Commission on Medical Discipline v. Stillman

• Decision Date: 09 October 1981
• Docket Number: Nos. 113,18,s. 113
• Citation: 435 A.2d 747,291 Md. 390
• Parties: COMMISSION ON MEDICAL DISCIPLINE of the State of Maryland v. Irving M. STILLMAN. Irving M. STILLMAN v. COMMISSION ON MEDICAL DISCIPLINE of the State of Maryland. In the Matter of Irving M. STILLMAN.
• Court: Maryland Court of Appeals

Page 390

291 Md. 390

435 A.2d 747

COMMISSION ON MEDICAL DISCIPLINE of the State of Maryland v. Irving M. STILLMAN.

Irving M. STILLMAN v. COMMISSION ON MEDICAL DISCIPLINE of the State of Maryland.

In the Matter of Irving M. STILLMAN.

Nos. 113, 18.

Court of Appeals of Maryland.

Oct. 9, 1981.

Henry R. Lord and Michael C. Powell, Baltimore, for Irving M. stillman.

Jack C. Tranter and Susan K. Gauvey, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for Commission on Medical Discipline of the State of Maryland.

Angus R. Everton, E. Dale Adkins, III and Anderson, Coe & King, Baltimore, on the brief, for amicus curiae The Medical and Chirurgical Faculty of Maryland.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

We deal here in a single opinion with three separate but related appeals involving the revocation of Dr. Irving Stillman's license to practice medicine by the Commission on Medical Discipline (the Commission), a governmental agency established pursuant to Maryland Code (1957, 1980 Repl. Vol.) Art. 43, § 130, as a part of the State Department of Health and Mental Hygiene. Number 113 presents the question whether an order of the Baltimore City Court staying the Commission's revocation of Dr. Stillman's license pending judicial review is appealable and, if so, whether the stay order violated the provisions of Art. 43, § 130(m), the separation of powers and due process provisions of the Maryland Declaration of Rights, or the due process clause of the fourteenth amendment to the federal constitution. Primarily at issue in No. 18 (two appeals in one record) is whether Art. 43, § 130(a), which provides for appointment of the membership of the Commission, violates state and federal constitutional provisions respecting the delegation of governmental authority to a private organization.

I

The Commission is authorized by Art. 43, § 130 to investigate complaints of unprofessional conduct on the part of Maryland physicians. Under § 130(b), the Commission is empowered to promulgate rules and regulations "for the proper supervision and control of the professional conduct of all persons under its jurisdiction ...." Under § 130(g), the Commission is enjoined to refer complaints of unprofessional conduct to "the appropriate local county (medical) society or committee of the Medical and Chirurgical Faculty of the State of Maryland, for investigation and report." The subsection requires that the report "contain recommendations the investigation reveals may be necessary for adequate disciplinary procedures." Section 130(j) provides for hearing before the Commission of charges of unprofessional conduct entered against a physician. Section 130(h) enumerates with specificity the types of "unprofessional conduct" with which a physician may be charged, and authorizes the Commission to either dismiss the charges, issue a reprimand, place the physician on probation, or revoke or suspend his license.

At the time of the proceedings in this case, § 130(a) delineated the membership of the Commission as follows:

The president of the Medical and Chirurgical Faculty of the State of Maryland.

Two practicing physicians appointed by the Secretary of Health and Mental Hygiene, selected from a list submitted by the Medical and Chirurgical Faculty of the State of Maryland, such list, having been composed from a list of nominees submitted by component societies of the Medical and Chirurgical Faculty and two other licensed practicing physicians of the State of Maryland appointed by the Secretary of Health and Mental Hygiene.

Three members of the Board of Medical Examiners to be selected by the Secretary of the Department of Health and Mental Hygiene.

The chairman of the council of the Medical and Chirurgical Faculty of the State of Maryland. ¹

The Medical and Chirurgical Faculty is a private, voluntary membership organization constituting, in effect, the State Medical Society.

