STATE EX REL. STATE BOARD OF HEALING ARTS v. BeyrleSTATE EX REL. STATE BOARD OF HEALING ARTS v. Beyrle
Mark W. Stafford, of State Board of Healing Arts, of Topeka, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.:
Stanley W. Beyrle, a naturopath, appeals the trial court‘s ruling in favor of the State of Kansas ex rel. Board of Healing Arts (Board) that
After setting forth the history of these proceedings, we will first consider the constitutional issue and then decide whether the injunctive and quo warranto relief granted by the trial court was properly entered.
History of proceedings
The Board filed this action in April 1996 against Beyrle and his registered nurse assistant, Janet Royston, asserting both parties had violated provisions of the Act through various activities associated with Beyrle‘s naturopathic practice. The petition alleged that the statute which Beyrle claimed justified his activities, the naturopathy statute,
A consent judgment was entered against Royston upon her stipulation that she had violated the Act and would permanently cease any activities which violated the Act. She is no longer a party to this action. Beyrle answered, asserting his authority to practice naturopathy under
The Board moved for partial judgment on the issue of whether
Beyrle attempted an interlocutory appeal, but we determined in State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 941 P.2d 371 (1997), that the trial court‘s judgment was not a final appealable order and dismissed his appeal.
Once back in the trial court, the Board, with the trial court‘s permission and without objection by Beyrle, amended its petition to include additional factual contentions relevant to whether Beyrle‘s activities violated the Act. The Board moved for summary judgment on its remaining claims, seeking a declaration that Beyrle unlawfully practiced the healing arts, requesting an order enjoining him from the further unlawful practice of the healing arts, and asking for the dismissal of his counterclaims. Beyrle opposed the State‘s motion. The parties agreed the court could decide the issues based on the pleadings, supporting evidence in the record, and prior arguments.
Beyrle does not challenge the findings of fact entered by the trial court and they are therefore conclusive for purposes of this appeal. See Kim v. Kansas Dept. of Revenue, 22 Kan. App. 2d 319, 325, 916 P.2d 47, rev. denied 260 Kan. 994 (1996); Justice v. Board of Wyandotte County Comm‘rs, 17 Kan. App. 2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992).
Factual background
Beyrle owns and operates as a sole proprietorship the Kansas Clinic of Traditional Medicine, located in Wichita, Kansas. Beyrle is not licensed to practice any branch of the healing arts in Kansas, but he practices naturopathy. This practice includes the use of homeopathic, botanical, and other remedies.
Beyrle publicly uses the titles “naturopathic medical doctor” and “naturopathic physician,” and he uses the letters “N.M.D” in conjunction with his name. His business cards identify him as a naturopathic physician. He was listed in the business pages of a 1997 Wichita telephone book using the designation “phy” after his name.
Between January 1995 and April 1997, Beyrle employed Royston as his nurse. At all times relevant to this action, she was his duly authorized agent and employee.
The complaint as to Beyrle‘s actions relates to patient E.S., who had been diagnosed with a brain tumor by a licensed physician. Beyrle treated E.S. with various homeopathic and natural remedies, including shark cartilage enemas designed to reduce pain by diminishing blood flow to the tumor, and “reduced glutathione,” which Beyrle described as a cancer drug of choice in Europe. During one office visit, Beyrle manipulated E.S.‘s first and second cervical vertebrae by mechanically moving her spine in an attempt to realign it.
In January 1996, Beyrle observed that E.S. was dehydrated and he instructed Royston to refer E.S. to hospice. Royston contacted Central Homecare and Hospice in Newton and gave the admissions nurse referral information. Royston informed hospice nurse Chris Rose, R.N., that she had administered IV vitamins in the office that day to E.S. Beyrle called Royston from out of state and directed that she inform the hospice to give E.S. specified vitamins, minerals, and trace elements added to a 5% dextrose and water solution (D5W), to be administered by IV. If the items could not be added to the D5W, then the D5W was to be administered by IV without the additives. Royston called in the order to the hospice and identified herself as the doctor‘s nurse. Rose explained that Royston would have to call the order in herself, so she called a
After E.S. was discharged from hospice she continued to see Beyrle and he administered mixtures of vitamins and minerals by IV, sometimes with purified water. The labels and package inserts for the mixtures bear the legend “`CAUTION: Federal law prohibits dispensing without prescription.’ ” These vitamins, when prepared for administration by injection, including IV, are prescription drugs.
