Strigenz v. Department of Regulation & Licensing Dentistry Examining Board

SHIRLEY S. ABRAHAMSON, J.

(dissenting). The issue in this case is not the abstract question of whether the legislature should provide that the Dentistry Examining Board may revoke, suspend or limit the license of a dentist for negligent or incompetent conduct. Nor is the issue in the case whether as a matter of policy a dentist’s negligent or incompetent conduct should be classified as unprofessional conduct. The issue in this case is whether the legislature has expressly or impliedly delegated to the Dentistry Examining Board the power to limit the license of a dentist who is negligent or incompetent, and if so, how the Board is to exercise that power. The issue is one of statutory interpretation.1

The majority and I agree that the Board’s statutory authority to discipline Dr. Strigenz on the ground of negligence or incompetence, if either exists in the case at bar, must be found in secs. 447.07 (3) (a) and 447.07 (5), Stats. 1979-80.2

*292The majority concludes that the Board has the authority under these sections to discipline a negligent or incompetent dentist. I conclude that the statute has not expressly or impliedly made negligence or incompetence a ground for limiting a license and that, although the Board has statutory rule-making power to state grounds for discipline in addition to those set forth in the statute, the Board has failed to issue a rule setting forth professional negligence or incompetence as such a ground. Thus the Board has, in my opinion, no power to limit Dr. Stri-genz’s license in the case at bar.3 I therefore dissent.

Sec. 447.07(3) (a) provides that the Dentistry Examining Board may suspend or revoke a license if the holder *293has been guilty of “immoral, dishonorable or unprofessional conduct in the course of practicing dentistry.” It is possible to read the phrase “immoral, dishonorable or unprofessional conduct” to describe one type of conduct or to describe three types of conduct, i.e. immoral conduct, dishonorable conduct and unprofessional conduct. That the legislature did not intend the latter interpretation is indicated by its failure to state separate definitions for each of the three possible kinds of conduct. The legislative intent to use this phrase as a single descriptive term encompassing specified conduct is persuasively shown by sec. 447.07(5), which defines the entire phrase in one subsection without any specific reference to any one or more of the adjectives in the phrase.

Sec. 447.07(5) states as follows:

“(5) ‘Immoral, dishonorable or unprofessional conduct’ means: [1] Employing anyone to solicit patients; or [2] resorting to unprofessional advertising, as defined in sub. (6) ; [3] obtaining a fee by fraud or deceit; [4] wilfully betraying a professional secret; [5] employing directly or indirectly a student or a suspended or unlicensed dentist to perform operations or make diagnoses, or to treat lesions of the human teeth or jaws, or to correct malposed formations thereof, except that an unlicensed person may perform exclusively mechanical work upon inert matter in a dental office or laboratory; [6] the advertisement of dental business or treatment or devices in which untruthful or incorrect statements are made; [7] habitual intemperance; or [8] gross immorality ; and, [9] in the case of a dentist, conduct unbecoming a professional person.”

The unqualified use of the word “means” in this definition rather than the use of the word “includes” indicates that the legislature intended to define the phrase “immoral, dishonorable or unprofessional conduct” to refer only to the nine specified practices. The list of nine prac*294tices in sec. 447.07 (5) is therefore all inclusive.4 Thus the issue of statutory interpretation before this court is whether negligence or incompetence falls within any of the nine practices defined in sec. 447.07(5), Stats., quoted above. The court and the Board are bound by the legislative definition set forth in sec. 447.07 (5).

The only practice in the list possibly lending itself to the interpretation that it encompasses negligence or incompetence is the last specified practice, namely “conduct unbecoming a professional person.” The majority concludes that negligent or incompetent conduct falls within the phrase “conduct unbecoming a professional person.” This conclusion rests on two rationales: (1) Other conduct specified in sec. 447.07 (5) prohibits immoral and dishonest acts, and therefore the legislature did not intend the phrase “conduct unbecoming a professional person” to govern exclusively the moral conduct of the licensed professional; and (2) The purpose of ch. 447 is to protect the public; the public is protected if negligent or incompetent persons are not allowed to practice dentistry; and therefore the phrase “conduct unbecoming a professional person” encompasses conduct showing negligence or incompetence. The majority’s reasoning violates basic rules of statutory interpretation and reaches a result which is contrary to the legislative intent.

