In re Rowan
| Decision Date | 05 June 1997 |
| Docket Number | No. 96–076.,96–076. |
| Citation | 694 A.2d 1002,142 N.H. 67 |
| Court | New Hampshire Supreme Court |
| Parties | Appeal of Edward L. ROWAN, M.D. (New Hampshire Board of Medicine). |
John D. MacIntosh, Concord (on the brief and orally), for petitioner.
Steven M. Houran, Acting Attorney General (Douglas N. Jones, Assistant Attorney General, on the brief and orally), for State.
The petitioner, Edward L. Rowan, M.D., appeals the actions of the New Hampshire Board of Medicine (board) in imposing various sanctions on him for professional misconduct. We affirm.
In October 1993, the board received a letter from Ms. R., a former patient of the petitioner, who alleged that the petitioner had engaged in a sexual relationship with her during the previous two years while she was his patient. Ms. R. also claimed to have knowledge that the petitioner was planning to move to New Zealand. In November 1993, Ms. R. wrote a second letter to the board withdrawing her complaint. On its own initiative the board issued an order commencing a formal investigation in January 1994. The board sought information concerning not only Ms. R.'s claims, but also the procedures the petitioner used to close his practice and refer his patients to other practitioners.
The petitioner relocated to New Zealand in early 1994 and communicated with the board through his New Hampshire attorney. For several months the petitioner's attorney, the board, and its hearing counsel engaged in correspondence concerning the information and records sought in the board's order. The petitioner declined to produce materials concerning Ms. R. or the closure of his New Hampshire practice, asserting first that the withdrawal of the complaint precluded further inquiry by the board, and later Ms. R.'s lack of consent to disclosure and the absence of a specific complaint as to the closure of his practice.
On May 25, 1994, the board's hearing counsel issued a subpoena for the information. The petitioner complied in part by providing a list of steps taken to close his practice, and moved to quash or modify the subpoena. The petitioner objected to the subpoena for the documents, records, and files of Ms. R. on several grounds, including: that the complaint had been withdrawn, that Ms. R. had instructed the petitioner not to disclose her confidential files based on her State statutory and State and federal constitutional privileges, that the board lacked authority under RSA 329:18 to issue a subpoena for confidential information shielded by RSA 329:26, and that 42 U.S.C. § 290ee–3(b) protected Ms. R.'s records from disclosure because they were records of a federally assisted substance abuse function.
The board denied the motion on July 13, 1994, and by letter of July 21, 1994, hearing counsel again requested the information. The petitioner continued to refuse to turn over the materials. On March 14, 1995, the board issued a show cause order to determine whether the petitioner had committed professional misconduct by his failure to comply with the subpoena and requests for information.
The petitioner responded to the show cause order, stating that he was unable to release Ms. R.'s records without her consent because she had instructed the petitioner, through her counsel, not to release the records, and that he was prohibited from releasing her materials under 42 U.S.C. § 290ee–3 and 42 C.F.R. Part 2, absent her consent or a court order. He contended that the show cause order was an effort to impose contempt sanctions on him and that since RSA chapter 329 conferred no contempt power on the board, the board was required to follow the procedure set forth in RSA 491:19 – :20 to enforce the subpoena.
After a prehearing conference, the board issued a more expansive order on June 9, 1995, directing the petitioner to submit a detailed, good-faith response to allegations concerning Ms. R., and to provide information and materials concerning Ms. R. and the closure of his New Hampshire practice. On June 15, 1995, a second subpoena was issued for the materials. The petitioner again moved to quash the subpoena on substantially similar grounds as he had asserted previously, and on the ground that the requests were overbroad.
The board denied the petitioner's motion to quash on August 10, 1995. On September 15, 1995, hearing counsel moved to impose sanctions on the petitioner for violation of the board's order and subpoenas. The petitioner objected, again asserting that the board must follow the procedure outlined in RSA 491:19 – :20 because RSA chapter 329 gave it no authority to sanction the petitioner for failure to comply with a subpoena.
