Morris v. Board of Medical Examiners

• Decision Date: 17 November 1964
• Citation: 230 Cal.App.2d 704,41 Cal.Rptr. 351
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 A.L.R.3d 1201 B. Gene MORRIS, Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent. Civ. 27206. . Division 3, California

Page 351

41 Cal.Rptr. 351

230 Cal.App.2d 704, 12 A.L.R.3d 1201

B. Gene MORRIS, Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 27206.

District Court of Appeal, Second District. Division 3, California.

Nov. 17, 1964.

Landon Morris, Los Angeles, Ball, Hunt & Hart, Joseph A. Ball and Joseph D. Mullender, Jr., Long Beach, for appellant.

Stanley Mosk, Atty. Gen., and Conrad Lee Klein, Deputy Atty. Gen., for respondent.

FORD, Justice.

This is an appeal from a judgment denying a petition for a writ of mandate by which the petitioner, Dr. Morris, sought to annul the decision and order of the respondent Board of Medical Examiners of the State of California imposing discipline on him.

On April 25, 1960, in the United States District Court the petitioner entered a plea of nolo contendere to each of two counts of an indictment charging violations of section 145(b) of the Internal Revenue Code of 1939. In one count it was alleged that the petitioner did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States of America for the year 1953. In the other count such offense was charged with respect to the year 1954. On May 16, 1960, the court imposed a fine of $10,000 upon petitioner as to the first count. With respect to the second count, imposition of sentence was suspended and the petitioner was placed on probation for a period of five years on certain conditions, one of them being that the petitioner pay the taxes and penalties which should subsequently be adjudicated to be due as to the years involved.

Thereafter a special investigator for the Board of Medical Examiners filed with the board an accusation against the petitioner. (Gov.Code, § 11503.) It was therein alleged that the petitioner had been convicted of the federal offenses constituting felonies to which reference has been made hereinabove and that, therefore, he was guilty of unprofessional conduct as defined in section 2383 of the Business and Professions Code. ¹

A hearing was had before a hearing officer. After offering in evidence certified copies of court records relating to the prosecution of Dr. Morris, the complainant rested. Thereupon evidence was offered on behalf of Dr. Morris as to his reputation in the community in which he resided and practiced for honesty and integrity, as to the circumstances under which he filed the income tax returns which understated his income, and as to the proceedings with respect to his entry of the plea of nolo contendere.

In his proposed decision the hearing officer found that for the year 1953 Dr. Morris made a return stating his net income to be in the sum of $11,238.49 and the tax due thereon to be in the sum of $2,289.16, whereas his net income for that year was in the sum of $33,356.60 and the tax due thereon was in the sum of $11,397. He further found that for the year 1954 Dr. Morris made a return stating his net income to be $18,053.91 and the tax due thereon to be $4,006.34, whereas his net income for that year was in the sum of $49,413.23 and the tax due thereon was in the sum of $18,891.70.

With respect to the evidence introduced on behalf of Dr. Morris, the hearing officer's proposed decision was as follows: 'Respondent introduced evidence which proved the following facts: 1. Respondent owned a hospital at Indio, California, which he operated in connection with his private practice of medicine. Respondent entered into an arrangement with the Continental Casualty Company to furnish medical and hospital services to the Mexican workmen at a flat rate per month per laborer and said casualty company did issue monthly checks to pay for said services. Respondent also had an arrangement with the County of Riverside whereby hospital and medical services would be rendered to people receiving Old Age Security. Respondent upon receiving the checks from the casualty company and the County would exchange said checks for cashier's checks and the amount of the income was not entered on respondent's books. 2. As either the hospital or respondent's own living expenses required additional money respondent would then cash the cashier's checks and turn the money over to the hospital or use the same for the living expenses of respondent and his wife, the purchase of furniture for their home, or jewelry for his wife, or, in one instance, respondent used some of said money to take a group of three people plus himself on a trip to Hawaii. 3. Respondent contended that the reason he caused the checks he received to be exchanged for cashier's checks was to prevent his competitors from knowing the amount of income he was receiving from either the casualty company or the County of Riverside and felt that if he had deposited the checks in the bank at Indio, California, information as to his income would leak out to his competitors. 4. Respondent had practiced medicine and surgery at Indio, California, for approximately 25 years and had built his total assets up to approximately $490,000 and at the time of his sentence by the District Court in May, 1960, he had liabilities of approximately $145,000, leaving a net worth of approximately $355,000 [sic].'

