Michalowski v. Bd. of Licensure in Med.

• Decision Date: 06 December 2012
• Docket Number: Docket No. Ken–12–47.
• Citation: 58 A.3d 1074,2012 ME 134
• Parties: Ellen MICHALOWSKI v. BOARD OF LICENSURE IN MEDICINE et al.
• Court: Maine Supreme Court

58 A.3d 1074

2012 ME 134

Ellen MICHALOWSKI

v.BOARD OF LICENSURE IN MEDICINE et al.

Docket No. Ken–12–47.

Supreme Judicial Court of Maine.

Argued: Sept. 12, 2012.

Decided: Dec. 6, 2012.

Eric M. Mehnert, Esq. (orally), Hawkes & Mehnert, LLP, Bangor, for appellant Ellen Michalowski.

William J. Schneider, Attorney General, Dennis E. Smith (orally), Asst. Atty. Gen., and Paul Stern, Dep. Atty. Gen., Augusta, for appellees Board of Licensure in Medicine et al.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

LEVY, J.

[¶ 1] Ellen Michalowski appeals from a judgment of the Superior Court (Kennebec County, Marden, J.) dismissing her complaint seeking judicial review pursuant to M.R. Civ. P. 80C and relief pursuant to 42 U.S.C.S. § 1983 (LexisNexis 2002), arising from the Board of Licensure in Medicine's decision to revoke her medical license. Michalowski challenges the court's conclusion that (A) it lacked subject matter jurisdiction to review the Board's decision because the District Court has exclusive jurisdiction to review nonconsensual license-revocation orders pursuant to 10 M.R.S. § 8003(5) (2011); and (B) her section 1983 claim should be dismissed because the Board members had authority to revoke her license, and are immune from suit. We affirm the Superior Court's judgment.

I. BACKGROUND

[¶ 2] Michalowski was first licensed to practice medicine in Maine in 1996. Between 2005 and 2007, Michalowski underwent multiple knee surgeries stemming from a total knee replacement, for which she received narcotic painkillers. Michalowski's subsequent painkiller dependency gave rise to an investigation by the Board of Licensure in Medicine, which initiated disciplinary proceedings against her.

[¶ 3] Michalowski entered into a consent agreement with the Board in April 2007, in which she admitted that she had inappropriately obtained narcotic prescriptions from multiple providers over a two-year period and that this constituted unprofessional conduct and grounds for discipline pursuant to 32 M.R.S. § 3282–A(2)(F) (2011). The consent agreement included five years of license probation, required that she obtain prescriptions from a single primary care physician and a single pharmacy, and authorized the Board to monitor her medical practice and use of prescriptions. Michalowski acknowledged in the consent agreement that her failure to comply with its terms would constitute grounds for additional disciplinary action pursuant to 10 M.R.S. § 8003(5).

[¶ 4] In violation of that agreement, between July 2007 and July 2008, Michalowski wrote over seventy-five prescriptions for narcotics listing a neighbor as the patient, without the neighbor's knowledge. Purporting to be her neighbor, Michalowski purchased these prescriptions from Canadian pharmacies for her own use. During this period, Michalowski crossed the Canadian border over one hundred times at six different crossings and obtained over six thousand narcotic tablets from seven different pharmacies. After the Board learned of her conduct, Michalowski entered into an interim consent agreement with the Board in September 2008, in which she agreed to a temporary suspension of her medical license until the Board took final disciplinary action.

[¶ 5] In September 2008, the Board initiated an administrative complaint against Michalowski, listing the following grounds for discipline: habitual substance abuse, 32 M.R.S. § 3282–A(2)(B) (2011); unprofessional conduct, 32 M.R.S. § 3282–A(2)(F); and failure to comply with the terms of probation, 10 M.R.S. § 8003(5)(A–1)(4). Michalowski responded to the complaint in July 2009, acknowledging that she had become addicted to her pain medications, detailing her treatment efforts, and contesting some facts that the Board had included in a proposed consent agreement, but not contesting or denying the allegations regarding the Canadian prescriptions.

[¶ 6] On April 13 and July 13, 2010, the Board conducted a disciplinary hearing. On the day before the second day of the hearing, Michalowski filed a motion to dismiss the proceeding, alleging that bias by Board members violated her right to due process and that the Board lacked jurisdiction to hold the hearing because its governing statute, 32 M.R.S. §§ 3263 to 3300–B (2011), required it to proceed by filing a complaint in the District Court. Following oral argument by counsel, the hearing officer denied the motion.

[¶ 7] Michalowski did not appear for the second day of the hearing, explaining that she chose not to attend because she had nothing further to offer. Although Michalowski's attorney appeared telephonically, he did not cross-examine witnesses but did present a written closing statement prepared by Michalowski. The Board issued a written order on September 14, which contained extensive findings and determined that Michalowski had violated provisions of 32 M.R.S. § 3282–A(2) and 10 M.R.S. § 8003(5). The order revoked Michalowski's medical license and required her to pay up to $14,000 in costs for the hearing, as well as transcription costs.

