Perry v. VT Medical Practice Board

Annotate this Case
Perry v. Medical Practice Board (98-270); 169 Vt. 399; 737 A.2d 900

[Filed 16-Jul-1999]


       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. 98-270


Robert Perry, M.D.	                         Supreme Court

	                                         On Appeal from
     v.		                                 Washington Superior Court

Vermont Medical Practice Board	                 April Term, 1999



Matthew I. Katz, J.

                                   
       Ritchie E. Berger and Shapleigh Smith, Jr. of Dinse, Knapp & McAndrew,
  P.C., Burlington,    for Plaintiff-Appellant.

       William H. Sorrell, Attorney General, Montpelier, and Geoffrey A.
  Yudien, Assistant Attorney   General, Waterbury, for Defendant-Appellee.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ, and Gibson, J. (Ret.), 
        Specially Assigned


       SKOGLUND, J.  Robert Perry appeals from a superior court judgment
  upholding the  authority of the Board of Medical Practice to deny Perry's
  motion to withdraw his medical-license application.  Perry contends that:
  (1) his appeal of the Board's decision was timely; and  (2) the court
  misconstrued the Board's statutory authority.   We affirm.

                                    FACTS

       The material facts are undisputed.  In August 1993, following his
  graduation from the  University of Vermont Medical School, Perry applied to
  the Board for a medical license.  The  application was held in abeyance
  until Perry completed his first year of postgraduate medical  training, as
  required for license eligibility.  In June 1994, Perry notified the Board
  that he was  prepared to have it review his application.  In May 1995,
  Perry sent a letter to the Board  requesting to withdraw his application
  because he had moved out of State and no longer wished  to practice in
  Vermont.  The Board denied the request, as well as a follow-up request sent
  by 

 

  Perry's attorney.  Thereafter, the Board continued the investigation it had
  begun, focusing on  certain apparent misrepresentations in Perry's
  application.  In December 1995, Perry submitted a  formal motion to
  dismiss, arguing that the Board lacked the statutory authority to deny his 
  withdrawal request.  The following January, the Board issued a written
  decision denying the  motion, and also preliminarily denying the license
  application subject to further review at Perry's  request.  Perry
  subsequently appealed the preliminary denial of his license application,
  which  remains pending.
	
       In response to the Board's decision, Perry filed appeals of the
  Board's interlocutory  ruling denying his withdrawal request with both this
  Court and the Washington Superior Court.   On April 2, 1996, this Court
  granted the State's motion to dismiss, ruling that interlocutory  appeals
  from Board decisions were subject to the requirements of 3 V.S.A. § 130a,
  which  establishes a procedure for appeals from Board decisions to an
  administative appellate officer,  followed by an appeal to the Washington
  Superior Court.  See In re Perry, No. 96-038 (Vt. Apr.  2, 1996) (mem.). 
  Perry thereupon pursued an administrative appeal, and the State moved to 
  dismiss on the ground that it was untimely.  Following a hearing, the
  appellate officer denied the  State's motion to dismiss, and granted
  Perry's motion to withdraw his application, ruling that the  Board lacked
  either express or implied statutory authority to deny the request.  The
  State  appealed.  In a written opinion, the superior court affirmed the
  appellate officer's conclusion that  Perry's appeal was timely, but
  reversed the officer's decision concerning the Board's statutory 
  authority. The court ruled that the Board's authority to deny the request
  was "simply a logical  extension" of its express power to deny an
  application in the first instance, and therefore within  the scope of its
  statutory mandate.  This appeal followed.

                                 DISCUSSION


       We address two procedural issues at the threshold.  First, although
  not raised by either of  the parties, we note that the judgment remains
  interlocutory in nature, and that none of the  procedures for perfecting an
  interlocutory appeal was followed in this case.  See V.R.A.P. 5, 

 

  5.1.  Nevertheless, the court's ruling resolves an important issue separate
  from the merits, a  dismissal of the appeal would most likely result in
  another appeal after final judgment, the merits  have been fully briefed,
  and the Court has reviewed the case.  Therefore, we exercise our 
  discretion to suspend the rules and reach the merits.  See Huddleston v.
  University of Vermont,  ___ Vt. ___, ___, 719 A.2d 415, 417 (1998);
  V.R.A.P. 2.
	
