                                                    131 Nev., Advance Opinion     407
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 JAMES S. TATE, JR.,                                   No. 65460
                 Appellant,
                 vs.
                 THE STATE OF NEVADA BOARD OF                                 FILED
                 MEDICAL EXAMINERS,                                            SEP 1 0 2015
                 Respondent.
                                                                              T RC =K. LINDEM
                                                                           CLEF
                                                                                            = -*UR'




                             Appeal from a district court order denying an injunction
                 challenging the constitutionality of a statute prohibiting stay of Board of
                 Medical Examiners decision. Eighth Judicial District Court, Clark
                 County; James M. Bbder, Judge.
                             Reversed and remanded.



                 Hafter Law and Jacob L. Halter, Las Vegas,
                 for Appellant.

                 Erin L. Albright, Reno,
                 for Respondent.




                 BEFORE THE COURT EN BANC.


                                                  OPINION
                 By the Court, HARDESTY, C.J.:
                             NRS 630.356(1) grants physicians the right to judicial review
                 of Nevada State Board of Medical Examiners final decisions, while NRS
                 630.356(2) simultaneously prohibits district courts from entering a stay of

SUPREME COURT
      OF
    NEVADA


((3) 1947A AAS                                                                          -2.-1329
                the Board's decision pending judicial review. As a matter of first
                impression, we are asked to determine whether this prohibition violates
                the Nevada Constitution's separation of powers doctrine. Because we
                conclude that it does, we reverse the district court's order denying
                appellant injunctive relief and remand this matter for proceedings
                consistent with this opinion.
                                                  FACTS
                            Appellant James Tate, Jr., is a surgeon licensed in Nevada. In
                February 2010, he was scheduled to perform a surgery at Valley Hospital
                at around 4 p.m. When he arrived to prepare for the surgery, members of
                the surgical team thought Dr. Tate smelled of alcohol. The hospital halted
                surgery preparations and asked Dr. Tate to submit to alcohol tests, which
                he did, admitting that he had consumed some alcohol during his lunch
                break. Dr. Tate's blood alcohol level was .06 percent.
                            Respondent Nevada State Board of Medical Examiners found
                that Dr. Tate had violated NAC 630.230(1)(c) by rendering services to a
                patient while under the influence of alcohol and in an impaired condition.
                The Board suspended Dr. Tate's license for six months, issued a public
                reprimand, ordered him to complete an alcohol diversion program and pay
                $35,564.44 in investigation and prosecution costs and a $5,000 fine, and to
                complete continuing medical education on the subject of alcohol.
                            Dr. Tate petitioned for judicial review of the Board's decision.
                He also requested a preliminary injunction to stay the sanctions and
                prevent the Board from filing a report with the National Practitioner Data
                Bank while judicial review was pending. Medical Boards are required by
                45 C.F.R. §§ 60.5(d) and 60.8(a) (2013) to report sanctions to the National
                Practitioner Data Bank, which disseminates information of physician
                misconduct to health-care entities, including hospitals.      See Elisabeth
SUPREME COURT
        OF
     NEVADA
                                                      2
(0) I947A
                Ryzen, M.D., The National Practitioner Data Bank, 13 J. Legal Med. 409,
                411-20 (1992). In denying injunctive relief, the district court stated that,
                even though it thought the injunction was clearly warranted, NRS
                630.356(2) precluded such action. Dr. Tate appeals the district court's
                denial of his injunction request.
                                               DISCUSSION
                            The primary issue in this appeal is whether NRS 630.356(2)
                violates the separation of powers doctrine articulated in Article 3, Section
                1 of the Nevada Constitution, which is a matter of first impression. Dr.
                Tate argues that the statute conflicts with the judicial powers articulated
                in Article 6, Section 6 of the Nevada Constitution. The Board counters
                that courts have no inherent authority over administrative actions and
                that any authority given by statute is likewise subject to statutory
                limitations, that this court has already determined that prohibitions
                against stays are not unconstitutional, and that other jurisdictions have
                upheld similar stays.'
                Standard of review
                            We review appeals from district court decisions regarding
                petitions for judicial review under the same standard utilized by the
                district court. Nassiri v. Chiropractic Physicians' Bd., 130 Nev., Adv. Op.


