Cadilla v. Board of Medical Examiners

• Citation: 103 Cal.Rptr. 455,26 Cal.App.3d 961
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 July 1972
• Parties: Luis R. CADILLA, M.D., Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, etc., Defendant and Appellant. Civ. 11736.

Page 455

103 Cal.Rptr. 455

26 Cal.App.3d 961

Luis R. CADILLA, M.D., Plaintiff and Respondent, v. BOARD OF MEDICAL EXAMINERS, etc., Defendant and Appellant.

Civ. 11736.

Court of Appeal, Fourth District, Division 2, California.

July 28, 1972.

[26 Cal.App.3d 963] Evelle J. Younger, Atty. Gen., and John M. Huntington, Deputy Atty. Gen., for defendant and appellant.

Robert L. Wyckoff, San Bernardino, for plaintiff and respondent.

OPINION

TAMURA, Associate Justice.

This is an appeal by the Board of Medical Examiners of the State of California (Board) from a judgment ordering issuance of a peremptory writ of mandate commanding the Board to vacate its order revoking respondent's physician's and surgeon's certificate.

Respondent was licensed to practice medicine and surgery in the State of California in 1961. After practicing in the Canal Zone from 1963 to 1968, he returned to the continental United States and commenced his residency in pediatrics at the Loma Linda Hospital. On February 20, 1969, he entered a plea of nolo contendere in the municipal court to a charge of a violation of Penal Code, section 647a (child molest), and was placed on three years probation, subject to certain terms and conditions. The Board thereafter filed an accusation against respondent alleging his conviction of a crime involving moral turpitude (Pen.Code, § 647a), together with facts concerning the circumstances surrounding the commission of the offense, and charged him with unprofessional conduct within the meaning of Business & Professions Code, section 2383. ¹ Respondent filed a notice of defense and requested a hearing. Following a hearing before a hearing officer of the State Office of Administrative Procedure, the hearing officer rendered a proposed decision in which he found that the lewd conduct for which respondent was convicted was committed upon an 11 year old female patient and made specific findings concerning the circumstances surrounding the commission of the crime. ² he also made findings respecting the psychological therapy respondent had been undergoing since his conviction. ³ Based upon his findings, the hearing officer concluded that respondent was guilty of unprofessional conduct as defined in Business & Professions Code, section 2383, and recommended revocation of respondent's license stating: 'While respondent appears to have made progress in his rehabilitation processes, it was not established that, at the present time, respondent is presently rehabilitated. In view of the serious nature of the offense, particularly with respect to the field of his specialization, it is in the best public interest that his physician's and surgeon's certificate be revoked.' The Board adopted the hearing officer's proposed decision.

Upon the Board's denial of a petition for reconsideration, respondent filed a petition for writ of mandate in the court below pursuant to Code of Civil Procedure, section 1094.5, to review and set aside the Board's decision, alleging in substance that the evidence at the administrative hearing showed that respondent's record on probation has been exemplary; he has been undergoing psychotherapeutic care; the uncontradicted testimony of the treating psychologist was that the cause underlying the conduct which led to respondent's conviction 'had been largely corrected'; respondent has practiced pediatrics for more than a year and a half since his conviction without incident; and he no longer poses a risk to his patients or to the public. Based upon those allegations respondent alleged that the Board's decision to revoke his license was not supported by the evidence and constituted an abuse of discretion. The matter was submitted on the Board's answer and the record of the administrative proceedings.

The trial court found that the hearing officer's findings concerning the circumstances surrounding the commission of the offense which led to respondent's conviction were supported by the weight of the evidence and that respondent was guilty of unprofessional conduct as defined in Business & Professions Code, section 2383. However, the court found that the Board abused its discretion in ordering revocation of respondent's certificate. Accordingly, the court entered judgment decreeing that a peremptory writ of mandate issue remanding the matter to the Board with directions to set aside its order revoking respondent's certificate and to reconsider the issue of penalty.

The Board contends that the court below erred in determining that the Board abused its discretion in ordering revocation of respondent's certificate. The Board urges that the issue of penalty was a matter committed to the discretion of the Board and was not a subject on which the trial court was empowered to substitute its own independent judgment and discretion. Respondent counters with the argument that inasmuch as the court found that the Board's 'determination of issue' concerning the penalty issue 'is not correct,' the court must have impliedly found that respondent was rehabilitated and having so found properly concluded that revocation constituted an abuse of discretion. Respondent is in effect urging that while the choice of the penalty to be imposed may be a matter resting in the sound discretion of the Board, the court was empowered to exercise its independent judgment on the factual issue of rehabilitation and to review the propriety of the penalty in the light of its finding on that issue.

