Delozier v. State

DELOZIER_V_STATE.92-532; 160 Vt. 426; 631 A.2d 228


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-532


 Howard Delozier, M.D.                        Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 State of Vermont                             February Term, 1993


 Stephen B. Martin, J.

 S. Crocker Bennett, II and Joseph E. Frank of Paul, Frank & Collins, Inc.,
   Burlington, for plaintiff-appellee

 Jeffrey L. Amestoy, Attorney General, and Geoffrey A. Yudien, Assistant
   Attorney General, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
           Specially Assigned


      ALLEN, C.J.   The State appeals from a grant of summary judgment
 ordering the Board of Medical Practice to dismiss charges of immoral or
 dishonorable conduct brought before the Board against the licensee.  The
 trial court concluded that an earlier determination by the Board that it
 lacked subject matter jurisdiction was res judicata and barred a subsequent
 investigation, and that, in any event, the Board lacked jurisdiction to hear
 the matter.  We reverse.
      On January 26, 1990, an investigator for the Board of Medical Practice
 informed the Board that licensee had been arraigned on a charge of sexual
 assault of a female under the age of sixteen.  On January 29, 1990, the
 Board sent a notice to licensee that a complaint had been filed and an
 investigation would be commenced.  Licensee's attorney asked the Board to
 close the file because licensee's conduct did not fall within the statutory
 criteria of unprofessional conduct listed in 26 V.S.A. { 1354.  The
 investigatory committee considered this request and, after obtaining
 information as to the conditions of licensee's release from criminal
 charges, recommended to the Board that it close the file on licensee.  The
 Board met on May 2, 1990, voted to close licensee's file, and on June 13,
 1990, wrote a letter to licensee informing him that the file had been
 closed due to lack of jurisdiction.
      On August 26, 1991, the Board informed licensee that a new file had
 been opened on him as a result of an article alleging that the University
 Health Center had suspended him for six months.  On November 6, 1991, the
 Board issued charges specifying that licensee had engaged in immoral and/or
 dishonorable conduct under 26 V.S.A. { 1398.  Licensee's motion to dismiss
 was denied.  The Board ruled that neither res judicata nor collateral
 estoppel applied to the Board's prior determination because the Board had
 not been acting in its judicial capacity.  Licensee brought an action for
 extraordinary relief under V.R.C.P. 75(a), and the superior court granted
 his motion for summary judgment.  The State appeals.
                                     I.
      The State first argues that the Board's letter closing the initial
 investigatory file due to a lack of jurisdiction did not have a res judicata
 effect on future investigations of licensee's conduct by the Board.
      The doctrine of res judicata provides that a valid and final judgment
 in favor of one party bars another action by the other party on the same
 claim.  Restatement (Second) of Judgments { 19 (1982); see Hill v. Grandey,
 132 Vt. 460, 463, 321 A.2d 28, 31 (1974).  Res judicata will apply to
 dismissals for lack of jurisdiction.  See Boone v. Kurtz, 617 F.2d 435, 436
 (5th Cir. 1980). The United States Supreme Court has held that the doctrine
 of res judicata applies to administrative decisions "[w]hen an
 administrative agency is acting in a judicial capacity and resolves disputed
 issues of fact properly before it which the parties have had an adequate
 opportunity to litigate."  United States v. Utah Construction & Mining Co.,
 384 U.S. 394, 422 (1966).  Similarly, the Restatement (Second) of Judgments
 { 83 states that administrative adjudicative decisions have res judicata
 effect only where "the proceeding resulting in the determination entailed
 the essential elements of adjudication."  These elements include adequate
 notice to interested parties, the right of parties to present evidence and
 legal argument, final judgment, and procedural elements necessary to afford
 fair determination of the matter in light of the magnitude and complexity of
 the matter.  Id.
      This Court has previously adopted { 83 of the Restatement and given res