                      'The Board also argues that courts cannot enjoin the Board from
                reporting to the National Practitioner Data Bank. While we note a conflict
                in cases from other jurisdictions concerning the application of the Health
                Care Quality Improvement Act of 1986 to state court injunctions, compare
                Diaz v. Provena Hosps., 817 N.E.2d 206, 212-13 (Ill App. Ct. 2004), with
                Doe v. Cmty. Med. Ctr., Inc., 221 P.3d 651, 658-59 (Mont. 2009), because
                the Board already reported to the National Practitioner Data Bank on
                April 23, 2014, this issue is moot.



SUPREME COURT
        OF
     NEVADA
                                                     3
(0) 1947A
                 27, 327 P.3d 487, 489 (2014). Although we review factual determinations
                 for clear error, we review questions of law, including statutory
                 construction, de novo.    Id.   Whether a statute is unconstitutional is a
                 question of law, reviewed de novo.       Flamingo Paradise Gaming, LLC v.
                 Chanos, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009). Words in a statute
                 should be accorded their plain meaning unless doing so would be contrary
                 to the spirit of the statute.   Berkson v. LePome, 126 Nev. 492, 497, 245
                 P.3d 560, 563 (2010). Statutes should be construed so as to avoid absurd
                 results. State v. Tatalovich, 129 Nev., Adv. Op. 61, 309 P.3d 43, 44 (2013).
                 Absent a contrary and specific constitutional limitation, "statutes are to be
                 construed in favor of the legislative power."     Galloway v. Truesdell, 83
                 Nev. 13, 20, 422 P.2d 237, 242 (1967).
                 The prohibition against stays in NRS 630.356(2) violates the separation of
                 powers doctrine
                             It is well-established that "[c]ourts have no inherent appellate
                 jurisdiction over official acts of administrative agencies except where the
                 legislature has made some statutory provision for judicial review." Crane
                 v. Cont'l Tel. Co. of Cal., 105 Nev. 399, 401, 775 P.2d 705, 706 (1989).
                 Moreover, the extent of the court's jurisdiction is controlled by the statute
                 conferring that jurisdiction. Washoe Cnty. v. Otto, 128 Nev., Adv. Op. 40,
                 282 P.3d 719, 724 (2012). However, once a statute has conferred power,
                 that power may not be unduly abridged, as the judiciary is tasked with
                 managing and finally deciding cases. See Smothers v. Lewis, 672 S.W.2d
                 62, 64 (Ky. 1984) (concluding "that a court, once having obtained
                 jurisdiction of a cause of action, has, as an incidental to its constitutional
                 grant of power, inherent power to do all things reasonably necessary to the
                 administration of justice in the case before it"); Commonwealth v. Yameen,


SUPREME COURT
      OF
    NEVADA
                                                       4
10) 1947A err,
                516 N.E.2d 1149, 1151 (Mass. 1987) (declining to interpret a statute to
                prohibit a stay of a license revocation pending judicial review).
                             In Nevada, the Administrative Procedure Act (APA), codified
                in NRS Chapter 233B, governs the judicial review of those final
                administrative agency decisions that qualify under the terms of the APA,
                thus conferring power to the district courts to determine whether an
                aggrieved party is entitled to the relief sought on review.   Otto, 128 Nev.,
                Adv. Op. 40, 282 P.3d at 724-25; Kay v. Nunez, 122 Nev. 1100, 1105, 146
                P.3d 801, 805 (2006) (stating that petitions for judicial review create "a
                right of review in the district court"); see also NRS 233B.020(1) (setting
                forth the legislative intent for enacting the APA); NRS 233B.130(1)
                (setting forth the procedural requirements for a petition for judicial review
                in order to invoke the district court's jurisdiction).
                             In an administrative proceeding before the Board of Medical
                Examiners, a physician has the right to seek judicial review of a final
                order pursuant to NRS 630.356, which states in pertinent part as follows:
                                   1. Any person aggrieved by a final order of
                             the Board is entitled to judicial review of the
                             Board's order.
                                   2. Every order that imposes a sanction
                             against a licensee pursuant to subsection 4 or 5 of
                             NRS 630.352 or any regulation of the Board is
                             effective from the date the Secretary-Treasurer
                             certifies the order until the date the order is
                             modified or reversed by a final judgment of the
                             court. The court shall not stay the order of the
                             Board pending a final determination by the court.
                (Emphasis added.)
                             The parties differ on whether a statutory prohibition against
                stays violates the separation of powers doctrine. Although not previously

