D'Amico v. Board of Medical Examiners
| Decision Date | 07 December 1972 |
| Citation | 29 Cal.App.3d 224,105 Cal.Rptr. 639 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Theodore A. D'AMICO, et al., Plaintiffs, Respondents and Cross-Appellants, v. The BOARD OF MEDICAL EXAMINERS and Genest de L'Arbre, its President, Defendants, Appellants and Cross-Respondents, The Board of Osteopathic Examiners and John L. Bolenbaugh, its President, Respondents. Civ. 13376. |
Tobin & Gassner, Upland, for plaintiffs, respondents and cross-appellants.
Hassard, Bonnington, Rogers & Huber, San Francisco, amicus curiae for Medical Assn., for defendant-appellant.
Evelle J. Younger, Atty. Gen. by Joel E. Carey and Talmadge Jones, Deputy Attys. Gen., Sacramento, for defendants-appellants and cross-respondents.
Clarence S. Brown, Sacramento, for defendants-respondents, Bd. of Osteopathic Examiners, etc.
Eight petitioners, graduates of out-of-state colleges of osteopathy, seek a writ of mandate to compel the State Board of Medical Examiners and State Board of Osteopathic Examiners to process their applications for certification either as allopathic physicians (i. e., doctors of medicine) or as osteopathic physicians. All hold Doctor of Osteopathy (D.O.) degrees granted by out-of-state colleges of osteopathy. Several of the petitioners want original licenses, others reciprocity licenses. The two boards had taken the position that the amendments to the Osteopathic Initiative Act approved by the California voters at the 1962 general election, prohibit osteopathic graduates' admission to practice either profession in this state. Petitioners assert a denial of the constitutional guarantees of equal protection because the law permits original and reciprocity licensing of medical school graduates but denies licensing to graduates of osteopathic colleges.
The first stage of the litigation culminated in a superior court judgment rejecting petitioners' claim of unconstitutionality and declaring that petitioners were eligible for original (but not reciprocity) certification as allopathis physicians, provided their osteopathic colleges received approval of the State Board of Medical Examiners. Petitioners appealed. In a decision filed April 17, 1970, we reversed the judgment. (D'Amico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716, 86 Cal.Rptr. 245.) The State Supreme Court denied a petition for hearing.
After the remand, a second round of trial court activity culminated in a summary judgment declaring petitioners' entitlement to apply for certification as osteopaths. The summary judgment decreed invalidity of the 1962 amendments as a denial of constitutional guarantees of equal protection; declared that the Board of Osteopathic Examiners was empowered to license petitioners (and other graduates of osteopathic colleges) as osteopaths; declared that the Board of Medical Examiners had no power to license such graduates and called for a writ of mandate requiring the osteopathic board to receive and process petitioners' applications to practice osteopathy in California. Represented by the Attorney General, the State Board of Medical Examiners appeals. Represented by separate counsel, the State Board of Osteopathic Examiners, albeit with some reluctance, has joined petitioners in seeking affirmance of the judgment. Petitioners have filed a cross-appeal, objecting only to that portion of the trial court's decision which denied an award of attorney fees. Counsel for the California Medical Association have filed an amicus curiae brief supporting the contentions of the Board of Medical Examiners.
In our published opinion on the former appeal, we described the 1962 ballot proposition and accompanying statutes, which had been designed to 'merge' the osteopathic and allopathic medical professions in California. We also described the history of the California licensing laws governing these professions. We do not repeat those descriptions. Suffice it to say that between 1913 and 1922 the Board of Medical Examiners had statutory authority to grant licenses as physicians and surgeons both to graduates of medical schools (i. e., to holders of the M.D. degree) and to graduates of osteopathic colleges (D.O.s). in 1922 the voters approved an initiative act eliminating the licensure of osteopathic graduates by the Board of Medical Examiners and establishing a separate licensing system for osteopaths under a Board of Osteopathic Examiners. (See Gamble v. Board of Osteopathic Examiners (1942) 21 Cal.2d 215, 216-217, 130 P.2d 382.) We then described a 1961 agreement between the statewide associations representing the two professions. That agreement envisioned a 'merger' of the two professions by eliminating future licensure of osteopaths and by permitting presently practicing osteopaths to elect either of two alternatives: continued osteopathic practice under licenses administered by the Board of Osteopathic Examiners or practice as physicians and surgeons under licenses administered by the Board of Medical Examiners. (See Osteopathic Physicians & Surgeons v. California Medical Association (1964) 224 Cal.App.2d 378, 36 Cal.Rptr. 641.) The merger agreement became the basis of a legislative act which was submitted to the voters in 1962 as an amendment to the initiative act of 1922. (See Bus. & Prof.Code, § 3600-1 et seq.)