 judicata effect to administrative adjudicatory decisions.  City of Rutland
 v. McDonald's Corp., 146 Vt. 324, 331, 503 A.2d 1138, 1142 (1985); see also
 In re Application of Carrier, 155 Vt. 152, 158, 582 A.2d 110, 113
 (1990)(giving res judicata effect to administrative adjudicatory decision
 but not based directly on { 83 of Restatement).  As other courts have held,
 however, administrative decisions that do not entail the essential elements
 of adjudication will not have res judicata effect.  E.g., International
 Union of Operating Engineers v. Sullivan Transfer, Inc., 650 F.2d 669, 675
 (5th Cir. 1981) (administrative determination was not directly appealable,
 did not mark end of process within agency and was not binding and therefore
 was not res judicata); Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F. Supp. 1084, 1087 (S.D.N.Y 1988) (administrative hearing had no cross-
 examination, a minimum of evidence and limited argument and therefore was
 not res judicata); Shea v. State Employees' Retirement Comm'n, 368 A.2d 159, 162 (Conn. 1976) (because commission had power to reconsider finding
 that plaintiff was eligible to receive disability benefits, even though such
 finding was initially approved by commission, finding was not res judicata).
      The initial investigation against licensee was commenced as the result
 of a letter complaining that licensee had been arraigned for sexual assault.
 According to the Board's practice, this complaint was docketed and a file
 was opened.  See Board of Medical Practice Rule (BMP Rule) 5.1.3.  Licensee
 was informed that the Board had commenced an investigation.  After receiving
 licensee's letter asking to close his file because the Board lacked
 jurisdiction, the investigatory committee met, obtained additional
 information about the conditions of licensee's release from criminal
 charges, and recommended to the Board that the file be closed.
      Under the Board's rules, the investigatory committee may make one of
 the following four recommendations to the Board:  closing the file, in which
 case the file may be reopened if new evidence is received or a new complaint
 is made; settling the case; commencing prosecution of the case; and, in the
 case of extremely dangerous conduct, summarily suspending the license.  BMP
 Rule 5.4.1.  The due process requirements associated with the Board's
 adjudicatory decisions do not apply unless the Board decides to prosecute,
 in which case the Board will serve a formal notice of charges on the
 licensee, provide opportunity for response, conduct a hearing and prepare a
 written decision from which the licensee, the State or complainant may
 appeal.  BMP Rules 5.5.1 - 5.5.3, 5.6.2.
      Here, the Board's actions did not reach the stage where the Board
 functioned as an adjudicatory body.  No charge was brought in the initial
 investigation; thus, the matter did not proceed to the prosecutorial stage.
 The Board did not issue a formal notice of charges, no due process rights
 attached to licensee, licensee was not asked to present evidence, there was
 no hearing and there was no final ruling.  Therefore, the Board's decision
 that it lacked jurisdiction did not bar future prosecution of licensee.
 The principles of res judicata do not apply in the present case because the
 Board's initial decision was not an adjudicatory decision.
                                     II.
      The court also concluded that because licensee's conduct was not
 covered by 26 V.S.A. { 1354 as it existed at the time of the alleged
 misconduct, the Board lacked jurisdiction over the licensee.  It further
 held that the Board's Rules of Medical Practice limited the Board's
 disciplinary authority to the types of conduct proscribed in { 1354.
 Section 1354 proscribed only that conduct which occurred in the practice of
 medicine or in the course of obtaining a license to practice medicine.
      The State contends that 26 V.S.A. { 1398 gives the Board jurisdiction
 to suspend or revoke the license.  We agree.  The statute provides:
           The board may refuse to issue [a] license[] . . . for
         any other immoral, unprofessional or dishonorable
         conduct.  For like cause, . . . the board may suspend or
         revoke any certificate issued by it.