Although the majority reasons that because the other eight specifications in sec. 447.07(5) relate to morals, “conduct unbecoming a- professional person” must govern other types of misconduct, the more usual rule of construction is that a coupling of phrases manifests a legislative intention that all the phrases be understood in the same general sense. This concept is embodied in the doctrines of noseitur a sociis and ejusdem generis. *295Lewis Realty Inc. v. Wisconsin Real Estate Bd., 6 Wis. 2d 99, 108, 94 N.W.2d 238 (1959); Boardman v. State, 203 Wis. 173, 175, 233 N.W. 556 (1930).

The majority also fails to take into account that the phrase “conduct unbecoming a professional person” has a common usage. The statutory phrase “conduct unbecoming a professional person” appears to be of similar import to such familiar phrases as, e.g., “conduct unbecoming an officer,” “conduct unbecoming a gentleman,” “conduct unbecoming a tennis player at Wimbledon.” These phrases connote in common usage and parlance conduct which falls below the generally accepted sense of right (vs. wrong), moral (vs. immoral), honorable (vs. dishonorable) and decent (vs. indecent) and which, whether occurring on the job or not, has a tendency to destroy public confidence or respect in the person exhibiting the conduct and in the group of which the person is a member.5 The common usage is the one this court should adopt to comport with the legislative mandate that “in the construction of Wisconsin laws ... all words and phrases shall be construed according to common and approved usage . . . .” Sec. 990.01(1), Stats. 1979-80.

The phrase “conduct unbecoming a [fill in the position]” is frequently used in the law, often in combination with prescribed acts which are declared illegal or immoral. In State ex rel. Gudlin v. Civil Service Comm’n, 27 Wis.2d 77, 133 N.W.2d 799 (1965), for example, an employee of the city of West Allis who was found to have engaged in immoral conduct in his private life was discharged on the basis of the commission’s rules which *296provided for discharge if the employee committed an “immoral or criminal act,’’ “has been guilty of conduct unbecoming an employee,” or has been “wantonly offensive in his conduct . . . towards the public.” The court upheld the discharge. The tenor of the opinion indicates that the court viewed the off-the-job conduct as having a tendency to destroy public confidence or respect and therefore as constituting “conduct unbecoming an employee.” To the same effect is State ex rel. Richey v. Neenah Police and Fire Comm’n, 48 Wis.2d 575, 180 N.W. 2d 743 (1970), in which a police officer, who was charged with making improper advances to a woman, was removed from the force for conduct “unbecoming a police officer.”6 In these decisions the court has adhered to an interpretation of “conduct unbecoming” which reflects the common usage of the term.

In the absence of any indication in the statute to the contrary, the only intent which I can ascribe to the legislature is that the legislature intended “conduct unbecoming a professional” to be given its common usage. In situations where, as here, an individual may be forced to relinquish his or her profession, it becomes especially important to interpret statutory terms as they are commonly used and understood. The majority has, by interpreting “conduct unbecoming a professional” to include negligence and incompetence, inexcusably expanded the definition of “immoral and unprofessional conduct” beyond the legislature’s list of specified practices and has in effect amended the statute. This expansion and amendment cannot be justified as remedying a legislative oversight or as implementing legislative policy.

*297The legislature did not carelessly omit express reference to negligence or incompetence as a ground for discipline of dentists. Chapters 440-459, Stats. 1979-80, which relate to the department of regulation and licensing and the various examining boards, are replete with legislative awareness of the importance of assuring professional competence and of the need to authorize an examining board to discipline those whose conduct falls below acceptable standards for professional services. In numerous licensing statutes similar to those in ch. 447, the legislature has expressly provided that negligent, grossly negligent, incompetent, and grossly incompetent conduct constitute grounds for disciplinary action by the examining board. See, e.g., nurses, sec. 441.07 (1) (c), Stats. 1979-80 (incompetent by reason of negligence), (sec. 441.07(1) (d) states as additional grounds for discipline “misconduct or unprofessional conduct”) ; architects and engineers, sec. 443.11(1) (d), Stats. 1979-80 (gross negligence, incompetency or misconduct) ; physicians, sec. 448.02(3), Stats. 1979-80 (“acted negligently is an allegation of unprofessional conduct”); psychologists, sec. 455.09(1) (h), Stats. 1979-80 (grossly negligent); hearing aid dealers, sec. 459.10(4), Stats. 1979-80 (incompetence or negligence); optometrists, sec. 449.07(1) (b), Stats. 1979-80 (grossly incompetent), (sec. 449.07(1) (f) states as additional grounds for discipline “is guilty of immoral or unprofessional conduct”) ; real estate brokers, sec. 452.10(2) (i), Stats. 1979-80 (incompetency) ; and nursing home operators, sec. 456.10 (1) (a), Stats. 1979-80 (unfit or incompetent by reason of negligence, habits or other causes).