SUPREME COURT
        OF
     NEVADA
                                                        5
(0) 1947A
                  examined by this court, 2 other courts have considered this issue, and the
                  outcomes in those jurisdictions vary widely.
                              For example, in      Commission on Medical Discipline v.
                  Stillman, a lower court reviewing an administrative agency's revocation of
                  a physician's medical license granted a stay of the revocation pending
                  judicial review, despite statutory language prohibiting stays. 435 A.2d
                  747, 751-52 (Md. 1981). The Stillman court held that the prohibition
                  against stays was constitutional because a stay is not an inherent judicial
                  power, but merely a tool courts may use in administering justice.     Id. at
                  753-54. Because the physician retained the right to seek judicial review
                  and the court retained its power to review the agency's actions, the court
                  further held that the statutory prohibition against stays did not inhibit
                  the administration of justice. Id. at 755.


                        2The Board cites to Buckwalter v. Nevada Board of Medical
                  Examiners, 678 F.3d 737 (9th Cir. 2012); State v. Eighth Judicial District
                  Court (Gaming Commission), 111 Nev. 1023, 899 P.2d 1121 (1995); and
                  Kassabian v. State Board of Medical Examiners, 68 Nev. 455, 235 P.2d 327
                  (1951), to argue that this court has previously decided this issue. We
                  disagree. As neither Kassabian nor Buckwalter dealt with separation of
                  powers, they are inapplicable here. Gaming Commission is too factually
                  dissimilar to guide the outcome in the present case, as there the issue was
                  whether the Gaming Commission could exclude a customer from a gaming
                  establishment, 111 Nev. at 1024, 899 P.2d at 1121, whereas here the
                  interest at stake is a physician's constitutional right to practice his
                  profession within the legal bounds of this state. See generally Kassabian,
                  68 Nev. at 464, 235 P.2d at 331. Moreover, in Gaming Commission, we
                  relied upon a long line of Nevada jurisprudence to conclude that the
                  Nevada Constitution "does not authorize court intrusion into the
                  administration, licensing, control, supervision and discipline of gaming."
                  111 Nev. at 1025, 899 P.2d at 1122. Thus, we do not have the benefit of
                  prior jurisprudence to guide us on the issue before us.



SUPREME COURT
        OF
     NEVADA
                                                        6
(0) 1947A    ea
                               In contrast, the Supreme Court of Kentucky took the opposite
                   view in Smothers v. Lewis, 672 S.W.2d 62 (Ky. 1984). There, a licensing
                   control board revoked a store owner's alcoholic beverage license, and the
                   lower court found that the statutory scheme prevented it from issuing a
                   stay pending judicial review. Id. at 63. The Smothers court held that a
                   statute prohibiting any stay of a board's order pending judicial review
                   violated the separation of powers doctrine because it was a legislative
                   encroachment on the powers of the judiciary.         Id. at 64. The court
                   reasoned that where the statute allowed the licensee to appeal a board's
                   decision, to simultaneously preclude the possibility of a stay would be "to
                   pay lip service to the statutory provisions that establish the right for a
                   licensee to appeal while eradicating any practical reason for taking the
                   appeal."   Id. at 65. The prohibition effectively puts "a licensee in the
                   position of winning the battle but losing the war" because the sanctions
                   could cause irreparable injury while review was ongoing. Id. "Succinctly
                   put, the statute gives an appeal and then takes it away. The contradiction
                   and conflict here are obvious. The practical effect is to render the appeal a
                   meaningless and merely ritualistic process."       Id.   We agree with the
                   reasoning in Smothers.
                               The Legislature's enactment of NRS 630.356 provided
                   physicians with the right to seek judicial review of Board decisions,
                   thereby empowering the district courts with the ability to determine
                   whether an aggrieved party is entitled to the relief sought on review, and
                   if so, to shape that relief accordingly. Typically, once a court gains
                   jurisdiction of a case, it has the power "to preserve the status quo and
                   maintain and protect ... the subject-matter of the suit as it existed at the
                   time the appeal was taken." Houston, B & T Ry. Co. v. Hornberger, 141

