Kenneally v. Lungren
| Decision Date | 16 June 1992 |
| Docket Number | No. 92-55098,92-55098 |
| Citation | 967 F.2d 329 |
| Parties | Dr. Leo F. KENNEALLY, Plaintiff-Appellant, v. Dan LUNGREN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stanley Fleishman, Fleishman, Fisher & Moest, Los Angeles, Cal., for plaintiff-appellant.
Calvin W. Torrance, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before: PREGERSON, D.W. NELSON and THOMPSON, Circuit Judges.
Kenneally is a medical doctor who performs therapeutic abortions in his outpatient clinic. Since 1976, approximately 10,000 abortions a year have been performed at this clinic. In April 1990, the Medical Board of California ("Board") filed an accusation against Kenneally, accusing him of gross negligence and incompetence in the performance of abortions on six patients. Three of the six patients died shortly after the abortions were performed. The accusation also alleges that Kenneally's failure to use general anesthetics, and to have IV's available when conducting second trimester abortions, fell below the required standard of care.
Kenneally filed a complaint in the district court seeking a temporary restraining order and an injunction to prevent the Board from holding a hearing on the accusation. He alleged that the Board's proceedings violated rights guaranteed him by the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. He also alleged that the Board was subjecting him to selective and discriminatory prosecution because he performed low cost therapeutic abortions in an outpatient clinic, rather than in a hospital. He further alleged that the state procedures did not afford him a full and fair opportunity to raise his federal constitutional claims.
The district court ordered the defendants to show cause why the state administrative hearing should not be enjoined, and to address the issue of abstention. Pending the resolution of those matters, the court issued a temporary restraining order enjoining the Board from conducting the administrative hearing.
When the district court held its hearing to resolve the injunction and abstention issues, it had before it the deposition testimony of seven witnesses as well as a number of declarations and exhibits. The court denied Kenneally's request to present live testimony, but permitted extensive oral argument. Following the hearing, the court ruled that Younger abstention applied, denied Kenneally's motion for a preliminary injunction and dismissed the action. This appeal followed.
When the district court abstains on the basis of Younger, "which forbids federal courts from enjoining pending certain categories of state proceedings except in extraordinary circumstances, we review its abstention de novo." Partington, 880 F.2d at 120. "This de novo review is applied even though we are reviewing the action of the district court in granting or denying an injunction." Id.
Younger requires the court to abstain and dismiss an action to enjoin a state administrative proceeding if all three prongs of the Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), test are met; unless one of the recognized exceptions to Younger is present. Partington, 880 F.2d at 121. The three-part Middlesex test requires federal courts to examine
(1) The nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings.
Id. To determine whether an exception to Younger is present, the court "must also examine whether the proceeding demonstrates 'bad faith, harassment, or some other extraordinary circumstances that would make abstention inappropriate.' " Id. (quoting Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523).
Kenneally does not dispute the district court's findings that prongs one and two of the Middlesex test are satisfied. Rather, he argues that the third prong of the Middlesex test is not met. He contends he will be unable to litigate his federal constitutional claims in the state proceedings due to the inadequacy of those proceedings and bias by the Board. He also argues the district court erred by denying his request for an evidentiary hearing to present oral testimony on his claim that the bad faith exception to Younger abstention applied.
Article III, § 3.5 of the California Constitution prohibits administrative bodies from declaring statutes unconstitutional or refusing enforcement of statutes on the basis of claims that such statutes are unconstitutional. 1 However, "even if a federal plaintiff cannot raise his constitutional claims in state administrative proceedings that implicate important state interests, his ability to raise the claims via state judicial review of the administrative proceedings suffices." Partington, 880 F.2d at 124; see also Ohio Civil Rights Comm'n v. Dayton Christian Sch. Inc., 477 U.S. 619, 629, 106 S.Ct. 2718, 2723-24, 91 L.Ed.2d 512 (1986).
Section 3.5 of the California constitution "[']does not affect ... [administrative agencies'] competence to examine evidence before them in light of constitutional standards.' " Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229, 1234 (9th Cir.1982) (quoting Capitol Indus.-EMI v. Bennett, 681 F.2d 1107, 1117 n. 28 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982)). The Board may "receive evidence in light of [Kenneally's constitutional] challenges and the California [courts] remain competent to review such challenges" upon a petition for writ of mandate. Id. at 1235. See also Cal.Civ.Proc.Code § 1094.5; Cal.Gov't Code § 11523.
Kenneally argues that he will not have a meaningful opportunity to present his constitutional claims to the state court, because the Board will revoke his license immediately upon conclusion of the hearing. In response to this contention, the Board has stipulated that it will not make its decision effective until thirty days after a decision is rendered. 2 Kenneally asserts that even if this 30-day stay is granted by the Board, his opportunity to litigate his constitutional claims before the state court will be lost. He contends that the filing of a petition for a writ of mandate with the California superior court, which will trigger that court's review of the Board proceedings, will not stay any Board revocation order, and his constitutional claims cannot be heard and resolved by the California superior court within the 30-day stay period.
Kenneally is correct that the Board's order is not automatically stayed pending review by the California superior court. See Cal.Civ.Proc.Code § 1094.5(h)(1). However, the superior court has discretion to stay the operation of the administrative order "pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first." Cal.Civ.Proc.Code § 1094.5(h)(1). In exercising this discretion, " '[t]he statute mandates a preliminary assessment of the merits of a real party's petition and a conclusion that he is likely to obtain relief therein.' " Medical Board v. Superior Court (Elam), 227 Cal.App.3d 1458, 278 Cal.Rptr. 247, 249 (1991) (quoting Board of Medical Quality Assurance v. Superior Court (Willis), 114 Cal.App.3d 272, 170 Cal.Rptr. 468, 470 (1980)).
This statutory framework provides a meaningful opportunity for Kenneally to present his constitutional claims for independent judicial review prior to the Board's decision becoming effective. The state court's inquiry "shall extend to the questions whether the respondent [here, the Board] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." See Cal.Civ.Proc.Code § 1094.5(b). Abuse of discretion may be established "if the respondent has not proceeded in the manner required by law." Id.
True, the California superior court may decide not to stay the Board's administrative order beyond the 30-day stay period. But this does not mean that Kenneally will not have had an opportunity to present his constitutional claims to the state court for its review and have those claims considered before the Board's order takes effect. Nothing under California law limits Kenneally from presenting his claims at the stay hearing. Indeed, the petitioner in Elam presented several constitutional and nonconstitutional claims to the superior court when he applied for a stay of an administrative order. Elam, 278 Cal.Rptr. at 249 (due process claims).
We conclude that Kenneally has not established that...
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