Dissenting.
Under § 61 -6-12, N.M.S.A.1978, the Legislature has mandated that each applicant for licensure as a medical doctor by examination must attain a grade average of 75 per cent. The Board of Medical Examiners (the Board) was granted rule-making power by § 61 -6 19, N.M.S.A.1978. The Board legally enacted a rule adopting the examination as prescribed by the Federation Licensing Examination Board (FLEX). FLEX has a rule, which was introduced by stipulation of the parties, without any question being raised by Fiber as to its existence or validity, that prohibits averaging the highest grades made on individual subjects on two examinations in order to attain the required 75 per cent, as was done in Fiber’s case by New York authorities. The 75 per cent weighted average must be attained on one examination to meet the FLEX requirements.
The majority states that the Board was operating under an “unwritten practice or custom” in refusing to permit the averaging of grades from more than one examination to produce the required minimum grade. This is in error. The trial court also erroneously refused to find that the FLEX rules require that the grade be attained at one sitting, but Fiber does not dispute that FLEX has such a rule. We respectfully suggest that the rule of the New Mexico Board adopted the FLEX examination procedures in their entirety by reference thereto, which adoption unquestionably includes that portion prohibiting the type of action taken by the New York Board in Fiber’s case.
Fiber was admitted in New York in clear violation of FLEX standards. He would not have been admitted in New Mexico if he had first taken this examination in New Mexico and had received the same grades he did in New York. To admit him is a patent violation of the law as contained in the statutes and the validly enacted rule and constitutes a classic example of transparent judicial legislation.
We are not to concern ourselves as to the wisdom of a policy that is plainly within the legislative prerogative to enact. In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973); Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965); Petition of Sosa, 74 N.M. 182, 392 P.2d 14 (1964); Swallows v. City of Albuquerque, 61 N.M. 265, 298 P.2d 945 (1956).
The main question proposed by the majority and answered in the affirmative is whether the requirements under the laws of New York and New Mexico are “equivalent” so as to permit the New Mexico Board to exercise its discretionary authority under § 61-6-12, N.M.S.A.1978, to allow Fiber to become licensed without examination. Note that the statute specifies that the “Board may grant licenses” (emphasis added) where the requirements are equivalent. The majority’s decision here interferes with and overrules this discretion given the Board under the law.
To hold for Fiber means that we agree that the New York procedures are “equivalent” to ours. Fiber claims this means they are “equal in effect”. The true effect is that he is entitled to be licensed under one set of rules but is not so entitled under the other. The medical licensing requirements of the two states are unquestionably different. Fiber was admitted by the New York Board under its interpretation of the requirements of New York law. He definitely is not eligible for admission under the clear and unambiguous terms of New Mexico law. A court may disagree with a policy legally established by the Legislature, but it should not effect a change in that policy by judicial legislation.
McMANUS, Senior Judge, concurs.