Bland v. Commission on Medical Competency

Decision Date20 December 1996
Docket NumberNo. 960163,960163
Citation557 N.W.2d 379
PartiesJames H. BLAND, M.D., Respondent and Appellant, v. COMMISSION ON MEDICAL COMPETENCY, and the Board of Medical Examiners, Complainants and Appellees. Civil
CourtNorth Dakota Supreme Court

Chad C. Nodland of Irvin B. Nodland, P.C., Bismarck, for respondent and appellant.

John M. Olson of Olson Cichy, Bismarck, for complainants and appellees.

SANDSTROM, Justice.

James H. Bland appeals from a district court order affirming an ex parte order of the Board of Medical Examiners temporarily suspending his physician's license. We affirm, concluding the Administrative Agencies Practice Act does not apply to the temporary suspension of Bland's license, and concluding the determination of the Board was not arbitrary or unreasonable.

I

Bland has been a licensed physician in North Dakota. In 1995, allegedly, a friend of Bland's rented a storage shed in Bland's name, on Bland's behalf, at Bland's request. When the lease expired, the owners of the storage shed entered and discovered poisons and other chemicals, explosive devices, and literature on the use of these destructive materials. The owners notified the police.

The North Dakota Commission on Medical Competency filed a complaint against Bland for committing an act which "indicate[s] a mental disability that materially effects [sic] his ability to practice medicine, psychiatry in this case, in a competent manner." In an ex parte proceeding, the Board of Medical Examiners issued an order temporarily suspending Bland's physician's license. Bland appealed to district court. After the district court affirmed the Board's temporary suspension order, Bland appealed here.

Bland moved to expedite the proceedings here. The Board moved to dismiss the appeal, arguing the district court order was not appealable. We denied both motions. Bland appealed to the district court under N.D.C.C. § 43-17-32.1(4). The authority to appeal here is a disputed issue.

II

The Board argues the case is moot because the Board has issued a permanent suspension of Bland's license. Mootness is a threshold issue we decide before reaching the merits of the case. See Gosbee v. Bendish, 512 N.W.2d 450, 452 (N.D.1994) (addressing mootness question before reaching the issues raised by the appellant); see also Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169, 170 (N.D.1986). "An appeal is moot when an appellate court is unable to provide effective relief because of a lapse of time, or the occurrence of related events." Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 294 (N.D.1995); see also Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426 (N.D.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1315, 131 L.Ed.2d 197 (1995). Because the Board issued a permanent suspension of Bland's license on September 5, 1996, Bland will not get his license reinstated regardless of our decision in this case.

"However, an appeal is not moot if the controversy is one of great public interest and involves the authority and power of public officials, or is capable of repetition, yet evading review." Medical Arts Clinic at 294; Gosbee at 453. "Public interest means more than the interest of a particular locality; it means an interest that affects the legal rights or liabilities of the public at large." Medical Arts Clinic. A controversy involves a great public interest when the issue has "statewide ramifications ... for administrative practice." Medical Arts Clinic (determining scope of hearing officer's authority over discovery proceedings before an administrative agency involves a great public interest). We have also recognized public importance in resolving "potential conflict between a statutory agency's right to regulate public property ... against private citizens' constitutional rights of free speech." Bolinske at 430.

"A license to practice medicine is a property right deserving constitutional protection, including due process." Humenansky v. Minnesota Bd. Med. Exam'rs, 525 N.W.2d 559, 566 (Minn.App.1994) (citing Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959)). A physician's license is, however, "subject to strict regulation under the state's police power." Humenansky (citing Barsky v. Board of Regents of Univ., 347 U.S. 442, 449, 74 S.Ct. 650, 654-55, 98 L.Ed. 829 (1954)). This case raises the question whether the Administrative Agencies Practice Act applies to the temporary suspension of a physician's license under N.D.C.C. § 43-17-32.1. Because this case involves a conflict between the Board's authority to suspend Bland's license and Bland's property right in his license, we conclude this case involves a matter of public interest, and therefore we will not dismiss it as moot.

III

Bland argues the Board's failure to comply with the provisions of N.D.C.C. ch. 28-32, the Administrative Agencies Practice Act, specifically failure to provide a certified record on appeal to the district court, violated his right to due process. The Board concedes it did not provide a certified record on appeal as required for appeals under the Administrative Agencies Practice Act. N.D.C.C. § 28-32-17. The Board argues, however, the requirements of N.D.C.C. ch. 28-32 do not apply when the Board issues a temporary suspension under N.D.C.C. § 43-17-32.1.

The Board suspended Bland's physician's license under N.D.C.C. § 43-17-32.1, which states:

"1. When the board has verified evidence that probable cause requires the suspension of a physician's license to reasonably protect the public from imminent or critical harm, the board may order a temporary suspension ex parte.

"2. An ex parte temporary suspension remains in effect for not more than sixty days, unless otherwise terminated by the board.

"3. The board shall set the date of a full hearing for suspension or revocation of the physician's license for not later than sixty days from the issuance of the ex parte temporary suspension order. Within three days after the issuance of the ex parte suspension order the board shall serve the physician with a copy of the order along with a copy of the complaint and notice of the date set for the full hearing.

"4. The physician may appeal the ex parte temporary suspension order prior to the full hearing. For purposes of appeal, the district court shall decide whether the board acted reasonably or arbitrarily. The court shall give priority to the appeal for prompt disposition thereof."

