131 Nev., Advance Opinion 407
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES S. TATE, JR., No. 65460
Appellant,
vs.
THE STATE OF NEVADA BOARD OF FILED
MEDICAL EXAMINERS, SEP 1 0 2015
Respondent.
T RC =K. LINDEM
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Appeal from a district court order denying an injunction
challenging the constitutionality of a statute prohibiting stay of Board of
Medical Examiners decision. Eighth Judicial District Court, Clark
County; James M. Bbder, Judge.
Reversed and remanded.
Hafter Law and Jacob L. Halter, 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
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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
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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.'
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., 130 Nev., Adv. Op.
'The Board also argues that courts cannot enjoin the Board from
reporting to the National Practitioner Data Bank. While we note a conflict
in cases from other jurisdictions concerning the application of the Health
Care Quality Improvement Act of 1986 to state court injunctions, compare
Diaz v. Provena Hosps., 817 N.E.2d 206, 212-13 (Ill App. Ct. 2004), with
Doe v. Cmty. Med. Ctr., Inc., 221 P.3d 651, 658-59 (Mont. 2009), because
the Board already reported to the National Practitioner Data Bank on
April 23, 2014, this issue is moot.
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27, 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, 129 Nev., Adv. Op. 61, 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, 128 Nev., Adv. Op. 40,
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,
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516 N.E.2d 1149, 1151 (Mass. 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, 128 Nev.,
Adv. Op. 40, 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
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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. 435 A.2d
747, 751-52 (Md. 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.
2The Board cites to Buckwalter v. Nevada Board of Medical
Examiners, 678 F.3d 737 (9th Cir. 2012); State v. Eighth Judicial District
Court (Gaming Commission), 111 Nev. 1023, 899 P.2d 1121 (1995); and
Kassabian v. State Board of Medical Examiners, 68 Nev. 455, 235 P.2d 327
(1951), to argue that this court has previously decided this issue. We
disagree. As neither Kassabian nor Buckwalter dealt with separation of
powers, they are inapplicable here. Gaming Commission is too factually
dissimilar to guide the outcome in the present case, as there the issue was
whether the Gaming Commission could exclude a customer from a gaming
establishment, 111 Nev. at 1024, 899 P.2d at 1121, whereas here the
interest at stake is a physician's constitutional right to practice his
profession within the legal bounds of this state. See generally Kassabian,
68 Nev. at 464, 235 P.2d at 331. Moreover, in Gaming Commission, we
relied upon a long line of Nevada jurisprudence to conclude that the
Nevada Constitution "does not authorize court intrusion into the
administration, licensing, control, supervision and discipline of gaming."
111 Nev. at 1025, 899 P.2d at 1122. Thus, we do not have the benefit of
prior jurisprudence to guide us on the issue before us.
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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
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S.W. 311, 312 (Tex. Civ. App. 1911). Likewise, the district court may issue
an injunction to enjoin a party from taking action that would "render the
judgment ineffectual." NRS 33.010(3).
To bar a district court's ability to grant injunctive relief while
judicial review is pending effectively "render[s] the appeal a meaningless
and merely ritualistic process," Smothers, 672 S.W.2d at 65, as the
sanctions imposed will likely have been implemented or completed before
the court could judicially review the case. Such sanctions may, among
other things, irreparably penalize a physician through loss of patients,
income, job opportunities, and/or damage the physician's professional
reputation and standing if the court were to later overrule the Board's
decision and the sanctions imposed.
Because NRS 630.356(2)'s prohibition against stays renders
meaningless the legislative grant of authority to the district courts to
judicially review Board decisions and encroaches on a district court's
"inherent power to do all things reasonably necessary" to administer
justice, including issuing injunctions, we conclude that NRS 630.356(2)
violates the separation of powers doctrine. Smothers, 672 S.W.2d at 64-65;
see also Ardt v. Ill. Dep't of Profl Regulation, 607 N.E.2d 1226, 1232 (Ill.
1992).
Here, Dr. Tate has been sanctioned with, among other things,
fees and fines, a public reprimand, and suspension of his license for a six-
month period. If the district court were prohibited from staying the
sanctions imposed until it can determine whether the Board's decision was
in error, Dr. Tate may be irreparably penalized thus negating the purpose
of his right to judicial review. Moreover, under federal law, these
sanctions must be reported to the National Practitioner Data Bank within
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30 days of their implementation, 45 C.F.R. §§ 60.5 and 60.8, resulting in
the Board's decision and sanctions against Dr. Tate being recorded in a
national database before the district court can review the Board's decision.
Thus, the statutory prohibition against stays would effectively
"eradicate[ ] any practical reason for taking the appeal." Smothers, 672
S.W.2d at 65.
