Shannon McGrath, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Nursing, Respondent
No. 1001 C.D. 2015
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
August 24, 2016
Submitted: May 11, 2016
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE COHN JUBELIRER
FILED: August 24, 2016
Shannon McGrath, proceeding pro se, petitions for review of the Order of the Bureau of Professional and Occupational Affairs, State Board of Nursing (Board) that affirmed the suspension of Ms. McGrath‘s license to practice professional nursing for no less than 10 years from the date of her conviction of violating
A. Factual Background
Ms. McGrath is a licensed registered nurse. On August 29, 2013, the Commonwealth filed a Petition for Automatic Suspension (Petition) requesting that Ms. McGrath‘s license automatically be suspended pursuant to Section 15.1(b) of the Nursing Law,
B. Statutory Language and the Board‘s Varying Interpretations Thereof
Before detailing the Board‘s determination, we set forth the relevant statutory language from the Nursing Law that governs the Board‘s authority to suspend, revoke, and reissue a professional nursing license. Section 14 of the
All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom, in accordance with the provisions in Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure), or any amendment or reenactment thereof, relating to adjudication procedure. The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.
A license issued under this act shall automatically be suspended upon the legal commitment to an institution because of mental incompetency from any cause upon filing with the Board a certified copy of such commitment, conviction of a felony under [the Drug Act] or conviction of an offense under the laws of another jurisdiction, which, if committed in Pennsylvania, would be a felony under [the Drug Act]. As used in this section the term “conviction” shall include a judgment, an admission of guilt or a plea of nolo contendere. Automatic suspension under this subsection shall not be stayed
pending any appeal of a conviction. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.
Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing or dietetics-nutrition which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.
(c) The Board shall not issue a license or certificate to an applicant who has been convicted of a felonious act prohibited by [the Drug Act] or convicted of a felony relating to a controlled substance in a court of law of the United States or any other state, territory or country unless:
(1) at least ten (10) years have elapsed from the date of conviction;
Previously, the Board interpreted this statutory language as permitting it to consider each automatic license suspension on a case-by-case basis to determine the length of the suspension and to approve consent decrees setting forth the term of the suspension. Packer, 99 A.3d at 967, 970. The Board‘s interpretation relied on Section 15, which gives the Board discretion in imposing and reviewing license suspensions under the Nursing Law.
C. The Board‘s Determination Here
A Board Hearing Examiner held a formal hearing on November 7, 2013, at 1:30 p.m., at which Ms. McGrath was not present. The Commonwealth offered into evidence the Petition, the Notice and Order, and certified records from Ms. McGrath‘s criminal proceedings and rested. Following the admission of these
After reviewing the entire record and applying its new non-discretionary interpretation of the Nursing Law, the Board issued its Final Adjudication and Order affirming the mandatory 10-year suspension of Ms. McGrath‘s license based on her felony conviction for a single count of violating Section 13(a)(12) of the Drug Act. The Board held that, pursuant to Section 15.1(b) of the Nursing Law, this felony conviction mandated that her license be automatically suspended and could “only be restored pursuant to the requirements for suspension and revocations.” (Final Adjudication at 5.) Citing Section 15.2 of the Nursing Law, the Board concluded that “revoked licensees [must] meet all of the licensure requirements at the time of restoration” and that Ms. McGrath was “precluded by Section 6(c)(1) of the [Nursing Law],
II. Discussion
A. Packer and Principles of Statutory Construction
The Board relied on Packer to deny Ms. McGrath‘s appeal because, in that case, this Court affirmed the Board‘s new interpretation of Sections 15.1(b) and 15.2 of the Nursing Law as requiring a mandatory 10-year suspension of a professional license for a nurse whose license was suspended because of a felony conviction under the Drug Act. (Final Adjudication at 6 (citing Packer, 99 A.3d at 970 n.11).) After reviewing the above-cited statutory language in Packer, we stated that “the statute lacks clarity with regard to which provision or provisions of the [Nursing] Law govern the length of time of an automatic suspension under Section 15.1(b) of the [Nursing] Law, [and] ... conclude[d] that this provision is
When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
Lastly, where a statute imposes punishment, such as the suspension or revocation of a professional license, for specified acts, such statutes are penal in nature. See Pa. State Real Estate Comm‘n v. Keller, 165 A.2d 79, 80 (Pa. 1960) (holding that the Real Estate Broker‘s Law,9 which provided for the investigation of the acts of real estate brokers and the suspension or revocation of their licenses for specified acts, “is penal and must be strictly construed“).
[a]mbiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the
penalties would be. Application of the rule of lenity extends beyond the context of criminal statutes.
