Wisdom v. State Ex Rel. North Dakota Real Estate Commission

LEVINE, Justice,

concurring and dissenting.

I concur in the majority rationale and result with regard to Part I — License Suspension. I dissent, however, from Part II of the opinion. I would reverse the Commission’s order of reprimand and the district court’s affirmance of that order.

As noted by the majority, the Commission submitted no supporting authority for its purported power to reprimand a real estate salesman. In undertaking the Commission’s research, the majority cites two cases, Panhandle Co-op. Ass’n, Bridgeport, Neb. v. E.P.A., 771 F.2d 1149 (8 Cir.1985), and Butz v. Glover Livestock Commission Co., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973), as support for the general proposition that “if authorized by law *23and if justified in fact, imposition of a regulatory sanction by an administrative agency is a discretionary exercise of power.” However, in both these cases, the statutes expressly authorized the sanctions imposed. In this case, there is no such statutory authority. Nor are there the statutory and agency guidelines that were present in the Panhandle case. Here, the regulatory sanction imposed by the Real Estate Commission is “not authorized by law,” and is therefore not within the Commission’s discretionary power.

The Commission not only suspended Wisdom’s real estate license, it also issued a letter of reprimand. The statute provides only that the Commission may suspend or revoke a license. This, then, is not a case of the greater containing the lesser. This is a case of the greater in addition to the lesser. The statute does not provide for cumulative sanctions.

The recently amended statute set out in footnote 1 of the majority opinion authorizes the Real Estate Commission to do what the majority affirms is alright to do without any legislative authority. The pertinent amendatory language to § 43-23-11.1, NDCC, which I underscore for emphasis, reads:

“1. The commission ... shall have the power to suspend or revoke a license, impose a monetary fine, or issue a letter of reprimand, or any combination thereof..."

While the action of the 1987 Legislative Assembly may not be proof of what the 1973 Legislature intended when it passed § 43-23-11.1, St. Alexius Hospital v. Eckert, 284 N.W.2d 441, 445, n. 2 (N.D.1979), the 1987 amendment is “an aid in arriving at the correct meaning of a prior statute.” State v. Novak, 338 N.W.2d 637, 640 (N.D.1983). At the very least, the 1987 amendment impliedly confirms my view that the Commission, under existing law, may not cumulate sanctions.

Because § 43-23-11.1, as it presently reads, does not authorize the Commission to cumulate penalties, I would reverse the decision of the district court and the decision of the Real Estate Commission insofar as the reprimand is concerned.