Medical Board v. Superior Court

• Decision Date: 30 April 2001
• Docket Number: No. C033351.,C033351.
• Citation: 106 Cal.Rptr.2d 381,88 Cal.App.4th 1001
• Court: California Court of Appeals Court of Appeals
• Parties: MEDICAL BOARD of California, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent; Anselm On-Sang Lam, Real Party in Interest.

106 Cal.Rptr.2d 381

88 Cal.App.4th 1001

MEDICAL BOARD of California, Petitioner, v. SUPERIOR COURT of Sacramento County, Respondent Anselm On-Sang Lam, Real Party in Interest.

No. C033351.

Court of Appeal, Third District.

April 30, 2001.

Review Denied August 8, 2001.

Bill Lockyer, Attorney General, Gail M. Heppell, Supervising Deputy Attorney General, Fred A. Slimp II and Robert C. Miller, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Russell Iungerich, Los Angeles, for Real Party in Interest.

KOLKEY, J.

This appeal requires us to decide whether Business and Professions Code section 2305¹—a more specific statute—impliedly repeals section 141—a more general one that covers the same subject. Section 2305, the more specific statute, mandates disciplinary action against a medical licensee based on out-of-state discipline that "would have been grounds for discipline in California," whereas section 141, the more general statute, permits state licensing boards to impose discipline based on "a disciplinary action taken by another state."²

The trial court concluded that a physician can be disciplined only under the more specific statute, section 2305, relying on the principle that "`a general provision is controlled by one that is special, the latter being treated as an exception to the former.'" (San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577, 7 Cal.Rptr.2d 245, 828 P.2d 147.) It therefore ruled that the Medical Board of California (sometimes referred to as the Board) "exceeded its jurisdiction by imposing the suspension [of the license of a physician] ... on the basis of ... section 141."

We disagree. As we shall explain, while sections 141 and 2305 overlap, that does not necessarily mean that the more specific statute—section 2305— replaces, that is, impliedly repeals, the general one. "`[A]ll presumptions are against a repeal by implication. [Citations.]'"<sup>3</sup> Implied repeals may be found only where "`there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are "... so inconsistent that the two cannot have concurrent operation."'"⁴ That is not the case here.

Instead, the two statutes here can be reconciled by treating section 2305 as an exception to, but not as a replacement of, section 141. Section 141, subdivision (a), permits any licensing board under the jurisdiction of the State Department of Consumer Affairs to impose discipline based on a disciplinary action taken by another state, a federal agency, or another country. Its language and origins suggest that it was meant to act as a catchall statute, granting licensing boards broad authority to impose discipline. That it was meant to coexist with specific statutes, like section 2305, is demonstrated in part by section 141's express acknowledgement elsewhere⁵ that it does not preclude the administration of more specific statutes by specialized licensing boards. Section 2305, in contrast, requires disciplinary action against a medical licensee based on discipline imposed by another jurisdiction, but only where the other jurisdiction's action would have been grounds for discipline in California. Since the record in this case does not show that the requirements of the more specific statute, section 2305, were satisfied, the two statutes do not even conflict in this matter, and there is no reason why section 141 cannot be applied.

In fact, the very case cited by the trial court—San Francisco Taxpayers Assn. v. Board of Supervisors, supra, 2 Cal.4th at page 577, 7 Cal.Rptr.2d 245, 828 P.2d 147—treats a special provision as an exception to, but not as a wholesale replacement of, a general provision. To do otherwise and treat the enactment of a specific statute as an implied repeal of a general one where the statutes are not so inconsistent that they cannot have concurrent operation, would condone a judicially inspired repeal of a statute without satisfying the stringent standards required for finding an implied repeal—standards designed to act as a legal bulwark against judicial trespass into the legislative province.

Our approach not only comports with settled principles of statutory construction, including the duties to avoid implied repeals and to reconcile two statutes dealing with the same subject,⁶ but it recognizes this court's constitutional role of construing, not rewriting (or worse, writing out), duly enacted statutes.

Accordingly, we shall issue a peremptory writ of mandate, directing the respondent superior court to set aside its judgment and remanding the matter for further consideration in light of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1975, Dr. Anselm On-Sang Lam (Dr. Lam)—the real party in interest here—has been licensed and registered to practice medicine and surgery in the states of Wisconsin and California.

