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Alaska Association of Naturopathic Physicians v. State, Department of Commerce

Supreme Court of Alaska

March 16, 2018

ALASKA ASSOCIATION OF NATUROPATHIC PHYSICIANS, Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF COMMERCE, COMMUNITY & ECONOMIC DEVELOPMENT, DIVISION OF CORPORATIONS, BUSINESS & PROFESSIONAL LICENSING, Appellee.

         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 ...


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