Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Catherine M. Easter, Judge.
Superior Court No. 3AN-14-07022 CI
Joe P.
Josephson, Josephson Law Offices, LLC, Anchorage, for
Appellant.
Robert
C. Auth, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, JUSTICE.
I.
INTRODUCTION
An
association representing naturopathic physicians challenges a
new regulation that effectively forbids naturopaths from
using and prescribing injectable vitamins and minerals. The
association argues that the statutory definition of
naturopathy includes the use of dietetics, that dietetics
include injectable vitamins and minerals obtained by
pharmaceutical prescription, and that the statutory
restrictions on the practice of psychopathy prohibit the use
of only prescription drugs, not all prescription
medicines. But we conclude that the statutory text,
the larger statutory context, and the legislative history
together suggest that the legislature did not intend to grant
prescriptive authority to naturopaths. We therefore affirm
the superior court's decision to grant summary judgment
against the association on this issue.
II.
FACTS AND PROCEEDINGS
A.
Regulatory Backdrop
Naturopathy
is a method of treating disease "that avoids drugs and
surgery and emphasizes the use of natural agents (such as
air, water, and herbs) and physical means (such as tissue
manipulation and electrotherapy)."[1] Alaska first
established a licensing structure for naturopaths in 1986,
codified at AS 08.45.[2] This statute defines the practice of
naturopathy, provides requirements for obtaining and
maintaining a naturopathy license, and establishes
restrictions on the practice of naturopathy.[3] It defines
naturopathy to include a range of practices:
"hydrotherapy, dietetics, electrotherapy, sanitation,
suggestion, [and] mechanical and manual manipulation for the
stimulation of physiological and psychological action to
establish a normal condition of mind and
body."[4] And it defines dietetics to
"include[] herbal and homeopathic
remedies."[5] The statute forbids naturopaths from
engaging in three types of conduct: "A person who
practices naturopathy may not (1) give, prescribe, or
recommend in the practice (A) a prescription drug; (B) a
controlled substance; (C) a poison; (2) engage in surgery;
(3) use the word 'physician' in the person's
title."[6]
In 1992
the State conferred authority to promulgate regulations
implementing AS 08.45 on the Department of Commerce,
Community, and Economic Development.[7] The Department adopted
regulations implementing the naturopathy statute in 1994.
Among those regulations were definitions of some of the key
statutory terms:
(1) "dietetics" includes the use of nutritional
therapies, nutritional counseling, nutritional substances,
vitamins, minerals, and supplements to promote health and to
diagnose, treat, and prevent disease, illness, and
conditions;
(3) "herbal remedy" includes medicines derived from
or a concentrate or extract of a plant, tree, root, moss,
fungus, or other natural substance; "herbal remedy"
does not include a controlled substance;
(8) "prescription drug" includes a controlled
substance or other medicine commonly requiring a written
prescription from a physician licensed under AS 08.64;
"prescription drug" does not include a device or
herbal or homeopathic remedy or dietetic substance in a form
that is not a controlled substance[8]
In the
ensuing years, naturopaths and the Department developed
conflicting interpretations of these regulatory definitions.
Naturopaths distinguished prescription drugs, which they
acknowledged they were not permitted to prescribe or
administer, from non-drug prescription medicines, which they
interpreted the statute as permitting them to prescribe or
administer. Accordingly, Alaska naturopaths routinely
administered or prescribed dietetics requiring a
prescription, such as injectable vitamins and minerals (e.g.,
a Vitamin B-12 shot or a magnesium shot).[9] In contrast, the
Department interpreted the regulation to prohibit naturopaths
from administering and prescribing all medicines
requiring a prescription, even if the prescription medicine
was also a dietetic. These clashing interpretations resulted
in some pharmacists refusing to fill prescriptions for
naturopaths and the State launching investigations of
naturopaths who used prescription medicines and the
pharmacists who filled the prescriptions.