[¶ 8] Michalowski filed a petition for review and complaint for relief in the Superior Court in October 2010. The complaint included an appeal of the Board's order pursuant to the provisions for judicial review of final agency action in the Administrative Procedure Act, 5 M.R.S. §§ 11001–11008 (2011), and M.R. Civ. P. 80C, alleging bias by the Board, due process violations, and that the Board lacked statutory authority to revoke her license. Michalowski also alleged a cause of action for her constitutional claims pursuant to 42 U.S.C.S. § 1983.

[¶ 9] The court dismissed the M.R. Civ. P. 80C appeal for lack of subject matter jurisdiction, concluding that the District Court has exclusive jurisdiction to review nonconsensual license-revocation orders pursuant to 10 M.R.S. § 8003(5) because the Board acted pursuant to the authority granted by that section. For the same reason, the court dismissed the section 1983 claim, also finding that the Board members have quasi-judicial immunity.

II. LEGAL ANALYSIS

[¶ 10] On appeal, Michalowski contests the Superior Court's dismissal of her action, challenging (A) the Superior Court's determination that it did not have jurisdiction to review the Board's action, and (B) the court's dismissal of the section 1983 claim. We address each issue in turn.

A. The Superior Court's Jurisdiction to Hear Appeals of Board Revocation Orders

[¶ 11] The issue of whether the Superior Court had subject matter jurisdiction to review the Board's revocation of Michalowski's medical license turns, in part, on whether the Board had the authority to revoke her medical license pursuant to 10 M.R.S. § 8003(5) in the first place, or whether the Board was instead required to file a complaint in the District Court pursuant to 32 M.R.S. § 3282–A. Accordingly, we address (1) the Board's statutory authority to revoke a medical license as the first step in our jurisdictional analysis, followed by (2) an examination of the relevant jurisdictional statutes. We review questions of statutory interpretation and subject matter jurisdiction de novo. See Tomer v. Me. Human Rights Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335;Tolliver v. Dep't of Transp., 2008 ME 83, ¶ 11, 948 A.2d 1223.

1. The Board's Authority to Revoke a Medical License

[¶ 12] The extent of the Board's authority to revoke a medical license pursuantto 10 M.R.S. § 8003(5) is a question of first impression. As will soon become apparent to the reader, our task here is not simple, requiring that we apply several rules of statutory construction to construe two related, but seemingly contradictory, statutes—10 M.R.S. § 8003(5)(A–1)(2–A)¹ and 32 M.R.S. § 3282–A(1)(D). ² We employ a three-part analysis to construe these statutes. We begin with the familiar rule of construction that directs us to (a) “look first to the plain language of the statute to discern the Legislature's intent.” Tolliver, 2008 ME 83, ¶ 11, 948 A.2d 1223. Where, as here, two statutes deal with the same subject matter, we also (b) look at the plain language of both through an additional lens by which the two statutes are construed in harmony with each other, if possible. See Butler v. Killoran, 1998 ME 147, ¶ 11, 714 A.2d 129. If harmony cannot be achieved, we then (c) apply the rule of statutory construction that “a statute dealing with a subject specifically prevails over another statute dealing with the same subject generally ... unless it appears that the [L]egislature intended to make the general [statute] controlling.” Id. (emphasis added) (quotation marks omitted).

a. Plain Meaning

[¶ 13] As we have previously discussed, “most professional conduct ... is governed by two sets of statutes.” Zumbach v. Bd. of Real Estate Appraisers, 2011 ME 31, ¶ 6, 15 A.3d 741. Here, 10 M.R.S. §§ 8001–8009 (2011)³ “governs the practice of professional conduct in general.” Zumbach, 2011 ME 31, ¶ 6, 15 A.3d 741. That statute specifically includes the Board of Licensure in Medicine within its reach, and grants certain enumerated powers to it. See10 M.R.S. §§ 8001–A(4), 8003(5). Additionally, the Board has its own governing statute, 32 M.R.S. §§ 3263 to 3300–B.⁴

[¶ 14] Title 10 M.R.S. § 8003(5) provides that “[i]n addition to authority otherwise conferred, unless expressly precluded by language of denial in its own governing law,” a licensing board may “[r]evoke a license or registration.” 10 M.R.S. § 8003(5)(A–1)(2–A). Further, a licensing board's “jurisdiction to suspend and revokeoccupational and professional licenses ... is concurrent with that of the District Court.” Id. § 8003(5). Thus, the Board of Licensure in Medicine has authority to revoke a professional license pursuant to 10 M.R.S. § 8003(5)(A–1)(2–A), concurrent with the District Court, “unless expressly precluded by language of denial” found in the Board's governing statute, 32 M.R.S. §§ 3263 to 3300–B. See10 M.R.S. § 8003(5).

[¶ 15] The Board's...