Commission on Medical Discipline v. Stillman

Murphy, C. J., delivered the opinion of the Court. We deal here in a single opinion with three separate but related appeals involving the revocation of Dr. Irving Stillman’s license to practice medicine by the Commission on Medical Discipline (the Commission), a governmental agency established pursuant to Maryland Code (1957, 1980 Repl. Vol.) Art. 43, § 130, as a part of the State Department of Health and Mental Hygiene. Number 113 presents the question whether an order of the Baltimore City Court staying the Commission’s revocation of Dr. Stillman’s license pending judicial review is appealable and, if so, whether the stay order violated the provisions of Art. 43, § 130 (m), the separation of powers and due process provisions of the Maryland Declaration of Rights, or the due process clause Qf the fourteenth amendment to the federal con ³⁹⁵ stitution.

Primarily at issue in No. 18 (two appeals in one record) is whether Art. 43, § 130 (a), which provides for appointment of the membership of the Commission, violates state and federal constitutional provisions respecting the delegation of governmental authority to a private organization. I The Commission is authorized by Art. 43, § 130 to investigate complaints of unprofessional conduct on the part of Maryland physicians. Under § 130 (b), the Commission is empowered to promulgate rules and regulations "for the proper supervision and control of the professional conduct of all persons under its jurisdiction ....” Under § 130 (g), the Commission is enjoined to refer complaints of unprofessional conduct to "the appropriate local county [medical] society or committee of the Medical and Chirurgical Faculty of the State of Maryland, for investigation and report.” The subsection requires that the report "contain recommendations the investigation reveals may be necessary for adequate disciplinary procedures.” Section 130 (j) provides for hearing before the Commission of charges of unprofessional conduct entered against a physician. Section 130 (h) enumerates with specificity the types of "unprofessional conduct” with which a physician may be charged, and authorizes the Commission to either dismiss the charges, issue a reprimand, place the physician on probation, or revoke or suspend his license.

At the time of the proceedings in this case, § 130 (a) delineated the membership of the Commission as follows: The president of the Medical and Chirurgical Faculty of the State of Maryland. Two practicing physicians appointed by the Secretary of Health and Mental Hygiene, selected from a list submitted by the Medical and Chirurgical Faculty of the State of Maryland, such list, having been composed from a list of nominees ³⁹⁶ submitted by component societies of the Medical and Chirurgical Faculty and two other licensed practicing physicians of the State of Maryland appointed by the Secretary of Health and Mental Hygiene. Three members of the Board of Medical Examiners to be selected by the Secretary of the Department of Health and Mental Hygiene. The chairman of the council of the Medical and Chirurgical Faculty of the State of Maryland. 1 The Medical and Chirurgical Faculty is a private, voluntary membership organization constituting, in effect, the State Medical Society.

II The Commission initiated its investigation of Dr. Stillman’s professional conduct as a result of newspaper accounts of his arrest on charges of committing a sexual offense involving a female patient. Although Stillman was acquitted of the charges after a jury trial, the Commission, pursuant to § 130 (g), directed the Peer Review Committee of the Medical and Chirurgical Faculty (the State Medical Society) to investigate Stillman’s professional conduct. On November 27, 1978, the committee filed its report with the Commission, indicating that Stillman was professionally incompetent in a number of designated particulars. On September 5, 1979, the Commission charged Stillman with professional incompetence and scheduled a hearing to consider the charges.

Prior to the hearing, Stillman, on February 11,1980, filed a declaratory judgment action in the Circuit Court of Baltimore City, seeking to enjoin the Commission from holding the hearing and to obtain a declaration that the Commission could not constitutionally proceed with the hearing. It was Stillman’s primary ³⁹⁷ contention that Art. 43, § 130 (a) was unconstitutional because it constituted an impermissible delegation to the State Medical Society, a private, non-governmental body, of the power to make appointments to the Commission. The court (Kaplan, Jj, finding no merit in the contention, declined to enjoin the scheduled hearing, and declared that § 130 (a) was in all respects constitutional. Stillman appealed to the Court of Special Appeals.

We granted certiorari (No. 18) prior to decision by that court to consider the important issues raised in the case. The hearing on the disciplinary charges against Stillman was concluded on April 29,1980. The Commission thereafter issued an order dated May 20, 1980 revoking Stillman’s medical license for professional incompetence. 2 The Commission’s order provided that the revocation would be effective on June 20, 1980 in order to afford time for Dr. Stillman to transfer his patients to the care of another physician. The order also provided that if Stillman entered a Commission-approved training program, the license revocation would be stayed and he would be placed on conditional probation.