In 2012
the Department issued a notice of proposed changes to the
regulatory definitions that would clarify naturopaths'
prescriptive authority. After the public comment period
closed, the Department amended the definitions in two ways to
effectively bar naturopaths from using or prescribing any
medicine that requires a prescription, including dietetics
(injectable vitamins and minerals), herbal, and homeopathic
remedies.[10] First, the new regulation broadened the
definition of prescription drug so that it encompassed
any medicine requiring a prescription and no longer
excluded dietetics, herbal, and homeopathic remedies: "
' [P]rescription drug' means a controlled substance
or other medicine requiring a prescription from a physician
licensed under AS 08.64 or from another health care
professional authorized to issue prescriptions by the law of
this state."[11] Second, the new regulation explicitly
excluded prescription drugs from the definitions of
dietetics, herbal remedy, and homeopathic remedy:
(1) "dietetics"
(A) includes the use of nutritional therapies, nutritional
counseling, nutritional substances, vitamins, minerals, and
supplements to promote health and to diagnose, treat, and
prevent disease, illness, and conditions;
(B) does not include the use of a prescription drug, poison,
or controlled substance;
(3)"herbal remedy"
(A) includes medicines derived from or a concentrate or
extract of a plant, tree, root, moss, fungus, or other
natural substance;
(B)does not include a prescription drug, poison, or
controlled substance;
(4)"homeopathic remedy" means a remedy defined in
the Homeopathic Pharmacopoeia of the United States
Abstracts 1993, revised as of December 1992 and
adopted by reference except for prescription drug, poison, or
controlled substance[.][12]
These
new definitions went into effect in January 2014.
B.
Proceedings
In May
2014 the Alaska Association of Naturopathic
Physicians[13] filed a declaratory judgment action,
seeking a declaration that the new regulation was invalid to
the extent it was inconsistent with AS 08.45. Specifically,
the Association alleged that the new regulation unduly
expanded the statutory prohibition on prescription drugs to
include all prescription medicines. It also claimed that the
new regulation, which effectively prohibited the use of
prescription dietetics, was contrary to the statutory
definition of naturopathy, which conferred on naturopaths the
unqualified right to use dietetics. Moreover, it urged that
the new regulation contravened the longstanding practice and
training of naturopaths in Alaska and prevented them from
practicing in a manner consistent with their training,
experience, and expertise.
In
January 2016 the Department filed a motion to dismiss, which
the superior court later converted to a motion for summary
judgment. After hearing oral argument and receiving
supplemental briefing from the Association, the superior
court granted the Department's motion. The Department
then moved for 20% of its actual attorney's fees under
Alaska Civil Rule 82.[14] The Association opposed the motion on
the basis that it was a public interest litigant exempt from
an adverse attorney's fees award. The superior court
rejected this contention, concluding that the Association did
not qualify as a public interest litigant because it had
sufficient economic incentive to bring the suit. After
concluding that the Department's fee request was
reasonable, the superior court awarded it $16, 844 in fees,
20% of its total fees incurred.
The
Association appeals both the grant of summary judgment in
favor of the Department and the attorney's fees
award.[15]
III. STANDARDS OF REVIEW
A
regulation's consistency with its enabling statute
"is a question of law to which we apply the appropriate
standard of review based on the level of agency expertise
involved."[16] Here, the parties agree that the new
regulatory definitions do not implicate the Department's
expertise, so we review them using the substitution of
judgment standard.[17] Under this standard we exercise our
independent judgment, substituting our "own judgment for
that of the agency even if the agency's [interpretation]
ha[s] a reasonable basis in law."[18] We will
"adopt the rule of law that is most persuasive in light
of precedent, reason, and policy, but in doing so we give due
deliberative weight 'to what the agency has done,
especially where the agency interpretation is
longstanding' "[19] and continuous.[20]
We
generally review an attorney's fees award for abuse of
discretion, which exists when an award is "arbitrary,
capricious, manifestly unreasonable, or the result of an
improper motive."[21] Interpretation of the scope of the
exception to attorney's fees awards for ...