*1 V. finally Village Woodstock contends
Defendant review adopted. The properly design ordinance was zoning therefore, 1983; de January became effective amendments (challenge for untimely. challenge fendant’s within two years must made defects procedural purported effect). into date rule went on certain alterations to remove
The order defendant’s court the superior is remanded to is vacated. The case building criteria, review, under the correct design plan four for ap- commission denied planning alterations are imposed proval. fines affirmed. Delozier, v.M.D. of Vermont Howard State
[631 228] No. 92-532 JJ., Peck, (Ret.), Allen, C.J., Gibson, Dooley Morse, J. Present: Assigned Specially Opinion April Filed Reargument July Denied Motion *2 Bennett, S. Crocker Paul, II and E. Frank Frank Joseph & Collins, Inc., for Burlington, Plaintiff-Appellee. A. Yu- Geoffrey General, Amestoy, L. Attorney
Jeffrey dien, General, Defendant- Montpelier, Attorney Assistant Appellant.
Allen, summary grant judg- The State a appeals C.J. charges of Medical Practice dismiss ment the Board ordering brought before Board immoral or dishonorable an trial court concluded that earlier licensee. The against subject juris- it matter lacked Board determination investigation, a judicata subsequent was res and barred diction that, event, to hear the jurisdiction the Board lacked any matter. We reverse. 26,1990, of Medical investigator an January
On arraigned had Practice informed the Board licensee been of six- age sexual of a under the charge on assault female' 29, 1990,-the Board sent notice to licensee January teen. On investigation had filed an would be been complaint close attorney the Board to commenced. Licensee’s asked *3 did not fall within the statutory file because licensee’s conduct in 26 of conduct listed V.S.A. The unprofessional criteria and, after request committee considered this ob- investigatory as to the conditions of licensee’s release taining information the that it criminal recommended to Board close charges, 2, 1990, voted May the file on licensee. The Board met on to file, to on June wrote a letter li- close licensee’s lack him the file to informing censee that had been closed due of jurisdiction. 1991, 26, Board that a August
On informed licensee new had on him as a result of an article opened alleging file been him for suspended Health had six University Center' 6,1991, the issued charges speci- months. On November Board licensee had immoral dishonorable fying engaged and/or 26 1398. Licensee’s motion to dismiss conduct under res nor judicata ruled neither col- was denied. Board applied prior lateral to Board’s determination be- estoppel judicial had in its acting capacity. cause not been Licensee an action for relief under brought extraordinary 75(a), and court his motion for superior granted V.R.C.P. summary appeals. The State judgment.
429 I. first ini- argues
The State that the Board’s letter closing jurisdiction tial file due to a lack of did not investigatory have of judicata res effect on future licensee’s conduct investigations by Board.
The doctrine of res that a judicata provides valid and final judgment favor of one bars another party action (Second) other on the same claim. Restatement of party Judg Grandey, see Hill v. (1982); 460, § 19 463, ments 132 Vt. 321 (1974). 28, A.2d 31 judicata Res will apply dismissals lack (5th Kurtz, v. 435, See Boone jurisdiction. 617 F.2d 436 Cir. 1980). The United has Supreme States Court held that the doc judicata trine of res to administrative applies decisions “[w]hen an acting judicial administrative re agency capacity and solves issues of fact disputed properly before it which the par an adequate United litigate.” ties have had opportunity Co., States v. Utah Construction & Mining 384 U.S. 422 (Second) Similarly, the of Judgments § Restatement states that adjudicative administrative decisions have res judi cata effect where “the proceeding the deter resulting mination entailed essential elements of adjudication.” These elements include adequate notice to parties, interested right parties present evidence and fi legal argument, nal judgment, procedural elements to afford necessary fair determination the matter in light of the magnitude and com plexity of the matter. Id.