SUPREME COURT
       OF
    NEVADA
                                                         7
(0) 1947A 44e199
                S.W. 311, 312 (Tex. Civ. App. 1911). Likewise, the district court may issue
                an injunction to enjoin a party from taking action that would "render the
                judgment ineffectual." NRS 33.010(3).
                            To bar a district court's ability to grant injunctive relief while
                judicial review is pending effectively "render[s] the appeal a meaningless
                and merely ritualistic process," Smothers, 672 S.W.2d at 65, as the
                sanctions imposed will likely have been implemented or completed before
                the court could judicially review the case. Such sanctions may, among
                other things, irreparably penalize a physician through loss of patients,
                income, job opportunities, and/or damage the physician's professional
                reputation and standing if the court were to later overrule the Board's
                decision and the sanctions imposed.
                            Because NRS 630.356(2)'s prohibition against stays renders
                meaningless the legislative grant of authority to the district courts to
                judicially review Board decisions and encroaches on a district court's
                "inherent power to do all things reasonably necessary" to administer
                justice, including issuing injunctions, we conclude that NRS 630.356(2)
                violates the separation of powers doctrine. Smothers, 672 S.W.2d at 64-65;
                see also Ardt v. Ill. Dep't of Profl Regulation, 607 N.E.2d 1226, 1232 (Ill.
                1992).
                            Here, Dr. Tate has been sanctioned with, among other things,
                fees and fines, a public reprimand, and suspension of his license for a six-
                month period. If the district court were prohibited from staying the
                sanctions imposed until it can determine whether the Board's decision was
                in error, Dr. Tate may be irreparably penalized thus negating the purpose
                of his right to judicial review. Moreover, under federal law, these
                sanctions must be reported to the National Practitioner Data Bank within

SUPREME COURT
         OF
      NEVADA
                                                      8
(0) 1.947A
                30 days of their implementation, 45 C.F.R. §§ 60.5 and 60.8, resulting in
                the Board's decision and sanctions against Dr. Tate being recorded in a
                national database before the district court can review the Board's decision.
                Thus, the statutory prohibition against stays would effectively
                "eradicate[ ] any practical reason for taking the appeal."      Smothers, 672
                S.W.2d at 65.
                            Furthermore, we are inclined to agree with Dr. Tate that
                public interest militates in favor of injunctive relief when the district court
                deems it necessary. In Kassabian, we noted that "[t]he 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," 68 Nev. at 466, 235 P.2d at 332
                (quoting Flynn v. Bd. of Registration in Optometry, 67 N.E.2d 846, 850
                (Mass. 1945)), echoing the public perception that there were many
                dangerous doctors from whom the public needed protection.             See also
                Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal
                System for Publishing Reports of "Bad" Doctors in the National
                Practitioner Data Bank, 33 Cardozo L. Rev. 2031, 2041-51 (2012)
                (discussing the health-care atmosphere in the 1980s and public perception
                of doctors). However, a prohibition against stays could potentially
                endanger the public: for example, if a Board refused to suspend or revoke
                the license of a doctor who was questionably dangerous, a reviewing court
                would be unable to enjoin the doctor from practicing medicine pending
                judicial review Allowing stays, on the other hand, presents little danger
                to the public health, safety, or welfare as the impartial judge will weigh
                public interests, including potential danger to the public, in deciding
                whether to grant or deny a stay.       See 42 Am Jur. 2d Injunctions § 15

