Grant v. Board of Medical Examiners

• Decision Date: 15 March 1965
• Citation: 43 Cal.Rptr. 270,232 Cal.App.2d 820
• Court: California Court of Appeals Court of Appeals
• Parties: Walter James GRANT, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent and Respondent. Civ. 22101.

Page 270

43 Cal.Rptr. 270

232 Cal.App.2d 820

Walter James GRANT, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent and Respondent.

Civ. 22101.

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

March 15, 1965.

J. Albert Hutchison, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Gerald F. Carreras, Deputy Atty. Gen., San Francisco, for respondent.

SULLIVAN, Presiding Justice.

This is an appeal from a judgment denying a writ of mandate to compel respondent board to set aside its decision in a disciplinary proceeding.

Appellant is a physician licensed to practice medicine in Illinois, California and Arkansas. He was originally licensed in Illinois. On August 7, 1953 he became licensed to practice in California by the issuance to him by respondent board of a reciprocity certificate based upon his Illinois license. (See Bus. & Prof. Code § 2310.) ¹ His Arkansas license was issued on a similar basis of reciprocity and from 1952 to 1955 he practiced in that state. From 1955 to 1957 he practiced in California; since the latter date he has been practicing in the State of Washington.

Respondent board initiated the present disciplinary proceedings on August 16, 1962 by filing an accusation against appellant (§ 2364; Gov.Code § 11503.) Said accusation charged that on or about June 8, 1959 the Arkansas State Medical Board entered an order revoking appellant's license to practice medicine in the State of Arkansas and that by virtue of said order appellant violated sections 2378 and 2392, such violations constituting grounds for the suspension or revocation of appellant's California license as provided by sections 2361, 2362 and 2363. ² Appellant filed with respondent board a notice of defense (Gov.Code § 11506) in support of which he contended that 'the accusation does not state any transaction within the legislative jurisdiction of California or the administrative jurisdiction of the Board and should be dismissed.'

At the commencement of the administrative hearing appellant's counsel renewed his objection that the accusation contained 'no statement of cause for discipline' and urged that the proceedings be dismissed, stating that 'we have a case that shouldn't have been brought at all and shouldn't go into the evidence.' The hearing officer reserved a ruling on the motion to dismiss and proceeded to hear the evidence. Counsel for the board then offered, and the hearing officer received in evidence over the reserved objections of appellant a certified copy of the order of revocation of license issued by the Arkansas State Medical Board. ³

The aforementioned order states: 'On this 8th day of June, 1959 this cause is submitted to the Board upon the complaint of Eugene R. Warren, and upon the documentary and sworn testimony adduced before the Board.

'The Board finds that an order to show cause was served upon Dr. Walter J. Grant in the manner provided by law on April 10, 1959. The Board further finds that the said Dr. Walter J. Grant aided and abetted an unlicensed person, to-wit one J. W. Mercer, in the violation of the Arkansas Medical Practices Act, and that he is guilty of gross and negligent malpractice which constitutes a proper ground for revocation of the license of said Dr. Walter J. Grant under the Arkansas Medical Practices Act, and that said license should be revoked.

'IT IS, THEREFORE, BY THE BOARD CONSIDERED, ORDERED AND ADJUDGED that the license of Dr. Walter J. Grant to practice medicine in the State of Arkansas be, and the same is hereby revoked.

'This order is entered by the President and Secretary upon the unanimous vote of the Arkansas State Medical Board.'

This was the only evidence introduced by respondent.

Counsel for appellant thereupon offered and there was received in evidence a letter dated November 19, 1962 from the Arkansas State Medical Board stating that appellant's license in Arkansas had been reinstated. ⁴ Appellant then testified voluntarily on his own behalf without waiving his objection to the board's jurisdiction.

In his proposed decision the hearing officer found so far as is here pertinent that the Arkansas State Medical Board had entered the abovementioned order of June 8, 1959; ⁵ that appellant, while in Arkansas had clinical psychology tests performed for him by an unlicensed person who, after appellant left Arkansas, continued to use appellant's office, apartment and telephone number (Finding IV); ⁶ that appellant was reinstated as a physician and surgeon in Arkansas on November 15, 1962; and that at no time did Illinois, the primary licensing state, ever proceed against appellant's license to practice in Illinois.

