Carsten v. Psychology Examining Com.

• Decision Date: 07 August 1980
• Citation: 166 Cal.Rptr. 844,27 Cal.3d 793
• Court: California Supreme Court
• Parties: , 614 P.2d 276 Arlene CARSTEN, Plaintiff and Appellant, v. PSYCHOLOGY EXAMINING COMMITTEE OF the BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent. L.A. 31202.

Page 844

166 Cal.Rptr. 844

27 Cal.3d 793, 614 P.2d 276

Arlene CARSTEN, Plaintiff and Appellant, v. PSYCHOLOGY EXAMINING COMMITTEE OF the BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.

L.A. 31202.

Supreme Court of California, In Bank.

Aug. 7, 1980.

Rehearing Denied Oct. 3, 1980.

George Deukmejian, Atty. Gen., and Alvin J. Korobkin, Deputy Atty. Gen., for defendant and respondent.

William M. McCarty, McCarty & Quackenbush and Douglas C. Brown, San Diego, for plaintiff and appellant.

MOSK, Justice.

May a member of an administrative agency employ judicial processes to challenge the legality of action taken by the very board on which he or she serves as a member? In probing this unique issue we plow untilled ground: our attention has not been directed to authority in any jurisdiction directly on point. ¹

Appellant Arlene Carsten (hereinafter petitioner) filed a petition for writ of mandate in the superior court to compel the Psychology Examining Committee of the Board of Medical Quality Assurance of the State of California to comply with Business and Professions Code section 2942. The trial court sustained a demurrer without leave to amend and entered a judgment of dismissal. We affirm.

On this appeal we accept as true the allegations of the petition. (Isrin v. Superior Court (1965) 63 Cal.2d 153, 155, 45 Cal.Rptr. 320, 403 P.2d 728.) On May 11, 1976, Carsten was appointed by the Governor as a member of the Psychology Examining Committee of the Board of Medical Quality Assurance (PEC), which has the statutory obligation to insure that only qualified individuals practice psychology in California. Business and Professions Code section 2942 (all references herein are to that code unless otherwise cited) provides: "The committee may examine by written or oral examination or by both. The examination shall be given at least twice a year at the time and place and under such supervision as the committee may determine. A grade of 75 percent shall be a passing grade."

Prior to the April 1977 examination, in screening applicants PEC used a written examination prepared by its members in combination with an oral examination. Beginning with the April 1977 examination, and over petitioner's dissenting vote, PEC substituted an objective national examination for the written portion of its test. In administering the new test PEC adopted a national mean for its passing score rather than 75 percent of the raw score as required by section 2942. Because the national mean included some candidates who were statutorily disqualified from taking the California examination, the net effect was to lower the requirements for licensure by reducing the passing grade for the examination, resulting in passage of the examination by some applicants with grades as low as 67.5 percent of the raw score.

PEC's demurrer was sustained and the petition dismissed primarily on the ground that Carsten lacked standing to sue because she was not a "beneficially interested" party as required by Code of Civil Procedure section 1086. If the petition reveals that Carsten lacks either the right or standing to sue, it is vulnerable to a general demurrer on the ground that it fails to state a cause of action. (Parker v. Bowron (1953) 40 Cal.2d 344, 351, 254 P.2d 6; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19, 108 P.2d 906; Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 170, 100 Cal.Rptr. 29, 67 Cal.Rptr. 242; Hart v. County of Los Angeles (1968) 260 Cal.App.2d 512, 516; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 814.)

Section 1086 expresses the controlling statutory requirements for standing for mandate: "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested." The requirement that a petitioner be "beneficially interested" has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. (Parker v. Bowron, supra, 40 Cal.2d 344, 351, 254 P.2d 6; Fritts v. Charles (1904) 145 Cal. 512, 513, 78 P. 1057; Fuller v. San Bernardino Valley Mun. Wat. Dist. (1966) 242 Cal.App.2d 52, 56, 51 Cal.Rptr. 120; Cal. Civil Writs (Cont.Ed.Bar 1970) p. 75.) As Professor Davis states the rule: "One who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable." (Davis, 3 Administrative Law Treatise (1958) p. 291.)