Stillman appealed to the Baltimore City Court and filed a motion to stay the Commission’s order. Over the Commission’s objection, the court (Karwacki, J.) stayed the order revoking Stillman’s license pending judicial review by the Baltimore City Court. The Commission appealed to the Court of Special Appeals but that court, on September 2, 1980, dismissed the appeal on the ground that it was not taken from an appealable final judgment. We granted the Commission’s petition for certiorari to review the intermediate appellate court’s dismissal of the appeal (No. 113).

On February 10, 1981, the Baltimore City Court (Perrott, J.) affirmed the Commission’s order revoking Stillman’s ³⁹⁸ license. Stillman appealed to the Court of Special Appeals. We granted certiorari (No. 18) and consolidated all three cases for briefing and argument. III The Commission contends that Judge Karwacki’s order staying the revocation of Dr. Stillman’s license in effect enjoined its judgment and therefore constituted an appealable interlocutory order under Maryland Code (1974, 1980 Repl.

Vol.), § 12-303 (c) (1) of the Courts and Judicial Proceedings Article. That section provides, inter alia, that a party may appeal an order "granting ... an injunction ....” We agree with the Commission. Where, as here, the Court restrains the action of an executive branch agency revoking the license of a physician, the order in effect permits the physician to continue to practice his profession and constitutes an order in the nature of an injunction. 3 See Laje v. R. E. Thomason Gen. Hospital, 564 F.2d 1159 (5th Cir. 1977), cert. denied, 437 U.S. 905 (1978); Cahokia Sportservice, Inc. v. Illinois Liq.

Con. Comm’n, 32 Ill. App. 3d 801 , 336 N.E.2d 276 (1975). IV (A) Contrary to the conclusion reached by the Baltimore City Court, § 130 (m) plainly precludes a court from staying a Commission order revoking or suspending a medical ³⁹⁹ license. 4 The section provides that where judicial review of such an order is sought, "the revocation or the period of suspension shall not be stayed and shall be effective or commence to run immediately, except this shall not apply to any decision made prior to July 1, 1974, in which case the revocation or suspension shall be stayed until final judgment.” 5 As a matter of statutory construction, therefore, the Baltimore City Court erred in interpreting § 130 (m) to permit a stay of the Commission’s order revoking Stillman’s license. 6 (B) Stillman argues that the legislative prohibition contained in § 130 (m) against judicial stays of Commission orders revoking medical licenses violates the separation of powers provision contained in Article 8 of the Maryland Declaration of Rights.

That article provides: "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” ⁴⁰⁰ In Attorney General v. Waldron, 289 Md. 683, 689 , 426 A.2d 929, 933 (1981), we said that Article 8 "has been consistently interpreted from its inception to parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority. That is to say, such of them as are judicial in their character to the judiciary; such as are legislative to the legislative, and such as are executive in their nature to the executive. Within the particular limits assigned to each, they are supreme and uncontrollable.” (Quoting Wright v. Wright, 2 Md. 429, 452 (1852)). The judicial branch of government in this State possesses those powers expressly reserved to it by the Maryland Constitution and Declaration of Rights.

In addition, the judiciary has certain implied or inherent powers under the Maryland Constitution. The breadth of these powers was described by the Supreme Court of Wisconsin in State v. Cannon, 196 Wis. 534 , 221 N.W. 603, 603-604 (1928), quoted with approval in Waldron : "In order to accomplish the purposes for which they are created, courts must also possess powers. From time immemorial, certain powers have been conceded to courts, because they are courts. Such powers have been conceded, because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence.

These powers are called inherent powers. * * * 'The inherent power of the court is the power to protect itself; the power to administer justice ...; the power to promulgate rules for its practice; and the power to provide process where none exists. It is true that the judicial power of this court was created by the Constitution, but, upon coming into ⁴⁰¹ being under the Constitution, this court came into being with inherent powers.’ ” (Quoting In re Bruen, 102 Wash. 472 , 172 P. 1152 (1918)). Along similar lines, the Supreme Court of Minnesota, in Clerk of Court’s Compensation for Lyon County v. Lyon County Commissioners, 308 Minn. 172 , 241 N.W.2d 781 (1976), said that inherent judicial power "grows out of express and implied constitutional provisions mandating a separation of powers and a viable judicial branch of government. It comprehends all authority necessary to preserve and improve the fundamental judicial function of deciding cases.