This Court has previously adopted the Restatement given judicata res effect to administrative adjudicatory de- City Rutland v. Corp., McDonald’s cisions. Vt. Carrier, (1985); see also In re (1990) res (giving judicata effect to ad- *4 ministrative adjudicatory decision but not based on directly Restatement). § 83 of held, however, As other courts have ad- ministrative decisions that do not entail the essential elements adjudication of will not judicata have res effect. E.g., Interna- tional Union v. Operating Engineers Sullivan Transfer, of Inc., (5th 1981) (administrative 650 F.2d Cir. deter- mination was not directly appealable, did not mark end of proc- ess within agency binding was not and therefore was not Co., Ins. 681 F. Inc. Allstate Azby Brokerage, v. judicata);
res (administrative 1988) (S.D.N.Y. had hearing Supp. limited argu- of cross-examination, a minimum evidence no v. Em- State judicata); not res Shea ment and therefore was (Conn. 1976) 159, 162 Comm’n, Retirement ployees’ (because finding had to reconsider commission benefits, even disability though receive was to eligible plaintiff commission, finding was initially approved by was finding such judicata). not res commenced as licensee was investigation against
The initial that licensee had been ar- complaining of letter the result to Board’s According practice, assault. the raigned sexual of opened. a file was See Board was docketed and complaint this (BMP Rule) in- was Practice Rule 5.1.3. Licensee Medical investigation. an After that the Board had commenced formed file the to close his because asking licensee’s letter receiving met, committee ob- jurisdiction, investigatory Board lacked the of licensee’s additional information about conditions tained the Board charges, and recommended to release criminal file be closed. rules, the committee investigatory Under four recommendations may following make one file, in case the file if reopened Board: closing made; settling or a new complaint new evidence is received case; and, case; in the case commencing prosecution li conduct, summarily extremely dangerous suspending 5.4.1. The associ process requirements cense. BMP Rule due do apply ated Board’s decisions not adjudicatory with the the Board in which case the Board prosecute, unless decides licensee, on charges provide will serve formal notice a writ hearing opportunity response, prepare licensee, which the the State or complainant ten decision from — 5.5.3, BMP Rules 5.5.1 5.6.2. may appeal.
Here, reach the where stage the Board’s actions did not an No adjudicatory body. charge the Board functioned as thus, initial the matter not brought investigation; pro did not a for Board did issue prosecutorial stage. ceed to attached to charges, process rights mal notice due evidence, licensee, present there was licensee was asked *5 Therefore, there no final the Board’s hearing ruling. jurisdiction prosecu- that it lacked did not bar future decision judicata The of res do not principles apply tion of licensee. not an the Board’s initial decision was present case because adjudicatory decision.
II. licensee’s conduct was The court also concluded because as it at time of the by not covered 26 V.S.A. 1354 existed misconduct, li- jurisdiction the Board lacked over the alleged It Rules of Medical Prac- censee. further held Board’s disciplinary authority types tice limited the Board’s to the §in proscribed proscribed only 1354. Section 1354 conduct which occurred in the of medicine or in the practice course of a license to medicine. obtaining practice
The contends that 26 the Board gives State V.S.A. 1398 or revoke the jurisdiction suspend agree. license. We The statute provides:
The refuse to issue ... any board [a] license[] immoral, other or conduct. For unprofessional dishonorable cause,... like certifi- may suspend any the board revoke it. by cate issued argues
Licensee this statute is direct conflict with the (Board Board’s enumerated powers subchapter under of Med- Practice), limit ical the conduct for which the Board may revoke licenses to the conduct listed in types unprofessional § 1354. Licensee that the words “immoral” and “dishon- argues orable” are mere and that surplusage, powers are statute, § limited the more specific 1398, however, Section continues to the criteria govern The Board has the a license for licensing. power deny immoral or dishonorable conduct. Section 1398 cannot be read deny to allow the Board to a license for immoral conduct but allow the Board to a license for the same conduct. very revoke face, Where a statute’s on its this Court will meaning plain Electric Burlington enforce the statute to its terms. according Taxes, Dep’t v. Vermont 332, 335-36, Dep’t of 450, of the statute plain meaning gives a license for immoral or dishonorable to revoke Thus, jurisdiction pursue charge the Board has conduct. under 1398.1 licensee against § 1354 that the Board’s argues powers
Licensee also The structure of the act does not 1398 are coextensive. *6 First, § § lie in different 1354 and 1398 argument. this support 2, in subchapter of the act. Section found subchapters conduct,” “unprofessional the acts constituting enumerates conduct, which, at the time of licensee’s were limited to those Thus, physician. out of a licensee’s acts as a sub- arising acts to monitor the licensees’ chapter governs powers in to maintain a high profes- conduct order level professional found subchapter empowers sionalism. Section the personal professional qualifications Board to determine and Thus, and hold a license. the two may of individuals who obtain Further, act.2 statutes serve different functions within.the provide penalties. Unprofessional two statutes different 2 is subchapter punishable by range conduct under wide sanctions, including reprimand conditioning, limiting, sus- § or license. 