       The State initially contends that Perry failed to file a timely notice
  of appeal from the  Board's decision.  As noted, Perry attempted to appeal
  from the Board's decision of January 3,  1996, by filing notices of appeal
  on January 12, 1996 with both the superior court and the  Supreme Court. 
  Copies of the notice of appeal were served on the executive director of the 
  Board.  Following this Court's dismissal, Perry appealed to the Director of
  the Office of  Professional Regulation, who assigned the case to an
  appellate officer pursuant to 3 V.S.A. §  130a(a), which provides: "A party
  aggrieved by a final decision of a board may, within 30 days  of the
  decision, appeal that decision by filing a notice of appeal with the
  director who shall assign  the case to an appellate officer."  
	
       Because of his mistaken appeal to this Court, Perry failed to file an
  appeal with the  director until May 28, 1996, well beyond the thirty-day
  filing requirement of § 130a(a).  Accordingly, the State requested that the
  administrative appeal be dismissed as untimely.  The  appellate officer
  denied the request.  The superior court affirmed that portion of the
  appellate  officer's ruling.  The State renews the argument here. 
	
       Perry responds that the State's failure to raise the timeliness issue
  by cross-appeal divests  this Court of jurisdiction to consider the claim. 
  See Union Bank v. Jones, 138 Vt. 115, 125, 411 A.2d 1338, 1344 (1980)
  (appellee seeking to challenge aspects of trial court decision must file 
  timely cross-appeal).  The State counters that the cross-appeal requirement
  does not apply  because it was "content with the final order below, leaving
  it nothing to appeal."  Huddleston,  ___ Vt. at ___, 719 A.2d  at 419.   The
  State may or may not be "content" with a ruling on the  merits, but by
  raising the timeliness argument it is seeking a dismissal of the appeal on
  the 

 

  jurisdictional ground that it was untimely under 3 V.S.A. § 130a(a), and
  not an affirmance of the  decision below.  Indeed, the State is vigorously
  contesting the merits of the superior court's  jurisdictional ruling. 
  Accordingly, the State must cross-appeal to seek this relief, and we are 
  without jurisdiction to reach the merits of the State's argument.  See
  Huddleston, ___ Vt. at ___,  719 A.2d  at 419-20.(FN1)

       We turn to the merits of Perry's claim that the Board lacked the power
  to deny his  withdrawal motion.  The rule that we have repeatedly
  reaffirmed is that the Board, as an  administrative body, "has only such
  powers as are expressly conferred upon it by the  Legislature, together
  with such incidental powers expressly granted or necessarily implied as are 
  necessary to the full exercise of those granted."  Trybulski v. Bellows
  Falls Hydro-Elec. Corp.,  112 Vt. 1, 7, 20 A.2d 117, 120 (1941); accord In
  re Professional Nurses Serv., 164 Vt. 529,  534, 671 A.2d 1289, 1293
  (1996); In re Club 107, 152 Vt. 320, 323, 566 A.2d 966, 967 (1989).  Thus,
  while we generally defer to interpretations of enabling legislation by an
  administrative  agency, see Professional Nurses, 164 Vt. at 535, 671 A.2d 
  at 1293, the agency's regulations  must still be reasonably related to the
  legislation to withstand judicial scrutiny.  See Club 107,  152 Vt. at 323,
  566 A.2d  at 967-68.

       The Board is broadly empowered to investigate and adjudicate charges
  of unprofessional  conduct by licensees, 26 V.S.A. §§ 1353(a)(2), 1360,
  impose disciplinary sanctions, id. § 1361,  issue licenses, id. § 1391, and
  suspend, revoke or refuse to issue licenses for "false or fraudulent 
  representations" or "immoral, unprofessional or dishonorable conduct."  Id.
  § 1398; see also  Delozier v. State, 160 Vt. 426, 431-32, 631 A.2d 228, 231
  (1993) (although not expressly  conferred, Board has implicit authority to
  revoke license for immoral or dishonorable conduct).  

 

  The Legislature has declared that the regulation of professions and
  occupations is "for the  purpose of protecting the public."  26 V.S.A. §
  3101.  Indeed, the licensing of the professions,  and of physicians in
  particular, has long been recognized as falling within a state's broad
  police  powers for the protection of the general welfare.  In an early due
  process decision the United  States Supreme Court explained the state's
  interest in this area as follows:

     Few professions require more careful preparation by one who 
     seeks to enter it than that of medicine. .  .  .  Every one may have 
     occasion to consult [the physician], but comparatively few can 
     judge of the qualifications of learning and skill which he possesses. 
     Reliance must be placed upon the assurance given by his license, 
     issued by an authority competent to judge in that respect, that he 
     possesses the requisite qualifications.  Due consideration, 
     therefore, for the protection of society may well induce the State to 
     exclude from practice those who have not such a license, or who 
     are found upon examination not to be fully qualified.