The hearing officer further found that Dr. Morris' 'convictions involved moral turpitude.' Based upon his findings of fact, the hearing officer determined that unprofessional conduct under the provisions of section 2383 of the Business and Professions Code had been established and that the facts proven by Dr. Morris were insufficient to mitigate the penalty in the matter. The order proposed was that Dr. Morris' license to practice medicine and surgery in the State of California be revoked.

The Board of Medical Examiners adopted the proposed decision of the hearing officer as its decision except with respect to the penalty proposed. The effectiveness of the order as to the matter of revocation was stayed for a period of five years, during which period Dr. Morris was placed on probation subject to specified conditions. One of such conditions was that Dr. Morris should not exercise any of the rights and privileges granted to him by his license until the expiration of 180 days from the effective date of the board's decision.

In the proceedings in the superior court pursuant to Dr. Morris' petition for a writ of mandate, the court's findings of fact were in part as follows: 1. The decision of the Board of Medical Examiners was supported by its findings of fact and such findings were supported by the weight of the evidence, except that there was an inaccuracy in the findings in that, although it was true that the unreported income was not entered on the books of Dr. Morris which recorded income and from which his income tax returns were prepared, evidence of that income was reflected in other documents which were a part of Dr. Morris' business records. 2. Such inaccuracy in the board's findings of fact, as well as any inaccuracy in such findings as to the use made of the unreported income, did not result in prejudice to Dr. Morris. 3. The hearing officer and the board did not exceed their jurisdiction, did not abuse their discretion, granted Dr. Morris a fair hearing, and afforded him due process of law throughout all of the proceedings.

The first contention made by the petitioner is that under section 2383 of the Business and Professions Code (set forth in footnote 1 to this opinion), a conviction of a felony cannot constitute unprofessional conduct unless that offense involved moral turpitude. But that contention is tenable only if the amendment of section 2383 in 1957 changed the law existing prior thereto. Before that amendment the portion of section 2383 here pertinent was as follows: 'The conviction of a felony or of any offense involving moral turpitude constitutes unprofessional conduct within the meaning of this chapter. The record of the conviction is conclusive evidence of such unprofessional conduct. A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge of a felony or of any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.' In Furnish v. Board of Medical Examiners, 149 Cal.App.2d 326, page 330, 308 P.2d 924, page 927, 309 P.2d 493 (decided March 20, 1957), it was held that by that section 'the legislature intended that the conviction of a felony in and of itself, without any qualifications, constitutes unprofessional conduct.'

Prior to the decision in the Furnish case, in Lorenz v. Board of Medical Examiners, 46 Cal.2d 684, 298 P.2d 537, the Supreme Court had occasion to construe the former language of section 2383 of the Business and Professions Code. The opinion was filed on June 19, 1956. In that case a physician had pleaded guilty to a violation of the Alcoholic Beverage Control Act which was a misdemeanor. Therein the court stated (46 Cal.2d, at pages 686-687, 298 P.2d, at page 538): 'Under the plain language of section 2383 it is the conviction alone of an offense involving moral turpitude that empowers the board to suspend or cancel a license. Since the record of conviction is conclusive evidence of the unprofessional conduct, the circumstances in which the crime was in fact committed cannot be considered. Moral turpitude must be inherent in the crime itself to warrant cancellation or suspension of a license because of the conviction. In re Hallinan, 43 Cal.2d 243, 248-249, 272 P.2d 768. Moral turpitude is not inherent in the crime itself unless a conviction in every case would evidence bad moral character. (Ibid.) Only if the minimum elements for a conviction necessarily involve moral turpitude and a conviction cannot be had without proof of facts showing moral turpitude, can the conviction be held to be of an offense involving moral turpitude.'

The present language of section 2383 that the conviction of 'either (1) a felony...