II

The Commission initiated its investigation of Dr. Stillman's professional conduct as a result of newspaper accounts of his arrest on charges of committing a sexual offense involving a female patient. Although Stillman was acquitted of the charges after a jury trial, the Commission, pursuant to § 130(g), directed the Peer Review Committee of the Medical and Chirurgical Faculty (the State Medical Society) to investigate Stillman's professional conduct. On November 27, 1978, the committee filed its report with the Commission, indicating that Stillman was professionally incompetent in a number of designated particulars. On September 5, 1979, the Commission charged Stillman with professional incompetence and scheduled a hearing to consider the charges. Prior to the hearing, Stillman, on February 11, 1980, filed a declaratory judgment action in the Circuit Court of Baltimore City, seeking to enjoin the Commission from holding the hearing and to obtain a declaration that the Commission could not constitutionally proceed with the hearing. It was Stillman's primary contention that Art. 43, § 130(a) was unconstitutional because it constituted an impermissible delegation to the State Medical Society, a private, non-governmental body, of the power to make appointments to the Commission. The court (Kaplan, J.), finding no merit in the contention, declined to enjoin the scheduled hearing, and declared that § 130(a) was in all respects constitutional. Stillman appealed to the Court of Special Appeals. We granted certiorari (No. 18) prior to decision by that court to consider the important issues raised in the case.

The hearing on the disciplinary charges against Stillman was concluded on April 29, 1980. The Commission thereafter issued an order dated May 20, 1980 revoking Stillman's medical license for professional incompetence. ² The Commission's order provided that the revocation would be effective on June 20, 1980 in order to afford time for Dr. Stillman to transfer his patients to the care of another physician. The order also provided that if Stillman entered a Commission-approved training program, the license revocation would be stayed and he would be placed on conditional probation. Stillman appealed to the Baltimore City Court and filed a motion to stay the Commission's order. Over the Commission's objection, the court (Karwacki, J.) stayed the order revoking Stillman's license pending judicial review by the Baltimore City Court. The Commission appealed to the Court of Special Appeals but that court, on September 2, 1980, dismissed the appeal on the ground that it was not taken from an appealable final judgment. We granted the Commission's petition for certiorari to review the intermediate appellate court's dismissal of the appeal (No. 113).

On February 10, 1981, the Baltimore City Court (Perrott, J.) affirmed the Commission's order revoking Stillman's license. Stillman appealed to the Court of Special Appeals. We granted certiorari (No. 18) and consolidated all three cases for briefing and argument.

III

The Commission contends that Judge Karwacki's order staying the revocation of Dr. Stillman's license in effect enjoined its judgment and therefore constituted an appealable interlocutory order under Maryland Code (1974, 1980 Repl. Vol.), § 12-303(c)(1) of the Courts and Judicial Proceedings Article. That section provides, inter alia, that a party may appeal an order "granting ... an injunction ...." We agree with the Commission. Where, as here, the Court restrains the action of an executive branch agency revoking the license of a physician, the order in effect permits the physician to continue to practice his profession and constitutes an order in the nature of an injunction. ³ See Laje v. R. E. Thomason Gen. Hospital, 564 F.2d 1159 (5th Cir. 1977), cert. denied, 437 U.S. 905, 98 S.Ct. 3091, 57 L.Ed.2d 1134 (1978); Cahokia Sportservice, Inc. v. Illinois Liq. Con. Comm'n, 32 Ill.App.3d 801, 336 N.E.2d 276 (1975).

IV

(A)

Contrary to the conclusion reached by the Baltimore City Court, § 130(m) plainly precludes a court from staying a Commission order revoking or suspending a medical license. ⁴ The section provides that where judicial review of such an order is sought,

"the revocation or the period of suspension shall not be stayed and shall be effective or commence to run immediately, except this shall not apply to any decision made prior to July 1, 1974, in which case the revocation or suspension shall be stayed until final judgment." ⁵

As a matter of statutory construction, therefore, the Baltimore City Court erred in interpreting § 130(m) to permit a stay of the Commission's order revoking Stillman's license. ⁶

(B)

Stillman argues that the legislative prohibition contained in § 130(m) against judicial stays of Commission orders revoking medical licenses violates the separation of powers provision contained in Article 8 of the Maryland Declaration of Rights. That article provides:

"That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other."

In Attorney General v. Waldron, 289 Md. 683, 689, 426 A.2d 929, 933 (1981), we said that Article 8

"has been consistently interpreted from its inception

to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislative, and such as are executive in their nature to the executive. Within the particular limits assigned to each, they are supreme and uncontrollable."

(Quoting Wright v. Wright, 2 Md. 429, 452 (1852)). The judicial branch of government in this State possesses those powers expressly reserved to it by the Maryland...