Katz v. Alabama State Bd. of Medical Examiners

• Decision Date: 10 November 1977
• Citation: 351 So.2d 890
• Parties: Harry Meyer KATZ, M.D. v. ALABAMA STATE BOARD OF MEDICAL EXAMINERS and Leon C. Hamrick as its Chairman. SC 2599.
• Court: Alabama Supreme Court

Page 890

351 So.2d 890

Harry Meyer KATZ, M.D. v. ALABAMA STATE BOARD OF MEDICAL EXAMINERS and Leon C. Hamrick as its Chairman.

SC 2599.

Supreme Court of Alabama.

Nov. 10, 1977.

Al Pennington, of Pennington & Pennington, Mobile, for appellant.

William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen. and John T. Mooresmith, Sp. Asst. Atty. Gen., for appellee.

EMBRY, Justice.

The decisive issue raised here is whether a denial of a petition for reinstatement to the practice of medicine by the Alabama State Board of Medical Examiners (Board) is appealable to this court under Tit. 46, § 278, Code (1940, 1973 Cum.Supp.). We answer no and accordingly dismiss the appeal.

In 1971, holding a license to practice medicine in Alabama and in Florida, Dr. Harry Meyer Katz was convicted in Florida of medicare fraud, a crime involving moral turpitude. The Alabama Board subsequently served Katz with a formal complaint informing him of its intention to revoke his license and of a hearing date for him to show cause why such action should not be taken. Before the hearing date, without admitting guilt of any ground for revocation of his Alabama license, Katz surrendered that license and withdrew from the practice of medicine.

In 1973, Katz petitioned the Board for reinstatement, a hearing was had, and his petition denied. In March of 1977, Katz again petitioned for reinstatement; a hearing was had at which Katz submitted evidence of changed circumstances, his activities in the medical field outside Alabama from the time his license had been surrendered and requests from citizens of the Bayou La Batre area that he return to their area for the practice of medicine. Again, his petition was denied.

It is a court reporter's transcript of that last hearing which is the "Record" in this case. It is from the denial of reinstatement evidenced by a resolution of the Board from which Katz appeals, purportedly under the provisions of Tit. 46, § 278, Code (1940, 1973 Cum.Supp.):

"Right of appeal; time. An appeal may be taken to the supreme court of the state of Alabama by the person whose certificate is ordered suspended or revoked from any order suspending or revoking a certificate of qualification made by said board within 30 days after rendition thereof."

The Board has moved to dismiss this appeal because the denial of Katz's petition for reinstatement is not an "order suspending or revoking a certificate of qualification."

No case has been cited by the parties that directly answers the issue raised here relating to § 278, Tit. 46, and our search for authorities interpreting this statute has proved futile. Hence, we must construe § 278, Tit. 46, in the context of this case, for the first time.

No authority need be cited to support the rule of statutory construction that the interpreting court's duty is to ascertain the intent of the legislature from a reading of the statute. As recently announced in Tillman v. Sibbles, 341 So.2d 686 (1977) " * * * in all cases in which this court is called upon to interpret a legislative enactment, the underlying consideration is to ascertain and effectuate the intent of the legislature as expressed in the statute. * * * "

At first glance it is clear the legislature intended § 278, Tit. 46, to be an appeal statute. However, this has no effect on our ability to construe it as permitting an appeal in this case. It is well recognized that ordinary principles of statutory construction also apply in construing an appeal statute. 4 Am.Jur.2d, Appeal and Error, § 7. Applying these principles of statutory construction we hold that the language of § 278, Tit. 46, contemplates an appeal to this court only from an order of the Board suspending or revoking a certificate of qualification. Therefore, an appeal from the Board's denial of a petition for reinstatement to practice medicine will not lie.

Katz is not in total disagreement with our construction of § 278. However, he argues that the case of Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So.2d 619 (1963), is precedent for allowing appeals to this court from orders by the Board denying reinstatement. We disagree. Barnes is distinguishable from the present case in one very important aspect: in Barnes, the "appeal" by Ferguson, from the Board's order denying a request for a certificate of qualification to practice under the reciprocity statute, § 267, Tit. 46, Code, as amended, was to the circuit court by petition for writ of mandamus. The appeal to this court was from a judgment of the circuit court granting a preemptory writ of mandamus commanding the Board to issue Ferguson the certificate.

This distinction supports our view that Katz could seek the writ of mandamus from the circuit court to obtain a review of the Board's alleged abuse of discretion in denying his petition for reinstatement. If judgment or discretion is abused, or exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. Barnes v. State ex rel. Ferguson, supra.

Though not compelled to do so, we think it desirable to speak beyond the narrow issue of whether denial of Katz's reinstatement to practice medicine in Alabama is appealable to this court under § 278. It is appropriate to comment for the reason that, from a review of that which is denoted as the "Record" on this appeal, a possibility for arbitrary and unreasonable action and abuse of discretion exists in the procedures followed by the Board in its hearing conducted for the purpose of considering Katz's petition for reinstatement. It is well settled law that due process must be observed by all...