The significance of the absence of a similar provision in ch. 447 was considered by the court of appeals, 99 Wis.2d 445, 447, 299 N.W.2d 589 (Ct. App. 1980), which stated “[t]he legislature’s express provision that negligent conduct shall constitute grounds for disciplinary ac*298tion as to certain licensees and its conspicuous failure to provide that negligent conduct shall constitute such grounds as to dentists indicates the legislature’s intent to treat dentists differently from other licensees. ‘[W]here a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed.’ State v. Welkos, 14 Wis.2d 186, 192, 109 N.W.2d 889, 892 (1961).” I agree with the observation of the court of appeals. For similar reasoning, see Megdal v. Oregon State Board of Dental Examiners, 288 Ore. 293, 605 P2d 273, 283 (1980) (en banc).

That the legislature did not carelessly fail to specify negligence or incompetence as a ground for discipline by the Dentistry Examining Board is also seen in secs. 447.-07(3) (f) and 15.08(5), Stats. 1979-80. Sec. 447.07(3) (f) empowered the Dentistry Examining Board to desci-pline a licensed dentist if he or she “has been guilty of ... [a] violation of the rules adopted by the examining board,” and in sec. 15.08(5), the legislature requires— not authorizes but requires — the Dentistry Examining Board “to define and enforce professional conduct.” See also sec. 227.014, Stats. The court of appeals concluded, and the parties apparently concede, that the Dentistry Examining Board, by virtue of these statutes, could adopt a rule to include negligence and incompetence as grounds for discipline.

I conclude that secs. 447.07(3) (a), (3) (f) and (5) and 15.08(5) evince the deliberate legislative choice and policy to state certain conduct as grounds for discipline and to authorize the Board to promulgate rules proscribing other conduct which may be grounds for discipline. The legislature could not have made it any clearer that it did not intend to delegate basic policy matters as to the grounds for discipline for resolution by the Board *299on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application. Cf. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). The legislature expressly required and authorized the Board to adopt rules and expressly provided that a violation of the rule is grounds for discipline.

A legislative scheme which sets forth specific statutory grounds for discipline and which anticipates the adoption of any other grounds by administrative rule is demonstrative of a legislative intent to provide notice to the licensed profession, by statute or rule, of the grounds for the imposition of sanctions by the Board. This interpretation is consistent with the tenet that we are a government of law, not men; that discretionary power is necessary but that it “should be confined, structured, and checked.” Davis, Administrative Law of the Seventies sec. 6.13-1, p. 238 (1976). As I read the statute, the legislature has clearly stated its policy that fair process requires that licensure not be based on ad hoc determinations in the absence of legislative or quasi-legislative underpinnings. I therefore conclude that the legislature intended that no species of conduct be the basis of discipline unless that conduct is expressly proscribed on the face of the statute or delineated by rule of the Board.

If the Board is to discipline for negligence or incompetence it is obligated by statute to promulgate a rule defining the proscribed conduct'. The Board in the instant case has imposed discipline without adopting a rule to govern the professional standard of care or treatment required of dentists. The Board has not explained its failure to adopt such a rule.

This case illustrates the dangers of an ad hoc approach. It is not clear from the Board’s action or the majority opinion what negligent or incompetent conduct constitutes “conduct unbecoming a professional person” — A *300single incident of malpractice ? Multiple incidents of malpractice ? Conduct demonstrating negligence, gross negligence, a high degree of negligence, incompetence, or gross incompetence? Conduct failing to meet minimal standards of acceptable dentistry?

This case does not raise the question of whether the Dentistry Examining Board can sanction an incompetent dentist. It can. This case raises the question of whether the Board pursued the procedure which the legislature has mandated be followed before the Board may discipline a dentist for negligence or incompetence. I conclude that the Board has not pursued the procedure mandated by the legislature. Although the Board has expended large sums of taxpayer money and much time in litigation, it still has not issued the rules which might have avoided the litigation before us.

