Pennsylvania’s Professional Nursing Law does not require a nurse whose license is automatically suspended because of a felony drug conviction to wait 10 years before seeking reinstatement, the state Supreme Court said, rejecting the State Board of Nursing’s recently adopted interpretation of the statute.
The high court said the board has the discretion to reinstate suspended licenses as soon as it sees fit to do so, provided the decision is made in accordance with its regulations.
The justices unanimously ruled Nov. 22 in McGrath v. Bureau of Professional and Occupational Affairs, State Board Of Nursing that the Commonwealth Court had not erred in overruling its own 2014 decision in Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing.
In Packer, the Commonwealth Court ruled that, when a nurse is convicted of a drug felony, Sections 15.1(b) and 15.2 of the state’s Professional Nursing Law require an automatic license suspension to last for a mandatory period of 10 years before he or she can seek reinstatement. The decision upheld the board’s then-new interpretation of the law, which it had adopted in 2013.
In its August 2016 ruling in McGrath, however, a split en banc panel of the Commonwealth Court overruled Packer, saying the decision’s “punitive interpretation of the ambiguous statutory provisions of the Nursing Law violates the principle that ambiguities in penal statutes must be strictly construed against the government.”
On appeal to the Supreme Court in McGrath, the board asked for a determination on whether the Commonwealth Court was bound to uphold its prior ruling in Packer, setting up the potential for the justices to tackle the tricky issue of how much weight appellate courts should give to the doctrine of stare decisis.
Instead, however, the justices quickly dispensed with that issue in a footnote, noting that an en banc panel of the Commonwealth Court is authorized to overrule a three-judge panel.
“Furthermore, where, as here, this court undertakes de novo resolution of a legal issue, any assessment concerning the propriety of the intermediate court’s failure to follow its own precedent on that issue is immaterial,” Chief Justice Thomas G. Saylor wrote for the majority.
What the case really came down to, then, was statutory construction.
Plaintiff Shannon McGrath’s nursing license was suspended for 10 years after she was convicted of one count of acquisition or possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.
McGrath appealed, arguing that while the Nursing Law limits the board’s ability to reissue a revoked license by requiring it to follow the rigid terms of Section 15.2, the law affords the board wide discretion in reissuing suspended licenses on a case-by-case basis.
A 5-2 majority of the Commonwealth Court en banc agreed, noting that Section 15.1(b) provides for automatic license suspension, not revocation, when a nurse is convicted of a drug felony.
“Reissuance of suspended licenses is addressed only in Section 15, which provides the board with broad discretion for reissuing such licenses,” said Judge Renee Cohn Jubelirer, writing for the court. “Section 15 expressly states that revocations are governed by Section 15.2, which provides either a five-year or 10-year revocation period when read in conjunction with Section 6(c)(1).”
The Packer court found the statutory language at issue to be ambiguous and set about interpreting it based on the General Assembly’s intent, relying on the word “‘hereinafter’” in Section 15.1(b)—”‘Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license’”—for the determination that the requirements of Section 15.2 apply to license suspensions. But the McGrath court said that interpretation of the statute incorrectly expanded the reach of Section 15.2, which expressly applies only to license revocations.
“This addition expanded Ms. McGrath’s automatic suspension into a mandatory 10-year revocation and eliminated the board’s discretionary review expressly permitted in Section 15, which seems contrary to the rule of statutory construction that precludes courts from adding language to statutes,” said Jubelirer, joined by President Judge Mary Hannah Leavitt and Judges Patricia A. McCullough, Anne E. Covey and Michael H. Wojcik.
The Supreme Court’s analysis of the language focused on the words “or suspension” in Section 15.1(b).
Saylor—joined by Justices Max Baer, Debra Todd, Christine L. Donohue, Kevin M. Dougherty and Sallie Updyke Mundy—called those two words “critical” to understanding that portion of the statute.
“If they are understood as being semantically connected to the hereinafter clause, significant difficulties arise because, as discussed, Section 15.2 only relates to revoked licenses, not to licenses that have only been suspended,” Saylor said, but added, “Such difficulties are avoided by recognizing that the addition of the phrase, ‘hereinafter provided,’ could not have altered the existing meaning of the word ‘suspension’ as it appears later in the same sentence. As detailed above, that word does not refer to an automatic suspension of a license under Section 15.1(b) itself, but rather, to a discretionary suspension accomplished per Sections 14 and 15.”
Saylor continued: “Recognizing this also makes the textual revision (insertion of the hereinafter clause) consistent with the simultaneous revision to Section 15, which keeps in place the mechanism for restoration of a suspended license, but specifies that restoration of a revoked license is now governed by a provision appearing later in the statute, i.e., Section 15.2.”
Justice David N. Wecht filed a concurring opinion, noting that while he agreed with the result the majority reached, he disagreed with its approach.
Wecht said he was “unpersuaded” by the majority’s distinction between “automatic suspensions” and “suspensions.”
Instead, Wecht said, he preferred the Commonwealth Court’s resolution based on the rule of lenity, which obviates the need to parse “intractable” statutory language.
In a footnote, Saylor acknowledged that a rule-of-lenity approach would have yielded the same result that the majority reached through its statutory construction analysis.
“Still, we think it important to consider other traditional tools of statutory construction in an effort to ascertain legislative intent and rationally assign meaning to legislative words which, initially, seem unclear,” Saylor said. “Moreover, we believe that doing so is appropriate even where the exercise entails some complexity.”
McGrath, who was pro se, said she was “very happy” with the ruling, as she had feared the court might be skeptical of her argument because she was not represented by counsel.