Bowland v. Municipal Court of Santa Cruz County Judicial District

• Decision Date: 07 May 1976
• Citation: 129 Cal.Rptr. 694,58 Cal.App.3d 59
• 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 694

129 Cal.Rptr. 694

58 Cal.App.3d 59

Alice Elizabeth BOWLAND et al., Plaintiffs and Appellants, v.MUNICIPAL COURT OF SANTA CRUZ COUNTY JUDICIAL DISTRICT, DefendantPEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 35739.

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

May 7, 1976.

As Modified May 18, 1976.

For Opinion on Hearing, see 134 Cal. Rptr. 630, 556 P.2d 1081.

Anne Flower Cumings, Cumings & Jordan, San Francisco, for plaintiffs and appellants.

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

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

Plaintiffs demurred to the complaint on the ground that the allegations do not substantially conform to the provisions of Penal Code sections 950and952; that the allegations are uncertain in that they do not give fair notice of the offense of which plaintiffs are charged and are not sufficiently certain to allow a future plea in bar; that the facts stated in the complaint do not constitute a public offense; that section 2141 may not constitutionally be applied to plaintiffs; and that the facts alleged do not constitute a public offense in that section 2141 is unconstitutional 'on the grounds of void for vagueness and/or overbreadth.'

We conclude that the statute is neither vague nor overbroad and that the facts stated in the complaint constitute a public offense.

'In construing a statute our concern is to ascertain and to give effect to the legislative intent.[Citations.]In ascertaining the intent articulated in the statute, the court should first turn to the words of the statute to determine the will of the Legislature[citations] and give effect to the statute according to the usual, ordinary import of the language employed in framing it.[Citations.]'(Noroian v. Department of Administration, 11 Cal.App.3d 651, 654-655. 89 Cal.Rptr. 889, 891;Kimball v. County of Santa Clara, 24 Cal.App.3d 780, 784, 101 Cal.Rptr. 353.)

Analyzing the subject statute pursuant to this principle we interpret it to proscribe two separate types of conduct.The first part of the statute makes it a misdemeanor for any person to practice or attempt to practice, or to advertise or hold himself out as practicing, any system or mode of treating the sick or afflicted without having at the time of so doing a valid unrevoked certificate authorizing such person to perform such act.The second part makes it a misdemeanor for any person to diagnose, treat, operate for, or prescribe for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other mental or physical condition without having at the time of so doing a valid certificate authorizing such person to perform such act.

In considering plaintiffs' claim of vagueness we are guided by certain established principles of statutory construction and by the decisions which have considered the validity of section 2141 in the face of the claim of vagueness and uncertainty.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 . . . and 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, 669, 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.2d 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 propscription.(27 Cal.App.3d at p. 479, 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.)

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. 621.²The 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 the 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 in understanding what was proscribed.'(213 Cal.App.2d at p. 215, 28 Cal.Rptr. at p. 633.)

Adverting to the contention that the language of section 2141 is overbroad, we apprehend the thrust of this contention to be that the phrase 'or other mental or physical condition' purports to embrace all conditions of living beings, whether those conditions relate in any manner to sickness or 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.)Accordingly, an enactment that is overbroad in its terms or coverage is unconstitutional as amounting to a denial of due process because it fails to provide a proper definition of the crime intended to be established.(American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 219, 28 Cal.Rptr. 700, 379 P.2d 4;Katzev v. County of Los Angeles, supra, 52 Cal.2d 360, 367-368, 341 P.2d 310;Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 662, 81 Cal.Rptr. 173.)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...