OFFICIAL OPINION NO. 06-08, Application and Enforcement of Marriage and Family Therapy Statutes

  
OFFICIAL OPINION NO. 06-08, Application and Enforcement of Marriage and Family Therapy Statutes

December 14, 2006

Mr. James Carlon
Legal Counsel
S.D. Board of Counselor Examiners
P.O. Box 249
Pierre, SD  57501

OFFICIAL OPINION NO.  06-08

Application and Enforcement of Marriage and Family Therapy Statutes

Dear Mr. Carlon:

You have requested an opinion from this Office based upon the following facts:

FACTS:

The South Dakota Board of Counselor Examiners wishes to initiate enforcement actions against individuals practicing marriage and family therapy in South Dakota without a license.  The proponents of initiating such actions contend that South Dakota's statutes regulating marriage and family therapy constitute a "practice" law that prohibits the practice of marriage and family therapy without a license.  Opponents of this view contend that the marriage and family therapy statues constitute a "title" law that prohibits only the use of the title "Marriage and Family Therapist," but do not restrict the conduct of those who would practice marriage and family therapy under some other title.

Based upon the above facts you have requested an answer to the following question:

QUESTION:

Whether South Dakota law prohibits an individual from engaging in the practice of marriage and family therapy without a license?

IN RE: QUESTION:

The statues governing marriage and family therapy in South Dakota were enacted by House Bill 1060 (1995 Sess.), (herein referenced as the "Act").  The Act was not amended by the Legislature in either chamber's committee, or on either chamber's floor.  It was codified as ch. 36-33 of the South Dakota Codified Laws, and established a structure for licensing and regulating persons providing marriage and family therapy services in South Dakota.

Specifically, SDCL 36-33-4 reads:

It is a class 2 misdemeanor for any person to engage in the practice of, or attempt to practice, marriage and family therapy as a licensed marriage and family therapist without a license issued pursuant to the provisions of this chapter.

(Emphasis added).  It is my opinion that this statute is a "title" prohibition that prohibits only the use of the title without a license.

The purpose of statutory construction is to ascertain the intent of a law from a review of the language expressed in the statute.  Martinmaas v. Engleman, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611.  "Words or phrases in a statute must be given their plain meaning and effect."  Id.  In interpreting a statute, only when the language used is unclear or ambiguous will the court look beyond the express language to determine the Legislature's intent.  State v. Myrl & Roy's Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 654.

The only ambiguity I can discover in this matter is in the title of the Act: "Practice without license a misdemeanor."  The title might imply that the mere practice of marriage and family therapy without a license is a misdemeanor.  The title to an Act, however, is not part of the statute, SDCL 2-14-9, and hence a title cannot logically create ambiguity as to the meaning of statute.  This is contrasted with the situation in which the Court confronts a statute which has an ambiguous text; in such cases the title can be referred to clear up the ambiguity.  Thus, in Zoss v. Schaefers, 598 N.W.2d 550, 552 (S.D. 1999), the Court found that a statute is "ambiguous when it is reasonably capable of being understood in more than one sense.  When called upon to construe ambiguous statutes, the courts may look to "the . . . title. . . .'"  The title comes up to play, therefore, only when the statute is otherwise ambiguous.

In this case, the content of the statute is clear, and the content of the title is not relevant to the interpretation of the statute.  The controlling language is the clause "as a licensed marriage and family therapist."  The placement of this clause of the statute indicates that only the practice of marriage and family therapy as a licensed marriage and family therapist is prohibited without a license.  That prohibition is undoubtedly different from that in a statute that prohibits "the practice of marriage and family therapy without a license."  This interpretation is supported by SDCL 36-33-5, which prohibits unlicensed persons from using specifically described titles.  The interpretation is also aided by the familiar maxim that the legislature intended no part of the statutory language to be rendered surplus.  Faircloth v. Raven Indus. Inc., 2000 S.D. 158, ¶ 6, 620 N.W.2d 198, 201.  The effect of reading the statute to forbid the mere "practice of marriage and family therapy" would be to make surplus the words I have bold faced above: "as a licensed marriage and family therapist."

The Legislature is presumed competent in its drafting of statutes.  The intent of a statute should be determined from what the Legislature said rather than what a court thinks it should have said.  Martinmaas, 2000 S.D. 85, ¶ 49.  I cannot ignore the words of the Legislature.  If the current statute had been enacted without the referenced language it would clearly be a prohibition against the practice of marriage and family therapy without a license.  As the statute currently reads, it is a prohibition on practicing marriage and family therapy, under the title of a licensed marriage and family therapist, without a license.

It is my opinion that the language of SDCL 36-33-4 does not prohibit the practice of marriage and family therapy without a license.  The statute is a title law prohibiting the use of the title "licensed marriage and family therapist" when one has no license.

Respectfully submitted,

LARRY LONG
ATTORNEY GENERAL

LL/JPH/sk

s-oo­_ll James Carlon (Application and Enforcement of Marriage and Family Therapy Statutes)