26 Immoral pending revoking the V.S.A. 1361. conduct, subchapter only dishonorable is sanctionable or revocation or a to issue a to an by suspension refusal license history statutory provisions supports contends that the The dissent amendments, position. licensee’s We think otherwise. Prior to the 1976 “unprofessional decep § 1399 defined or dishonorable” conduct to include drugs advertising, intemperate adversely affecting use of or alcohol tive user, judgment any involving turpi of the and conviction of offense moral amendment, repealed § deceptive tude. Under the 1976 1399was adver tising intemperate drugs use of or alcohol were within included unprofessional suspend § 1354definition of conduct. The or revoke 1398, however, § a license for immoral or dishonorable conduct under not eliminated or modified. argues §§ legis are dissent 1354and 1398 inconsistent and that the provide specific grounds § lature intended the new 1354to for license revo legislature permit cation. The dissent assumes intended to practice, revocation for conduct committed the course of medical governed by subchapter legislature repeal § which is 2. The did not however, § repealed § when it amended 1354 and 1399.We will not assume Rather, legislature by neglecting repeal § erred we assume the legislature plain language § did itwhat intended to do. The of 1398after the 26, chapter permit suspension 1976amendments to Title 23 continue to non-practiee-related or revocation for conduct. 1398. This overall scheme con- applicant. statutory V.S.A. § 1354 purposes profes- firms the different (regulating sional work of licensed and 1398 physicians) (determining persons and moral standards of those who hold a personal license), and we cannot licensee’s the two accept argument are coextensive. provisions contends, however,
Licensee that the amendments legislative to 26 legisla- V.S.A. 1354 made 1990 and 1992 are proof tive intent disciplinary authority of the Board is re- conduct” categories “unprofessional stricted those in 1354. enumerated The 1990 amendment 26 V.S.A. changed 1354(7) “immoral of a his physician practice as a physician” to “conduct which evidences unfitness to prac- tice medicine.” The 1992 amendment changed 1354(3) from “conviction of a crime out of the arising practice of medicine” to “conviction of a crime out of the arising practice of medicine felony, or conviction of a whether or related to the practice of medicine.” in response These amendments were to licensee’s contention before the Board that could not he sanctioned his *7 by because conduct was not 1354. proscribed with agree We licensee’s that the argument amendments a legislative law, show intent to the effect change existing of but disagree argument with the prove amendments that authority to or did not suspend discipline exist under 1398. The 1992 amendment to chapter approved 23 Title 26 was on 15, May The specification charges made 1991, on 5, November asserted jurisdiction under 1398 and accused the licensee of in immoral engaging dishonor and/or able conduct. legislature did not eliminate ju the Board’s 1992, risdiction to or revoke suspend under 1398 May this inaction be as its may interpreted juris intention to leave v. diction under Trapeni Em 1398 intact. Department of See Security, 142 ployment 317, 322-23, Vt. 455 A.2d 331-32 (1982) (where legislature had to statute opportunity amend but not, legislature’s expression did inaction to of intent leave intact). statute
Finally, licensee argues Board’s sanctioning is, rule, own by its to conduct forth in limited set 26 V.S.A. 1354. BMP Rule 2.2. Although Rule 2.2 lists conduct 434 assuming Even sanctionable, is not exclusive. this list conduct, list of sanctionable an exclusive 2.2 provides
that Rule an administrative Although upheld. automatically it will exe it must statutory provisions of the body’s interpretation indication a compelling on absent appeal sustained cute will be statute, a rule conflicts with error, extent that to the Arts, Fine Gallery 149 In re Peel cannot be sustained. rule case, if we present In the 348, 350, A.2d Vt. to con jurisdiction as limiting Rule 2.2 interpret an impermissible rule would present §in listed duct 1398. See under powers on the Board’s restriction 1989) (“Administrative (N.H. Strandell, 562 A.2d 173, 178 In re to, from, modify the statute detract rules not add Sys cf. In re Vermont Gas implement.”); to they are intended (1988) (“administra tems, Inc., 34, 39, 150 Vt. an cannot authority support agency’s rule-making tive own powers”). of its interpretation expansive case, in Moreover, agency there are two the present statute, Board’s order of Rule 2.2 and the of the terpretations over jurisdiction that the Board had February stating we favor an possible, 1398. Where licensee’s conduct See State conflicting provisions. that harmonizes interpretation Riendeau, v. Natural Resources Agency of (1991) statu conflicting (harmonizing apparently nonexclusive, the Rule 2.2 as By interpreting tory provisions). Board’s decision. rule is consistent with the remanded. Reversed and
Dooley, J., decision of the Board of Medical dissenting. The plaintiff’s forward with a revoke proceeding Practice to go the means. The justify is a clear case of the end using license pro- held that the law properly trial court recognized medi- practice to revoke license grounds plaintiff’s vided no *8 majority fails to follow the trial cine. I am disappointed well-reasoned decision. court’s we must find that the majority opinion,
In accept order dis- competing intended to create two separate legislature doctors, Board the unfettered schemes for giving ciplinary it wants in system any given whichever employ discretion to majority gives why legislature case. The reason would systems, create and the Board has duplicative suggested none. Instead, it systems really concludes are not duplicative neither the nor prohibition permissible because sanctions are identical. These are distinctions without relevant differ- actions; ences. Both statutes for provide disciplinary there is a in the large overlap grounds discipline; all sanctions available under 1398 are available under 1354. purpose systems There is no rational for two with this degree duplication. in construing
Our overall mission a statute is to effect to give Street, the intent of the see Lincoln Inc. v. legislature, Town of 181, 184, 1028, 1030 (1992), 159Vt. 615 A.2d Springfield, and we do assume the intended to act legislature irrationally. See v. O’Brien Island 157 Vt. 596 A.2d Corp., (1991) (court must avoid absurd or unreasonable consequences statute). when we can construing only way reach the ma result is to jority’s ignore intent of the legislature.
