Tate v. State Bd. of Medical Examiners

• Decision Date: 10 September 2015
• Docket Number: No. 65460.,65460.
• Parties: James S. TATE, Jr., Appellant, v. The STATE of Nevada BOARD OF MEDICAL EXAMINERS, Respondent.
• Court: Nevada Supreme Court

356 P.3d 506

131 Nev. Adv. Op. 67

James S. TATE, Jr., Appellant

v.The STATE of Nevada BOARD OF MEDICAL EXAMINERS, Respondent.

No. 65460.

Supreme Court of Nevada.

Sept. 10, 2015.

Hafter Law and Jacob L. Hafter, Las Vegas, for Appellant.

Erin L. Albright, Reno, for Respondent.

Before the Court En Banc.

OPINION

By the Court, HARDESTY, C.J.:

NRS 630.356(1) grants physicians the right to judicial review of Nevada State Board of Medical Examiners final decisions, while NRS 630.356(2) simultaneously prohibits district courts from entering a stay of the Board's decision pending judicial review. As a matter of first impression, we are asked to determine whether this prohibition violates the Nevada Constitution's separation of powers doctrine. Because we conclude that it does, we reverse the district court's order denying appellant injunctive relief and remand this matter for proceedings consistent with this opinion.

FACTS

Appellant James Tate, Jr., is a surgeon licensed in Nevada. In February 2010, he was scheduled to perform a surgery at Valley Hospital at around 4 p.m. When he arrived to prepare for the surgery, members of the surgical team thought Dr. Tate smelled of alcohol. The hospital halted surgery preparations and asked Dr. Tate to submit to alcohol tests, which he did, admitting that he had consumed some alcohol during his lunch break. Dr. Tate's blood alcohol level was .06 percent.

Respondent Nevada State Board of Medical Examiners found that Dr. Tate had violated NAC 630.230(1)(c) by rendering services to a patient while under the influence of alcohol and in an impaired condition. The Board suspended Dr. Tate's license for six months, issued a public reprimand, ordered him to complete an alcohol diversion program and pay $35,564.44 in investigation and prosecution costs and a $5,000 fine, and to complete continuing medical education on the subject of alcohol.

Dr. Tate petitioned for judicial review of the Board's decision. He also requested a preliminary injunction to stay the sanctions and prevent the Board from filing a report with the National Practitioner Data Bank while judicial review was pending. Medical Boards are required by 45 C.F.R. §§ 60.5(d) and 60.8(a) (2013) to report sanctions to the National Practitioner Data Bank, which disseminates information of physician misconduct to health-care entities, including hospitals. See Elisabeth Ryzen, M.D., The National Practitioner Data Bank, 13 J. Legal Med. 409, 411–20 (1992). In denying injunctive relief, the district court stated that, even though it thought the injunction was clearly warranted, NRS 630.356(2) precluded such action. Dr. Tate appeals the district court's denial of his injunction request.

DISCUSSION

The primary issue in this appeal is whether NRS 630.356(2) violates the separation of powers doctrine articulated in Article 3, Section 1 of the Nevada Constitution, which is a matter of first impression. Dr. Tate argues that the statute conflicts with the judicial powers articulated in Article 6, Section 6 of the Nevada Constitution. The Board counters that courts have no inherent authority over administrative actions and that any authority given by statute is likewise subject to statutory limitations, that this court has already determined that prohibitions against stays are not unconstitutional, and that other jurisdictions have upheld similar stays.¹

Standard of review

We review appeals from district court decisions regarding petitions for judicial review under the same standard utilized by the district court. Nassiri v. Chiropractic Physicians' Bd., ––– Nev. ––––, ––––, 327 P.3d 487, 489 (2014). Although we review factual determinations for clear error, we review questions of law, including statutory construction, de novo. Id. Whether a statute is unconstitutional is a question of law, reviewed de novo. Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009). Words in a statute should be accorded their plain meaning unless doing so would be contrary to the spirit of the statute. Berkson v. LePome, 126 Nev. 492, 497, 245 P.3d 560, 563 (2010). Statutes should be construed so as to avoid absurd results. State v. Tatalovich, –––Nev. ––––, ––––, 309 P.3d 43, 44 (2013). Absent a contrary and specific constitutional limitation, “statutes are to be construed in favor of the legislative power.” Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967).