Decision of the trial court
The trial court found that Beyrle had engaged in the practice of the healing arts without a license within the meaning of
In the journal entry of judgment from which Beyrle appeals, the court permanently enjoined him from: supplying, prescribing, or administering any prescription drug within this state without a specific order from a person licensed by the Board to practice medicine and surgery or osteopathic medicine and surgery; puncturing
Beyrle‘s counterclaims were dismissed. He again appeals, although not from the dismissal of his counterclaim, which is not an issue on appeal. The primary contentions relate to whether the naturopathy statute,
Standard of review
It is generally agreed that the Kansas Constitution limits rather than confers power, and any power and authority not limited by the Constitution remains with the people and their legislators. In Leek v. Theis, 217 Kan. 784, 800, 539 P.2d 304 (1975), this concept was stated as follows:
“When an act of a state legislature is assailed as void, it is only necessary to look to the federal and state constitutions for a specific restriction on that power. Thus an act of a state legislature on a rightful subject of legislation, is valid unless prohibited by the federal or state constitution....”
U.S.D. No. 380 v. McMillen, 252 Kan. 451, 457, 845 P.2d 676 (1993).
Because the primary issue in this case involves the interpretation of a statute, which is a question of law, our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). It is also axiomatic that an appellate court is not bound by the trial court‘s interpretation of the statute. Cure v. Board of Hodgeman County Comm‘rs, 263 Kan. 779, 782, 952 P.2d 920 (1998).
“The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court‘s duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
We further consider additional basic rules set forth in Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 (1992), by which we are bound:
“The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm‘n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
....
” `In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).”
We further stated in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 348-49, 789 P.2d 541 (1990):
“In determining whether a statute is constitutional, courts must guard against substituting their views on economic or social policy for those of the legislature. Courts are only concerned with the legislative power to enact statutes, not with the wisdom behind those enactments. When a legislative act is appropriately challenged as not conforming to a constitutional mandate, the function of the court is to lay the constitutional provision invoked beside the challenged statute and decide whether the latter squares with the former—that is to say, the function of the court is merely to ascertain and declare whether legislation was enacted in accordance with or in contravention of the constitution—and not to approve or condemn the underlying policy.”
Statute in issue
The statute challenged in this appeal,
“Any naturopath who is a graduate of a nationally recognized naturopathic college as approved by the state naturopath association and practicing in the state of
Kansas as of January 1, 1982, shall be permitted to practice in Kansas without approval by the board of healing arts. No naturopath shall be permitted to practice surgery, obstetrics or write prescriptions for prescription drugs.” L. 1982, ch. 378, § 6 (effective July 1, 1982).
Legislative history
Although the interpretation of
First,
While the provision was placed in our statutes within the numbered sequence of the original Act, this does not make it a part of the Act or evidence legislative intent that it should be so construed. See Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 847, 610 P.2d 1107 (1980); State v. Sodders, 18 Kan. App. 2d 657, 660, 856 P.2d 1360, affd 255 Kan. 79, 872 P.2d 736 (1993).
Standing
Beyrle asserts for the first time on appeal that the Board does not have standing to challenge the constitutionality of
We have held in cases such as Moore v. Shanahan, 207 Kan. 645, 486 P.2d 506 (1971), that a party‘s failure to follow
Whether a party has standing to sue is a question of law subject to unlimited review. Robinson v. Kansas State High School Activities Ass‘n, 260 Kan. 136, 139, 917 P.2d 836 (1996). While Beyrle is correct that it is generally held under Kansas law that “[t]he constitutionality of governmental action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others,” Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974), a longstanding caveat to this rule is that it is the right of the State itself, through the correct parties and means, as representative for the people, to challenge the constitutionality of legislative enactments upon discerning some constitutional infirmity. See State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 51-53, 687 P.2d 622 (1984).
The Board relies on several provisions of the Act.
