Lopez v. New Mexico Board of Medical ExaminersLopez v. New Mexico Board of Medical Examiners
Lead Opinion
OPINION
On Jаnuary 29, 1986 the New Mexico Board of Medical Examiners (Board), pursuant to the authority granted it in
FACTS
There is no dispute as to the substantive nature of Lopez’s misfeasance in performing the act which led to the revocation of his license. On July 7, 1983 Lopez amputated his patient’s leg in an office that did not meet proper licensing standards, with
The issue before us, however, concerns not Lopez’s medical conduct, but the post-operative conduct of both Lopez and the Board in proceeding with the investigation and findings under the Uniform Licensing Act. First, we agree with the trial court that Lopez’s petition under Section 61-1-17 wаs defective. It was not filed within twenty days, did not bear the proper heading, and failed to state all exceptions to the Board’s ruling as required by law.
The more important issue, however, is not Lopez’s failure to comply with Section 61-1-17, but the Board’s failure to comply with Section 61-1-13. Whereas Lopez’s negligence in regard to filing his plеading goes to the issue of his response to the Board’s complaint, the Board’s negligence in not having rendered its decision within ninety days relates to the more important issues of jurisdiction, due process of law and equal protection of the law. Thus, whatever errors Lopez may have made are secondary to the more basic issues raised by the Board’s delay in rendering its decision. If the Board possessed no jurisdiction ab initio to render its decision, everything which the Board did following that decision is void and of no effect. Therefore, it does the Board little good to argue that Lopez filed faulty pleadings if the Board itself never possessed the requisite jurisdiction to proceed with its decision. Lopez’s error is derivative in nature, while that of the Board is foundational.
Yet, the Board argues that Lopez waived the Board’s requirement to render its decision in ninety days, and thereby conferred jurisdiction on the Board in spite of its delay of nearly a year and a half in making a dеcision. It is true that Lopez made certain waivers in this respect. The time limit was first extended from the original date of September 22, 1984 to November 19, 1984. The second waiver date was sometime in May, 1985. Lopez contends that he made no further waivers. The Board made no decision in May, 1985, but instead considered Lopez’s case at a meeting in November, 1985, and eventually revoked Lopez’s license on January 29, 1986. Whereas the Board in essence argues, “once waived always waived,” the trial court in its finding of facts (# 33) concluded, “Neither Lopez or his counsel assented in any way expressly or implicitly, to a continuance of this matter beyond the May, 1985 regularly scheduled Board meeting, nor to a delay until the November, 1985 regularly scheduled Board meeting.”
LEGAL ISSUES INVOLVED
We find that there is adequate substantial evidence in the record to support the trial court’s conclusion. Further, on appeal, the evidence is to be viewed in the aspect most favorable to the action of thе court which is being appealed. Jones v. New Mexico State Racing Comm’n,
Each party urges us to apply Foster v. Board of Dentistry,
The Board further argues that under Section 61-1-13(B) the requirement that the decision be signed within ninety days after the completion of the hearing is merely procedural, not jurisdictional, and to argue that the Board lost jurisdictionover Foster merely for failing to sign the decision within ninety days leads to the unintended result of having to start the proceedings against Foster all over again. The Board argues that such unnecessary duplication was not intended by the legislature for the mere failure by the Board to sign its decision within the ninety day time period prescribed by Section 61-1-13(B). We disagree.
Although it is true that Chief Justice Riordan cоuld have clarified the issue if he had written, “the ninety day time limit is jurisdictional,” his failure to do so does not detract from the obvious conclusion that this is what he intended to say. We therefore hold that the ninety day time limit imposed by Section 61-1-13 is expressly jurisdictional. “Because the Board [in the case before us] failed to take action within the required ninety day period [taking into account Lopez’s two waivers], its decision is void and must be reversed. To rule otherwise would ignore the plain language of Section 61-1-13(B).” Id. at 777,
Finally, in addition to the jurisdictional requirements imposed by Section 61-1-13, we hold, as the trial court likewise adjudged, that the Board violated certain constitutional requirements as well. See Logan v. Zimmerman Brush Co.,
Further, in an opinion separate from that of the majority, four members of the Court addressed Logan’s equal protection claim. The Court wrote that to treat persons whose claims are processed within the 120 day period differently than persons whose claims are not processed within that period and finally terminated, amounts to a denial of equal protection under the Fourteenth Amendment.
“So far as the State’s purpose is concerned, every * * * claimant’s charge, when filed with the Commission, stands on the same footing. Yet certain randomly selected claims, because processed too slowly by the State, are irrevocably terminated without review. In other words, the State converts similarly situated claims into dissimilarly situatеd ones, and then uses this distinction as the basis for its classification. This, I believe, is the very essence of arbitrary state action.”
Logan v. Zimmerman Brush Co.,
The judgment of the trial court is affirmed in its entirety.