SUPREME COURT
        OF
     NEVADA
                                                       9
(0) 1947A
                (2015) ("Deciding an injunction motion requires a delicate balancing of
                several factors, including. . . the interest of the public or others."); 42 Am.
                Jur, 2d Injunctions § 39 (2015) (discussing how the public interest and the
                rights of third parties weighs on the grant or denial of injunctive relief).
                Thus, we conclude that NRS 630.356(2)'s prohibition against stays is also
                against the public interest. 3



                      3 Dr. Tate did not argue that the stay violates due process, and over
                60 years ago we held that a prohibition against stays during the pendency
                of judicial review of a Board decision was not a deprivation of due process.
                Kassabian, 68 Nev. at 465-66, 235 P.2d at 332. However, in Kassabian,
                we also recognized that the facts of a situation as a whole drive due
                process considerations and implied that stays may violate due process
                rights where due process is not otherwise sufficiently afforded to the
                defending physician. Id. (stating that physicians were, at that time,
                afforded sufficient due process by virtue of the administrative procedure
                the Board was required to follow before it could take disciplinary action).

                      It is well-established that a fundamental right may not be impaired
                without due process of law. Chudacoff v. Univ. Med. Gtr. of S. Nev., 609 F.
                Supp. 2d 1163, 1172-73 (D. Nev. 2009); Maiola v. State, 120 Nev. 671, 674-
                75, 99 P.3d 227, 229 (2004). Moreover, we have recognized that a
                physician's interest in practicing medicine is a property right that must be
                afforded due process. Minton v. Bd. of Med. Exam'rs, 110 Nev. 1060, 1082,
                881 P.2d 1339, 1354 (1994), disapproved of on other grounds by Nassiri v.
                Chiropractic Physicians' Bd., 130 Nev., Adv. Op. 27, 327 P.3d 487, 489
                (2014); Molnar v. State ex rel. Bd. of Med. Exam'rs of the State of Nev., 105
                Nev. 213, 216, 773 P.2d 726, 727 (1989); Potter v. State Bd. of Med.
                Exam'rs, 101 Nev. 369, 371, 705 P.2d 132, 134 (1985); Kassabian, 68 Nev.
                at 464, 235 P.2d at 331.

                      Several courts have addressed whether a physician has been
                afforded adequate process in determining whether the prohibition of a
                stay pending judicial review violates a physician's due process rights.
                Compare Barry v. Barchi, 443 U.S. 55, 63-66 (1979) (concluding that
                statute prohibiting administrative stays pending the final hearing was
                                                              continued on next page. . .
SUPREME COURT
        OF
     NEVADA
                                                      10
(0) ISICA
                                                CONCLUSION
                             Through the adoption of NRS 630.356(2), the Legislature gave
                 physicians the right to contest and the district courts the power to review
                 the Board's final decisions. By simultaneously extinguishing the court's
                 ability to impose a stay where the progression of sanctions would impair
                 or eliminate the purpose of seeking judicial review, the statute
                 impermissibly acts as a legislative encroachment on the court's power to
                 do what is reasonably necessary to administer justice. This, we conclude,
                 is a violation of the separation of powers doctrine.




                   . continued

                 unconstitutionally applied where post-suspension hearing was not
                 sufficiently timely), with Flynn v. Bd. of Registration in Optometry, 67
                 N.E.2d 846, 849-50 (Mass. 1945) (concluding that statute prohibiting stay
                 of agency action suspending an optometrist's license did not violate due
                 process).

                        Because the issue of whether NRS 630.356(2)'s prohibition against a
                 stay pending judicial review violates a physician's due process rights is not
                 before us in this matter, we leave that legal issue for a case that requires
                 its determination.



SUPREME COURT
        OF
     NEVADA
                                                       11
(0) 1947A    e
                              Accordingly, we reverse the district court's order and remand
                 this matter to the district court for further proceedings consistent with
                 this opinion.



                                                           4
                                                     Hardesty
                                                                c#4, itan      , C.J.


                 We concur:



                                                J.



                                                J.
                 Douglas




                                                J.




                 Gibbons




SUPREME COURT
        OF
     NEVADA
                                                      12
(0) 1947A    e