haveWe considered numerous cases in which two parts of a scheme statutory subject treated the same in different or incon- sistent ways. Two methods of analysis emerge these pre- cedents. Where we have considered the different treatments of inconsistent, subject to be we have rules to developed re- solve the inconsistency. “Specific statutes control over general statute, if two statutes deal subject matter, with the same the more recent legislative enactment will control.” Lomberg v. Crowley, In Lom- one berg, gave statute of the general waiver state’s sovereign immunity to the extent that liability its was covered by insur- ance; waiver, another limited that excluding instances of defa- mation. This Court held that the provision latter controlled over former; thus, sovereign immunity was a defense complete defamation, the state’s liability for even though the state was insured such against liability. Id. The latter provision was more specific and later in time. §§
If inconsistent, we view 1354 and 1398 as our rules for resolving inconsistency clearly favor the application of It 1354. is more than specific 1398 and is later in time. The intended that legislature specific grounds license revo- cation supplied by
436 Lomberg approach, than the have
More often we harmonized a direct varying provisions declaring inconsistency. without “a This is based on fundamental rule of con- approach statutory subject struction that statutes with the same dealing matter should be construed with reference to each other as parts one Emmons, Emmons v. 508, 512, 141 system.” 1113, Vt. 450 A.2d (1982). whole, every 1115 We must consider the part, scheme, statutory just isolated sentences and phrases. conflict, Even if there is no direct where one of two statutes covering subject other, the same is more than specific we effect to the give specific more to its provision according terms. Buelow, State v. 948, (1990); See Vt. 587 A.2d Jarvis, State v. 1005, Jarvis involved a question construction similar to the one we statutes, titles, face here. Two in separate provided authoriza- tion for court to order sentencing restitution to a victim. One statute was broad and contained limits on the of dam- type age for which the court could order restitution. The other was 'specific Court, and did contain limits. This that the lim- holding in controlled, itations the second statute reversed a restitution Id. awarding order damages pain and suffering. Following Jarvis, we should hold the specific disciplinary grounds § 1354 control.
If the majority’s §§ failure to harmonize 1354 and 1398 were construction, its I deficiency might accept the result. Here, a number of other reasons command a different result. First, § in a although 1398 is different subchapter 1354, its contains no subchapter procedural mechanism for effecting the powers granted by 1398. it Since must borrow procedures from the 1353-1363, §§ earlier detailed in subchapter, the clear implication of, is that part 1398 is and therefore to be read with, conjunction the statutory framework the con- governing of physicians. defines, duct This framework the con- duct which the Board may action, take disciplinary including suspension or revocation of licenses.
Second, § 1398 does not define the terms “immoral” and “dis- honorable” conduct. Apart from the constitutional infirmities that an independent of this reading section would entail —un- defined, less the terms are excessively vague and potentially overbroad —a review of the history these statutory provi- suggests sions 1354 was exclusively intended to define the various types sanctionable conduct. Section was its adopted substantially present form in and a few years added, later was companion provision which defined “unprofessional” “dishonorable” conduct. See No. 164, 1;§ 188, § No. 3. This latter provision, repealed replaced by when the current statutory *10 framework creating the Board of Medical Practice was adopted Thus, in 1976. the clear implication of the statutory history is § that 1354 defines the conduct for which the act § § under either 1361 or 1398 to revoke or a suspend physician’s license.