  Dent  v. West Virginia, 129 U.S. 114, 122-23 (1888); see also Rosenblatt v.
  California State Bd.  of Pharmacy, 158 P.2d 199, 203 (Cal. Ct. App. 1945)
  (affirming legislature's authority to enact  regulations to protect
  citizens from consequences of unfitness or incompetence in health 
  profession); Commonwealth v. Zimmerman, 108 N.E. 893, 895 (Mass. 1915)
  (holding that  public health was of "such vital importance" that any
  rational licensing scheme to assure  education, training and skill of
  physicians would be upheld).  	

       Viewed in the light of this compelling State interest, we have no
  doubt that the statutory  authority to issue or deny a medical license
  necessarily implies the discretionary authority to  deny leave to withdraw
  a license application.  It is well settled that a licensee may not evade 
  disciplinary action merely by resigning or allowing a license to expire. 
  See, e.g., In re Lassen,  672 A.2d 988, 1000 (Del. 1996); Davidson v.
  District of Columbia Bd. of Med., 562 A.2d 109,  114 (D.C. 1989); Florida
  Bar v. Segal, 663 So. 2d 618, 621 (Fla. 1995); In re Atkins, 320 S.E.2d 146, 146 (Ga. 1984); Office of Disciplinary Counsel v. Herrmann, 381 A.2d 138, 140  (Pa. 1977).  Otherwise, the licensee could apply for admission in
  another jurisdiction, or  subsequently reapply in the same jurisdiction,
  and maintain that he or she has never been 

 

  disciplined for professional misconduct.  This would patently defeat the
  underlying purposes of  the regulatory scheme to protect the public, and
  maintain the integrity of the profession.  See  Segal, 663 So. 2d  at 621;
  Davidson, 562 A.2d  at 114.  

       The State's interest is no less urgent in the case of an applicant for
  a license.  The  Board's authority to investigate an applicant's background
  and qualifications is every bit as broad  as its authority to investigate a
  licensee.  See 26 V.S.A. § 1353(a)(10) (Board may require  licensee or
  applicant to submit to mental or physical examination, and evaluation of
  medical  knowledge and skill).  Where that investigation discloses
  substantial grounds for denial on the  basis of false or fraudulent
  representations or immoral or dishonorable conduct, the safety of the 
  public and the integrity of the profession may -- in the Board's discretion
  --  be better served by  issuing a formal ruling, so that a decision of
  record would be available in this or any other  jurisdiction where the
  applicant might subsequently apply.  Allowing an applicant to avoid 
  scrutiny of his or her background, training, experience, and morals by
  simply withdrawing the  application at his or her convenience would ill
  serve the interest of public safety in this State and  the other state
  licensing jurisdictions.

       Although Perry denigrates the interstate component of licensing, the
  statutes make clear  that it is integral to the regulatory scheme.  The
  Board is broadly empowered to suspend or  otherwise discipline any
  practitioner upon notice that he or she has failed to renew, surrendered, 
  or otherwise terminated his or her license in another jurisdiction during
  or prior to disciplinary  proceedings in that jurisdiction.  See 26 V.S.A.
  §1366(b).  The Board is further empowered to  refuse to issue a license to
  applicants "who, by false or fraudulent representations, have obtained  or
  sought to obtain practice in their profession."  Id. § 1398.  This
  provision plainly  encompasses applicants who are on record as having been
  denied licenses in other jurisdictions.   Thus, the authority to continue
  an investigation to completion and, where necessary, deny an  application
  for failure to satisfy the licensing requirements of § 1398, represents an
  integral and  necessary component of the Board's reciprocal duties vis a
  vis the other licensing jurisdictions.  

 

  Accordingly, we conclude that the Board's discretion to deny a request for
  withdrawal of an  application falls well within the necessary and implied
  powers of its express statutory mandate.  See  Professional Nurses, 164 Vt.
  at 534, 671 A.2d  at 1293.  
 