Where the decision of a statewide administrative tribunal lacking constitutional authority to exercise judicial functions substantially affects fundamental rights, particularly the right to practice one's profession or trade, courts must exercise their independent judgment in determining whether the administrative findings are supported by the weight of the evidence. (Bixby v. Pierno, 4 Cal.3d 130, 143, 93 Cal.Rptr. 234, 481 P.2d 242; Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 71--72, 64 Cal.Rptr. 785, 435 P.2d 553; Moran v. Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20; Dare v. Bd. of Medical Examiners, 21 Cal.2d 790, 794--795, 136 P.2d 304.)

However, the propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion. (Nightingale v. State Personnel Board, Cal., 102 Cal.Rptr. 758, 498 P.2d 1006 (decided July 12, 1972); Harris v. Alcoholic Bev. Etc. Appeals Bd., 62 Cal.2d 589, 594, 43 Cal.Rptr. 633, 400 P.2d 745; Martin v. Alcoholic Bev. Etc. Appeals Bd., 52 Cal.2d 287, 291, 341 P.2d 296; Blake v. State Personnel Board, 25 Cal.App.3d 541, 553, 102 Cal.Rptr. 50; Brown v. Gordon, 240 Cal.App.2d 659, 667, 49 Cal.Rptr. 901.) '(i)n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh. (See Macfarlane v. Dept. Alcoholic Bev. Control, Supra, 51 Cal.2d 84, p. 91, 330 P.2d 769.) Such interference, in the light of the foregoing authorities, will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.' (Brown v. Gordon, Supra, 240 Cal.App.2d 659, 667, 49 Cal.Rptr. 901, 906.) The foregoing principles apply whether the statewide administrative tribunal is one which is constitutionally authorized to exercise judicial functions (Nightingale v. State Personnel Board, Supra; Martin v. Alcoholic Bev. Etc. Appeals Bd., Supra, 52 Cal.2d 287, 291, 341 P.2d 296; Hopper v. State Personnel Board, 204 Cal.App.2d 273, 275, 22 Cal.Rptr. 88), or one which is not so empowered (Magit v. Board of Medical Examiners, 57 Cal.2d 74, 87--88, 17 Cal.Rptr. 488, 366 P.2d 816; Bonham v. McConnell, 45 Cal.2d 304, 306, 288 P.2d 502; Shakin v. Board of Medical Examiners, 254 Cal.App.2d 102, 113, 62 Cal.Rptr. 274 (cert. den., 390 U.S. 410, 88 S.Ct. 1112, 19 L.Ed.2d 1272)).

We find nothing in Bixby v. Pierno, Supra, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, which alters the scope of judicial inquiry into the propriety of a penalty imposed by an administrative tribunal. In fact, the Supreme Court as recently as July 12, 1972, in the case of Nightingale v. State Personnel Board, Supra, reiterates the principles herein set forth concerning judicial review of administrative penalties. Where the Legislature vests in the administrative body the power to select the proper penalty to be imposed, its decision may not be set aside unless there has been a clear abuse of discretion. (Harris v. Alcoholic Bev. Etc. Appeals Bd., Supra, 62 Cal.2d 589, 593--594, 43 Cal.Rptr. 633, 400 P.2d 745; Martin v. Alcoholic Bev. Etc. Appeals Bd., Supra, 52 Cal.2d 289, 291, 341 P.2d 296.) The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. (See Grannis v. Board of Medical Examiners, 19 Cal.App.3d 551, 563--564, 96 Cal.Rptr. 863.) Nowhere in Bixby is that policy questioned either directly or by implication. The Legislature has vested in the Board of Medical Examiners the discretion to determine the suitable penalty to be imposed where cause for discipline is found to exist. (Bus. & Prof.Code, § 2372.) ⁴ And where a conviction of a crime constitutes unprofessional conduct, the Board is expressly empowered to 'inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline. . . .' (Bus. & Prof.Code, § 2383.) Section 1094.5 of the Code of Civil Procedure which defines the scope of judicial review of a decision of an administrative tribunal provides that 'the judgment shall not limit or control in any...