MacDonald v. North Dakota Com'n on Medical Competency

• Decision Date: 09 November 1992
• Docket Number: No. 920083,920083
• Citation: 492 N.W.2d 94
• Parties: David L. MacDONALD, M.D., Appellant, v. NORTH DAKOTA COMMISSION ON MEDICAL COMPETENCY, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 94

492 N.W.2d 94

David L. MacDONALD, M.D., Appellant, v. NORTH DAKOTA COMMISSION ON MEDICAL COMPETENCY, Appellee.

Civ. No. 920083.

Supreme Court of North Dakota.

Nov. 9, 1992.

William P. Zuger (argued), Zuger Law Offices, Bismarck, for appellant.

John M. Olson (argued), Sp. Asst. Atty. Gen., Bismarck, for appellee.

LEVINE, Justice.

David L. MacDonald, M.D., appeals from a district court judgment dismissing his appeal from an order of the Board of Medical Examiners [Board] revoking his license to practice as a physician in North Dakota. We reverse the district court's judgment dismissing the appeal and remand for further proceedings.

In April 1991, the Commission on Medical Competency [Commission], the investigative body for complaints against physicians [see NDCC Chapter 43-17.1], brought charges against MacDonald, a Minot obstetrician and gynecologist. Following a hearing in July 1991, the hearing officer submitted recommended findings, conclusions and order to the Board, which serves as the adjudicative agency when the Commission files a formal complaint [see NDCC Chapter 43-17]. In October 1991, the Board issued its order, unconditionally revoking MacDonald's license to practise medicine, determining that MacDonald had "obtained the payment of fees by fraud, deceit, or misrepresentation" in violation of NDCC Sec. 43-17-31(7) and (18), and had "sexually abused, engaged in sexual misconduct with, and sexually exploited female patients related to his practice of medicine" in violation of NDCC Sec. 43-17-31(6) and (16).

On November 22, 1991, MacDonald timely filed, with the district court, a notice of appeal from the Board's order. In his notice of appeal, however, MacDonald named only the Commission as the appellee. The Board was named neither as appellant nor appellee. Nor did MacDonald file an undertaking with the district court.

In December 1991, the Commission moved to dismiss the appeal, asserting that MacDonald had not complied with NDCC Sec. 28-32-15 because he failed to name the Board as an appellee and he failed to file an undertaking within 30 days after receiving notice of the Board's order. MacDonald responded with a "motion to amend caption" to include the Board as an appellee and a "motion to set cost bond."

Because MacDonald had not named the Board as an appellee in the notice of appeal and had not filed an undertaking within the 30-day appeal period, the district court dismissed the appeal. The court reasoned that "[i]t is well established by case law in this state that an appellant must conform strictly to the provisions of the statute in perfecting an appeal." MacDonald appeals from the district court's judgment of dismissal.

For a court to have subject matter jurisdiction over an appeal, the appellant must meet the statutory requirements for perfecting the appeal. Reliable, Inc. v. Stutsman County Comm'n, 409 N.W.2d 632, 634 (N.D.1987). Any party to a proceeding heard by an administrative agency may appeal from an agency order within 30 days after notice of the order has been given. NDCC Sec. 28-32-15(1). NDCC Sec. 28-32-15(5) provides:

"The notice of appeal must specify the parties taking the appeal as appellants. The agency and all other parties of record who are not designated as appellants must be named as appellees.... The agency and all parties of record have the right to participate in the appeal...."

MacDonald asserts that he complied with Sec. 28-32-15(5) because the statute does not require that the adjudicative agency always be named as a party to the appeal, but requires only that the adjudicative agency be named if it is also a party of record. Because only MacDonald and the Commission were parties of record, rather than the Board, which served only as the adjudicative agency, he asserts that the statutory requirements have been met. We disagree.

Even assuming that Sec. 28-32-15(5) is ambiguous about whether an agency participating in solely an adjudicative capacity must be named in the notice of appeal, the legislative history of the provision supports the Commission's argument that the adjudicative agency must also be named as a party to the appeal. See Testimony on Senate Bill No. 2131 before the House State and Federal Government Committee, February 20, 1985 ["The present statute is not clear as to which parties in a proceeding before the agency have the right to participate in an appeal of the agency's decision or even if the agency is a party to the appeal. The bill specifies that all parties of record including the agency have the right to participate in the appeal...."]. We conclude that Sec. 28-32-15(5) required that the Board be named as an appellee in the notice of appeal. We also conclude, however, that MacDonald's failure to name, within the 30-day time limit, the Board as an appellee in the notice of appeal did not deprive the district court of subject matter jurisdiction over the appeal.

