Ryser v. State

• Decision Date: 07 September 2012
• Docket Number: No. 103,579.,103,579.
• Citation: 284 P.3d 337
• Parties: Carol Ann RYSER, M.D., Appellant, v. STATE of Kansas; Kansas Board of Healing Arts; Brit Robertson in his Official Capacity as Investigator of the Kansas Board of Healing Arts; and Kathleen Selzler Lippert in her Official Capacity as Executive Director of the Kansas Board of Healing Arts, Appellees.
• Court: Kansas Supreme Court

284 P.3d 337

Carol Ann RYSER, M.D., Appellant,

v.STATE of Kansas; Kansas Board of Healing Arts; Brit Robertson in his Official Capacity as Investigator of the Kansas Board of Healing Arts; and Kathleen Selzler Lippert in her Official Capacity as Executive Director of the Kansas Board of Healing Arts, Appellees.

No. 103,579.

Supreme Court of Kansas.

Sept. 7, 2012.

Syllabus by the Court

1. Parties to an action cannot confer subject matter jurisdiction by consent, and an appellate court has a duty to question jurisdiction on its own initiative. If a district court lacks jurisdiction to enter an order being appealed from, an appellate court cannot acquire jurisdiction over the subject matter on appeal. And when the record shows a lack of jurisdiction, the appellate court must dismiss the appeal.

2. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court first seeks to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings.

3. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. But when the statute's language or text is unclear or ambiguous, an appellate court employs canons of construction, legislative history, or other background considerations to ascertain legislative intent and construe the statute accordingly.

4. Although the Kansas Judicial Review Act, K.S.A. 77–601 et seq. (KJRA), generally governs the procedures for judicial review of final and nonfinal actions taken by the Board of Healing Arts, K.S.A. 65–2839a(b)(3)(B) provides a specific procedure for judicial review of Board-issued subpoenas which differs significantly from, and cannot be reconciled with, the judicial review process contemplated under the KJRA.

5. Neither the Kansas Judicial Review Act nor its administrative exhaustion requirement applies to the specific procedure set forth in K.S.A. 65–2839a(b)(3)(B) for judicial review of a subpoena issued by the Board of Healing Arts.

6. K.S.A. 65–2839a(b)(1) permits but does not require a person to seek relief from the Board of Healing Arts before applying to the district court for review of a subpoena.

7. Whether an agency has exceeded its statutory authority requires interpretation of the statutes establishing the agency. This presents a question of law subject to unlimited review by an appellate court.

8. The State has broad authority to regulate the practice of medicine. To that end, the legislature enacted the Kansas Healing Arts Act, K.S.A. 65–2801 et seq., and established the Board of Healing Arts as the administrative agency charged with administering the Act.

9. The Board of Healing Arts has authority to enforce the Kansas Healing Arts Act and to make all necessary investigations relative to that purpose. K.S.A. 65–2864.

10. As part of any investigation or proceeding, the Board of Healing Arts has the power to issue subpoenas. K.S.A. 65–2839a(b)(1). The Board is also authorized to appoint a disciplinary counsel who “shall have the power and the duty to investigate or cause to be investigated all matters involving professional incompetency, unprofessional conduct or any other matter which may result in disciplinary action against a licensee pursuant to K.S.A. 65–2836 through 65–2844, and amendments thereto.” K.S.A. 65–2840a.

11. The Board of Healing Arts has jurisdiction of proceedings to take disciplinary action authorized by K.S.A. 2011 Supp. 65–2836 against “any licensee practicing under [the Act].” K.S.A. 2011 Supp. 65–2838(a).

12. The phrase “any licensee practicing under [the Act]” in K.S.A. 2011 Supp. 65–2838(a) does not limit the Board of Healing Arts' authority to investigate and discipline licensees only to licensees practicing in Kansas.

13. K.S.A. 2011 Supp. 65–2872 lists 18 separate categories of individuals who are deemed not to be engaged in the practice of healing arts. When a physician is not specifically exempted under one of those categories, section ( o ) requires a finding that the physician is engaged in the “practice” of healing arts. That section provides that “[e]very act or practice falling in the field of the healing art, not specifically excepted [in 65–2872], shall constitute the practice thereof.” K.S.A. 2011 Supp. 65–2872( o ).

14. While K.S.A. 2011 Supp. 65–2836 lists the grounds upon which a licensee's license can be revoked, suspended, or limited, it does not establish or limit the jurisdiction of the Board to investigate matters that ultimately may result in disciplinary actions.

