board also rejected any attempt to read
the administrative rules regarding professional counselors, see Wis. Adm. Code § SFC 11.01 (Application
for certification as a professional counselor) and Wis. Adm. Code § SFC 14.01 (Academic program equivalent to a
master's degree in professional counseling), in a manner inconsistent with its
determination regarding the meaning of the statute, and further held that
administrative rules were “subservient to the statute, and no administrative
rule may be created to conflict with the statutes.” See § 227.10(2), Stats.
(“No agency may promulgate a rule which conflicts with state law.”). Mehler sought certiorari review in the
circuit court, and the circuit court affirmed the Board's decision.
Before we resolve the
parties' debate over the meaning of § 457.12(2) and (3), Stats., we address their arguments over
the standard of review. Mehler
maintains that our review should be de novo because this is a new
statute without any published decisions interpreting it. See Jicha v. DILHR, 169
Wis.2d 284, 291, 485 N.W.2d 256, 259 (1992).
The Board argues that by virtue of its rule-making process, we should
accord its decision “a substantial measure of deference.” See Richland School Dist. v.
DILHR, 174 Wis.2d 878, 890-894, 498 N.W.2d 826, 830-832 (1993). In this case however, we need not pinpoint
the exact degree of deference to which the Board's determination is entitled
because even under the least deferential standard, we affirm.
The statutory
terminology, “master's degree in professional counseling or its equivalent,”
is at issue in this appeal. Mehler
argues that the statute is ambiguous; that “or its equivalent” could refer to
some process equivalent to the receiving of a degree. He contends that “or its equivalent” could not refer to the
masters degree in “professional counseling” because “professional counseling”
is so broad as to include almost every counseling field and that to have a
general cross-reference to such all-encompassing subject matter would be
absurd. See § 457.01(6), Stats.[2] The Board argues that “or its equivalent”
could only refer to a subject equivalent to “professional counseling.”
We conclude that the
phrase “has received a master's degree or doctorate degree in professional
counseling or its equivalent” in § 457.12(2) and (3), Stats., is ambiguous. Reasonable minds could differ over whether
the statute requires a master's or doctorate degree in professional counseling
or some equivalent of professional counseling, or whether the statute allows
for some equivalent of the receiving of a master's or doctorate degree. See State v. Block Iron &
Supply Co., Inc., 183 Wis.2d 357, 365, 515 N.W.2d 332, 335 (Ct. App.
1994). “When a statute is ambiguous, we
will examine the scope, subject matter and object of the statute in order to
determine the legislature's intent behind the statute.” Id. In construing § 457.12(2) and (3), the entire section and
related sections are to be considered. See
id. Additionally, “[w]hen
multiple statutes are contained in the same chapter and assist in implementing
the chapter's goals and policy, the statutes should be read together and
harmonized if possible.” Id.
With these principles in
mind, we conclude that subsections two and three of § 457.12, Stats., require a master's or doctorate
degree and that the phrase “or its equivalent” refers to the subject matter of
professional counseling, and not to the receiving of the degree. This interpretation is consistent with the
legislature's intent regarding chapter 457's criteria for the regulation and
certification of certain counselors.
Additionally, this interpretation is consistent with the legislature's
specifically articulated intent in § 457.03 (2), Stats., which provides that a certificate holder “engage[] in
the equivalent of at least 2 years of full-time supervised ... professional
counseling clinical practice after receiving the master's or doctorate
degree required under s. ... 457.12(2).”
(Emphasis added.)
We reject Mehler's
argument that the Wisconsin Administrative Code supports his contention that
§ 457.12, Stats., does not
require receipt of a degree prior to completion of the two years of supervised
counseling practice. Indeed, Wisconsin Adm. Code § SFC 11.01
(Application for certification as a professional counselor) and Wis. Adm. Code § SFC 14.01
(Academic program equivalent to a master's degree in professional counseling),
strongly support the Board's interpretation of the statute's degree
requirement.
Wisconsin
Adm. Code § SFC 11.01(c) requires “[a]n affidavit from the
applicant that the applicant has, after receiving a master's or doctoral
degree, completed the required period of supervised practice.” (Emphasis added.) Additionally, Wisconsin
Adm. Code § SFC 11.01(b) provides that an applicant provide
verification from “the institution which awarded the degree” specified
in Wisconsin Adm. Code § SFC 11.01(a)
as being either a master's or doctoral degree in professional counseling or
“the academic program which the applicant proposes as the equivalent of a
master's or doctoral degree in professional counseling.”
Mehler also ignores Wisconsin Adm. Code § SFC 11.03,
which excuses applicants who apply for certification “on or before May 31,
1995” from an examination requirement provided that the applicant has received
either a master's or doctoral degree “in professional counseling or an academic
program equivalent to” a master's or doctoral degree “in professional
counseling, and, after receiving the degree,” has engaged in the
requisite full-time supervised clinical professional counseling practice. (Emphasis added.) Similarly, Wis. Adm. Code
§§ SFC 14.01 and 14.02
do not support Mehler's reading of the statute. These code sections provide that “[a]n academic program is the
equivalent of” a master's or doctoral degree in professional counseling if the
“completed” coursework from the “completed” program “was part of
a program of studies leading to a master's degree or doctoral degree in a field
closely related to professional counseling.”
(Emphasis added.)
Therefore, we conclude
the administrative code clearly comports with the meaning of § 457.12, Stats., as interpreted by the Examining
Board. Any other interpretation would
nullify the meaning of the rules. See
§ 227.10(2), Stats. (“No
agency may promulgate a rule which conflicts with state law.”).[3] Thus, the Examining Board's interpretation
of § 457.12, Stats., must be
upheld and, therefore, we affirm the circuit court's order affirming the
Board's decision to deny Mehler's application for certification as a
rehabilitation counselor.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Mehler challenges the Board's conclusion that “[t]he Professional Counselors Section has consistently read that phrase [‘or its equivalent’] to require a master's or doctoral degree in professional counseling, or a master's or doctoral degree in a field closely related to professional counseling,” because, as he contends, “no evidence of such prior consistent interpretations was introduced at the administrative hearing.” Mehler was, however, given permission to conduct discovery on this issue. The Board responded with three examples of Board denials based on applicant's failure to have the requisite degree. Although the parties debate the legitimacy of two of the responses because the denials came after Mehler's denial, at least one denial—the application by Bonnie Jean Kinate—preceded Mehler's denial and was due to Ms. Kinate's lack of a master's degree.
[2]
Section 457.01(6), Stats.,
defines “professional counseling” as:
applying a combination of human development, rehabilitation and either psychosocial or psychotherapeutic principles, procedures or services that integrate a wellness, pathology and multicultural model of human behavior in order to assist an individual, couple, family, group of individuals, organization, institution or community to achieve mental, emotional, physical, social, moral, educational, spiritual, vocational or career development and adjustment through the life span of the individual, couple, family, group of individuals, organization, institution or community.
[3] In conjunction with his argument that the Wisconsin Administrative Code supports his interpretation of § 457.12, Stats., Mehler also points to language from various application forms used by the Examining Board. As the circuit court accurately noted, however, “[e]ven if the form were unclear as to the degree requirement, the intent of the legislature in sec. 457.12, Stats.[,] that a degree be received before engaging in supervised practice controls.”