In Cahoon v. N.D. Workers Comp. Bureau, 482 N.W.2d 865 (N.D.1992), the district court dismissed an appeal by a workers compensation claimant whose timely filed proof of service did not name his employer as having been served with the notice of appeal. To support its argument for dismissal, the agency relied on Indianhead Truck Line, Inc. v. Thompson, 142 N.W.2d 138 (N.D.1966), and In re Bjerke's Estate, 137 N.W.2d 225 (N.D.1965), in which this court upheld dismissals of appeals where no proofs of service of the notices of appeal had been filed within the applicable statutory 30-day time periods. Following "the long-established general principle in favor of allowing liberal amendment of filed documents" [Cahoon, supra, 482 N.W.2d at 868 n. 5], we reversed the district court's dismissal of the claimant's appeal.

"[W]e conclude ... that in the interest of justice a party who otherwise files a proof of service within the required time limits, but fails to file a document which accurately reflects the actual service which took place, may, with leave of court, file a corrected proof of service of the notice of appeal which will relate back to the initial, but incorrect, proof of service if no other party's rights are prejudiced.

"Thus, we hold that the filing of a document showing proof of some service is sufficient under section 28-32-15 to confer jurisdiction on the district court, at least for the limited purpose of allowing the proof of service to be corrected to accurately reflect the facts. In other words, an inaccurate but timely filed proof of service may be the basis for a hearing to determine the actual facts surrounding the service upon proper motion. To the extent that Indianhead and In re Bjerke's Estate would prevent a person in Cahoon's situation from filing an amended proof of service after the time for filing proof of service has expired, they are hereby expressly overruled." Cahoon, supra, 482 N.W.2d at 868 [Footnotes omitted].

The Commission asserts that Cahoon is distinguishable because, unlike Cahoon, "[t]his case does not involve a service of process problem" under NDCC Sec. 28-32-15(4), but "involves the complete failure to name a party to an appeal" under NDCC Sec. 28-32-15(5). Although this case is not on all fours with Cahoon, we believe the Cahoon rationale is nevertheless applicable. There is no dispute that MacDonald's notice of appeal was timely filed. The Commission's only complaint about the notice of appeal is that the Board, as the adjudicative agency, was not listed as an appellee in the caption. The rationale of Cahoon that allows amendment, beyond the 30-day appeal period, of a proof of service to show actual service is even more compelling where, as here, the appellant merely seeks to correct the caption of a notice of appeal to include the adjudicative agency.

We conclude that MacDonald's failure to name the Board as an appellee in his timely-filed notice of appeal is not a jurisdictional defect, but may be corrected, with leave of court, after the 30-day period for filing the notice of appeal has expired if no other party's rights are prejudiced. The district court erred in dismissing MacDonald's appeal on this basis.

The Commission asserts that even if MacDonald is allowed to amend the caption, the district court correctly dismissed the appeal because MacDonald failed to serve the notice of appeal on the Board. MacDonald timely served the notice of appeal on the special assistant attorney general who represented the Commission and on the Board's hearing officer. According to the Commission, because the hearing officer was not a "representative" or "employee[ ]" of the Board, but "an independent hearing officer employed by the Office of Administrative Hearings," service on the hearing officer did not constitute service on the Board. We reject this argument.

In April 1991, the Board requested a hearing officer from the administrative hearings officer division of the attorney general's office to conduct MacDonald's hearing and prepare recommended findings, conclusions and order. The hearing officer who was appointed, although transferred to the office of administrative hearings on July 1, 1991, continued to preside over the MacDonald case.

By creating a state office of administrative hearings [see NDCC Chapter 54-57], and enacting legislation which attempts to separate an administrative agency's adjudicative, investigative and accusative functions [see, e.g., NDCC Sec. 28-32-12.2], the 1991 legislative assembly intended to remove the appearance of impropriety perceived by individuals involved in the administrative hearing process. See Testimony on House Bill 1194 before the House Judiciary Committee, January 14, 1991; Testimony on Senate Bill 2234 before the House Judiciary Committee, March 6, 1991. But, neither the legislation nor its history suggests that the objective of having a hearing officer perform as an independent, unbiased decision-maker was intended to include the ministerial function of accepting service...