IT IS SO ORDERED.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion affirming the trial court’s judgment that the New Mexico Board of Medical Examiners (Board) decision to revoke Lopez’ medical license was void, and ordering restoration of his license with its attendant privileges. The majority affirm on the grounds that the Board lost subject matter jurisdiction over Lopez by failing to “render and sign” its decision within the ninety- ' day time period prescribed by
The procedure for obtaining judicial review is set out as follows:
In order to obtain such review such person must within twenty days after the date of service of the decision * * * file with the court a petition for review, a copy of which shall be served on the Board’s secretary, stating all exceptions taken to the decision and indicating the court in which the appeal is to be heard. The court shall not consider any exceptions not stated in the petition. [Emphasis added.]
It is undisputed that Lopez failed to comply with these requirements. As the majority points out, he did not file within twenty days, did not list any exceptions to the Board’s decision, and improperly headed his petition. Further, he did not serve the Board with a copy of his petition until June 24, 1986, over four months after he filed.
The statute clearly states the consequences of failure to comply with the requirements for obtaining judicial review as follows:
Failure to file such рetition for review in the manner and within the time stated shall operate as a waiver of the right to judicial review and shall result in the decision of the board becoming final; except that for good cause shown, within the time stated, the judge of the district court may issue an order granting one extension of time not to exceed sixty days. [Emphasis added.]
By failing to comply with these requirements, Lopez waived his right to judicial review and the Board’s decision to revoke his medical license became final. According to the statute, Lopez could have sought an extension of the time allotted to file his petition for review by showing good cause. However, there is no evidence that Lopez either sought or received such an extension. In light of these facts, this issue is dispositive and the district court should be reversed and the Board’s decision affirmed.
Since the majority did not dispose of the case on this first issue, and proceeded to consider the question of the Board’s complianсe with
Under
Lopez waived his right to receive the Board’s decision within ninety days, shortly after the Board heard his case on June 22, 1984. After that hearing, Lopez’ attorney and an attorney representing the Board discussed holding a special meeting in order to meet the ninety-day time limit. During that discussion Lopez’ attorney, acting for Lopez, agreed tо let the Board consider Lopez’ case at its regularly scheduled meeting on November 19, 1984. The ninety days was due to expire on or about September 22, 1984. It is undisputed that the actions of Lopez’ attorney constituted a waiver of the Board’s ninety-day time limit.
The general rule regarding a waiver is set out in 92 C.J.S, Waiver p. 1069 (1955), as follows:
It is generally recognized that, if a person in possession of any right waives that right, he will be precluded thereafter from asserting it or from claiming anything by reason of it. That is, once a right is waived it is gone forever, and it cannot be reclaimed or recaptured, and the waiver cannot be retracted, recalled, or expunged, еven in the absence of any consideration therefor or of any change of position by the party in whose favor the waiver operates. [Emphasis added.]
This rule is similarly expressed in 28 Am. Jur.2d Estoppel and Waiver § 156 (1966), which reads:
One who intentionally relinquishes a known right cannot, without consent of his adversary, reclaim it, for it is well settled that a waiver once made is irrevocable, even in the absence of consideration, or of any change in position of the party in whose favor the waiver operates. * * * It is held that once a waiver of the provisions of a statute is made in a pending case, it is waived for the purposes of all further proceedings in the same action. [Emphasis added.]
See also Bordacs v. Kimmel,
The court in Davidson v. State,
Lopez, like Davidson, now seeks to arbitrarily withdraw his waiver of the Board’s ninety-day time limit. According to the general rule, Lopez’ waiver was permanent and irrevocable at the time of the discussion noted above. He lost his right to set time constraints on the Board’s decision at that time.
At that point, under the general rule, Lopez could have reclaimed any right he had waived to receive the Board’s decision within ninety days, by obtaining the Board’s consent. There is no evidence Lopez even attempted to do this. In fact, Lopez’ actions indicate indifference to the timing of the Board proceedings. Lopez did not file proposed findings of fact and conclusions of law in time for the November 1984 meeting; when notified of the Board’s intent to reconsider and delay his case, he did not object; and he did not object to the pending delay in May 1985. Further, Lopez’ attorney did not cooperate оr communicate with the Board to hasten the proceedings.
Once Lopez irrevocably waived this time period, the Board was only required to render its decision “as soon as practicable” under the statute.
The majority opinion is based on the notion that Lopez did not “expressly or implicitly” waive the ninety-day period after May 1985. As noted above, once the court has decided that the ninety-day provision may be waived and that it has been waived, the waiver is permanent and the only question left is whether the Board acted “as soon as practicable.”
A waiver may be demonstrated “by acts or conduct indicating an intention not to raise such objections or exсeptions.” 73A C.J.S. Public Administrative Law and Procedure § 142 (1983). Lopez’ inaction from May 1985 until February 1986 can be seen
For the foregoing reasons, I would reverse the trial court and reinstate the decision of the Board revoking Lopez’ medical license.