At some point, the Wisconsin Medical Examining Board initiated an investigation, following an allegation that "Dr. Lam was premature in his attempt to repair a rectovaginal fistula which developed following repair of a fourth degree tear which occurred at the time of a vaginal delivery."

This investigation was concluded, however, by a stipulation of the parties—without the need for an evidentiary hearing or any findings. Pursuant to the stipulation, Dr. Lam maintained that he had engaged in no wrongdoing, and the Wisconsin Medical Examining Board ordered that Dr. Lam "not repair or attempt to repair rectovaginal fistulas" and that he refer patients who have such a condition to a gynecologist "for appropriate evaluation and treatment."

Thereafter, the Medical Board of California filed an administrative accusation against Dr. Lam pursuant to section 141, alleging that he had been disciplined by Wisconsin.

After an administrative hearing (at which Dr. Lam did not appear or introduce evidence), an administrative law judge recommended that Dr. Lam's California license be suspended for 90 days and that he pay $683 in investigative and enforcement costs pursuant to section 125.3. The Board adopted the recommendation.

Dr. Lam then petitioned the superior court pursuant to Code of Civil Procedure section 1094.5 for a writ of administrative mandamus, directing the Board to set aside its disciplinary action. He argued in large part that the Board lacked jurisdiction to discipline him under section 141 because section 141, the sole basis for the Board's action, had been "supplanted by section 2305," a more specific statute.

The trial court granted Dr. Lam's petition. In response to the Board's argument that Dr. Lam lacked standing because his suspension had expired, the court ruled that "this matter is not moot even though the term of the suspension expired during the pendency of these proceedings, since the petition was filed while the suspension was in effect." Addressing the merits, it concluded that the Board "exceeded its jurisdiction by imposing the suspension ... on the basis of ... section 141." It explained: "Section 2305 is a more specialized statute in that it applies specifically to medical licenses and requires a more specific finding than section 141. [¶] General principles of statutory interpretation hold that a specific statute relating to a particular subject will govern in respect to that subject as against a general provision, even though the general provision standing alone, would be broad enough to include the subject to which the more particular provision relates. See, San Francisco Taxpayers Ass[n]. v. Board of Supervisors[, supra,] 2 Cal.4th 571, 577, 7 Cal.Rptr.2d 245, 828 P.2d 147. Accordingly, [the Board] could only impose discipline based on the Wisconsin action under section 2305, after making a finding that the Wisconsin action would be grounds for discipline in California .... The decision was based upon the wrong statute, and did not contain any findings that would support discipline under section 2305."

The Board then brought this petition for a writ of mandate directing the trial court to set aside its judgment.⁷

DISCUSSION

A. Standard of Review

Under Code of Civil Procedure section 1094.5, subdivision (b), the inquiry in an administrative mandamus proceeding is whether the agency "has proceeded ... in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion."⁸

Here, the trial court determined that the Board exceeded its jurisdiction because its decision was based on the "wrong" statute.

"On review in this court, questions of statutory interpretation are questions of law warranting independent review."⁹

B. Dr. Lam's Beneficial Interest

We address preliminarily the Board's assertion that Dr. Lam lacked standing to petition the trial court for writ relief because his suspension had expired during the pendency of the proceeding. This argument conflates standing and mootness.

Code of Civil Procedure section 1094.5, subdivision (g) provides, in relevant part, that "[w]here any final administrative order or decision is the subject of proceedings under this section, if the petition shall have been filed while the penalty imposed is in full force and effect, the determination shall not be considered to have become moot in cases where the penalty imposed by the administrative agency has been completed or complied with during the pendency of the proceedings."

The Board concedes that "[w]hen Lam's writ was filed, [his] suspension was still in effect, thus bringing the `non-mootness' provision of Code [of] Civ[il] Procedure] section 1094.5[, subdivision] (g) into effect." But the Board argues that "although the controversy ... may not be moot ..., [Dr. Lam] nevertheless lacks a beneficial interest, for the court can do nothing for him; he is no longer aggrieved by [the Board]'s disciplinary order and can practice medicine in California without restriction or limitation of any kind."

We disagree. "Mootness has been...