 Licensee argues that this statute is in direct conflict with the Board's
 enumerated powers under subchapter 2 (Board of Medical Practice), which
 limit the conduct for which the Board may revoke licenses to the types of
 unprofessional conduct listed in { 1354.  Licensee argues that the words
 "immoral" and "dishonorable" are mere surplusage, and that the Board's
 powers are limited by the more specific statute, { 1354.
      Section 1398, however, continues to govern the criteria for licensing.
 The Board has the power to deny a license for immoral or dishonorable
 conduct.  Section 1398 cannot be read to allow the Board to deny a license
 for immoral conduct but not allow the Board to revoke a license for the very
 same conduct.  Where a statute's meaning is plain on its face, this Court
 will enforce the statute according to its terms.  Burlington Electric Dep't
 v. Vermont Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990).
 The plain meaning of the statute gives the Board power to revoke a license
 for immoral or dishonorable conduct.  Thus, the Board has jurisdiction to
 pursue a charge against licensee under { 1398. (FN1)
      Licensee also argues that the Board's powers under { 1354 and { 1398
 are coextensive.  The structure of the act does not support this argument.
 First,  { 1354 and { 1398 lie in different subchapters of the act.  Section
 1354, found in subchapter 2, enumerates the acts constituting
 "unprofessional conduct," which, at the time of licensee's conduct, were
 limited to those acts arising out of a licensee's acts as a physician.
 Thus, subchapter 2 governs the Board's powers to monitor the licensees'
 professional conduct in order to maintain a high level of professionalism.
 Section 1398, found in subchapter 3, empowers the Board to determine the
 personal and professional qualifications of individuals who may obtain and
 hold a license.  Thus, the two statutes serve different functions within the
 act. (FN2) Further, the two statutes provide for different penalties.
 Unprofessional conduct under subchapter 2 is punishable by a wide range of
 sanctions, including reprimand and conditioning, limiting, suspending or
 revoking the license.  26 V.S.A. { 1361.  Immoral or dishonorable conduct,
 under subchapter 3, is sanctionable only by suspension or revocation or a
 refusal to issue a license to an applicant.  26 V.S.A. { 1398.  This overall
 statutory scheme confirms the different purposes for { 1354 (regulating the
 professional work of licensed physicians) and { 1398 (determining the
 personal and moral standards of those persons who may hold a license), and
 we cannot accept licensee's argument that the two provisions are
 coextensive.
      Licensee contends, however, that the legislative amendments to 26
 V.S.A. { 1354 made in 1990 and 1992 are proof of legislative intent that the
 disciplinary authority of the Board is restricted to those categories of
 "unprofessional conduct" enumerated in { 1354.  The 1990 amendment changed
 26 V.S.A. { 1354(7) from "immoral conduct of a physician in his practice as
 a physician" to "conduct which evidences unfitness to practice medicine."
 The 1992 amendment changed 26 V.S.A. { 1354(3) from "conviction of a crime
 arising out of the practice of medicine" to "conviction of a crime arising
 out of the practice of medicine or conviction of a felony, whether or not
 related to the practice of medicine."  These amendments were in response to
 licensee's contention before the Board that he could not be sanctioned
 because his conduct was not proscribed by { 1354.
      We agree with licensee's argument that the amendments show a
 legislative intent to change the effect of existing law, but disagree with
 the argument that the amendments prove that authority to suspend or
 discipline did not exist under { 1398.  The 1992 amendment to chapter 23 of
 Title 26 was approved on May 15, 1992.  The specification of charges made by
 the Board on November 5, 1991, asserted jurisdiction under { 1398 and
 accused the licensee of engaging in immoral and/or dishonorable conduct.
 The legislature did not eliminate the Board's jurisdiction to suspend or
 revoke under { 1398 in May of 1992 and this inaction may be interpreted as
 its intention to leave jurisdiction under { 1398 intact.  See Trapeni v.
 Department of Employment Security, 142 Vt. 317, 322-23, 455 A.2d 329, 331-32
 (1982)(where legislature had opportunity to amend statute but did not,
 legislature's inaction was expression of intent to leave statute intact).
      Finally, licensee argues that the Board's sanctioning power is, by its
 own rule, limited to conduct set forth in 26 V.S.A. { 1354.  BMP Rule 2.2.
 Although Rule 2.2 lists conduct that is sanctionable, this list is not
 exclusive.  Even assuming that Rule 2.2 provides an exclusive list of
 sanctionable conduct, it will not automatically be upheld.  Although an
 administrative body's interpretation of the statutory provisions it must
 execute will be sustained on appeal absent a compelling indication of error,
 to the extent that a rule conflicts with the statute, the rule cannot be
 sustained.  In re Peel Gallery of Fine Arts, 149 Vt. 348, 350, 543 A.2d 695,
 697 (1988).  In the present case, if we interpret Rule 2.2 as limiting the
 Board's jurisdiction to conduct listed in { 1354, the rule would present an
 impermissible restriction on the Board's powers under 26 V.S.A. { 1398.  See
 Petition of Strandell, 562 A.2d 173, 178 (N.H. 1989)("Administrative rules
 may not add to, detract from, or modify the statute which they are intended
 to implement"); cf. In re Vermont Gas Systems, Inc., 150 Vt. 34, 39, 549 A.2d 627, 630 (1988)("administrative agency's rule-making authority cannot
 support an expansive interpretation of its own powers").
      Moreover, in the present case, there are two agency interpretations of
 the statute, Rule 2.2 and the Board's order of February 28, 1992, stating
 that the Board had jurisdiction over licensee's conduct under { 1398.  Where
 possible, we favor an interpretation that harmonizes conflicting provisions.
 See State Agency of Natural Resources v. Riendeau, __ Vt. __, __, 603 A.2d 360, 362 (1991)(harmonizing apparently conflicting statutory provisions).
 By interpreting Rule 2.2 as nonexclusive, the rule is consistent with the
 Board's decision.
      Reversed and remanded.

