Leone v. Medical Board
| Decision Date | 24 September 1997 |
| Docket Number | B101297,Nos. B103344,s. B103344 |
| Citation | 67 Cal.Rptr.2d 689,57 Cal.App.4th 1240 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 57 Cal.App.4th 1240 57 Cal.App.4th 1240, 97 Cal. Daily Op. Serv. 7635, 97 Daily Journal D.A.R. 12,258 Nelson F. LEONE, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent. Shashi D. GANTI, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent. |
Andrew R. Willing, Los Angeles, James Jay Seltzer, Emeryville and Albert J. Garcia, Compton, for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Beth Faber Jacobs, Nancy Ann Stoner, and Cindy M. Lopez, Deputy Attorneys General, for Defendant and Respondent.
If the Division of Medical Quality of the Medical Board of California (the Board) wishes to discipline a physician, it files an accusation and a hearing is conducted before an administrative law judge who issues a recommendation. (Gov.Code, § 11503 et seq.) If discipline is imposed (e.g., license Prior to 1996, the physician could seek appellate review of the superior court's decision by filing an appeal from the judgment entered in the mandamus proceeding. That meant that following preparation of the record on appeal, the parties would submit briefs and be entitled to present oral argument and the Court of Appeal would be required to file a written opinion resolving the appeal. In that context, this court would determine whether the superior court's findings were supported by substantial evidence. (See, e.g., Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135, 181 Cal.Rptr. 732, 642 P.2d 792.)
suspension or revocation), the physician can challenge that action by filing a mandamus action in the superior court. (Code Civ. Proc., § 1094.5.) The trial court exercises its independent judgment in reviewing the administrative decision. (See, e.g., Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1057-1058, 220 Cal.Rptr. 426.)
Effective January 1, 1996, the statutory procedure governing appellate review has changed. This change is part of legislative action designed to expedite the process of disciplining physicians and other health care professionals subject to the Medical Practice Act. 1 (Bus. & Prof.Code, § 2000 et seq.) The law, Business and Professions Code section 2337, 2 now provides that appellate review in the Court of Appeal will be done solely through the process of a writ petition. The change means that absent the issuance of an alternative writ or an order to show cause, the Court of Appeal is not required either to place the case on calendar for oral argument or to file a written decision explaining its analysis and resolution of the claims of error. (See, e.g., Kowis v. Howard (1992) 3 Cal.4th 888, 894, 12 Cal.Rptr.2d 728, 838 P.2d 250.) Consequently, the Court of Appeal may dispose of the case simply by issuing a summary denial of the petition. (Id. at p. 893, 12 Cal.Rptr.2d 728, 838 P.2d 250.)
The enactment of section 2337 was the result of a process commenced in 1990 to overhaul the entire medical disciplinary process. The purpose was to improve the disciplinary system and to protect the public. One particular concern was that the entire process--from the administrative hearing to review by the Court of Appeal--took too long. To implement this goal, beginning in 1990, section 2337 gave preference in the superior court to mandamus review of Board decisions over all other civil actions. However, the issue of how to expedite appellate review remained unresolved for several years. One proposal, which was opposed by the Judicial Council and never took effect, eliminated review in the superior court entirely and substituted in its place writ review to the Court of Appeal in which the Court of Appeal would exercise independent judgment. One criticism of this approach was that it would cause more delays at the appellate level. Ultimately, the Legislature adopted the language in issue in this case, preserving trial court review but limiting appellate review to a writ proceeding.
The nub of the opposition to dismiss the appeals is the contention that a physician has a constitutional right to take an appeal from the superior court's judgment denying the writ and that, to the extent section 2337 limits review to a writ proceeding, the statute violates that right. Two constitutional provisions are pertinent. California Constitution, article VI, section 11 provides that with the exception of cases in which the death penalty has been imposed, "courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute." Article VI, section 10 provides that superior courts have original jurisdiction in, inter alia, "proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition." Because mandamus includes administrative mandamus (Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 826-827, 43 Cal.Rptr. 270), the superior court has original jurisdiction of the mandate actions filed by Drs. Leone and Ganti. The issue therefore becomes whether the Constitution's grant to this court of appellate jurisdiction over that trial court proceeding gives appellants a constitutional right to a direct appeal, thereby rendering constitutionally deficient section 2337's requirement that any review be taken solely by writ.
The Board urges that our Supreme Court's recent opinion in Powers v. City of Richmond (1995) 10 Cal.4th 85, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (Powers) "provides a constitutionally sound road map for concluding that a 'direct appeal' is not constitutionally required in the instant case[s]." We disagree.
Powers involved the Public Records Act (Gov.Code, § 6250 et seq.) which governs the public's right to gain access to various government records. A party may bring an action in the superior court seeking disclosure. (Gov.Code, § 6259, subd. (a).) The trial court's order granting or denying disclosure "is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ." (Gov.Code, § 6259, subd. (c).) The issue in Powers was whether the Legislature could constitutionally make a writ proceeding the exclusive mode for appellate review of the trial court's decision. Unfortunately, in resolving the issue, the Supreme Court did not fashion a clear majority opinion. Instead, three separate opinions, none of which commanded a majority, were issued.
The three-justice lead opinion stated: (Powers, supra, 10 Cal.4th at p. 93, 40 Cal.Rptr.2d 839, 893 P.2d 1160.) The lead opinion therefore concluded that the Constitution did not confer upon a litigant a right to a direct appeal to the Court of Appeal for a case falling within the superior court's original jurisdiction. Stated another way, the lead opinion concluded that the Constitution merely guarantees the right to appellate review but does not guarantee the specific procedure by which review is conducted, e.g., direct appeal or writ. The opinion reached this conclusion based upon a textual analysis of the constitutional provision (id. at pp. 91-93, 40 Cal.Rptr.2d 839, 893 P.2d 1160) as well as a lengthy analysis of the antecedents to this provision and case law interpreting them (id. at pp. 93-110, 40 Cal.Rptr.2d 839, 893 P.2d 1160).
A two-justice concurring opinion did not join in the lead opinion's overall analysis that a litigant does not possess a constitutional right to prosecute a direct appeal from a judgment in the superior court. (Id. at pp. 115-116 and 123-124, 40 Cal.Rptr.2d 839, 893 P.2d 1160.) Instead, the concurring opinion limited its analysis to the Public Records Act provision under review. The concurring opinion decided that the Legislature's decision "that appellate review by extraordinary writ, rather than by direct appeal, would better protect the rights afforded by the Public Records Act [ ] did not violate article VI, section 11...." (Id. at p. 123, 40 Cal.Rptr.2d 839, 893 P.2d 1160.) Consequently, the concurring opinion did not believe it necessary to decide in what other contexts the Legislature could substitute writ review for review by direct appeal. (Id. at pp. 123-124, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)
A two-justice dissenting...
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Leone v. Medical Bd. of California
...Appellant, v. MEDICAL BOARD OF CALIFORNIA, Respondent. No. S065485. Supreme Court of California. Dec. 23, 1997. Prior report: Cal.App., 67 Cal.Rptr.2d 689. Respondent's petition for review GEORGE, C.J., and KENNARD, BAXTER, WERDEGAR, CHIN and BROWN, JJ., concur. ...