The prohibition against stays in NRS 630.356(2) violates the separation of powers doctrine

It is well-established that “[c]ourts have no inherent appellate jurisdiction over official acts of administrative agencies except where the legislature has made some statutory provision for judicial review,” Crane v. Cont'l Tel. Co. of Cal., 105 Nev. 399, 401, 775 P.2d 705, 706 (1989). Moreover, the extent of the court's jurisdiction is controlled by the statute conferring that jurisdiction. Washoe Cnty. v. Otto, –––Nev. ––––, ––––, 282 P.3d 719, 724 (2012). However, once a statute has conferred power, that power may not be unduly abridged, as the judiciary is tasked with managing and finally deciding cases. See Smothers v. Lewis, 672 S.W.2d 62, 64 (Ky.1984) (concluding “that a court, once having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it”); Commonwealth v. Yameen, 401 Mass. 331, 516 N.E.2d 1149, 1151 (1987) (declining to interpret a statute to prohibit a stay of a license revocation pending judicial review).

In Nevada, the Administrative Procedure Act (APA), codified in NRS Chapter 233B, governs the judicial review of those final administrative agency decisions that qualify under the terms of the APA, thus conferring power to the district courts to determine whether an aggrieved party is entitled to the relief sought on review. Otto, ––– Nev. at ––––, 282 P.3d at 724–25 ; Kay v. Nunez, 122 Nev. 1100, 1105, 146 P.3d 801, 805 (2006) (stating that petitions for judicial review create “a right of review in the district court”); see also NRS 233B.020(1) (setting forth the legislative intent for enacting the APA); NRS 233B.130(1) (setting forth the procedural requirements for a petition for judicial review in order to invoke the district court's jurisdiction).

In an administrative proceeding before the Board of Medical Examiners, a physician has the right to seek judicial review of a final order pursuant to NRS 630.356, which states in pertinent part as follows:

1. Any person aggrieved by a final order of the Board is entitled to judicial review of the Board's order.

2. Every order that imposes a sanction against a licensee pursuant to subsection 4 or 5 of NRS 630.352 or any regulation of the Board is effective from the date the Secretary–Treasurer certifies the order until the date the order is modified or reversed by a final judgment of the court. The court shall not stay the order of the Board pending a final determination by the court.

(Emphasis added.)

The parties differ on whether a statutory prohibition against stays violates the separation of powers doctrine. Although not previously examined by this court,² other courts have considered this issue, and the outcomes in those jurisdictions vary widely.

For example, in Commission on Medical Discipline v. Stillman, a lower court reviewing an administrative agency's revocation of a physician's medical license granted a stay of the revocation pending judicial review, despite statutory language prohibiting stays. 291 Md. 390, 435 A.2d 747, 751–52 (1981). The Stillman court held that the prohibition against stays was constitutional because a stay is not an inherent judicial power, but merely a tool courts may use in administering justice. Id. at 753–54. Because the physician retained the right to seek judicial review and the court retained its power to review the agency's actions, the court further held that the statutory prohibition against stays did not inhibit the administration of justice. Id. at 755.

In contrast, the Supreme Court of Kentucky took the opposite view in Smothers v. Lewis, 672 S.W.2d 62 (Ky.1984). There, a licensing control board revoked a store owner's alcoholic beverage license, and the lower court found that the statutory scheme prevented it from issuing a stay pending judicial review. Id. at 63. The Smothers court held that a statute prohibiting any stay of a board's order pending judicial review violated the separation of powers doctrine because it was a legislative encroachment on the powers of the judiciary. Id. at 64. The court reasoned that where the statute allowed the licensee to appeal a board's decision, to simultaneously preclude the possibility of a stay would be “to pay lip service to the statutory provisions that establish the right for a licensee to appeal while eradicating any practical reason for taking the appeal.” Id. at 65. The prohibition effectively puts “a licensee in the position of winning the battle but losing the war” because the sanctions could cause irreparable injury while review was ongoing. Id. “Succinctly put, the statute gives an appeal and then takes it away. The contradiction and conflict here are obvious. The practical effect is to render the appeal a meaningless and merely ritualistic process.” Id. We agree with the reasoning in Smothers.

The Legislature's enactment of NRS 630.356 provided physicians with the right to seek judicial review of Board decisions, thereby empowering the district courts with the ability to determine whether an aggrieved party is entitled to the relief sought on review, and if so, to shape that relief accordingly. Typically, once a court gains jurisdiction of a case, it has the power “to preserve the status quo and maintain and protect ... the subject-matter of the suit as it existed at the time the appeal was taken.” Houston, B. & T. Ry. Co. v. Hornberger, 141 S.W. 311, 312 (Tex.Civ.App.1911). Lik...