                                         FOR THE COURT:




                                         Chief Justice



FN1.    The dissent contends that the history of the statutory provisions
 supports licensee's position.  We think otherwise.  Prior to the 1975
 amendments, { 1399 defined "unprofessional or dishonorable" conduct to
 include deceptive advertising, intemperate use of drugs or alcohol
 adversely affecting the judgment of the user, and conviction of any offense
 involving moral turpitude.  Under the 1975 amendment, { 1399 was repealed
 and deceptive advertising and intemperate use of drugs or alcohol were
 included within the { 1354 definition of unprofessional conduct.  The power
 to suspend or revoke a license for immoral or dishonorable conduct under {
 1398, however, was not eliminated or modified.

FN2.    The dissent argues that {{ 1354 and 1398 are inconsistent and that
 the legislature intended the new { 1354 to provide specific grounds for
 license revocation.  The dissent assumes that the legislature intended to
 permit revocation only for conduct committed in the course of medical
 practice, which is governed by subchapter 2.  The legislature did not repeal
 { 1398, however, when it amended { 1354 and repealed { 1399.  We will not
 assume the legislature erred by neglecting to repeal { 1398.  Rather, we
 assume the legislature did what it intended to do.  The plain language of {
 1398 after the 1975 amendments to Title 26, chapter 23 continue to permit
 the suspension or revocation for non-practice-related conduct.
         
--------------------------------------------------------------------------------
                                   Dissenting

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-532


 Howard Delozier, M.D.                        Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 State of Vermont                             February Term, 1993


 Stephen B. Martin, J.

 S. Crocker Bennett, II and Joseph E. Frank of Paul, Frank & Collins, Inc.,
   Burlington, for plaintiff-appellee

 Jeffrey L. Amestoy, Attorney General, and Geoffrey A. Yudien, Assistant
   Attorney General, Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
           Specially Assigned


