Bowland v. Municipal Court of Santa Cruz County Judicial District

• Decision Date: 26 January 1976
• Citation: Bowland v. Municipal Court of Santa Cruz County Judicial District, 126 Cal.Rptr. 858, 54 Cal.App.3d 810 (Cal. App. 1976)
• Court: California Court of Appeals
• Parties: Alice Elizabeth BOWLAND et al., Plaintiffs and Appellants, v. MUNICIPAL COURT OF SANTA CRUZ COUNTY JUDICIAL DISTRICT, Defendant; PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 35739.

Page 858

126 Cal.Rptr. 858

54 Cal.App.3d 810

Alice Elizabeth BOWLAND et al., Plaintiffs and Appellants, v.MUNICIPAL COURT OF SANTA CRUZ COUNTY JUDICIAL DISTRICT, Defendant;

PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 35739.

Court of Appeal, First District, Division 1, California.

Jan. 26, 1976.

For Opinion on Rehearing, see 129 Cal.Rptr. 694.

Ann Flower Cumings, Mary V. O'Hare, Cumings & Jordan, San Francisco, for plaintiffs and appellants.

Nancy L. Davis, Mary C. Dunlap, Joan M. Graff, Wendy W. Williams, Equal Rights Advocates, Inc., San Francisco, for amicus curiaeEqual Rights Advocates, Inc.

Alice Daniel, Joseph Remcho, Deborah Hinkel, American Civil Liberties Union, Foundation of Northern California, Inc., San Francisco, for amici curiae American Civil Liberties Foundation.

Evelle J. Younger, Atty. Gen., Jack Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Jamie Jacobs-May, Deputy Attys.Gen., San Francisco, for real party in interest.

MOLINARI, Presiding Justice.

Plaintiffs have appealed from a judgment of the Superior Court which denied their petition for a peremptory writ of mandate to restrain the respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which they are charged with a violation of section 2141 of the Business and Professions Code.¹They contend that section 2141 is unconstitutional because of overbreadth and vagueness and that the respondentcourt erred in overruling their demurrer because the facts stated in the complaint do not constitute a public offense.

The People maintain that the statute is neither vague nor overbroad and argue further that the complaint is sufficient in every respect.

Section 2141 provides: 'Any person, who practices or attempts to practice, or who advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor.'

The complaint charged plaintiffs with violation of section 2141 as follows: That on or about October 25, 1973, to March 6, 1974, each plaintiff'did willfully and unlawfully hold herself out as practicing a system or mode of treating the sick or afflicted to wit: such practices as undertaking to assist and treat a woman in childbirth as authorized in Sections 2137and2140 of the Business and Professions Code, and treat for a physical condition of a person, to wit: Terry Johnson, by such practices without having at the time of doing so a valid unrevoked certificate as provided in Chapter V, Division 2 of the Business and Professions Code.'

We conclude that the statute is neither vague nor overbroad but that the complaint improperly seeks to apply the statute's provisions to a course of conduct which the statute does not prohibit.

We first turn to plaintiffs' contention that section 2141 is vague.Plaintiffs present a variety of hypothetical situations and argue that the statute's vagueness is established by the difficulty involved in ascertaining which of the enumerated types of behavior is proscribed.²They also focus upon the words 'or other mental or physical condition' contained in the statute, submitting that the words fail to subsume criteria for ascertaining what conditions the statute contemplates.

Established principles of statutory construction guide our evaluation of plaintiffs' claim of vagueness.The first principle is 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . ..[A]nd a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'(Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322;Katzev v. County of Los Angeles, 52 Cal.2d 360, 370, 341 P.2d 310;Mandel v. Municipal Court, 276 Cal.App.2d 649, 660, 81 Cal.Rptr. 173.)

