Delozier v. State

Dooley, J.,

dissenting. The decision of the Board of Medical Practice to go forward with a proceeding to revoke plaintiff’s license is a clear case of using the end to justify the means. The trial court recognized that and properly held that the law provided no grounds to revoke plaintiff’s license to practice medicine. I am disappointed that the majority fails to follow the trial court’s well-reasoned decision.

In order to accept the majority opinion, we must find that the legislature intended to create two separate and competing disciplinary schemes for doctors, giving the Board the unfettered discretion to employ whichever system it wants in any given *435case. The majority gives no reason why the legislature would create duplicative systems, and the Board has suggested none. Instead, it concludes that the systems are not really duplicative because neither the prohibition nor the permissible sanctions are identical. These are distinctions without relevant differences. Both statutes provide for disciplinary actions; there is a large overlap in the grounds for discipline; and all sanctions available under 26 V.S.A. § 1398 are available under § 1354. There is no rational purpose for two systems with this degree of duplication.

Our overall mission in construing a statute is to give effect to the intent of the legislature, see Lincoln Street, Inc. v. Town of Springfield, 159 Vt. 181, 184, 615 A.2d 1028, 1030 (1992), and we do not assume the legislature intended to act irrationally. See O’Brien v. Island Corp., 157 Vt. 135, 139, 596 A.2d 1295, 1297 (1991) (court must avoid absurd or unreasonable consequences when construing a statute). The only way we can reach the majority’s result is to ignore the intent of the legislature.

We have considered numerous cases in which two parts of a statutory scheme treated the same subject in different or inconsistent ways. Two methods of analysis emerge from these precedents. Where we have considered the different treatments of the subject to be inconsistent, we have developed rules to resolve the inconsistency. “Specific statutes control over a general statute, and if two statutes deal with the same subject matter, the more recent legislative enactment will control.” Lomberg v. Crowley, 138 Vt. 420, 423, 415 A.2d 1324, 1326 (1980). In Lomberg, one statute gave a general waiver of the state’s sovereign immunity to the extent that its liability was covered by insurance; another limited that waiver, excluding instances of defamation. This Court held that the latter provision controlled over the former; thus, sovereign immunity was a complete defense to the state’s liability for defamation, even though the state was insured against such liability. Id. The latter provision was more specific and later in time.

If we view §§ 1354 and 1398 as inconsistent, our rules for resolving the inconsistency clearly favor the application of § 1354. It is more specific than § 1398 and is later in time. The legislature intended that the specific grounds for license revocation be supplied by § 1354.

*436More often than the Lomberg approach, we have harmonized the varying provisions without declaring a direct inconsistency. This approach is based on “a fundamental rule of statutory construction that statutes dealing with the same subject matter should be construed with reference to each other as parts of one system.” Emmons v. Emmons, 141 Vt. 508, 512, 450 A.2d 1113, 1115 (1982). We must consider the whole, and every part, of the statutory scheme, not just isolated sentences and phrases. Even if there is no direct conflict, where one of two statutes covering the same subject is more specific than the other, we give effect to the more specific provision according to its terms. See State v. Buelow, 155 Vt. 537, 541, 587 A.2d 948, 951 (1990); State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986).

Jarvis involved a construction question similar to the one we face here. Two statutes, in separate titles, provided authorization for a sentencing court to order restitution to a victim. One statute was broad and contained no limits on the type of damage for which the court could order restitution. The other was 'specific and did contain limits. This Court, holding that the limitations in the second statute controlled, reversed a restitution order awarding damages for pain and suffering. Id. Following Jarvis, we should hold that the specific disciplinary grounds of § 1354 control.

If the majority’s failure to harmonize §§ 1354 and 1398 were the only deficiency in its construction, I might accept the result. Here, a number of other reasons command a different result. First, although § 1398 is in a different subchapter from § 1354, its subchapter contains no procedural mechanism for effecting the powers granted by § 1398. Since it must borrow procedures from the earlier subchapter, detailed in §§ 1353-1363, the clear implication is that § 1398 is part of, and therefore to be read in conjunction with, the statutory framework governing the conduct of physicians. This framework defines, in § 1354, the conduct for which the Board may take disciplinary action, including the suspension or revocation of licenses.

Second, § 1398 does not define the terms “immoral” and “dishonorable” conduct. Apart from the constitutional infirmities that an independent reading of this section would entail — unless defined, the terms are excessively vague and potentially overbroad — a review of the history of these statutory provi*437sions suggests that § 1354 was intended to exclusively define the various types of sanctionable conduct. Section 1398 was adopted in substantially its present form in 1906, and a few years later a companion provision was added, which defined “unprofessional” and “dishonorable” conduct. See 1906, No. 164, § 1; 1915, No. 188, § 3. This latter provision, § 1399, was repealed and replaced by § 1354 when the current statutory framework creating the Board of Medical Practice was adopted in 1976. Thus, the clear implication of the statutory history is that § 1354 defines the conduct for which the Board may act under either § 1361 or § 1398 to revoke or suspend a physician’s license.

