MEDICAL ASSOCIATION OF GEORGIA et al. v. MILLER et al., 262 Ga. 605, 423 S.E.2.d 664

Status: DECIDED

Docket Number: S92A1544

Parts: SEARS-COLLINS, Justice.

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Case No. S92A1544. Judgment affirmed in part and reversed in part. Case Nos. S92X1545 and S92X1546. Judgment reversed. Case No. S93X0059. Judgment affirmed in part and reversed in part. Clarke, C. J., Bell, P. J., Hunt, Benham, Fletcher, JJ., and Judge Frank C. Mills III concur; Hunstein, J., not participating.

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Robert P. Williams II, Susan P. Wilkerson, for Georgia Optometric Association, Inc. et al.Demetrius Mazacoufa, for Georgia Nurses Association, Inc. et al.Michael J. Bowers, Attorney General, Beverly B. Martin, Senior Assistant Attorney General, Julia B. Anderson, Assistant Attorney General, for Miller et al.

We granted an expedited appeal in these cases to determine whether the trial court erred by holding, among other things, that OCGA 43-34-1[1] violates due process and equal protection. All parties concede that the literal language of 43-34-1 violates due process and equal protection in that it is so broad that it prohibits much conduct that there is no rational basis to prohibit, see Dobbins v. State, 262 Ga. 161, 162 (1) (415 SE2d 168) (1992), including the administering of shots by nurses, the self-injection of insulin by a diabetic, the drawing of blood, the piercing of ears, embalming, and the tattooing of skin, to name a few. The Medical Association of Georgia, however, argues that we can interpret the statute so as to excise the unconstitutional aspects of the statute. We conclude to the contrary, as we find that the statute is so wide-ranging in its impact that we cannot possibly make one interpretation of the statute that we would be certain would render it constitutional and effectuate the legislative intent in enacting the statute. See Lasseter v. Ga. Public Service Comm., 253 Ga. 227, 230 (1) (319 SE2d 824) (1984). [2] Under these circumstances, it would be inappropriate for us to undertake the type of major rewrite of the statute that the Medical Association urges us to do; that task is best left to the legislature. We therefore affirm the trial court's holding that 43-34-1 is unconstitutional in toto.

The trial court, in addition to declaring 43-34-1 unconstitutional, made several declarations concerning other statutes that govern health care professionals. Because the parties only sought a declaration concerning the constitutionality of 43-34-1, we reverse the part of the trial court's order that sets forth declarations concerning statutes other than 43-34-1.

Finally, we agree with the contention of the Medical Association of Georgia that the trial court erred by ruling that the unconstitutionality of 43-34-1, as enacted by Ga. L. 1992, pp. 2062, 2063, 2, rendered ineffective the repeal of the prior OCGA 43-34-1, which governed the practice of naturopathy. Because the General Assembly, in enacting Ga. L. 1992, p. 2062, 2, expressly struck what was 43-34-1 and replaced it with a new 43-34-1 that was completely unrelated to the prior statute, we conclude the General Assembly intended the striking of the naturopathy statute to take effect independent of the enactment of new 43-34-1. Continental Cas. Co. v. Swift & Co., 222 Ga. 80 (148 SE2d 489) (1966); Fidelity &c. Co. of N. Y. v. Whitehead, 114 Ga. App. 630, 633-635 (1) (152 SE2d 706) (1966). See also Gunn v. Balkcom, 228 Ga. 802, 804 (188 SE2d 500) (1972). The naturopathy statute therefore stands repealed even though we affirm the trial court's ruling that new 43-34-1 is unconstitutional.

Everett W. Gee III, for Medical Association of Georgia et al.

Notes:

1. Section 43-34-1 prohibits persons other than doctors, dentists, podiatrists, and veterinarians from performing

any surgery, operation, or invasive procedure in which human or animal tissue is cut, pierced or otherwise altered by the use of any mechanical means, laser, ionizing radiation, medication administered by injection or the removal of foreign bodies from within the tissues of the eye. [Id. Ga. L. 1992, pp. 2062, 2063, Section 2, effective April 17, 1992.]

2. In addition, we hesitate to speculate as to the meaning of the statute when severe criminal penalties are attached to its violation. E.g., OCGA 43-34-46 (violation of 43-34-1 is a felony, punishable by a fine of between $500 and $1,000 or by imprisonment from 2 to 5 years, or both).