"The test to be applied in these cases is whether the relief requested by the court or aggrieved party is necessary to the performance of the judicial function as contemplated in our state constitution. The test is not relative needs or judicial wants, but practical necessity in performing the judicial function. The test must be applied with due consideration for equally important executive and legislative functions.” Id. at 786 (footnote omitted; emphasis added). The inherent power at issue in the present case is the power to administer justice.

A corollary of this power is a court’s inherent power to review administrative actions for arbitrariness, illegality, capriciousness, or unreasonableness. The separation of powers doctrine mandates that the legislature may not divest the judiciary of these inherent powers. See Attorney General v. Waldron, supra; Criminal Inj. Comp.

Bd. v. Gould, 273 Md. 486 , 331 A.2d 55 (1975); Heaps v. Cobb, 185 Md. 372 , 45 A.2d 73 (1945). ⁴⁰² Stillman advances two distinct separation of powers arguments. First, he contends that the power to issue a stay is itself an inherent power of the judiciary that may not be circumscribed by the legislature. Second, he argues that the inability to issue a stay pending judicial review divests the judicial branch of its inherent authority to review administrative actions for arbitrariness, illegality, capriciousness and unreasonableness. The power to issue a stay is not an inherent judicial power in the sense that it may never be limited or denied by legislative enactment.

A stay is simply a tool that a court may use in the proper exercise of its authority. The power to stay administrative action is only inherent in the sense that it is a traditional power that equity courts could utilize without express statutory authorization. See Fooks’ Executors v. Ghingher, 172 Md. 612 , 192 A. 782 , cert. denied, 302 U.S. 726 , 58 S. Ct. 47 , 82 L. Ed. 561 (1937). By enacting § 130 (m), the legislature limited the jurisdiction of the courts by prohibiting stays of Commission orders revoking medical licenses.

See Md. Const. Art. IV, § 20. 7 This exercise of legislative authority did not of itself violate the separation of powers doctrine because the power to stay administrative action pending judicial review is not an essential power inherent in the courts in the discharge of their constitutionally mandated duty to administer justice. Stillman’s separation of powers argument, therefore, must rise or fall on his contention that the prohibition on stays impermissibly precludes the courts from subjecting administrative action to judicial review for arbitrariness, illegality, capriciousness or unreasonableness — a recognized inherent judicial power. ⁴⁰³ In Criminal Inj. Comp.

Bd. v. Gould, supra, we reviewed a statutory scheme providing for awards of monetary compensation by an administrative agency to victims of crime. The statute provided that only the Attorney General (and not the claimant) could seek judicial review of a decision rendered by the agency. We held that this statutory provision was constitutional, concluding that although a claimant had no right to judicial review under the statute, the legislature had not intended to preclude the judiciary from exercising its inherent power to review administrative action alleged to have been arbitrary, illegal, capricious or unreasonable. In St. Dept. of A. & Tax. v. Clark, 281 Md. 385 , 380 A.2d 28 (1978), taxpayers sought judicial review of their real property assessment under Maryland Code (1957, 1975 Repl.

Vol.), Art. 81, § 67, which permitted designated officials to decrease or abate an assessment after the date of finality in order to correct an error or to prevent injustice. The remedy under § 67 could be invoked by a taxpayer whether or not the assessment had been appealed in accordance with the regular statutory procedure for challenging an assessment’s validity. The taxpayers successfully argued before the lower court that notwithstanding the absence of express statutory authority to appeal from the § 67 determination, the court nevertheless had jurisdiction to review it under its inherent power to review administrative action for arbitrariness, illegality, capriciousness, or unreasonableness. We reversed, holding: "The key to the right of a court to utilize inherent powers to prevent illegal, unreasonable, arbitrary or capricious administrative action is that 'the legislature has not expressly provided for judicial review.’ If reasonable judicial review has been provided there is no 'untrammelled right arbitrarily to grant or withhold that which is derived from the people.’ ⁴⁰⁴ "...

The plain teaching of Gould is that the inherent power of a court to review an administrative agency’s determination is not unbridled. It may not be utilized when the statutory right of judicial review is available. That right did not exist under the Criminal Injury Compensation Act applicable in Gould, and, in fact, was expressly precluded. It was fully available under the applicable statute in the instant case.

Section 67 cannot be isolated from the other provisions of Art. 81. It must be considered in the light of those sections which provide, as of right, review of the determination of each successive administrative agency, step by step, under administrative procedures, and then review by the courts of the final assessing authority’s action. Under such a comprehensive scheme, we see no infirmity in the absence of judicial review of the potential extraordinary relief held out by § 67. That relief... is a matter of grace.