Third, the majority states that licensee’s argument would turn the terms “immoral” and “dishonorable” in § 1398 into “mere surplusage.” Rather, the majority’s approach would turn the whole of § 1354 into surplusage. Under the majority’s analysis, the Board, when not finding the conduct for which it wishes to sanction a physician listed in § 1354, has the option of entirely discarding that section and basing a sanction upon the broad and now undefined language of § 1398. Section 1354 becomes a virtual nullity, a construction that avoids the legislative intent.

The majority’s use of construction rules about plain meaning and surplusage demonstrates vividly why our precedents require us to harmonize separate statutes dealing with the same subject. Viewed independently, the meaning of each statute is “plain”; it is the presence of the other statute that creates the ambiguity. Often, a melding of the statutes into an overall meaning will make some part of one or more of them surplusage. None of our precedents support a construction where the specific, detailed and more recent statute becomes surplusage in relation to a broad, vague, seldom-used and older statute.

Fourth, the § 1398 grounds do not become surplusage under the proper construction of the statute because they still govern license applications, just as § 1354 describes only conduct for which discipline may be imposed. Obviously, the construction created an inconsistency between the grounds upon which the Board could deny a license and those for which a license could be suspended or revoked. The legislature’s actions in respond*438ing to this inconsistency is itself a recognition that the legislature never intended the construction that the majority has adopted. The gap was eliminated by an amendment to § 1354(7), which previously addressed “immoral” conduct but provided sanctions only for actions related to the practice of medicine. The amendment expanded the scope of § 1354, and part (7) now covers “conduct which evidences unfitness to practice medicine.” This amendment would have been unnecessary if the legislature were acting in accordance with the majority’s view of the statutory scheme. The section was amended well prior to the trial court’s decision in this case; I find no basis for the majority’s statement that the amendment could have been enacted in response to judicial interpretation of the legislature’s original intent.

Fifth, it is very difficult to accept the majority’s statement that the amendment was intended to expand the range of possible sanctions for conduct punishable under § 1398. If the legislature wanted to effect a change in § 1398, it is logical that it should amend that section, not a different one. Viewing this question in the reverse, the amendment of § 1354 indicates that it is conduct, not the type of available sanction, that the legislature wanted to address. If § 1398 authorizes sanctions for conduct other than that contained in the pre-amendment version of § 1354, there would have been no need to expand the list of sanctionable conduct in § 1354.

Sixth, it makes no sense that the “immoral” or “dishonorable” conduct that the majority holds punishable under § 1398 can be met only with the extreme sanctions of license suspension or revocation, or no sanction at all. Obviously, these terms may apply to actions that are not so serious as to require harsh sanctions, but which merit some form of official response. Again, this paradox has been resolved by expanding the reach of § 1354, not § 1398. The clear implication is that § 1354 is the controlling provision, not § 1398.

I have left the most important for last. I began by characterizing this case as one in which the ends are intended to justify the means; in other words, plaintiff’s conduct was so outrageous that a way must exist to discipline him. The accuracy of this assessment of the Board’s motivation is evident from the plain language of the Rules of the Board of Medical *439Practice. Rule 2.2 states that “[u]nder 26 VSA §§ 1361 and 1398, the Board may refuse to issue a physician’s license or suspend, revoke or otherwise take action against a license for any of the following reasons, set forth in 26 VSA § 1354,” and goes on to list the § 1354 criteria. The rule plainly acknowledges that both § 1361 and § 1398 are governed by the criteria in § 1354. The majority’s statement that the specification of permissible grounds for discipline listed in the rule, which reproduces § 1354 precisely and makes no mention of other grounds, is “not exclusive” is clearly wrong. “An administrative agency must abide by its regulations as written until it rescinds or amends them.” In re Peel Gallery of Fine Arts, 149 Vt. 348, 351, 543 A.2d 695, 697 (1988). The rule adopts a construction of the statute to which we must defer absent compelling indication of error. In re Killington, Ltd., 159 Vt. 206, 210, 616 A.2d 241, 244 (1992).

Beyond its assertion that the statute means what the rule says it does not, the majority has an interesting answer to the obstacle created by the rule. To the majority, both the rule and the Board’s decision ignoring the rule are entitled to equal weight in determining the interpretation of the statute by the agency that administers it. We are then left with no consistent agency interpretation to which we give deference, or a false harmonization of the rule and its opposite. Thus, the agency is completely free to ignore its own rules and defeat their legal effect in the courts. This is an amazing view of the power of administrative agencies.

As noted above, the legislature amended the statute so that the conduct committed by this licensee will be grounds for disciplinary action with respect to others. The result of the majority opinion is to give retroactive effect to the statutory amendment and thereby accomplish indirectly something that may not be done directly. See 1 V.S.A. § 214; State v. Willis, 145 Vt. 459, 466-67, 494 A.2d 108, 112 (1985). In reaching this result, the opinion fails to acknowledge our relevant precedents and is inconsistent with them. Without justification, it allows the Board to wholly evade its own rule covering this issue. The end may be seen as just, but the means clearly are not. I dissent.

I am authorized to state that Justice Morse joins in this dissent.