Third, the majority states that licensee’s argument would turn the terms “immoral” and in § “dishonorable” 1398 into Rather, “mere the surplusage.” majority’s would turn approach the whole of 1354 into surplusage. Under the majority’s anal- Board, ysis, the when not the finding conduct for which it wishes to sanction a physician listed has the of option entirely that discarding section and a sanction basing upon broad and now undefined §of language 1398. Section 1354 be- a comes virtual a nullity, construction that avoids the legislative
intent.
The majority’s use of construction rules about plain meaning and surplusage demonstrates our vividly why precedents re- quire us to separate harmonize statutes with dealing the same subject. Viewed independently, the meaning of each statute is “plain”; it is the presence the other statute that creates the Often, ambiguity. a melding the statutes into an overall meaning will make part some of one or more of them sur- plusage. None of our precedents a support construction where the specific, detailed and more recent statute becomes sur- plusage broad, relation to a vague, seldom-used and older statute.
Fourth, 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 bemay imposed. Obviously, the construction created an inconsistency between the grounds which the upon Board could deny license and those for which a license could suspended revoked. The legislature’s actions in respond- that the legisla- a recognition is itself inconsistency to this
ing has majority the construction intended ture never 1354(7), an amendment to eliminated gap adopted. provided conduct but “immoral” addressed previously medicine. practice actions related to sanctions (7) now part scope expanded The amendment medi- practice evidences unfitness “conduct which covers if the unnecessary leg- would have been This amendment cine.” view of majority’s with the accordance acting islature were well prior was amended scheme. The section statutory case; I for the in this find basis trial decision court’s en- could have been that the amendment statement majority’s of the interpretation legislature’s to judicial acted in response intent. original majority’s statement
Fifth, very accept it difficult to is range possi- expand was intended that the amendment If the legis- punishable for conduct sanctions ble 1398, it that it logical is change to effect lature wanted section, Viewing one. this different should amend reverse, §of 1354 indicates in the the amendment question sanction, that conduct, legisla- it not the of available type *11 sanctions for con- §If 1398 authorizes ture wanted to address. in version of pre-amendment than that contained the duct other list of no need to the expand § there would have been §in conduct 1354. sanctionable that the “immoral” or “dishonor-
Sixth, it makes no sense § 1398 that holds majority punishable able” conduct the suspen- the extreme sanctions of license can met with these terms revocation, Obviously, sanction at all. or or no sion as to harsh require that are not so serious may to actions apply response. form of official sanctions, which merit some but the reach by expanding this has been resolved Again, paradox § that is the is 1354 implication § §not 1398. The clear 1398. controlling provision, charac- by for last. I began I left the most important have to jus- in the ends are intended this case as one which terizing words, was so means; in plaintiff’s other tify him. The accu- must exist to way discipline outrageous is evident of the Board’s motivation of this assessment racy of Medical of the Rules of the Board the plain language
489 §§ Practice. Rule 2.2 states that 26 VSA 1361 and “[u]nder or the Board refuse to issue a license may physician’s suspend, or take action any revoke otherwise license for against reasons, 1354,” set forth 26 on to following goes VSA list 1354 criteria. The rule that both plainly acknowledges 1361 1398 are the criteria in governed by majority’s specification statement of permissible rule, listed grounds discipline reproduces precisely § 1354 and makes no mention of other is grounds, “not clearly exclusive” is “An wrong. administrative must agency by its as written until it regulations abide rescinds amends Arts, them.” In re Peel Gallery Fine Vt. (1988). The rule construction the stat- adopts ute to which must defer we absent indication of er- compelling Ltd., In re ror. 616 A.2d Killington, (1992).
Beyond its assertion that the statute means what the rule says not, it does the majority has an answer to interesting obstacle created the rule. To majority, both the rule and rule ignoring decision are entitled to equal weight determining of the statute interpretation by the that administers it. then agency We are left with no consistent to which agency interpretation give deference, we or a false harmonization of the rule Thus, and its opposite. agency is completely ignore free to its own rules and defeat their legal effect the courts. This is an amazing view of the administrative agencies. above,
As noted the legislature amended the statute so that the conduct committed by this licensee will be grounds dis- action ciplinary respect with to others. The major- result of the ity opinion give is to effect retroactive to the statutory thereby amendment and accomplish indirectly something 214; not be directly. Willis, done See V.S.A. State v. 459, 466-67, 108, 112 Vt. In reaching this re- sult, the fails to opinion acknowledge our relevant precedents inconsistent with them. justification, Without it allows *12 Board wholly evade rule its own issue. covering this just, end be seen as but the means not. I clearly are dis- sent.
I am to state that joins authorized Justice Morse this dis- sent.