“Recognizing that the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act.”
We hold that
The Board has regularly employed counsel who can bring actions such as this one and we believe the right to bring such actions is not limited to the attorney general, county attorney, or district attorney. We hold the Board has the necessary standing to bring this action and raise the constitutional issues.
In addition to standing, Beyrle raises a variety of somewhat related procedural challenges to the Board‘s constitutional attack on
The constitutionality of K.S.A. 65-2872a
In addressing the constitutionality of
Contentions of the board
The Board notes the wording of
Gumbhir involved an appeal from an order of the district court upholding the action of the Kansas State Board of Pharmacy in refusing to permit Gumbhir to either take the examination for registration as a pharmacist or to be admitted by reciprocity. Gumbhir had been refused on the basis of K.S.A. 1979 Supp. 65-1631(a), which provided, in pertinent part, that every applicant for examination and registration as a pharmacist had to be “a graduate of a school or college of pharmacy or department of a university accredited by the American council on pharmaceutical education [ACOPE] and recognized and approved by the board....” ACOPE was a nongovernmental agency which approved and accredited only undergraduate schools of pharmacy located in the United States. Gumbhir received his bachelor‘s degree in pharmacy from a university in India but he graduated and received his master‘s degree and his Ph.D from United States universities. While the undergraduate schools of both of the United States universities he attended were accredited by ACOPE, their graduate programs were not. Gumbhir argued that K.S.A. 1979 Supp. 65-1631 unlawfully delegated legislative authority to a nongovernmental agency—ACOPE.
Our decision in Gumbhir discussed two earlier cases: State, ex rel., v. Gleason, 148 Kan. 1, 79 P.2d 911 (1938), and Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335 (1964).
In Gleason, we considered whether a provision of the Osteopathic Practice Act of Kansas unconstitutionally delegated legislative power. Under the Act, the State Board of Osteopathic Examination and Registration was authorized to issue to an applicant who had successfully passed an examination given by the Board ” `a certificate granting him the right to practice osteopathy in the state of Kansas,
We held that although the Act delegated to the legally incorporated colleges of osteopathy some right to determine the standards and scope of practice of osteopathy in Kansas, it did so only within the limits prescribed by the statute, G.S. 1935, 65-1202, and it did not authorize the state board to approve schools or colleges which do not conform their teachings to the fundamental principles of osteopathy. The court found the statute was not void on the ground of unconstitutional delegation of legislative authority.
In Sutherland, chiropractors brought a declaratory judgment action attacking certain provisions of the Basic Science Act and the Healing Arts Act. Among other things, the plaintiffs asserted that in the Healing Arts Act, the legislature vested arbitrary discretion in the Board of Healing Arts by failing to prescribe a guide or standard by which the Board could exercise its discretion. Among the provisions attacked were G.S. 1949, 65-2825 (1961 Supp.), giving the Board authority to determine what schools shall be accredited, and G.S. 1949, 65-2876 (1961 Supp.), which provided that for the purpose of the Healing Arts Act, an accredited school of chiropractic shall be a legally incorporated school teaching chiropractic, which the Board shall determine to have a standard not below that of the National College of Chiropractic of Chicago, and that all such schools shall be approved by the Board. This court concluded in a somewhat summary fashion that the statute did not contain inadequate standards and that it did not constitute an unlawful delegation of legislative powers.
With the above background, our Gumbhir opinion went on to hold that K.S.A. 1979 Supp. 65-1631(a) was unconstitutional, stating:
“The provision in K.S.A. 1979 Supp. 65-1631(a) which restricts approval of the necessary educational qualifications for examination and registration of pharmacists in this state to those individuals who have graduated from schools of pharmacy accredited by the American Council on Pharmaceutical Education, a nongovernmental agency, is constitutionally impermissible. The Kansas State Board of Pharmacy, which has been given general authority to register pharmacists, if bound by said provision, would not have the ultimate authority. That authority would be in ACOPE, a nongovernmental association which makes its own standards for accrediting those schools whose graduates may become registered pharmacists in Kansas.