Nonetheless we noted in People v. Medina, 27 Cal.App.3d 473, 479, 103 Cal.Rptr. 721, that all presumptions are in favor of the validity of a statute; mere doubt is not a sufficient basis for finding it constitutionally defective and its invalidity must be clear and unquestionable.(See alsoDittus v. Cranston, 53 Cal.2d 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671;Board of Supervisors v. Dolan, 45 Cal.App.3d 237, 241, 119 Cal.Rptr. 347.)We also observed in Medina that, although a criminal statute which is so indefinite, vague and uncertain as to preclude ascertainment of the conduct which is prohibited is unconstitutional and void, a statute will not be found to be void for uncertainty if any reasonable and practical construction can be given to its proscription.(At p. 479 of 27 Cal.App.3d, 103 Cal.Rptr. 721, see alsoPeople v. Madearos, 230 Cal.App.2d 642, 644, 41 Cal.Rptr. 269;Kelly v. Mahoney, 185 Cal.App.2d 799, 803, 8 Cal.Rptr. 521.)It is also a rule of statutory construction that although certain words or phrases may themselves be vague, construction of the statute as a whole may supply them with meaning, certainty and clarity.(People v. Belous, 71 Cal.2d 954, 960, 80 Cal.Rptr. 354, 458 P.2d 194;People v. Untiedt, 42 Cal.App.3d 550, 553, 116 Cal.Rptr. 899.)Such construction is engaged in with a view to promoting rather than defeating the statute's general purpose and the policy behind it and with prime consideration given the objects it seeks to achieve and the evils it seeks to prevent.(People v. Centr-O-Mart, 34 Cal.2d 702, 704, 214 P.2d 378;Lowman v. Stafford, 226 Cal.App.2d 31, 38, 37 Cal.Rptr. 681.)

Another applicable rule of statutory construction is that first enunciated in Porto Rico Ry., etc., Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 518, 64 L.Ed. 944, as follows: 'When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.'(See alsoUnited States v. Bass, 404 U.S. 336, 339-340, 92 S.Ct. 515, 30 L.Ed.2d 488;Wholesale T. Dealers v. National, etc., Co., supra, 11 Cal.2d 634, 659, 82 P.2d 3.)

In light of the enunciated principles we reject plaintiffs' contention that section 2141 is vague.We construe the phrase 'or other mental or physical condition' in the statute to constitute a qualifying clause which contemplates mental or physical conditions arising out of or in connection with 'any ailment, blemish, deformity, disease, disfigurement, disorder [or] injury.'

The contention that section 2141 is unconstitutional because it is vague has heretofore been rejected in People v. Bernhardt, 222 Cal.App.2d 567, 585, 35 Cal.Rptr. 401, and in Crees v. California State Board of Medical Examiners, 213 Cal.App.2d 195, 215, 28 Cal.Rptr. 621.³The constitutionality of section 2141 has also been attacked in the federal courts and has been held to be sufficiently specific and reasonable in its classifications.(Dayan v. People of State ofCalifornia, 9 Cir., 293 F.2d 46.)In Crees it is stated that 'A reading of the section suggests that people of common intelligence would have no trouble understanding what was proscribed.'(At p. 215 of 213 Cal.App.2d, at p. 633 of 28 Cal.Rptr.)

Plaintiffs' second contention is that the statute's language 'or other mental or physical condition' is overbroad since it purports to embrace all conditions of living beings, whether those conditions relate in any manner to disease.It is, of course, a settled canon of constitutional law that statutes must be narrowly drawn and must not sweep too broadly.(Cox v. Louisiana, 379 U.S. 536, 551-552, 85 S.Ct. 453, 13 L.Ed.2d 471;Thornhill v. Alabama, 310 U.S. 88, 105-106, 60 S.Ct. 736, 84 L.Ed. 1093;People v. Orser, 31 Cal.App.3d 528, 537, 107 Cal.Rptr. 458;seeIn re Hoffman, 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.)

On the other hand, when a 'statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society . . . the fact that [otherwise constitutionally protected conduct] is intermingled with such conduct does not bring with it constitutional protection.'(Cox v. Louisiana, supra, 379 U.S. 536, 564, 85 S.Ct. 453, 481, 13 L.Ed.2d 471;Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 662, 81 Cal.Rptr. 173.)As construed in the instant case the words 'or other mental or physical condition' refer to such conditions only as they arise from or are related to any ailment, blemish, deformity, disease, disfigurement, disorder or injury.As so construed the statute is not overbroad but falls instead within the legitimate government interest in defining and regulating the practice of medicine.(SeeDayan v. People of State of California, supra, 9 Cir., 293 F.2d 46;People v. Bernhardt, supra, 222 Cal.App.2d 567, 585, 35 Cal.Rptr. 401;Crees v. California State Board of Medical Examiners, supra, 213 Cal.App.2d 195, 215, 28 Cal.Rptr. 621.)

Plaintiffs' third contention is that the complaint is insufficient for failure to state facts which constitute a public offense.In pertinent part the complaint alleges that each plaintiff violated section 2141 in that she'did willfully and unlawfully practice and hold herself out as practicing a system or mode of treating the sick or afflicted to wit: the practice of...