Arnett v. Office of Admin. Hearings

• Decision Date: 13 September 1996
• Docket Number: No. C020868,C020868
• Citation: 56 Cal.Rptr.2d 774,49 Cal.App.4th 332
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 6924, 96 Daily Journal D.A.R. 11,291 Dixon ARNETT, Executive Director of the Medical Board of California, Plaintiff and Respondent, v. OFFICE OF ADMINISTRATIVE HEARINGS, Defendant, Mark M. KITZMAN, Real Party in Interest and Appellant.

Page 774

56 Cal.Rptr.2d 774

49 Cal.App.4th 332, 96 Cal. Daily Op. Serv. 6924,

96 Daily Journal D.A.R. 11,291

Dixon ARNETT, Executive Director of the Medical Board of California, Plaintiff and Respondent, v. OFFICE OF ADMINISTRATIVE HEARINGS, Defendant Mark M. KITZMAN, Real Party in Interest and Appellant.

No. C020868.

Court of Appeal, Third District, California.

Sept. 13, 1996.

Asher Aaron Levin, North Hollywood, for Appellant and Real Party in Interest.

Daniel E. Lungren, Attorney General, Jana L. Tuton and Fred A. Slimp II, Deputy Attorneys General, for Plaintiff and Respondent.

SPARKS, Associate Justice.

In this appeal we must determine whether a licensed physician who is incarcerated in another state for felony offenses has an absolute right to be present at an administrative hearing against his California license, such that the administrative hearing must be continued indefinitely. We agree with the trial court that the physician does not have an absolute right to be present and shall affirm the judgment granting a peremptory writ of mandate. However, we agree with the physician that the judgment in this case is too broad and hence shall modify the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Real party in interest Mark M. Kitzman obtained a physician's and surgeon's certificate to practice medicine in this state in 1976. In May 1992, while practicing in Oregon, Kitzman was charged by indictment with multiple counts of sexual offenses committed against children. In June 1992 the Board of Medical Examiners of the State of Oregon issued an order immediately suspending his license to practice medicine in Oregon. The order was based upon evidence in possession of that agency that Kitzman had sexually abused minor children, including his minor patients. Kitzman was subsequently convicted of 14 felony offenses involving sexual conduct with children and, in November 1992, a judgment of conviction was entered sentencing Kitzman to prison in the State of Oregon. In January 1993 the Oregon Board of Medical Examiners accepted the surrender of Kitzman's license in lieu of disciplinary action, effective November 1992.

In November 1993 the Medical Board of California (Board) filed an accusation against Kitzman. The accusation stated that Kitzman had subjected his certificate to discipline under Business and Professions Code sections 2234 and 2305, by virtue of the surrender of his Oregon license in lieu of discipline following emergency suspension orders and his criminal convictions in that state. ¹ Kitzman filed a notice of defense and request for a hearing in which he challenged reliance upon the Oregon proceedings and denied his guilt of the Oregon offenses.

In January 1994 Kitzman was notified of an administrative hearing to be held in Sacramento on March 7, 1994. Kitzman applied for a continuance of six months. In support of a continuance his attorney asserted, among other things, that Kitzman was then incarcerated in Oregon, an appeal of his convictions was pending, the evidence to be reviewed was voluminous, and that Kitzman would agree that in the event of his release he would not practice medicine in California until resolution of the accusation. The presiding administrative law judge found good cause for a continuance to allow counsel to review the extensive discovery and properly prepare for the case. An order was entered granting the motion for a continuance and directing that the matter be reset on the May 1994 out-of-state calendar.

In February 1994 Kitzman was notified of an administrative hearing to be held in Sacramento on May 2, 1994. Kitzman responded by moving to dismiss or, in the alternative, to continue the proceedings. The request for dismissal was based upon a claim that the Oregon license proceedings could not properly serve as a basis for discipline under Business and Professions Code section 2305. The motion for continuance was based upon the representations that Kitzman was incarcerated in Oregon and his appeal had yet to be determined, and that counsel had only recently undertaken representation and needed time to prepare. The presiding administrative law judge ruled that the motion to dismiss would be heard concurrently with the hearing on the merits, and granted a continuance of the hearing. The administrative law judge said, among other things, that "one of several options regarding [Kitzman's] right to be present at the hearing must be engaged, such as a waiver of [his] presence, based upon counsel's presence at the hearing to represent him, or [Kitzman] must be produced, or the hearing must be commenced where [he] is incarcerated, or some other acceptable substitute for his personal appearance. Such arrangements necessarily take some time, but the hearing cannot go forward commensurate with due process in their absence."