When a taxpayer permits an assessment to become final, he can only hope that he may obtain relief under § 67. If relief is denied him or if the relief granted does not meet his expectations, he is entitled to nothing further at that time.” Id. at 399, 402, 380 A.2d at 37, 38 . Stillman argues that a court cannot effectively exercise its inherent power to review administrative action unless it can stay the agency’s determination pending judicial review. This argument, however, overlooks our holding in Clark .

A final decision of the Commission is subject to judicial review, Art. 43, § 130 (p), in accord with the provisions of the Administrative Procedure Act. See Comm’n on Med. Discipline v. Bendler, 280 Md. 326 , 373 A.2d 1232 (1977); Art. 41, § 255 (a). All actions taken by the Commission, if appealed, are therefore expressly subject to judicial review, and the Commission’s decision is subject to reversal or modification under Art. 41, § 255 (f).

Clark held that when reasonable judicial review is provided for by statute, the ⁴⁰⁵ statutory method of review is exclusive and a court may not exercise its inherent powers to review administrative agency determinations. Similarly, we now hold that because reasonable judicial review of Commission decisions is provided for by statute, the § 130 (m) prohibition on stays pending judicial review does not encroach upon the judiciary’s inherent power to review administrative action for arbitrariness, illegality, capriciousness and unreasonableness. See Scripps-Howard Radio v. Federal Communications Comm’n, 316 U.S. 4 , 62 S. Ct. 875 , 86 L. Ed. 1229 (1942) (implicitly recognizing that Congress could prohibit stays of administrative action pending judicial review); State ex rel. Smith v. Circuit Court, 231 Ind. 173 , 108 N.E. 2d 58 (1952) (court had no jurisdiction to stay revocation of driver’s license pending judicial review when statute prohibited stays); Yacht Club Catering v. Bruckman, 276 N.Y. 44 , 11 N.E.2d 345 (1937) (recognizing legislature’s power to limit stay of agency’s revocation of liquor license pending judicial review).

We thus conclude that § 130 (m) does not violate the separation of powers doctrine contained in Article 8 of the Maryland Declaration of Rights. Stillman also attacks § 130 (m) on due process grounds, arguing that the prohibition on stays pending judicial review violates the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. The right to practice medicine is a property right of which a physician cannot be deprived without due process of law. Aitchison v. State, 204 Md. 538 , 105 A.2d 495 , cert. denied, 348 U.S. 880 , 75 S. Ct. 116 , 99 L. Ed. 692 (1954).

In that case, however, we noted that the right is subject to the paramount police power of the state: "[N]o person has an absolute vested right to practice medicine, but only a conditional right which is subordinate to the police power of the State to protect and preserve the public health. Reetz v. People of State of Michigan, 188 U. S. 505 , 23 S. Ct. 390 , 47 L. Ed. 563 . The State, in the performance of ⁴⁰⁶ its duty to protect and preserve the public health, has the power, within constitutional limitations, to regulate the practice of medicine by those engaged therein. This regulatory power is justified by the fact that the practice of medicine requires special knowledge, training, skill and care, that health and life are committed to the physician’s care, and that patients ordinarily lack the knowledge and ability to judge his qualifications.” Id. at 544 , 105 A.2d at 498 .

In Flynn v. Board of Registration in Optometry, 320 Mass. 29 , 67 N.E.2d 846 (1945), an optometrist whose license had been suspended by the Board of Registration argued that he had been denied due process of law because the applicable statute, which covered disciplinary actions against physicians as well as optometrists, prohibited courts from staying the Board’s orders pending judicial review. The Supreme Judicial Court of Massachusetts found no merit in the contention, stating: "We cannot say that it is a deprivation of fundamental rights if the right to a stay is withheld during the interval of time between a decision of the board and the entry of a decree of the court in the event a review is sought. We reach this conclusion the more readily because of the many safeguards in the statute ensuring an adequate hearing in the first instance before the board. The 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.” Id. at 34 , 67 N.E.2d at 849-50 .

Accord, State v. State Board of Medical Examiners, 68 Nev. 455 , 235 P.2d 327 (1951) (statute prohibiting stay of agency action revoking a physician’s license did not violate due process). ⁴⁰⁷ In Maryland, due process challenges to legislative enactments are to be evaluated under the following standards: "The test for constitutionality under the Due Process Clause is whether a statute, as an exercise of the state’s police power, bears a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state.... The exercise by the Legislature of the police power will not be interfered with unless it is shown to be exercised arbitrarily, oppressively or unreasonably. . . . The wisdom or expediency of a law adopted in the exercise of the police power of a state is not subject to judicial review, and the law will not be held void if there are any considerations relating to the public welfare by which it can be supported.... Such a statute carries with it a strong presumption of constitutionality....” Bowie Inn v. City of Bowie, 274 Md. 230, 236 , 335 A.2d 679, 683 (1975) (citations omitted).