“The provision of the statute referred to above constitutes an unlawful delegation of legislative authority to a nongovernmental association and is constitutionally impermissible under Article 2, Section 1 of the Constitution of the State of Kansas.” Id. at 587.
We do not by our ruling herein retreat from or limit our decisions in Gumbhir, Gleason, or Sutherland. However, because of the specific wording of the naturopathy statute, we do not believe any of these cases requires the result reached by the trial court herein.
Beyrle‘s contentions:
Beyrle poses several arguments in asserting that
Next, Beyrle refers to several other statutes regulating various professionals (e.g., veterinarians, dentists, physicians’ assistants, etc.), which he says are similar to
Third, Beyrle also distinguishes his case from Gumbhir by arguing that
Finally, Beyrle asserts that even if the language referring to approval by the State Naturopath Association violates the delegation clause, it may be severed from the rest of the statute, preserving the remainder of
Our analysis of the constitutional issue
We believe it is important to emphasize that the right stated in
Black‘s Law Dictionary 706 (7th ed. 1999) defines a “grandfather clause” as: “A statutory or regulatory clause that exempts a class of persons or transactions because of circumstances existing before the new rule or regulation takes effect.”
In the usual situation where grandfather clause rights are granted, the profession or occupation becomes subject to a licensing requirement. See State, ex rel., v. Gillen, 126 Kan. 368, 268 Pac. 94 (1928); 51 Am. Jur. 2d, Licenses and Permits § 36; Annot., 4 A.L.R.2d 662, 667. In this instance, a licensing requirement was not established by the legislature; however, the right granted to Beyrle and any others under the statute is, in effect, a kind of grandfathering clause by which the legislature limited the right to practice naturopathy to all naturopaths practicing as of a certain date and having certain educational requirements already determined as of that date. The Board has not disputed that Beyrle falls within the timing and educational requirements of the statute, and the record in the present case shows a decree in Stanley W. Beyrle v. State Naturopath Association, Sedgwick County District Court case No. 85C3936, which specifically finds that Beyrle meets the criterion of the statute.
The Board‘s arguments would have validity if a licensing requirement had been established for naturopaths and if the authority for determining the eligibility for such licenses had been delegated to a nongovernmental entity under the statute. However, this did not occur. The legislature did not hand over to a private organization the right to set future standards; it merely determined that a certain class of individuals already meeting particular standards and practicing as of a particular date may continue to practice naturopathy. The legislature is deemed to be knowledgeable of the facts existing at the time of its enactment of the statute. In this case, the legislature is deemed to be aware of the standards and practices approved by the State Naturopath Association through 1982 and being put into practice by naturopaths practicing as of that date.
Under these circumstances, the naturopathy statute is distinguishable from the statute at issue in Gumbhir, and we hold that the legislative power of
Because we have found the statute does not violate the delegation clause of our Kansas Constitution, we need not consider Beyrle‘s severability arguments.
Having found the statute constitutional, we must consider whether the trial court‘s injunctive relief was properly granted.
Is remand required or was injunctive relief properly granted?
It is Beyrle‘s contention that if
The Board argues that Beyrle did not appeal the factual findings made by the trial court and that the injunctive order was not entirely predicated upon the conclusion that
It has been clearly shown that Beyrle prescribed and administered prescription drugs in his office and later prescribed drugs in direct violation of
With the welfare of the public in issue, the practice of surgery by a naturopath is prohibited in
“who prescribe, recommend or furnish medicine or drugs, or perform any surgical operation of whatever nature by the use of any surgical instrument, procedure, equipment or mechanical device for the diagnosis, cure or relief of any wounds, fractures, bodily injury, infirmity, disease, physical or mental illness or psychological disorder, of human beings.” (Emphasis added.)
To the extent the injunction issued by the trial court restricts Beyrle‘s practice of surgery, the injunction is approved.
Although the provisions of
We hold generally that the injunctive relief issued by the trial court was properly granted and is affirmed only insofar as it prohibits Beyrle from prescribing prescription drugs or practicing surgery or obstetrics.
The case is affirmed in part and reversed in part as is more fully set forth in this opinion.
DAVIS, J., not participating.
RICHARD W. WAHL, Senior Judge, assigned.1