Salkin v. California Dental Assn.

• Decision Date: 24 January 1986
• Citation: 224 Cal.Rptr. 352,176 Cal.App.3d 1118
• Court: California Court of Appeals Court of Appeals
• Parties: Edward S. SALKIN, D.D.S., Plaintiff and Appellant, v. CALIFORNIA DENTAL ASSOCIATION and American Dental Association, Defendants and Respondents. G001275.

Page 352

224 Cal.Rptr. 352

176 Cal.App.3d 1118

Edward S. SALKIN, D.D.S., Plaintiff and Appellant, v. CALIFORNIA DENTAL ASSOCIATION and American Dental Association, Defendants and Respondents.

G001275.

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

Jan. 24, 1986.

Review Denied May 1, 1986.

Joe A. Dickerson, Santa Ana, for plaintiff and appellant.

Pepper, Hamilton & Scheetz, Jesse D. Miller and James A. Howell, Los Angeles, for defendant and respondent California Dental Ass'n.

Peterson, Ross, Schloerb & Seidel, Peter M. Sfikas, Chicago, Ill., and John W. Heinemann, Los Angeles, for defendant and respondent American Dental Ass'n.

CROSBY, Associate Justice.

May a petition in mandate alleging a member of a private professional association was denied procedural due process in a disciplinary proceeding state a cognizable cause of action where the punishment imposed is less than expulsion? Yes.

I

Orthodontist Edward S. Salkin was publicly censured by two related private professional organizations of dentists of which he is a member, the California and American Dental Associations. His petition, alleging he was denied due process in violation of the bylaws and suffered damage to his dental practice and professional reputation as a result, sought to overturn the censure and to require a new hearing of the charges against him. Both organizations demurred. They argued, and the superior court agreed, judicial review of the disciplinary procedures of private professional organizations is, as a matter of law, only available where the punishment imposed is expulsion or exclusion from membership.

The California Dental Association is a constituent organization of the American Dental Association, and Salkin belongs to both. Each organization is voluntary; and membership is not required in order to practice dentistry or any dental specialty in this state, although Salkin's last amended petition alleges CDA "exercises a degree of control and discipline over all licensed dentists of California." (But see Bus. & Prof. Code, § 1611, which subjects dentists to licensing and regulation by the State Board of Dental Examiners.) CDA's disciplinary authority over its members is delineated in the ADA bylaws. Salkin pleads, "Respondent has a clear and present duty to deal fairly and equitably with all of its members in all of its functions, and specifically has those obligations as it affects its members' rights to fair hearings, appeals and disciplinary proceedings under its by-laws."

The petition goes on to allege Salkin was informed by CDA on September 3, 1982, he would be expelled unless he returned $1,675 in fees collected from the parents of two juvenile patients. The discipline was based on an August 17, 1978 recommendation of the peer review committee of its member organization, the Orange County Dental Association. It read in part as follows: "The orthodontic specialty Peer Review Committee of the California State Society of Orthodontists was called upon to evaluate the patients and the records. The reviewed the diagnostic records taken prior to treatment, and those taken at the time of transfer. The patients were also examined clinically. [p ] Their findings showed that there had been no progress in correcting James' malocclusion during the year of treatment, and that Jill's malocclusion had worsened during the eight months she was under orthodontic care. They felt the original treatment plans were in error and the mechanotherapy used could not produce an improvement in either esthetics or occlusion."

Salkin was advised he could appeal the decision based on the sufficiency of the evidence or any defects in the procedure followed by the local committee. His attorney then requested the right to review the evidence offered at the hearing, which neither he nor his client was permitted to attend, and any transcript or record of the proceedings. CDA declined: "In [an] effort to provide further clarification for you on CDA's position with regard to this and similar requests, Section 1157 of the California Evidence Code is cited. Specifically it states ... 'neither the proceedings nor the records of ... dental review committees.... shall be subject to discovery.' "

Salkin next appealed to the ADA. On June 2, 1983, the Council on Bylaws and Judicial Affairs of the ADA reduced the proposed penalty from expulsion to censure and issued a six-page opinion, which is attached as an exhibit to the petition. The opinion, in so many words, appears to concede Salkin's case was not handled fairly or in accordance with the bylaws. Excerpts appear in the margin. ¹

II

If the discipline imposed had amounted to expulsion or exclusion from membership the associations concede Salkin would have been entitled to procedural due process as that concept has been defined in our law: "Adequate notice of charges and a reasonable opportunity to respond are basic to both due process and fair procedure. (Applebaum v. Board of Directors [1980] 104 Cal.App.3d [648,] 657 ) ... [p ] There must be an opportunity to confront and cross-examine the accusers and to examine and refute the evidence. (Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 144 .) [p ] The individual must have the opportunity to present a defense. (Pinsker v. Pacific Coast Society of Orthodontists [1974] 12 Cal.3d [541,] 555 [116 Cal.Rptr. 245, 526 P.2d 253].)" (Hackethal v. California Medical Assn., supra, 138 Cal.App.3d 435, 442, 187 Cal.Rptr. 811.)