The Board subsequently caused Kitzman to be notified that an administrative hearing would be held in Sacramento on November 14, 1994. Kitzman again sought a continuance, asserting that he had a right to be present and that his incarceration in Oregon precluded the Board from going forward with the hearing in California. The administrative law judge ruled that Kitzman has a right to be present and granted a continuance until such time as Kitzman is released from incarceration. Alternatively, the judge ruled that the Board could schedule a hearing at the site of Kitzman's incarceration, or in California if he waives his right to be personally present.

On the Board's petition for a writ of mandate, the trial court found that the Office of Administrative Hearings failed to perform its legal duty and abused its discretion by granting a continuance without requiring Kitzman to show good cause. ² The court held that Kitzman does not have a right to be personally present such that the hearing cannot go forward in his absence, and that, although given the opportunity to do so, Kitzman had failed to make a showing that representation by counsel would be inadequate. The court issued a peremptory writ of mandate directing the Office of Administrative Hearings to reconsider its action and to take further action required by law, "except that [the Office of Administrative Hearings] shall not entertain or grant further motions for continuance based on or related to [Kitzman's] condition of incarceration outside of California." This appeal by Kitzman followed.

DISCUSSION

The fundamental question at issue here is whether a physician facing disciplinary charges has a right to be personally present at the administrative hearing at which disciplinary charges will be adjudicated, such that the hearing cannot go forward in his absence due to incarceration in another state. We agree with the trial court that the physician has no such absolute right.

The first potential source of a right to be present would be the state and federal Constitutions. The federal Constitution does not expressly refer to a right to be personally present. The Sixth Amendment, however, provides a number of rights that together have been construed as establishing a right to be personally present, although the right is said not to be absolute. (Illinois v. Allen (1970) 397 U.S. 337, 342-343, 90 S.Ct. 1057, 1060-1061, 25 L.Ed.2d 353, 358-359; see also Taylor v. United States (1973) 414 U.S. 17, 19-20, 94 S.Ct. 194, 195-196, 38 L.Ed.2d 174, 177-178.) But the Sixth Amendment is limited by its terms to "criminal prosecutions." (U.S. Const., 6th Amend.) With respect to civil proceedings the federal Constitution, in the Fifth and Fourteenth Amendments, guarantees only due process of law. Our state Constitution specifically guarantees a criminal defendant the right to be personally present. (Cal. Const. art. I, § 15.) However, like the federal Constitution, that guarantee is limited to criminal proceedings and with respect to civil proceedings the guarantee is simply for due process of law. (Cal. Const., art. I, § 7, subd. (a).)

It is well established that due process of law does not confer upon a party to civil proceedings an absolute right to be personally present at the proceedings. (See Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 203-204, 216 Cal.Rptr. 425, 702 P.2d 583; Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 132 Cal.Rptr. 405, 553 P.2d 565; Wood v. Superior Court (1974) 36 Cal.App.3d 811, 813, 112 Cal.Rptr. 157; In re McNally (1956) 144 Cal.App.2d 531, 532, 301 P.2d 385.) In In re McNally, supra, 144 Cal.App.2d at page 532, 301 P.2d 385, a prisoner sought a limited restoration of rights so that he could employ counsel to defend a civil suit pending against him. The court said: "One imprisoned is still liable to be sued, and 'this liability necessarily carries with it the right to defend.' [Citation.] This right is qualified by the rule that the prisoner is not entitled to be personally present at any part of the proceedings." (See also Wood v. Superior Court, supra, 36 Cal.App.3d at p. 813, 112 Cal.Rptr. 157.) In Payne v. Superior Court, supra, 17 Cal.3d at page 913, 132 Cal.Rptr. 405, 553 P.2d 565, the California Supreme Court concluded that when an indigent prisoner facing a bona fide lawsuit is deprived of both personal attendance and representation by counsel, then he is essentially denied access to the courts. But the high court rejected a right of personal appearance as a solution, and held that, among other things, a trial court should consider continuing the matter or appointing counsel. (See also Yarbrough v. Superior Court, supra, 39 Cal.3d at p. 203, 216 Cal.Rptr. 425, 702 P.2d 583.)

These authorities establish that where, as here, an incarcerated party to a civil action is represented by counsel, he does not have an absolute right to attend the proceedings. This is not to say that a party to civil proceedings has no interest in being present or that such an interest is not entitled to consideration, but it is to say that Kitzman's claim of an absolute right to...