15. K.S.A. 2011 Supp. 65–2836(j) permits the Board of Healing Arts to take disciplinary action against a physician who is dually or mutually licensed in another state, but it does not provide the only grounds for investigating or disciplining a dually or mutually licensed physician. Nor does section (j) imply that the Board can take disciplinary action against a licensee under the Act only when the licensing authority of another state has first acted.

Brennan P. Fagan, of Fagan Emert & Davis, L.L.C., of Lawrence, and Jacques G. Simon, of New York, New York, argued the cause, and William J. Skepnek, of Skepnek Fagan & Davis, P.A., of Lawrence, and Mark Emert, of Fagan Emert & Davis, L.L.C., of Lawrence, were with them on the briefs for appellant.

Joshana L. Offenbach, associate disciplinary counsel, of Kansas State Board of Healing Arts, argued the cause, and William Scott Hesse, former general counsel, and Kelli J. Stevens, general counsel, of same board, were with her on the briefs for appellee.

The opinion of the court was delivered by MORITZ J.:

Carol Ann Ryser, M.D., appeals from the district court's order denying her petition to revoke an administrative subpoena issued by the Kansas Board of Healing Arts (Board). We affirm the district court's determination that Ryser was not required to exhaust administrative remedies before seeking relief from the district court under K.S.A. 65–2839a(b)(3)(B). And on the merits of this appeal, we affirm the district court's denial of Ryser's petition based on our conclusion that the Board had authority under the Kansas Healing Arts Act, K.S.A. 65–2801 et seq. (Act), to investigate and subpoena Ryser, a Kansas licensee who was practicing under the Act, even though the investigation was based upon her practice of medicine in Missouri.

Factual and Procedural Background

Ryser is licensed to practice medicine in Kansas and Missouri. In August 2009, the Board opened a disciplinary investigation based on information that a patient Ryser treated in Missouri had filed a lawsuit against Ryser alleging medical negligence, fraud, and misrepresentation. As part of its investigation, the Board issued a subpoena requesting the production of documents related to Ryser's treatment of the Missouri patient.

In October 2009, Ryser filed a petition in district court under K.S.A. 65–2839a(b)(3)(B) seeking revocation of the subpoena. Ryser argued the subpoena did not seek evidence relevant to a lawful investigation because the Board lacked authority to investigate or discipline her based on her practice of medicine in Missouri.

In response, the Board challenged the district court's jurisdiction to review the subpoena, arguing Ryser failed to exhaust administrative remedies or to demonstrate she was entitled to interlocutory review of a nonfinal agency action as required by the Kansas Judicial Review Act, K.S.A. 77–601 et seq. (KJRA). Substantively, the Board argued it had authority to investigate Ryser's practice of medicine and to issue the subpoena because Ryser is a Kansas licensee and the allegations in the Missouri lawsuit, if true, constituted grounds for discipline under the Act.

The district court rejected the Board's jurisdictional challenges and determined K.S.A. 65–2839a(b)(3)(B) permitted Ryser to directly petition the court for an order revoking the subpoena without first exhausting administrative remedies. The court then determined the Board had authority to investigate Ryser's actions in Missouri and to issue the subpoena because Ryser is a Kansas licensee who was practicing medicine within the meaning of the Act. The court reasoned that the Act “implies that some sort of action must be taken by the professional [but] does not indicate that the licensee must take that action in the State of Kansas.”

Ryser filed a timely notice of appeal in the Court of Appeals, and the case was transferred to this court on this court's own motion under K.S.A. 20–3018(c).

Ryser Was Not Required to Exhaust Administrative Remedies Before Petitioning the District Court to Revoke the Subpoena under K.S.A. 65–2839a(b)(3)(B).

In the district court, the Board argued Ryser failed to exhaust administrative remedies as required by the KJRA and that this failure deprived the district court of jurisdiction to consider Ryser's application for review in the district court. But the Board did not cross-appeal the district court's determination that Ryser was not required to exhaust administrative remedies before seeking relief from the district court under K.S.A. 65–2839a(b)(3)(B). Instead, in its initial appeal brief, the Board asserted that this court need not address the administrative exhaustion issue because neither party raised the issue on appeal.

But we have a duty to question jurisdiction on our own initiative. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010); see also Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, including a failure to object.). Significantly, if the district court lacked jurisdiction to enter the order Ryser appeals from, this court cannot acquire jurisdiction over the...