Furthermore, we are inclined to agree with Dr. Tate that
public interest militates in favor of injunctive relief when the district court
deems it necessary. In Kassabian, we noted that "[t]he Legislature may
have thought that the professions and callings to which this statute was
applicable were such that the public health, safety, and welfare might be
protected better if a stay were forbidden," 68 Nev. at 466, 235 P.2d at 332
(quoting Flynn v. Bd. of Registration in Optometry, 67 N.E.2d 846, 850
(Mass. 1945)), echoing the public perception that there were many
dangerous doctors from whom the public needed protection. See also
Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal
System for Publishing Reports of "Bad" Doctors in the National
Practitioner Data Bank, 33 Cardozo L. Rev. 2031, 2041-51 (2012)
(discussing the health-care atmosphere in the 1980s and public perception
of doctors). However, a prohibition against stays could potentially
endanger the public: for example, if a Board refused to suspend or revoke
the license of a doctor who was questionably dangerous, a reviewing court
would be unable to enjoin the doctor from practicing medicine pending
judicial review Allowing stays, on the other hand, presents little danger
to the public health, safety, or welfare as the impartial judge will weigh
public interests, including potential danger to the public, in deciding
whether to grant or deny a stay. See 42 Am Jur. 2d Injunctions § 15
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(2015) ("Deciding an injunction motion requires a delicate balancing of
several factors, including. . . the interest of the public or others."); 42 Am.
Jur, 2d Injunctions § 39 (2015) (discussing how the public interest and the
rights of third parties weighs on the grant or denial of injunctive relief).
Thus, we conclude that NRS 630.356(2)'s prohibition against stays is also
against the public interest. 3
3 Dr. Tate did not argue that the stay violates due process, and over
60 years ago we held that a prohibition against stays during the pendency
of judicial review of a Board decision was not a deprivation of due process.
Kassabian, 68 Nev. at 465-66, 235 P.2d at 332. However, in Kassabian,
we also recognized that the facts of a situation as a whole drive due
process considerations and implied that stays may violate due process
rights where due process is not otherwise sufficiently afforded to the
defending physician. Id. (stating that physicians were, at that time,
afforded sufficient due process by virtue of the administrative procedure
the Board was required to follow before it could take disciplinary action).
It is well-established that a fundamental right may not be impaired
without due process of law. Chudacoff v. Univ. Med. Gtr. of S. Nev., 609 F.
Supp. 2d 1163, 1172-73 (D. Nev. 2009); Maiola v. State, 120 Nev. 671, 674-
75, 99 P.3d 227, 229 (2004). Moreover, we have recognized that a
physician's interest in practicing medicine is a property right that must be
afforded due process. Minton v. Bd. of Med. Exam'rs, 110 Nev. 1060, 1082,
881 P.2d 1339, 1354 (1994), disapproved of on other grounds by Nassiri v.
Chiropractic Physicians' Bd., 130 Nev., Adv. Op. 27, 327 P.3d 487, 489
(2014); Molnar v. State ex rel. Bd. of Med. Exam'rs of the State of Nev., 105
Nev. 213, 216, 773 P.2d 726, 727 (1989); Potter v. State Bd. of Med.
Exam'rs, 101 Nev. 369, 371, 705 P.2d 132, 134 (1985); Kassabian, 68 Nev.
at 464, 235 P.2d at 331.
Several courts have addressed whether a physician has been
afforded adequate process in determining whether the prohibition of a
stay pending judicial review violates a physician's due process rights.
Compare Barry v. Barchi, 443 U.S. 55, 63-66 (1979) (concluding that
statute prohibiting administrative stays pending the final hearing was
continued on next page. . .
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CONCLUSION
Through the adoption of NRS 630.356(2), the Legislature gave
physicians the right to contest and the district courts the power to review
the Board's final decisions. By simultaneously extinguishing the court's
ability to impose a stay where the progression of sanctions would impair
or eliminate the purpose of seeking judicial review, the statute
impermissibly acts as a legislative encroachment on the court's power to
do what is reasonably necessary to administer justice. This, we conclude,
is a violation of the separation of powers doctrine.
. continued
unconstitutionally applied where post-suspension hearing was not
sufficiently timely), with Flynn v. Bd. of Registration in Optometry, 67
N.E.2d 846, 849-50 (Mass. 1945) (concluding that statute prohibiting stay
of agency action suspending an optometrist's license did not violate due
process).
Because the issue of whether NRS 630.356(2)'s prohibition against a
stay pending judicial review violates a physician's due process rights is not
before us in this matter, we leave that legal issue for a case that requires
its determination.
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Accordingly, we reverse the district court's order and remand
this matter to the district court for further proceedings consistent with
this opinion.
4
Hardesty
c#4, itan , C.J.
We concur:
J.
J.
Douglas
J.
Gibbons
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