Richards, 20 A.3d at 600 (emphasis added) (internal quotation omitted). “Underpinning the rule of lenity is the fundamental principle of fairness that gives validity to our laws” by providing individuals the clear and unequivocal warning discussed above. Sondergaard v. Dep‘t of Transp., Bureau of Driver Licensing, 65 A.3d 994, 997 (Pa. Cmwlth. 2013). “To apply the rule of lenity, it is not enough that a statute is penal it must be ambiguous as well.” Id. at 999. With these guiding principles in mind, we turn to Packer‘s interpretation of the ambiguous language of the Nursing Law and the parties’ arguments.
B. Packer‘s Interpretation of this Statutory Language
Packer involved a registered nurse who had pled guilty to violating Section 13(a)(12) of the Drug Act, which resulted in her professional license being automatically suspended pursuant to Section 15.1(b) of the Nursing Law. Packer, 99 A.3d at 966. Ms. Packer was advised that her automatic suspension could not be reviewed for 10 years, and she appealed that determination to this Court arguing that the Board had changed its interpretation of the Nursing Law and this new interpretation was erroneous. After concluding that Section 15.1(b) of the Nursing Law was ambiguous, this Court considered various ways of construing that language in order to ascertain the General Assembly‘s intent. Id. at 969.
The Board, in Packer, initially argued that its interpretation of Sections 15.1(b) and 15.2 was entitled to administrative deference, but this Court rejected that argument, noting that such deference was not warranted given the Board‘s lack of “formal . . . or even an informal interpretation” and the fact that the interpretation was raised, in the first instance, in a brief on appeal. Packer, 99 A.3d at 970-71. This Court further declined to consider the language of other professional licensing statutes, some of which expressly contained a time period for automatic suspension and others that did not, because
[w]e do not read anything into the General Assembly‘s decision not to specify in Section 15.1(b) of the [Nursing] Law the length of an automatic suspension, particularly because Section 15.1(b) mandates suspensions for more than just convictions under the Drug Act. . . . Also, the General Assembly may have concluded that such a provision in Section 15.1(b) would be redundant, given that a person seeking to become fully-licensed following an automatic suspension would be required under Section 15.2 of the [Nursing] Law to comply with Section 6(c) of the [Nursing] Law.
Id. at 973. Ultimately, Packer concluded that the Board‘s interpretation was more reasonable because it gave effect to the term “hereinafter” in Section 15.1(b), it “appear[ed] that the General Assembly, in mandating license suspensions under Section 15.1(b) for certain drug convictions . . . , viewed [that] circumstance[] to be sufficiently serious that it removed from the Board its discretion not to suspend or revoke a license,” and “it would seem unlikely that the General Assembly would then allow the Board to exercise discretion and lift an automatic suspension at any time.” Id. at 972. Thus, Packer affirmed the Board‘s imposition of the restoration procedures for revoked licenses to a license suspended under Section 15.1(b). The fact that Section 15.2 does not refer to suspended licenses, but only to revoked licenses, was considered “inconsequential” to the Court‘s analysis. Id. at 973. Further, Packer did not consider the penal nature of these ambiguous provisions in its affirmation of the Board‘s imposition of an automatic, mandatory 10-year license suspension under Section 15.1(b).
At our direction,10 the parties were requested to address whether: (1) this Court‘s interpretation in Packer was consistent with
The Board argues that there is no need to apply
Packer correctly found that these provisions of the Nursing Law are ambiguous and, therefore, subject to principles of statutory construction in order to ascertain the General Assembly‘s intent.12 Ms. McGrath and Ms. Packer each pleaded guilty to a single violation of Section 13(a)(12) of the Drug Act which is a felony; therefore, Section 15.1(b) of the Nursing Law applies. Section 15.1(b) states that, because of the conviction, her nursing license “shall automatically be suspended.”
Initially, the interpretation may seem clear. Under Section 15.1(b), Ms. McGrath, like Ms. Packer, had her nursing license automatically suspended as a result of her conviction. Under Section 15, the Board may reissue any suspended license, which, as Ms. McGrath argues, gives the Board discretion to make a determination on a case-by-case basis. In fact, this rather simple interpretation is the interpretation the Board previously used until directed to do otherwise by “the Bureau or the Department [in an] unidentified directive in 2013.” Packer, 99 A.3d at 970-71.
However, Section 15.1(b) also states that “[r]estoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.”
But Section 15.1(b) of the Nursing Law provides for the automatic suspension, not revocation, of a license for a conviction under the Drug Act. The
However, construing this language as applying Section 15, rather than Section 15.2, as the standard for reissuing licenses suspended under Section 15.1(b) also is problematic. Thus, both interpretations cause difficulty: one requiring the Court to add language to Section 15.2 (expanding its application to
Statutory provisions that impose punishment, such as the suspension or revocation of a professional license, for specified acts are considered penal in nature. Pa. State Real Estate Comm‘n, 165 A.2d at 80. As previously described, the rule of lenity provides that the statute should provide a clear and unequivocal
Because we conclude that, even after applying the general rules of statutory construction, the language in question remains ambiguous, the Board‘s arguments that we do not need to apply
We recognize that only two years have passed between our decision in Packer, and our current holding in this matter that Packer is overruled. Further, we acknowledge the importance of certainty in and predictability of the law provided by the doctrine of stare decisis. However, as our Supreme Court has explained, Chief Justice Cardozo, in his treatise The Growth of the Law, admonished that:
We tend sometimes, in determining the growth of a principle or a precedent, to treat it as if it represented the outcome of a quest for certainty. That is to mistake its origin. Only in the rarest instances, if ever, was certainty either possible or expected. The principle or the precedent was the outcome of a quest for probabilities. Principles and precedents, thus generated, carry throughout their lives the birthmarks of their origin. They are in truth provisional hypotheses, born in doubt and travail, expressing the adjustment which commended itself at the moment between competing possibilities.