      DOOLEY, J., dissenting.     The decision of the Board of Medical
 Practice to go forward with a proceeding to revoke plaintiff's license is a
 clear case of using the end to justify the means.  The trial court
 recognized that and properly held that the law provided no grounds to revoke
 plaintiff's license to practice medicine.  I am disappointed that the
 majority fails to follow the trial court's well-reasoned decision.
      In order to accept the majority opinion, we must find that the
 legislature intended to create two separate and competing disciplinary
 schemes for doctors, giving the Board the unfettered discretion to employ
 whichever system it wants in any given case.  The majority gives no reason
 why the legislature would create duplicative systems, and the Board has
 suggested none.  Instead, it concludes that the systems are not really
 duplicative because neither the prohibition nor the permissible sanctions
 are identical.  These are distinctions without relevant differences.  Both
 statutes provide for disciplinary actions; there is a large overlap in the
 grounds for discipline; and all sanctions available under 26 V.S.A. { 1398
 are available under { 1354.  There is no rational purpose for two systems
 with this degree of duplication.
      Our overall mission in construing a statute is to give effect to the
 intent of the legislature, see Lincoln Street, Inc. v. Town of Springfield,
 ___ Vt. ___, ___, 615 A.2d 1028, 1030 (1992), and we do not assume the
 legislature intended to act irrationally.  See O'Brien v. The Island Corp.,
 157 Vt. 135, 139, 596 A.2d 1295, 1297 (1991) (court must avoid absurd or
 unreasonable consequences when construing a statute).  The only way we can
 reach the majority's result is to ignore the intent of the legislature.
      We have considered numerous cases in which two parts of a statutory
 scheme treated the same subject in different or inconsistent ways.  Two
 methods of analysis emerge from these precedents.  Where we have considered
 the different treatments of the subject to be inconsistent, we have
 developed rules to resolve the inconsistency.  "Specific statutes control
 over a general statute, and if two statutes deal with the same subject
 matter, the more recent legislative enactment will control."  Lomberg v.
 Crowley, 138 Vt. 420, 423, 415 A.2d 1324, 1326 (1980).  In Lomberg, one
 statute gave a general waiver of the state's sovereign immunity to the
 extent that its liability was covered by insurance; another limited that
 waiver, excluding instances of defamation.  This Court held that the latter
 provision controlled over the former; thus, sovereign immunity was a
 complete defense to the state's liability for defamation, even though the
 state was insured against such liability.  Id.  The latter provision was
 more specific and later in time.
      If we view {{ 1354 and 1398 as inconsistent, our rules for resolving
 the inconsistency clearly favor the application of { 1354.  It is more
 specific than { 1398 and is later in time.  The legislature intended that
 the specific grounds for license revocation be supplied by { 1354.
      More often than the Lomberg approach, we have harmonized the varying
 provisions without declaring a direct inconsistency.  This approach is
 based on "a fundamental rule of statutory construction that statutes dealing
 with the same subject matter should be construed with reference to each
 other as parts of one system."  Emmons v. Emmons, 141 Vt. 508, 512, 450 A.2d 1113, 1115 (1982).  We must consider the whole, and every part of, the
 statutory scheme, not just isolated sentences and phrases.  Even if there is
 no direct conflict, where one of two statutes covering the same subject is
 more specific than the other, we give effect to the more specific provision
 according to its terms.  See State v. Buelow, 155 Vt. 537, 541, 587 A.2d 948, 951 (1990); State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006
 (1986).
      Jarvis involved a construction question similar to the one we face
 here.  Two statutes, in separate titles, provided authorization for a
 sentencing court to order restitution to a victim.  One statute was broad
 and contained no limits on the type of damage for which the court could
 order restitution.  The other was specific and did contain limits.  This
 Court, holding that the limitations in the second statute controlled,
 reversed a restitution order awarding damages for pain and suffering.  Id.
 Following Jarvis, we should hold that the specific disciplinary grounds of {
 1354 control.
      If the majority's failure to harmonize {{ 1354 and 1398 were the only
 deficiency in its construction, I might accept the result.  Here, a number
 of other reasons command a different result.  First, although { 1398 is in a
 different subchapter from { 1354, its subchapter contains no procedural
 mechanism for effecting the powers granted by { 1398.  Since it must borrow
 procedures from the earlier subchapter, detailed in {{ 1353-1363, the clear
 implication is that { 1398 is part of, and therefore to be read in
 conjunction with, the statutory framework governing the conduct of
 physicians.  This framework defines, in { 1354, the conduct for which the
 Board may take disciplinary action, including the suspension or revocation
 of licenses.
      Second, { 1398 does not define the terms "immoral" and "dishonorable"
 conduct.  Apart from the constitutional infirmities that an independent
 reading of this section would entail -- unless defined, the terms are
 excessively vague and potentially overbroad -- a review of the history of
 these statutory provisions suggests that { 1354 was intended to exclusively
 define the various types of sanctionable conduct.  Section 1398 was adopted
 in substantially its present form in 1906, and a few years later a companion
 provision was added, which defined "unprofessional" and "dishonorable"
 conduct.  See 1906, No. 164, { 1; 1915, No. 188, { 3.  This latter
 provision, { 1399, was repealed and replaced by { 1354 when the current
 statutory framework creating the Board of Medical Practice was adopted in
 1975.  Thus, the clear implication of the statutory history is that { 1354
 defines the conduct for which the Board may act under either { 1361 or {
 1398 to revoke or suspend a physician's license.
      Third, the majority states that licensee's argument would turn the
 terms "immoral" and "dishonorable" in { 1398 into "mere surplusage."
