Gray v. Superior Court

• Citation: 23 Cal.Rptr.3d 50,125 Cal.App.4th 629
• Decision Date: 05 January 2005
• Docket Number: No. A107367.,A107367.
• Court: California Court of Appeals
• Parties: Jeffrey Thomas GRAY, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent; Medical Board of California, Real Party in Interest.

23 Cal.Rptr.3d 50

125 Cal.App.4th 629

Jeffrey Thomas GRAY, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent Medical Board of California, Real Party in Interest.

No. A107367.

Court of Appeal, First District, Division 3.

January 5, 2005.

Lael Kayfetz, Louis A. Biggio, Napa, for Petitioner.

Bill Lockyer, Attorney General of State of California; Vivien Hara, Supervising Deputy Attorney General; David Carr, Deputy Attorney General, for Real Party In Interest.

PARRILLI, J.

As a condition of bail on pending criminal charges, the trial court prohibited Dr. Jeffrey Thomas Gray (Gray) from practicing medicine. The bail condition was requested by the Medical Board of California (Medical Board), which appeared without prior notice at Gray's arraignment. We hold the bail condition is not unreasonable per se but that its imposition violated Gray's procedural due process rights under the circumstances presented. We grant a writ of mandate directing the trial court to vacate its order.

FACTUAL AND PROCEDURAL BACKGROUND

Gray is a licensed physician and surgeon, specializing in psychiatry. In a complaint filed May 12, 2004, Gray was charged with felony counts of unlawfully prescribing and possessing a controlled substance. (Health & Saf.Code, §§ 11153, subd. (a) & 11350, subd. (a).) The complaint also charges Gray with misdemeanor counts of possessing child pornography (Pen.Code, § 311.11, subd. (a)), possessing a designated controlled substance (Health & Saf.Code, § 11375, subd. (b)(2)), and sexually exploiting a patient or former patient (Bus. & Prof.Code, § 729).

Gray entered a plea of not guilty at his arraignment on May 12, 2004. The trial court reduced bail to $30,000 from the $50,000 specified in the arrest warrant,¹ and ordered Gray to stay away from the alleged victim, a former patient. Without prior notice, the Attorney General appeared for the Medical Board at the arraignment and asked that "as a condition of release on bail that Dr. Gray's [medical] license be suspended so that he will not be able to prescribe drugs or have access to any kind of patients at all." The trial court agreed with the Medical Board and entered an order prohibiting Gray from practicing medicine as an additional bail condition.² The order also requires Gray to surrender his professional certificates to the Medical Board until the criminal charges are resolved.

Gray filed a petition for a writ of habeas corpus, challenging the bail condition. The trial court issued an order to show cause, held a hearing on July 27, 2004, and ultimately denied the petition, reasoning that public safety is the primary consideration in setting bail. The court noted the matter could have gone before the Medical Board, which presumably possessed greater expertise than the court in assessing a defendant's competence to practice medicine. The court articulated a concern that the Medical Board faces a dilemma if it commences administrative proceedings to suspend or revoke a medical license while a criminal action is pending, because a determination favorable to the defendant could have a collateral estoppel effect and preclude a criminal prosecution.

After the trial court denied his petition for a writ of habeas corpus, Gray filed a petition for a writ of habeas corpus here, arguing he was deprived of due process and that prohibiting him from practicing medicine is an unreasonable condition of bail. We construed the habeas petition as one seeking a writ of mandate³ directing the trial court to vacate its May 12, 2004 order prohibiting Gray from practicing medicine, and we issued an order to show cause.

DISCUSSION

I. THE TRIAL COURT VIOLATED PETITIONER'S DUE PROCESS RIGHTS WHEN IT SUSPENDED HIS MEDICAL LICENSE AS A CONDITION OF BAIL.

The state may not deprive a person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) "Due process requires that before one ... is disciplined by deprival or abridgement of the right to engage in his business or profession, he be given reasonable notice of the charges against him, notice of the time and place of a hearing, and thereafter a fair hearing on the charges. [Citations.]" (Fort v. Board of Medical Quality Assurance (1982) 136 Cal.App.3d 12, 23, 185 Cal.Rptr. 836.)

In Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 326-329, 248 Cal.Rptr. 704 (Smith), the court analyzed both federal and state due process requirements in a case involving the former Board of Medical Quality Assurance, now known as the Division of Medical Quality of the Medical Board. (See Kees v. Medical Board of California (1992) 7 Cal.App.4th 1801, 1804, fn. 2, 10 Cal.Rptr.2d 112; Bus. & Prof.Code, § 2003.) "Under federal constitutional analysis, [one] must first establish that the due process clause applies by showing a protected liberty or property interest." (Smith, supra, 202 Cal.App.3d at p. 326, 248 Cal.Rptr. 704.) "Unquestionably, a physician has a vested property right in his or her medical license, once acquired." (Ibid., citing Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383.) "Until a formal accusation is filed against a physician, his or her license is valid. [Citations.] Once an accusation is filed, the physician enjoys the protection of a full range of due process rights. [Citations.]" (Smith, supra, 202 Cal.App.3d at p. 326, 248 Cal.Rptr. 704.)

Although the Smith court noted that Smith, a physician, had a vested property interest in his medical license, the court concluded no federal due process rights were at stake because the proceedings at issue — proceedings that at most would result in ordering Smith to take a competency examination — did not immediately jeopardize Smith's license. (Smith, supra, 202 Cal.App.3d at p. 326, 248 Cal.Rptr. 704.) Here, the trial court's action jeopardized Gray's medical license immediately and indefinitely by "suspending" his license while the criminal proceedings were pending.⁴ This action directly implicates Gray's federal due process rights.

As for the due process analysis under the California Constitution, the Smith court noted one "need not establish a property or liberty interest as a prerequisite to invoking due process protections. [Citations.] Instead, the extent to which procedural due process is available depends on a careful weighing of the private and governmental interests involved." (Smith, supra, 202 Cal.App.3d at p. 327, 248 Cal.Rptr. 704.) This weighing process "generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (People v. Ramirez (1979) 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 599 P.2d 622; accord Smith, 202 Cal.App.3d at p. 327, 248 Cal.Rptr. 704.)

Of these four factors, only the governmental interest appears to have been given much weight by the trial court. Little consideration was given to Gray's private interest in his license or the risk of erroneously depriving Gray of his license. Nor did the court appear to consider the probable value of additional safeguards or the dignitary interest Gray had in receiving notice of the proposed action and the opportunity to present his side of the story. Indeed, Gray was given no advance notice of the Medical Board's recommendation that his license be suspended. The Attorney General simply appeared at Gray's arraignment with a motion in hand, giving Gray's attorney no opportunity to research the issue before arguing against it. The trial court significantly impaired Gray's freedom to pursue a private occupation without giving him notice, an effective opportunity to confront the charges or witnesses against him, or a full hearing, in violation of his due process rights.

The Medical Board acknowledges a number of procedures are available to immediately suspend a physician's right to practice. For example, the Medical Board may seek an interim suspension order from its Division of Medical Quality (or an administrative law judge) based upon affidavits showing the licensee has engaged in, or is about to engage in, acts violating the Medical Practice Act. (Gov.Code, § 11529, subd. (a).) The licensee must receive at least 15 days' notice of a hearing at which witnesses may be called and cross-examined. The required noticed hearing may be avoided if an affidavit establishes by admissible evidence that serious injury would result to the public before a noticed hearing could occur. In such a case, a suspension order may be issued without notice. (Gov.Code, § 11529, subds.(b), (c) & (d).) However, where an immediate license suspension is based on an evidentiary showing by affidavit, the licensee must be given a full hearing within 20 days. (Gov.Code, § 11529, subd. (c).) If an accusation is not filed with the Board within 15 days after the matter is submitted, the order is dissolved. (Gov.Code, § 11529, subd. (f).)

The Medical Board may also seek a temporary restraining order from a superior court restraining a licensee from practicing his or her profession. (Bus. & Prof.Code, § 125.7.) Like an interim suspension order, a temporary restraining order must be based on affidavits, and it must not be issued without notice to the licensee unless evidence establishes that serious injury would result to the public. (Bus. & Prof.Code, § 125.7, subd. (a) & (b).) If no accusation is filed with...