To be sure, the court has, in this case, “saved” the Board from the obligation to perform its statutory function and in this sense vindicated the Board’s expenditure of time and money in litigation. Although it may, in the “short run,” be in the public interest to limit Dr. Strigenz’s practice,7 it is not in the long-run interest of the dental profession or of the public for this court to approve the Board’s failure to comply with the statutes. The law requires, as Justice Holmes wrote, that citizens “turn square corners when they deal with the Government.”8 I suggest, as did Justice Black, that “ [i] t is not less good morals and good law that the Govern*301ment should turn square corners dealing with the people . . . .”9 I suggest the Dentistry Examining Board adopt rules promptly and not rely on the court to save it a second time.

For the reasons set forth herein, as well as those set forth in the persuasive opinion written for the court of appeals by Judge Scott, I would affirm the decision of the court of appeals.

I am authorized to state that Justice Heffernan joins in this dissenting opinion.

The issue of statutory construction is one of law which this court can determine. Dept. of Revenue v. Milwaukee Refining Corp., 80 Wis.2d 44, 48, 257 N.W.2d 855 (1977).

Sec. 447.07(3), Stats. 1979-80, provides as follows:

“(3) Subject to the rules promulgated under s. 440.03(1), the examining board may on its own motion make investigations and conduct hearings in regard to any alleged actions of any licensed *292dentist or certified dental hygienist, or of any other person it has reason to believe is acting or has acted in such capacity within the state, and may, on its own motion, or upon complaint in writing, suspend or revoke such license, registration or certificate, or reprimand the holder thereof if it finds that the holder has been guilty of:
“(a) Immoral, dishonorable or unprofessional conduct in the course of practicing dentistry;
“(b) Having procured his license or certificate by fraud or perjury or through error;
“(c) A violation of s. 447.02(2);
“(d) Directly or indirectly sending impressions or measurements to a dental laboratory without a written authorization in form approved by the board, signed by the dentist authorizing the same, or directly or indirectly sending a patient, or an agent of a patient, to a dental laboratory for any purpose whatsoever. The board, its agents or employes may inspect dental offices to determine their compliance with this subsection, and may inspect the work authorization records of dental laboratories to determine compliance with this subsection.
“ (e) A violation of s. 447.08.
“(f) A violation of the rules adopted by the examining board.”

For courts reaching a similar conclusion, see Ortiz v. Adult & Family Services Div., 45 Ore. App. 925, 609 P.2d 1309 (1980); State Bd. of Dentistry v. Blumer, 78 Mich. App. 679, 261 N.W.2d 186, 189 (1977). Compare Spray v. Board of Medical Examiners, 50 Ore. App. 311, 624 P.2d 125 (1981).

Sands, Sutherland, Statutes and Statutory Construction sec. 47.07, p. 82 (4th ed. 1972); Dickerson, Legislative Drafting 93 (1954).

See cases cited under heading “unprofessional,” “unprofessional conduct,” and “unprofessional and dishonorable conduct,” 43A Words and Phrases (Perm. ed 1969). See Parker v. Levy, 417 U.S. 733 (1974) discussing the history and meaning of the statutory language “conduct unbecoming an officer and a gentleman.”

I do not reach the constitutional issue of whether in the absence of rules the statutory phrase “conduct unbecoming a professional person” is so vague as to violate state or federal constitutional concepts of due process. Compare Megdal v. Oregon State Bd. of Dental Examiners, 288 Ore. 293, 605 P.2d 273 (1980) (en banc) with Pennsylvania State Bd. of Pharmacy v. Cohen, 448 Pa. 189, 292 A.2d 277 (1972).

The results of the hearing were hardly shocking. As the hearing examiner stated in his Memorandum Accompanying Findings of Fact, Conclusions of Law and Proposed Order, “After some thirty days of hearing, this case has simply narrowed itself to the issue of recognizing that Dr. Strigenz is deficient in his crown and bridge work; that he understands the basic concepts of occlusion, crown preparation, and the more fundamental restorative dentistry that has to do with filling cavities.”

Rock Island & RR v. United States, 254 U.S. 141, 143 (1920).

St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961).