In our opinion on the former appeal, we expressed a series of holdings, which we now summarize as follows:
(1) Except for those osteopaths and students covered by a grandfather clause, the 1962 law prohibited the licensing of new osteopaths (6 Cal.App.3d at pp. 723-725, 86 Cal.Rptr. 245).
(2) The objectives of the 1962 act were inconsistent with any intent to revive the licensing of holders of the D.O. degree by the Board of Medical Examiners (6 Cal.App.3d at pp. 725-726, 86 Cal.Rptr. 245). Failure to provide 'equal protection of the laws' was an appropriate constitutional challenge to a statute which permitted the licensing of medical school graduates and prohibited licensing of osteopathic graduates. The governing constitutional principle was the law-making authority's power to draw classifications which are not arbitrary but have a rational basis, bearing a substantial relation to a legitimate public objective (6 Cal.App.3d at p. 727, 86 Cal.Rptr. 245).
(3) Application of that constitutional principle turned on factual considerations and entailed the taking of evidence. The constitutional inquiry into the question of reasonableness versus arbitrariness could not be determined on demurrer but by a trial and 'full scale hearing.' Accordingly, we remanded the proceeding to the trial court to 'be tried in accordance with the views herein expressed.' (6 Cal.App.3d at pp. 727-728, 86 Cal.Rptr. at p. 252.)
Our decision on the first appeal became 'the law of the case,' governing the future course of the litigation. (6 Witkin, Cal. Procedure (2d ed.), Appeal, § 633, pp. 4552-4553.) Unfortunately, the proceedings following remand have been characterized by misinterpretation, misunderstanding and misapplication of the law of the case. This lawsuit has gone sadly awry. Public and private litigation expenses, legal effort, judicial effort and 2 1/2 years or time have been wasted without advancing petitioners' entitlement to proper judicial review of the 1962 law's constitutionality. We will reverse the judgment. To guide future proceedings it is necessary to restate the law of the case in unmistakeable language and to analyze past proceedings in critical terms.
THE LAW OF THE CASE.
For six years after adoption of the 1962 law, both the Board of Medical Examiners and the Attorney General as its counsel had taken the position the (aside from existing osteopathic licensees) the law now prohibited licensing osteopathic graduates as allopathic physicians. The Board of Osteopathic Examiners, moreover, viewed the 1962 law as a prohibition against the grant of new licenses to practice osteopathy. These positions caused rejection of the applications of the eight petitioners, impelled this lawsuit and supplied the target for petitioners' claim of unconstitutionality. 1
In 1969, more than a year after this lawsuit had been filed, the Board of Medical Examiners radically altered its version of the California electorate's 1962 objectives. It now took the position that the voters of 1962 had not prohibited the future licensing of osteopathic graduates, but intended to permit their certification as physicians and surgeons at the hands of the Board of Medical Examiners, provided only that the board approved the osteopathic colleges granting their degrees. The Attorney General similarly altered his view of the voters' intent. Thus, in this lawsuit, the Attorney General has sought to eliminate the constitutional issue raised by petitioners, contending that the only impediment to relief was petitioners' own failure to seek the medical board's approval of their osteopathic alma maters. 2
In our opinion on the first appeal we distinctly rejected the position now advanced by the Board of Medical Examiners and the Attorney General. We stated (6 Cal.App.3d at pp. 724-725, 86 Cal.Rptr. 245 at p. 249):
'Even as late as May 23, 1969 (this action was filed March 15, 1968), the Medical Board continued to take the position that it was without authority to grant licenses to graduates of osteopathic schools. Interpretation of statutes by the agencies which must administer and enforce them is entitled to great weight in the courts. [Citations.]
'It is true that since the filing of this action both the Attorney General and the Medical Board have changed their position in regard to the effect of the 1962 Osteopathic Act. Nevertheless, their long continued contrary opinion is still entitled to...
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