 Rather, the majority's approach would turn the whole of { 1354 into
 surplusage.  Under the majority's analysis, the Board, when not finding the
 conduct for which it wishes to sanction a physician listed in { 1354, has
 the option of entirely discarding that section and basing a sanction upon
 the broad and now undefined language of { 1398.  Section 1354 becomes a
 virtual nullity, a construction that avoids the legislative intent.
      The majority's use of construction rules about plain meaning and
 surplusage demonstrates vividly why our precedents require us to harmonize
 separate statutes dealing with the same subject.  Viewed independently, the
 meaning of each statute is "plain"; it is the presence of the other statute
 that creates the ambiguity.  Often, a melding of the statutes into an
 overall meaning will make some part of one or more of them surplusage.  None
 of our precedents support a construction where the specific, detailed and
 more recent statute becomes surplusage in relation to a broad, vague,
 seldom-used and older statute.
      Fourth, the { 1398 grounds do not become surplusage under the proper
 construction of the statute because they still govern license applications,
 just as { 1354 describes only conduct for which discipline may be imposed.
 Obviously, the construction created an inconsistency between the grounds
 upon which the Board could deny a license and those for which a license
 could be suspended or revoked.  The legislature's actions in responding to
 this inconsistency is itself a recognition that the legislature never
 intended the construction that the majority has adopted.  The gap was
 eliminated by an amendment to { 1354(7), which previously addressed
 "immoral" conduct but provided sanctions only for actions related to the
 practice of medicine.  The amendment expanded the scope of { 1354, and part
 (7) now covers "conduct which evidences unfitness to practice medicine."
 This amendment would have been unnecessary if the legislature were acting in
 accordance with the majority's view of the statutory scheme.  The section
 was amended well prior to the trial court's decision in this case; I find no
 basis for the majority's statement that the amendment could have been
 enacted in response to judicial interpretation of the legislature's
 original intent.
      Fifth, it is very difficult to accept the majority's statement that the
 amendment was intended to expand the range of possible sanctions for conduct
 punishable under { 1398.  If the legislature wanted to effect a change in {
 1398, it is logical that it should amend that section, not a different one.
 Viewing this question in the reverse, the amendment of { 1354 indicates that
 it is conduct, not the type of available sanction, that the legislature
 wanted to address.  If { 1398 authorizes sanctions for conduct other than
 that contained in the pre-amendment version of { 1354, there would have been
 no need to expand the list of sanctionable conduct in { 1354.
      Sixth, it makes no sense that the "immoral" or "dishonorable" conduct
 that the majority holds punishable under { 1398 can be met only with the
 extreme sanctions of license suspension or revocation, or no sanction at
 all.  Obviously, these terms may apply to actions that are not so serious as
 to require harsh sanctions, but which merit some form of official response.
 Again, this paradox has been resolved by expanding the reach of { 1354, not
 { 1398.  The clear implication is that { 1354 is the controlling provision,
 not { 1398.
      I have left the most important for last.  I began by characterizing
 this case as one in which the ends are intended to justify the means; in
 other words, plaintiff's conduct was so outrageous that a way must exist to
 discipline him.  The accuracy of this assessment of the Board's motivation
 is evident from the plain language of the Rules of the Board of Medical
 Practice.  Rule 2.2 states that "[u]nder 26 VSA {{ 1361 and 1398, the Board
 may refuse to issue a physician's license or suspend, revoke or otherwise
 take action against a license for any of the following reasons, set forth in
 26 VSA { 1354," and goes on to list the { 1354 criteria.  The rule plainly
 acknowledges that both { 1361 and { 1398 are governed by the criteria in {
 1354.  The majority's statement that the specification of permissible
 grounds for discipline listed in the rule, which reproduces { 1354 precisely
 and makes no mention of other grounds, is "not exclusive" is clearly wrong.
 "An administrative agency must abide by its regulations as written until it
 rescinds or amends them."  In re Peel Gallery of Fine Arts, 149 Vt. 348,
 351, 543 A.2d 695, 697 (1988).  The rule adopts a construction of the
 statute to which we must defer absent compelling indication of error.  In re
 Killington, Ltd., ___ Vt. ___, ___, 616 A.2d 241, 244 (1992).
      Beyond its assertion that the statute means what the rule says it does
 not, the majority has an interesting answer to the obstacle created by the
 rule.  To the majority, both the rule and the Board's decision ignoring the
 rule are entitled to equal weight in determining the interpretation of the
 statute by the agency that administers it.  We are then left with no
 consistent agency interpretation to which we give deference, or a false
 harmonization of the rule and its opposite.  Thus, the agency is completely
 free to ignore its own rules and defeat their legal effect in the courts.
 This is an amazing view of the power of administrative agencies.
      As noted above, the legislature amended the statute so that the conduct
 committed by this licensee will be grounds for disciplinary action with
 respect to others.  The result of the majority opinion is to give
 retroactive effect to the statutory amendment and thereby accomplish
 indirectly something that may not be done directly.  See 1 V.S.A. { 214;
 State v. Willis, 145 Vt. 459, 466-67, 494 A.2d 108, 112 (1985).  In reaching
 this result, the opinion fails to acknowledge our relevant precedents and is
 inconsistent with them.  Without justification, it allows the Board to
 wholly evade its own rule covering this issue.  The end may be seen as just,
 but the means clearly are not.  I dissent.
      I am authorized to state that Justice Morse joins in this dissent.


                                    ___________________________________
                                    Associate Justice