It is clear that since petitioner is neither seeking a psychology license, nor in danger of losing any license she possesses under the rule adopted by the board, she is not a beneficially interested person within the meaning of the statute. Our view under state law is consistent with federal law and a long line of decisions of the United States Supreme Court. (See, e. g., Warth v. Seldin (1975) 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343; Simon v. Eastern Kentucky Welfare Rights Organization (1976) 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450; United States v. Richardson (1974) 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678; Schlesinger v. Reservists to Stop the War (1974) 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706; Ex parte Levitt (1937) 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493; Massachusetts v. Mellon (1923) 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.)

But, urges petitioner, there are exceptions to the foregoing rule for property owners, taxpayers and voters, and she qualifies under the exceptions. We agree there are circumstances under which a citizen-taxpayer may compel a governmental instrumentality to comply with its constitutional or statutory duty. (See. e. g., Hollman v. Warren (1948) 32 Cal.2d 351, 357, 196 P.2d 562; but also see Atlanta v. Ickes (1939) 308 U.S. 517, 60 S.Ct. 170, 84 L.Ed. 440; Davis, op. cit. supra, p. 266.) However, the cases relied upon by petitioner are not apposite; and in any event she possesses none of the virtues discussed therein, and has noteworthy detriments, for entitlement to exemption from the requirements of section 1086.

In Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 98, 162 P.2d 627, the county had cancelled welfare checks; the social welfare board, acting as parens patriae, brought an action on behalf of three needy recipients who would otherwise be dependent upon public relief. Though there was incidental dictum about citizen interest in enforcing a duty, unquestionably the Board of Social Welfare was beneficially interested in the result within the meaning of section 1086. Indeed, this court so held. (Id. at p. 100.) The present petitioner has no comparable interest.

Similarly in Hollman v. Warren, supra, 32 Cal.2d 351, 196 P.2d 562, the plaintiff was herself an applicant for a notary commission, and thus had a manifest beneficial interest in mandating the Governor to issue such commissions. This petitioner is not seeking a psychology license and, again, has no comparable interest. In Fuller v. San Bernardino Valley Mun. Wat. Dist., supra, 242 Cal.App.2d 52, 51 Cal.Rptr. 120, the court specifically found the petitioner therein had a special interest independent of that maintained by the public. American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 109 Cal.Rptr. 22, involved groups active in prison reform seeking invalidation of certain rules enacted under the Administrative Procedure Act; the court merely held the rules are not applicable to prisons.

Nothing in the foregoing decisions justifies reliance thereon by petitioner. On the other side of the coin are persuasive legal and policy reasons why an exception to the statutory requirement of beneficial interest should not be carved out for a person in this posture.

As a broad proposition, state taxpayers have standing to challenge the legality of the expenditure of public funds by any governmental agency (Davis, op. cit. supra, p. 245) and, unlike federal courts, most states permit such citizen-taxpayer suits even on nonfiscal issues (id. at p. 249). The issue here, then, is whether an administrative board member is, for purposes of this litigation, a mere taxpayer.

First of all, the law is clear that courts are reluctant to give advisory opinions. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912, 83 Cal.Rptr. 670, 464 P.2d 126.) Since petitioner has no personal interest in the outcome of the litigation, she is in effect seeking to have the courts render an advisory opinion on the propriety of an administrative action. A judgment here would affect no person either favorably or detrimentally; it would purely and simply offer gratuitous advice to the board on how to conduct its examinations in the future as they may possibly affect some applicant other than this petitioner.

Second, petitioner is in effect suing herself. She is the moving party in this litigation; the named defendant is the Psychology Examining Committee of the Board of Medical Quality Assurance, of which petitioner is part as a duly appointed member. It is unique to say the least, for one to sue herself and be both plaintiff and defendant in the same litigation. It may be said that she cannot lose the lawsuit, but we doubt that courts should encourage or permit this type of narcissistic litigation. We reach this conclusion because of the inevitable damage such lawsuits will inflict upon the administrative process.

That brings us to the policy issues which militate against permitting disgruntled governmental agency members to seek extraordinary writs from the courts. Unquestionably the ready availability of court litigation will be disruptive to the administrative process and antithetical to its underlying purpose of providing expeditious disposition of problems in...