Nonetheless, the associations claim the reduction of the discipline imposed from expulsion to censure eliminates Salkin's right to petition for relief. There is some backhanded support for that notion. For example, the Hackethal case, cited by the ADA Council itself, does view the problem of judicial interference with the membership relations of private associations in that context (which is not surprising since only expulsion was involved there): "Fair procedure is a developing concept in California. It is applicable when an organization makes a decision to exclude or expel an individual. It is a common law principle under which a private organization is legally required to refrain from arbitrary action. The action to exclude or expel must be substantively rational and procedurally fair." (Id., at p. 441, 187 Cal.Rptr. 811.) Although discipline short of expulsion was not at issue there, defendants insist the import of Hackethal is that judicial review of professional disciplinary proceedings is precluded where a lesser sanction is imposed. We decline to endorse the inference, however: It is supported neither in logic nor, as we shall see, law.

Defendants' reliance on Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253 is also misplaced. Pinsker is an exclusion case. The Society of Orthodontists argued against judicial scrutiny of a decision to exclude an individual from membership based on the significant difference between exclusion of a nonmember and expulsion of a member. There is no doubt that the membership contract, particularly as evidenced in the bylaws, is an important justification offered for judicial intervention in many of the cases. (See, e.g., Bernstein v. Alameda etc. Med. Assn. (1956) 139 Cal.App.2d 241, 253, 293 P.2d 862.) Thus, to the extent judicial intervention might be justified on contract principles and an organization's duty to its members, the society's position was reasonable enough. Nevertheless, the Supreme Court rejected the contention and extended procedural due process protections to excluded nonmembers of professional organizations. This holding hardly seems helpful to the present defendants.

Moreover, dicta in Pinsker is not supportive of the conclusion urged by the associations; for at one point in its opinion the court approves judicial intervention in cases involving discipline less than expulsion: " 'In this state "a member of an unincorporated association may not be suspended or expelled ... without charges, notice and a hearing, even though the rules of the association make no provision therefor." ' (Swital v. Real Estate Commissioner [1953] 116 Cal.App.2d 677, 679, ; Cason v. Glass Bottle Blowers Assn., supra, 37 Cal.2d 134, 143-144 .) This requirement of procedural fairness has been an established part of the California common law since before the turn of the century. (See, e.g., Von Arx v. San Francisco G. Verein [1896] 113 Cal. 377, ; Otto v. Tailors P. & B. Union [1896] 75 Cal. 308, 314-315 .)" (Id., 12 Cal.3d at p. 553, 116 Cal.Rptr. 245, 526 P.2d 253, emphasis added.)

Defendants have produced exactly no case authority directly supporting their claim that judicial enforcement of procedural due process in disciplinary proceedings of private professional organizations will be reserved to expulsion or exclusion cases. But our research has yielded several cases in which the courts have squarely held, in accordance with the Pinsker dictum, that suspension cases will be afforded the same scrutiny accorded those involving expulsion. In Ellis v. American Federation of Labor (1941) 48 Cal.App.2d 440, 120 P.2d 79, a prehearing suspension of three unincorporated labor unions from the national association was overturned in these words: "It is settled however in this state and elsewhere that a member of an unincorporated association may not be suspended or expelled, nor a subordinate body suspended or its charter revoked, without charges, notice and a hearing, even though the rules of the association make no provision therefor." (Id., at pp. 443-444, 120 P.2d 79.)

And the notion was not new in Ellis. Grand Grove A.O. of D. v. Duchein (1894) 105 Cal. 219, 38 P. 947 ² and Knights of Ku Klux Klan v. Francis (1926) 79 Cal.App. 383, 249 P. 539 reached the same conclusion years earlier: "It is well settled that a member of a benevolent association cannot be expelled without being given a hearing, and that a by-law which...