Furnish v. Board of Medical Examiners

• Decision Date: 20 March 1957
• Citation: 308 P.2d 924,149 Cal.App.2d 326
• Court: California Court of Appeals Court of Appeals
• Parties: Richard Douglas FURNISH, M.D., Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent. Civ. 21721.

Page 924

308 P.2d 924

149 Cal.App.2d 326

Richard Douglas FURNISH, M.D., Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 21721.

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

March 20, 1957.

Rehearing Denied April 9, 1957.

Hearing Denied May 15, 1957.

Murray M. Chotiner and Russell E. Parsons, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., Howard S. Goldin, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of dismissal after sustaining a demurrer without leave to amend.

An accusation was filed with the Board of Medical Examiners of the State of California, hereinafter referred to as the 'Board', on July 21, 1954, wherein it was alleged that Richard Douglas Furnish, hereinafter referred to as the 'Doctor', had been guilty of unprofessional conduct contrary to the provisions of section 2383 of the Business and Professions Code, in that on or about May 4, 1953, in the United States District Court he was convicted of two felonies and criminal offenses involving moral turpitude, that is, two counts of violation of Title 26 U.S.C. § 145(b), 1939 Int.Rev.Code, in that he did willfully and knowingly attempt to defeat and evade a large part of the income tax owing by him to the United States of America for the calendar years 1947 and 1948, and each of said years. ¹ A hearing was held on February 11, 1955, before a hearing officer assigned by the Board, at which time there was introduced into evidence a certified copy of the record of conviction in the case in the District Court, establishing that the Doctor, on May 4, 1953 was convicted following his pleas of nolo contendere of two counts of violation of Title 26 U.S.C., § 145(b), Income Tax Evasion, for the calendar years of 1947 and 1948. It was conceded at the hearing that there was no evidence to establish that the convictions involved moral turpitude.

The hearing officer in his proposed decision found that the Doctor had been convicted of the two felonies and proposed a one-year suspension of his license to practice medicine and that the execution of such a penalty be suspended for three years on specified terms and conditions. The Board did not adopt the proposed decision, notified the parties accordingly and afforded to them an opportunity to file written arguments with the Board. The Board then determined the case and found that the Doctor had been convicted of the felonies in question and ordered that his license be suspended for one year. The Doctor petitioned for a rehearing, which was denied by the Board.

The Doctor then sought a writ of mandamus in the superior court in Los Angeles county, the purpose of which was to set aside the order of the Board. The administrative record was incorporated in the Doctor's first amended petition for a writ of mandate. The demurrer of the Board to the petition was sustained without leave to amend and a judgment of dismissal was threrafter made and entered. This appeal is from the judgment of dismissal.

The Doctor contends that a conviction of a felony, not involving moral turpitude, based on a plea of nolo contendere, is not a ground for disciplinary action against a physician and surgeon under section 2383 of the Business and Professions Code. The Board asserts, in this connection, that a conviction of a felony and a conviction of a criminal offense involving moral turpitude are separate, distinct and different grounds for disciplinary action. Further, that by the statute, a conviction following a plea of nolo contendere to a charge of a felony is expressly deemed to be a conviction for the purposes with which we are here concerned. The Doctor also contends that the convictions do not constitute felonies under the California law.

The Doctor further argues that the statute in question is an ex post facto law as to him, in that the offenses were committed in 1947 and 1948, and it was the 1951 amendment to the law which was applied to him. He also claims that it was an abuse of discretion for the Board to suspend his license to practice medicine for one year.

Section 2383 of the Business and Professions Code is set forth in a footnote hereto. ² When the section was added to the statutes in 1937, it consisted of the first two sentences of the section as now constituted, excepting that there was no comma following the word 'felony', and no comma following the word 'turpitude' in the first sentence.

In 1951, the section was amended by adding the commas to the first sentence and the balance of the section.

Title 26 U.S.C. § 145(b), 1939, Int.Rev. Code, reads in part as set forth in the footnote hereto. ³

In our opinion, the Doctor failed to state a cause of action warranting the issuance of a writ of mandate. The use of the disjunctive in the section in question, that is, 'The conviction of a felony, or of any offense involving moral turpitude, constitutes unprofessional conduct' (emphasis added)--makes it abundantly clear that the legislature intended that the conviction of a felony in and of itself, without any qualifications, constitutes unprofessional conduct. It is also clear that 'any offense involving moral turpitude, constitutes unprofessional conduct'--and such conduct does not necessarily have to be a felony. Further, for the purposes of this proceeding, the record of conviction is conclusive evidence of the questioned conduct, and by the very terms of the section itself, a 'plea of nolo contendere made to a charge of a felony or of any offense involving moral turpitude' (emphasis added)--is deemed to be a conviction within the meaning of the section. Lorenz v. Board of Medical Examiners, 46 Cal.2d 684, 686, 298 P.2d 537.

Under the federal law it is the punishment which the statute authorizes which determines whether the crime is a felony or a misdemeanor. Cartwright v. United States, 5 Cir., 146 F.2d 133, 135.

For disciplinary purposes the law of the jurisdiction where the crime was committed determines the character of the offense as a felony or a misdemeanor. Caminetti v. Imperial Mut. Life Ins. Co., 59 Cal.App.2d 476, 490, 139 P.2d 681; Karrell v. Watson, 116 Cal.App.2d 769, 771, 774, 254 P.2d 651, 255 P.2d 464; Murrill v. State Board of Accountancy, 97 Cal.App.2d 709, 710, 712, 218 P.2d 569.

The statute here clearly intended to make the conviction of a felony in the federal courts grounds for disciplinary action. The use of the words 'nolo contendere' are, for all intents and purposes, meaningless, unless the legislature so intended, for there is no such plea in the California state courts, and there is such a plea in the federal courts. Had the legislature not so intended, it could, and undoubtedly would have used language such as is contained in sections 2391.5 and 2390 of the Business and Professions Code, where the restrictive term 'statutes of this State' is used.

The contention that the 1951 amendment is an ex post facto law as to the Doctor is without merit. It it the law that 'the phrase, ex post facto laws, is not applicable to civil laws, but to penal and criminal laws, which punish no party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed.' Watson v. Mercer, 8 Pet. 88, 109, 8 L.Ed. 876, 884. The Supreme Court of this state, in Foster v. Board of Police Commissioners, 102 Cal. 483, at page 492, 37 P. 763, at page 765, in substance, held to the same effect and further said, '[t]hough not an ex post facto law, it is retrospective in so far as it determines from the past conduct of the party his fitness for the proposed business. Felons are also excluded from obtaining such license, not as an additional...