From these findings the hearing officer made the following determinations: That appellant was guilty of unprofessional conduct as defined in sections 2363, 2378 and 2392 (see fn. 2, ante) constituting grounds for the suspension or revocation of his license; that appellant was not guilty of unprofessional conduct within the meaning of section 2362 (see fn. 2, ante); and that 'The matters found in Finding IV [see fn. 6, ante] show that it would not be in the public interest to take disciplinary action against * * * [appellant] at the present time.' The hearing officer then proposed the following order: 'That the Accusation heretofore filed herein, and the proceedings instituted thereunder, against Walter J. Grant, M.D., respondent above-named, be and the same are hereby dismissed.' .' (Emphasis added.) On March 12, 1963 respondent board adopted the proposed decision of the hearing officer.

Appellant then filed a petition for writ of mandate in the court below. ⁷ An alternative writ issued and the board filed a return thereto by demurrer (see Code Civ.Proc. § 1109) and answer (Code Civ.Proc. § 1089). In its memorandum of points and authorities in support of its demurrer, the board urged, inter alia, that since it had dismissed the accusation and the proceedings thereunder, appellant was not aggrieved by the board's decision and the petition filed in said court failed to state a cause of action.

After a hearing, the trial court found and concluded that the material allegations of the petition attacking the validity and correctness of the board's decision were not true; that the board's decision was supported by the weight of the evidence; that respondent had not been guilty of prejudicial abuse of discretion but had proceeded within its jurisdiction and in the manner provided by law; that appellant was afforded a fair trial; that the court 'finds no reason for annulling the decision of respondent but, on the contrary, finds that said decision should be affirmed.' The court entered judgment discharging the alternative writ and denying the petition for a peremptory writ. This appeal followed.

Appellant contends that (1) the board was without jurisdiction to consider acts allegedly occurring in Arkansas; (2) the board was without jurisdiction to proceed upon an accusation charging acts in Arkansas only on hearsay; and (3) the board proceeded contrary to law and abused its discretion in requiring appellant to produce evidence when the charges made were not supported by the evidence produced on the case in chief. Respondent board contends that (1) appellant had no grounds upon which to file his petition below or the instant appeal because, the disciplinary proceedings having been dismissed, he was not aggrieved by the board's decision; (2) the board had jurisdiction over the acts involved; and (3) the board did not abuse its discretion or proceed contrary to law. We have concluded that respondent's first contention has merit and that the judgment should be affirmed on that basis. Our above conclusion makes it unnecessary for us to consider the other issues raised on appeal.

The writ of mandate is appropriate for the purpose of reviewing the final orders and decisions of an administrative agency exercising quasi-judicial powers. (Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal.2d 90, 101, 280 P.2d 1; Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637, 234 P.2d 981; Savelli v. Board of Medical Examiners (1964) 229 A.C.A. 169, 187, 40 Cal.Rptr. 171; Madruga v. Borden Co. (1944) 63 Cal.App.2d 116, 122, 146 P.2d 273; see Allen v. Humboldt County Board of Supervisors (1963) 220 Cal.App.2d 877, 881-882, 34 Cal.Rptr. 232.) An action for declaratory relief is not appropriate for such purpose but may be treated as a petition for a writ of mandate. (Hostetter v. Alderson (1952) 38 Cal.2d 499, 500, 241 P.2d 230; Boren v. State Personnel Board, supra, 37 Cal.2d 634, 638, 234 P.2d 981; Savelli v. Board of Medical Examiners, supra.) Since the enactment of Code of Civil Procedure section 1094.5 in 1945 it is no longer open to question that 'administrative mandamus' is a proper remedy for judicial review of administrative action. (Boren v. State Personnel Board, supra; Allen v. Humboldt County Board of Supervisors, supra, 220 Cal.App.2d 877, 881-882, 34 Cal.Rptr. 232; see 3 Witkin, Cal.Procedure, p. 2484 et seq.; 2 Cal.Jur.2d 324-326; 2 Stan.L.Rev. 285; Kleps, Certiorarified Mandamus Reviewed, 12 Stan.L.Rev. 554.) We must not lose sight of the fact that the courts created and developed this remedy to meet the need for judicial review of state-wide agencies (Kleps, op. cit., pp. 554, 555-556; see Bodinson Mfg. Co. v. California Emp. Comm. (1941) 17 Cal.2d 321, 328-329, 109 P.2d 935) and that the Legislature by enacting Code Civil Procedure section 1094.5 in effect ratified such judicially developed remedy so far as it could constitutionally do so.

However administrative mandamus did not thereby acquire a separate and distinctive legal personality. It is not a remedy removed from the general law of mandamus or exempted from the latter's established principles, requirements and limitations. (See 2 Cal.Jur.2d, pp. 328-329.) A petitioner invoking such...