Maryland Board of Nursing v. Nechay

701 A.2d 405, 347 Md. 396, 1997 Md. LEXIS 509
CourtCourt of Appeals of Maryland
DecidedOctober 15, 1997
Docket112, Sept. Term, 1996
StatusPublished
Cited by28 cases

This text of 701 A.2d 405 (Maryland Board of Nursing v. Nechay) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maryland Board of Nursing v. Nechay, 701 A.2d 405, 347 Md. 396, 1997 Md. LEXIS 509 (Md. 1997).

Opinion

BELL, Chief Judge.

The issue that this case presents for our resolution is whether one circuit court judge, acting within thirty days after the entry of an order by another member of that circuit court is empowered by Md.Code (1977,1995 Replacement Vol.) § 6-408 of the Cts. & Jud. Proc. Article, and Md. Rule 2-535 to revise, alter, or amend that order, notwithstanding that no timely motion to revise has been filed by a party to the action..

This appeal had its genesis in a complaint received by the petitioner, the Maryland Board of Nursing, (hereafter “the Board”), concerning Nancy Nechay, the respondent, a registered nurse whom it licensed 1 . Following an investigation, the Board charged the respondent with filing “a false report or record of an individual under [the respondent’s] care,” and committing an “act that is inconsistent with generally accepted professional standards in the practice of registered nursing.” 2 *400 Rather than taking the charges to a hearing, the parties agreed to a Consent Order 3 , in which the respondent admitted the § 8-316(a)(8) violation 4 and the Board dismissed the § 8-316(a)(5) violation. The order was incorporated into the Board’s Findings of Fact Conclusions of Law and Order. After reciting the facts necessary to sustain the admission and setting forth its conclusions of law, the Board “ORDERED that the license of Nancy Nechay an individual licensed to practice REGISTERED NURSING is hereby REPRIMANDED.”

A reprimand is one of the final orders that, pursuant to § 8-316(b), 5 the Board is authorized to issue. Such orders are *401 public records as defined by Md.Code (1957, 1995 RepLVol., 1995 Cum.Supp.) § 10—611(f)(1) 6 of the State Govt. Article which, as prescribed by § 10—617(h)(2)(vi), may be disclosed. 7 Those orders are published, as is the Board’s standard practice, in the Communicator, the Board’s newsletter 8 . Aware of the practice and her request that the Board not publish her reprimand in the Communicator having been rejected on the grounds that a reprimand is a public document, that it was an appropriate sanction for the case, and that withholding publication would set an inappropriate precedent, the respondent filed, in the Circuit Court for Baltimore City, a Complaint for *402 Injunctive Relief, asking that court to pass “An order that the Maryland Board of Nursing must not publish the order of reprimand regarding the actions of Nancy Nechay on August 3, 1991 and August 17, 1991.” She also filed a Motion for Ex Parte Injunction seeking immediate injunctive relief in order to maintain the status quo until a hearing on the merits could be had. The Board responded by filing a Motion to Dismiss or, in the alternative, for Summary Judgment, to which the respondent filed an answer challenging the Board’s entitlement to both dismissal of the complaint and summary judgment.

A hearing, at which arguments were presented, was conducted by the motions judge, the Hon. Thomas Ward. He subsequently entered an order denying the Board’s motion for summary judgment and prohibiting it from publishing the reprimand. More specifically, the order provided:

1. The Maryland Board of Nursing is charged with notice of Maryland Code Ann. Health Occ. § 8-316 and Maryland Code Ann. State Government § 10-617.
2. Pursuant to Maryland Code Ann. Health Occ. § 8-316(d) and Maryland Code Ann. State Government § 10-617(h)(2)(vi) the Maryland Board of Nursing is prohibited from publishing the findings of reprimand against Nancy Nechay signed on November 28,1994.
3. The publication of the finding of reprimand against Nancy Nechay signed on November 28, 1994 would be an invasion of her right to privacy as there is no public interest in the publication of the order of reprimand.
4. The statutes are clear and unambiguous and speak only to the publication of revocation and suspension of licenses where there is a public interest in knowing the names of those who are unable to practice in their profession.

After the hearing on the Board’s motion had been scheduled, but before it had actually occurred, the respondent had filed an Amended Complaint For Interlocutory Relief. Its effort to realize an early victory having failed, the Board answered the amended complaint. Thereafter, within 30 days *403 of the entry of Judge Ward’s order, as instructed by a scheduling notice issued by the City Clerk’s office, the parties appeared before another judge of the Circuit Court for Baltimore City, this time the Hon. Mabel Houze Hubbard. According to the scheduling notice, the case was “Scheduled for Motion Hearing—Fast Track (Categories B, D—INT INJNCTNQ ].” 9 Judge Hubbard’s opening comments put into perspective what was to occur at that hearing and why:

As I understand it Mr. Bouse, you believed the case was over, that it had been decided by Judge Ward based on his May 3rd, 1995 order, after he says he considered the Defendant’s Motion to Dismiss or any alternative Motion for Summary Judgment, the Plaintiffs response and arguments that he heard on April 27th, 1995. The original complaint, docketed to be heard on the merits in the Circuit Court for Baltimore City for June 6, 1995 was not removed from the docket.
Based on all of that information says Judge Ward in his order, he denied the Defendant’s motions, that is that Motion to Dismiss, or in the alternative, the Motion for Summary Judgment. And he made further orders, and his further orders include a prohibition to the Maryland Board of Nursing for publishing the findings of a reprimand against Ms. Nechay, that reprimand having been signed on November 28th, 1994.
Judge Ward indicated further that the publication of the finding of reprimand would be an invasion of Ms. Nechay’s right to privacy as there’s no public interest in the publication of the order of reprimand. And finally, Judge Ward found and says in his order that the statutes are clear, and unambiguous and speak only to the publication of revocation and suspension of licenses where there’s a public interest in knowing the names of those who are unable to practice in their profession.
*404 Kind of an unusual order, but it clearly is his opinion as stated. The Court is eager to hear from both sides as to whether or not Judge Ward’s order is a final decision as to the merits of this case.

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Bluebook (online)
701 A.2d 405, 347 Md. 396, 1997 Md. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryland-board-of-nursing-v-nechay-md-1997.