Following an evidentiary hearing, the board held that the petitioner had engaged in professional misconduct by not reasonably responding to the board's inquiries and requests for documents. The board suspended the petitioner's privilege to apply for reinstatement of his New Hampshire license for one year, and thereafter until he complied with the board's request for information. The petitioner's motion for reconsideration was denied, and this appeal followed.
We will uphold the board's decision unless it is unreasonable or based on an error of law. See RSA 541:13 (1974); Appeal of Beyer, 122 N.H. 934, 938, 453 A.2d 834, 836 (1982). The petitioner argues the board was required to proceed to superior court under RSA 491:19 – :20 to resolve the dispute over the subpoenaed information. He asserts that because the board concedes that it lacks the power to punish for contempt under RSA chapter 329, RSA 491:19 applies. RSA 491:19 provides:
When construing the meaning of statutes, we first look to the plain and ordinary meaning of the words used. See Appeal of Ashland Elec. Dept., 141 N.H. 336, 341, 682 A.2d 710, 713 (1996). The statute's plain language indicates that a petition "may be filed" with the superior court. RSA 491:19.
The intention of the Legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof. Words and phrases which are generally regarded as making a provision mandatory include "shall" and "must." On the other hand, a provision couched in permissive terms is generally regarded as directory or discretionary. This is true of the word "may." It is the general rule that in statutes the word "may" is permissive only, and the word "shall" is mandatory.
North Hampton Racing & Breeding Assn. v. New Hampshire Racing Commission, 94 N.H. 156, 158–59, 48 A.2d 472, 474–75 (1946) (quotations and citations omitted). Here, the statutory language is straightforward. The decision whether to file a petition for contempt sanctions in the superior court lies within the board's discretion. See RSA 491:19.
The petitioner contends that this court's interpretation of RSA 491:19 in Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 422 A.2d 1304 (1980), compels a finding that the procedure outlined in the statute is mandatory. Scarborough involved an employment discrimination case before the New Hampshire Commission for Human Rights (commission). The defendant was summoned to the commission hearing by subpoena. Id. at 708, 422 A.2d at 1306. When he left the hearing room, the plaintiff moved for contempt, which the commission denied. Id. The plaintiff then filed in superior court pursuant to RSA 491:19, but the superior court also declined to find contempt. Id. at 709, 422 A.2d at 1306. The plaintiff argued that a party who appears at a commission hearing under a subpoena is in contempt of court if he leaves before he gives testimony and evidence. Id. at 711–12, 422 A.2d at 1308. We determined the proper question was whether the superior court abused its discretion in refusing to find the defendant in contempt. Id. Relying on the discretionary nature of the contempt power, we found no abuse of discretion. Id. at 712, 422 A.2d at 1308.
In the course of our discussion, we noted that because the New Hampshire Commission for Human Rights lacks the power to punish for contempt, "[a] petition for contempt must be filed in superior court, [pursuant to] RSA 491:19." Id. The petitioner interprets this as mandating that boards or commissions lacking contempt power must petition the court in all instances in which a defendant or respondent fails to comply with a subpoena. This is not so. Our statement in Scarborough recognized that a petition "must" be filed if the board or commission seeks contempt sanctions against the defendant or respondent which it cannot itself impose. See id. Scarborough does not require a board or commission to seek contempt sanctions in the first instance, however. In the present case, the board had other statutory sanctions available which it chose to employ, see RSA 329:17, VII (Supp.1996), and it was not statutorily required to proceed under RSA 491:19 – :20.
The petitioner asserts that the discipline imposed on him by the board is the equivalent of civil contempt, see Scarborough, 120 N.H. at 712, 422 A.2d at 1308 (), which the board is not authorized to impose. See RSA 329:17 (1995 & Supp.1996) ; RSA 491:19 – :20 (1983). Upon close examination, we note a critical distinction between contempt sanctions and those which the board ordered in this case. Contempt sanctions issued by a court are in direct response to a witness's refusal to obey a summons or produce documents and are primarily an aid to discovery. See RSA 491:19. The stated purpose...
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