A

The Board of Medical Examiners is an administrative agency. Sletten v. Briggs, 448 N.W.2d 607, 609 (N.D.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1135, 107 L.Ed.2d 1041; see also Greaves v. North Dakota State Highway Comm'r, 432 N.W.2d 879 (N.D.1988) (recognizing the Board has adopted administrative regulations for emergency medical technician certification). Generally, "the Administrative Agencies Practice Act governs appeals from district court judgments involving administrative license suspensions." Lock v. Moore, 541 N.W.2d 84, 86 (N.D.1995) (referring to driver's license suspensions); see also Greenwood v. Moore, 545 N.W.2d 790, 793 (N.D.1996).

This case addresses the interplay between N.D.C.C. § 43-17-32.1 and the Administrative Agencies Practice Act codified at N.D.C.C. ch. 28-32. Under the Administrative Agencies Practice Act, only final orders of an agency can be appealed to the district court. N.D.C.C. § 28-32-15(3)(a); Raboin v. North Dakota Dep't of Human Serv., 552 N.W.2d 329, 332 (N.D.1996). The Board argues the order temporarily suspending Bland's license is not a "final order" under the Administrative Agencies Practice Act. The language of N.D.C.C. § 43-17-32.1 does not indicate whether it is a "final order" for purposes of appeal.

When statutes can be read together so more than one interpretation is reasonable, the statutes are ambiguous. Kroh v. American Family Ins., 487 N.W.2d 306, 308 (N.D.1992). Statutory interpretation "is a question of law that is fully reviewable on appeal." Matter of Contempt of Grajedas, 515 N.W.2d 444, 451 (N.D.1994). "When interpreting ambiguous statutes, this court may consider pertinent extrinsic evidence." Kroh. "That evidence may include legislative history." Kroh; N.D.C.C. § 1-02-39(3); Greenwood at 794. "[T]he primary goal when interpreting a statute is to determine the legislative intent." In re Craig, 545 N.W.2d 764, 767 (N.D.1996); see also State v One 1990 Chevrolet Pickup, 523 N.W.2d 389, 392 (N.D.1994).

The legislative history indicates the temporary suspension of a physician's license under N.D.C.C. § 43-17-32.1 is not a "final order" and therefore is not subject to the provisions of the Administrative Agencies Practice Act.

In 1985, the legislature enacted House Bill 1104, creating N.D.C.C. § 43-17-32.1 to allow the Board to suspend a physician's license for up to sixty days in an ex parte proceeding, based on a finding of immediate and present danger of harm to the public. 1985 N.D.Sess.Laws, ch. 482, § 1. As introduced, subsection 4 of H.B. 1104 stated, "[f]or purposes of appeal, the ex parte temporary suspension order is a final decision of the board suspending a license to practice medicine in this state." H.B. 1104, 49th Leg. (N.D.1985) (emphasis added). Counsel for the Board asked the legislative committee to amend subsection 4 of the bill, deleting the reference to "final decision," to read "[f]or purposes of appeal, the district court shall decide whether probable cause reasonably requires the temporary suspension to adequately protect the public interest. The court shall give priority to the appeal for prompt disposition thereof." Tape Recorded Testimony on H.B. 1104 Before the House Social Services and Veterans Affairs Committee, 49th Leg. (N.D.1985) (statement of R.W. Wheeler, Counsel for the Board).

"The reason for that proposed amendment is, if as the bill reads, ex parte temporary order is deemed to be the final decision of the board, the court would...

To continue reading

Request your trial
18 cases
  • Toni v. Toni
    • United States
    • North Dakota Supreme Court
    • December 5, 2001
    ...spousal support agreements, it could have expressly prohibited them. See Nichols, 469 N.W.2d at 623. See also Bland v. Comm'n on Medical Competency, 557 N.W.2d 379, 384 (N.D.1996) (holding because statute did not expressly prohibit appeals to this Court, the legislature did not intend to fo......
  • Gregory v. North Dakota Workers Compensation Bureau
    • United States
    • North Dakota Supreme Court
    • April 28, 1998
    ...events. Id. at p 8; Kahl v. Director, North Dakota Dep't of Transp., 1997 ND 147, p 6, 567 N.W.2d 197; Bland v. Commission on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996). We conclude the related events have not mooted this ¶23 The Bureau argues the district court was unable to give effe......
  • State Bd. of Med. Exam.-Invest. v. Hsu
    • United States
    • North Dakota Supreme Court
    • January 23, 2007
    ...summarily suspended Dr. Hsu's license. See N.D.C.C. § 43-17-32.1. Dr. Hsu did not appeal that decision. See Bland v. Commission on Med. Competency, 557 N.W.2d 379, 383 (N.D.1996) (holding temporary suspensions were not final orders under N.D.C.C. ch. 28-32, but were appealable under N.D.C.C......
  • Henry v. SECURITIES COMM'R FOR STATE, No. 20020155-20020157.
    • United States
    • North Dakota Supreme Court
    • April 15, 2003
    ...orders affecting the jurisdiction of a court under N.D.C.C. § 28-27-02. The Henrys and Skarphol's reliance on Bland v. Commission on Med. Competency, 557 N.W.2d 379 (N.D.1996), is misplaced. In Bland, 557 N.W.2d at 383, we held that an order temporarily suspending a physician's license unde......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT