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In re License of Williams

September 7, 2010

IN THE MATTER OF THE LICENSE OF: TIMOTHY WILLIAMS, LICENSE NO. CGA-193.
TIMOTHY WILLIAMS, PETITIONER-APPELLANT,
v.
STATE OF IDAHO, BOARD OF REAL ESTATE APPRAISERS, A DEPARTMENT WITHIN THE STATE OF IDAHO, RESPONDENT.



Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. D. Duff McKee, District Judge.

The opinion of the court was delivered by: Eismann, Chief Justice.

2010 Opinion No. 97

The judgment of the district court is vacated.

This is an appeal from the district court's decision on a petition for judicial review affirming an administrative order denying appellant's motion to dismiss the administrative proceedings instituted against him. Because there is no final order in the administrative proceedings, we vacate the decision of the district court and dismiss this appeal.

I. FACTS AND PROCEDURAL HISTORY

In 1990, the legislature enacted the Idaho Real Estate Appraisers Act, Idaho Code §§ 54-4101 to 54-4119. When doing so, it created the Real Estate Appraiser Board (Board) to administer the Act's provisions. Idaho Code § 54-4106(1). The Act empowered the Board to investigate the actions of any state certified real estate appraiser and to suspend or revoke the appraiser's certification for specified reasons. Idaho Code § 54-4107(1). The Act also granted the Board the power to "authorize, by written agreement, the bureau of occupational licenses to act as its agent in its interest." Idaho Code § 54-4106(2)(a). Pursuant to that authority, on October 18, 2004, the Board entered into a written agreement with the Bureau of Occupational Licenses (Bureau). That agreement included a provision stating that the Bureau "shall conduct investigations of complaints within the Board's authority."

On January 20, 2005, the Bureau received a letter alleging misconduct by Timothy Williams, a licensed real estate appraiser. The Bureau conducted an investigation and then filed a complaint with the Board alleging nine counts of wrongful conduct by Williams. Williams moved to dismiss those allegations in the complaint that arose from the investigation prompted by the letter. The motion did not specify which allegations should be dismissed, but during oral argument on appeal Williams's counsel stated it would be seven of the nine counts. At the time the investigation was commenced, the Act provided that the Board "shall upon a written sworn complaint or may upon its own motion investigate the actions of any state certified real estate appraiser." Ch. 82, § 1, 1990 Idaho Sess. Laws 164, 168 (current version at Idaho Code § 54-4107(1)).*fn1 Williams contended that any counts based upon an investigation that was not prompted by either a sworn complaint or a formal motion and vote by the Board must be dismissed. The Board's hearing officer recommended that the motion to dismiss be denied. The Board issued an order adopting that recommendation and stating that it was a final order.

On November 21, 2008, Williams filed a petition for judicial review asking the district court to dismiss with prejudice all claims alleged against him by the Board on the ground that the investigation into his alleged misconduct had not been initiated according to law. The district court held that the Board had properly delegated to the Bureau the discretion to initiate investigations. It affirmed the denial of Williams's motion to dismiss, and he then timely appealed to this Court.

II. ANALYSIS

The controlling issue on this appeal is whether the Board's order denying Williams's motion to dismiss is an appealable order. The Board has not moved to dismiss the appeal or otherwise raised the issue. "[S]ince the question is jurisdictional (in a procedural sense) it is one which we must act upon whenever and however it comes to our attention." State ex rel. State Bd. of Medicine v. Smith, 80 Idaho 267, 268, 328 P.2d 581, 581 (1958). This Court will, sua sponte, dismiss for lack of jurisdiction an appeal that is taken from a non-appealable order. Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 960, 188 P.3d 900, 902 (2008).

The Board is an "agency" under the Idaho Administrative Procedure Act (IAPA). Idaho Code § 67-5201(2). Judicial review of agency action is governed by IAPA unless there is another provision of law applicable to the particular matter. Idaho Code § 67-5270(1). No one contends that there is some other provision of law granting the right to judicial review in this case.

Williams is seeking judicial review of the Board's order denying his motion to dismiss. That order stated, "This is the Final Order of the Board." It also stated, "Pursuant to Idaho Code Sections 67-5270 and 57-5272, any party aggrieved by this Final Order . . . may appeal this Final Order . . . to district court by filing a petition in the district court . . . ." An order is not a final order merely because the agency states that it is. Erickson v. Idaho Bd. of Registration of Prof'l Eng'rs and Prof'l Land Surveyors, 146 Idaho 852, 854, 203 P.3d 1251, 1253 (2009). "The real character of a written instrument is to be judged by its contents and substance, not by its title." Swinehart v. Turner, 36 Idaho 450, 452, 211 P. 558, 559 (1922). Idaho Code § 67-5270(1) provides, "Judicial review of agency action shall be governed by the provisions of this chapter . . . ." (Emphasis added.) Thus, regardless of whether the agency states that a particular order is subject to judicial review, it is reviewable by a district court under IAPA only if that Act so provides.

The Board stated that its order was appealable pursuant to "Idaho Code Sections 67-5270 and 57-5272." Because there is no section 57-5272 in the Idaho Code, it undoubtedly intended section 67-5272. That statute governs the venue of petitions for judicial review; it does not specify what agency actions are reviewable. Thus, the issue is whether Idaho Code § 67-5270 authorizes judicial review of the Board's order.

The proceedings against Williams were a "contested case" under IAPA. Idaho Code § 67-5240. Under Idaho Code § 67-5270(3), a party can obtain judicial review of "a final order in a contested case." An "order" is defined as "an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons." Idaho Code § 67-5201(12). Assuming that the ...


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