       Perry asserts, nevertheless, that this conclusion is undermined by the
  Legislature's  enactment, subsequent to the Board's decision, of an
  amendment to 3 V.S.A. § 129, providing  that a professional conduct board
  may refuse to accept the return of a license, or the withdrawal  of an
  application for a license, by one who is subject to a disciplinary
  investigation.  See id. §  129(a)(9); 1997, No. 40, § 4.  Perry cites the
  standard canon of statutory construction that "an  amendment of [a] statute
  shows a legislative intent to change the effect of existing law."  
  Montgomery v. Brinver Corp., 142 Vt. 461, 464, 457 A.2d 644, 646 (1983). 
  The fact that the  Legislature amended the statute to include the power to
  deny a request for withdrawal  demonstrates, he argues, that such power had
  been previously lacking.

       The fundamental objective of statutory interpretation is to discern
  and implement the  legislative intent, see In re Wal*Mart Stores, Inc., 167
  Vt. 75, 84, 702 A.2d 397, 403 (1997),  and in seeking that intent we look
  to the words of the statute itself, the legislative history and 
  circumstances surrounding its enactment, and the legislative policy it was
  designed to implement.  See Merkel v. Nationwide Ins. Co., 166 Vt. 311,
  314, 693 A.2d 706, 707-708 (1997).  Thus,  the canon of construction on
  which Perry relies routinely yields to the corollary principle that 
  contrary evidence may reveal a legislative intent to clarify rather than
  change existing law.  See  1A N. Singer, Sutherland Statutory Construction
  § 22.30, at 267-68 (5th ed. 1993); In re Smith,  ___ Vt. ___, ___, 730 A.2d 605, 611 (1999); Town of Cambridge v. Town of Underhill, 124  Vt. 237, 241,
  204 A.2d 155, 158 (1964).  To determine whether a statutory amendment was 
  intended as clarifying legislation, we look to the history and
  circumstances surrounding its  enactment.  See 1A Sutherland, supra, §
  2230, at 267; Smith, ___ Vt. at ___, 730 A.2d  at 611;  Town of Cambridge,
  124 Vt. at 241, 204 A.2d  at 158.

       As we explained recently in Smith, ___ Vt. at ___, 730 A.2d  at 611-12,
  the amendment 

 

  at issue here was part of a larger, omnibus bill revising and standardizing
  the procedures that  govern the regulation of thirty-four separate
  occupations and professions.  See 1997, No. 40.  ("An Act Relating to
  Efficiency in the Regulation of Professions and Occupations").  Prior to
  the  Act, the Board's policy since at least 1991 had been to disallow
  requests to withdraw medical-license applications.  In 1993, the Board
  amended its policy to allow the withdrawal of an  application, upon
  petition, if certain criteria were satisfied.  The policy was revised
  again, and  reaffirmed, in 1995.  In denying Perry's motion in this case,
  the Board noted its longstanding  policy of not permitting withdrawals
  except in certain limited circumstances not here applicable. 
  
       The appellate officer's decision to reverse the Board on the ground
  that it lacked  authority to deny Perry's motion represented a departure
  from this policy, and it was followed  within several months by a request
  from the Office of Professional Regulation for legislation  containing the
  amendment that reinstated the former policy.  A contemporaneous memorandum 
  from the Director of the Office of Professional Regulation described the
  amendment in question  as a "provision to clarify that boards do not have
  to return applications or licenses when a  disciplinary investigation is in
  process."  (Emphasis added.)  These circumstances strongly  support an
  inference that the amendment was intended to clarify the meaning and scope
  of the  Board's regulatory authority, not to change it.  See Town of
  Cambridge, 124 Vt. at 241, 204 A.2d  at 158.   

       Accordingly, we conclude that the trial court's judgment was sound.

       Affirmed.	  
 
	                                FOR THE COURT:


	                                _______________________________________
	                                Associate Justice


-------------------------------------------------------------------------------
                                  Footnotes


FN1.  In view of our holding, we need not reach Perry's alternative
  arguments that 3 V.S.A. § 130a(a) applies only to final  decisions of the
  Board, but see In re Delozier, 158 Vt. 655, 655, 613 A.2d 196, 196 (1992)
  (mem.) (interlocutory appeals  from decisions of Board must follow
  procedures set forth for final judgments), and that the mistaken appeal to
  superior court  was sufficient to preserve his appeal from the Board's
  decision.    
  


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