Ayala v. Phila. Bd. of Pub. Ed., 305 A.2d 877, 886 (Pa. 1973) (quoting Benjamin N. Cardozo, The Growth of the Law 69-70 (1924) (footnote omitted)), superseded by statute on other grounds as recognized in, Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (noting that after the Supreme Court abolished common law sovereign and governmental immunity, the General Assembly enacted legislation restoring that immunity). Further, our Supreme Court has cautioned:
While it is true that great consideration should always be accorded precedent, especially one of long standing and general acceptance, it doesn‘t necessarily follow that a rule merely established by precedent is infallible. Moreover, the courts should not perpetrate error solely for the reason that a previous decision, although erroneous, has been rendered on a given question. This is particularly true where . . . great injustice or injury will result by following the previous erroneous decision. If it is wrong it should not be continued. Judicial honesty dictates corrective action.
Our reversal of Packer is not a “[l]ight and casual treatment of the doctrine of stare decisis,” which we agree should be avoided, but a question of what justice demands and reason dictates. Flagiello v. Pa. Hosp., 208 A.2d 193, 207 (Pa. 1965). The impact of Packer on the individuals affected is to preclude them from engaging in their profession for 10 years before the Board has the authority to even review their requests to reissue their suspended licenses. It prevents the Board from exercising its discretion, as it does in all other suspensions, to determine whether the Commonwealth‘s citizens will be harmed by the reinstatement of a particular nurse. Such a result prevents individuals from earning their livelihood during that time period, which is particularly important because, based on the ambiguousness of Section 15.1(b) and 15.2 of the Nursing Law, licensed individuals have no guidance regarding what actions result in what punishment under the Nursing Law. We believe that our continuing reliance on Packer, therefore, creates a “great injustice or injury” to those individuals. Flagiello, 208 A.2d at 207. Having determined that Packer was wrong, “it should not be continued[, as] [j]udicial honesty dictates corrective action.” Olin Mathieson Chem. Corp., 199 A.2d at 268 (emphasis added).
In sum, we overrule Packer, and we reverse the Board‘s Order affirming Ms. McGrath‘s suspension to the extent that it holds that her suspension is for a mandatory period of not less than 10 years from the date of her conviction. We affirm the Order in all other respects. In accordance with this opinion, any reissuance request from a suspension based on Section 15.1(b) shall be reviewed under Section 15 of the Nursing Law.
RENÉE COHN JUBELIRER, Judge
NOW, August 24, 2016, the Order of the Bureau of Professional and Occupational Affairs, State Board of Nursing (Board), entered in the above-captioned matter, is AFFIRMED IN PART and REVERSED IN PART. The Order is AFFIRMED to the extent that it imposes an automatic suspension of Shannon McGrath‘s professional nursing license, but REVERSED to the extent that it applies Section 15.2 of
RENÉE COHN JUBELIRER, Judge
FILED: August 24, 2016
In this appeal, the Court is confronting the very same competing constructions of Sections 15.1(b) and 15.2 of The Professional Nursing Law (Nursing Law)1 that the Court confronted in Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014). It was a close case two years ago, and it is a close case today. Faced with an ambiguous statute, this Court chose one of two paths in Packer. Now, two years later, the Court has chosen the other.
I, therefore, respectfully dissent.
P. KEVIN BROBSON, Judge
Judge Simpson joins in this dissenting opinion.
Notes
- Whether this Court‘s interpretation of [the Nursing Law] set forth in Packer . . . , is consistent with
Section 1928(b)(1) of the Statutory Construction Act . . . , 1 Pa. C.S. § 1928(b)(1) (requiring that penal statutory provisions be strictly construed), and the rule of lenity, see Richards . . . . (requiring that ambiguities in penal provisions be construed against the government and that the statutory provision use generally understandable language to identify the actions that expose a person to penalties and what the penalties would be). - Whether the Board should review reinstatement requests related to automatic suspensions made pursuant to Section 15.1(b) of the Nursing Law under the general reinstatement provisions of Section 15 or under the more restrictive provisions governing the reinstatement of revoked licenses at Section 15.2, 63 P.S. §§ 225, 225.1(b), 225.2.