Stillman, in order to overcome the presumption that § 130 (m) is constitutional, must demonstrate that the prohibition on stays pending judicial review does not bear a real and substantial relationship to the health, safety, and welfare of the citizens of Maryland. The legislature was undoubtedly aware of two important interests when it enacted § 130 (m). Physicians whose licenses have been properly suspended or revoked for unprofessional conduct pose a clear threat to the public health. On the other hand, preventing physicians from practicing medicine while awaiting judicial review could have a devastating effect on their ability to resume practice in the event that they prevail on appeal.

Section 130 (m) may well have resulted from the legislature’s belief that the negative effect on physicians whose licenses are suspended or revoked improperly was outweighed by the harm that might befall the public if any of the physicians sanctioned by the Commission were permitted to continue practicing ⁴⁰⁸ pending judicial review. Indeed, those physicians who are merely placed on probation or reprimanded are not precluded from obtaining a stay under the statute. Thus, it is only when the potential threat to the public is the greatest that the legislature has seen fit to preclude judicial stays. We think § 130 (m) does bear a real and substantial relationship to the public health, safety, and welfare of the people of this State and does not constitute a denial of due process, particularly in light of the various statutory safeguards governing Commission proceedings.

Consequently, we conclude that the legislature has exercised its police power in a permissible manner. V As heretofore indicated, § 130 (a) expressly provides that the president and the chairman of the council of the Medical and Chirurgical Faculty shall be members of the Commission. In addition, the subsection provides that three members of the Board of Medical Examiners —: a board whose members are appointed by the Medical and Chirurgical Faculty (see Art. 43, § 120) — shall be appointed to the Commission by the Secretary of the Department of Health and Mental Hygiene. Section 130 (a) further provides that two physicians be appointed to the Commission by the Secretary from a list submitted to him by the Medical and Chirurgical Faculty.

Under the statute, therefore, a majority of the Commission membership is composed of physicians who are either officers of the Medical and Chirurgical Faculty or whose eligibility for membership oh the Commission is subject to that private organization’s control. Stillman urges that the statute violates the separation of powers provisions of Article 8 of the Declaration of Rights because it removes "the Governor’s right to make executive branch appointments,” presumably in contravention of Art. II, § 1 of the Maryland Constitution which vests the "executive power of the State ... in a Governor.” ⁴⁰⁹ Article II, § 10 of the Maryland Constitution provides: "[The Governor] shall nominate, and, by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment, or election, is not otherwise herein provided for, unless a different mode of appointment be prescribed by the Law creating the office.” (Emphasis supplied.) A provision of the Maryland Constitution of 1851 (Art. II, § 11), identical to Article II, § 10 of our present constitution, was considered by the Court in Davis v. State, 7 Md. 151 (1854), and Baltimore v. State, 15 Md. 376 (1860). In Davis , the question was whether, under this constitutional provision, the legislature could provide for appointment to an office created by statute. Concluding that it could, the Court said: "[W]e think this provision [Art. II, § 11] means, simply, that the Governor shall have the power to fill all offices in the State, whether created by the Constitution or by Act of Assembly, unless otherwise provided by the one or the other.

When, therefore, the legislature has created an office by Act of Assembly, the legislature can designate by whom and in what manner the person who is to fill the office shall be appointed.” Id. at 161. In Baltimore , the Court reconciled the interpretation in Davis with the separation of powers provision contained in the Declaration of Rights. In answer to the contention that the power of appointment was "an intrinsic executive function,” beyond the legislature’s authority, the Court observed: "[T]he Legislature makes the laws, the Judiciary expounds them, and the Governor sees that they are faithfully executed .... It does not follow, as a necessary conclusion, that, in order to perform this ⁴¹⁰ duty, [the Governor] must have agents of his own nomination.

Our form of government, in its various changes, has never recognized this power as an executive prerogative.” 15 Md. at 456 . The Court in Baltimore said that the Constitution "so far from treating ... [the appointment power] as an inherent executive power, indicates that it belongs where the people choose to place it.” Id. at 457 . Addressing the separation of powers question, the Court concluded: "In considering the question as to separation of the departments, we are to bear in mind that the Declaration of Rights is not to be construed by itself, according to its literal meaning; it and the Constitution compose our form of government, and they must be interpreted as one instrument.... The former announces principles on which the government, about to be established, will be based.

If they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared, according to the