Shively v. Stewart

• Citation: 421 P.2d 65,55 Cal.Rptr. 217,65 Cal.2d 475
• Court: United States State Supreme Court (California)
• Decision Date: 16 December 1966
• Parties: , 421 P.2d 65, 28 A.L.R.3d 1431 John P. SHIVELY et al., Petitioners, v. Coleman E. STEWART, as Hearing Officer, etc., Respondent; BOARD OF MEDICAL EXAMINERS of the State of California, Real Party in Interest. Sac. 7756. In Bank

Page 217

55 Cal.Rptr. 217

65 Cal.2d 475, 421 P.2d 65, 28 A.L.R.3d 1431

John P. SHIVELY et al., Petitioners, v. Coleman E. STEWART, as Hearing Officer, etc., Respondent BOARD OF MEDICAL EXAMINERS of the State of California, Real Party in Interest.

Sac. 7756.

Supreme Court of California,

In Bank.

Dec. 16, 1966.

Rehearing Denied Jan. 10, 1967.

Lamb & Glynn, Robert L. Lamb and Robert J. Glynn, Jr., San Francisco, for petitioners

Zad Leavy, Los Angeles, and Herma Hill Kay, Berkeley, as amici curiae on behalf of petitioners.

Thomas C. Lynch, Atty. Gen., E. G. Funke, Asst. Atty. Gen., Gerald F. Carreras

and L. Stephen Porter, Deputy Attys. Gen., for respondent and real party in interest.

TRAYNOR, Chief Justice.

Petitioners John P. Shively and Seymour Smith, licensed physicians authorized to practice medicine and surgery in the State of California, brought this proceeding to compel issuance of subpoenas duces tecum to obtain depositions and documents from the Executive Secretary of the State Board of Medical Examiners and from the board's attorney prior to disciplinary hearings.

On May 20, 1966, Wallace W. Thompson, executive secretary of the board, filed accusations against petitioners stating that they aided, abetted, attempted, offered to procure, and performed criminal abortions on named women on specified dates. The accusations initiated disciplinary proceedings that could result in the revocation of petitioners' licenses to practice medicine (Bus. & Prof.Code, § 2360; Gov.Code, § 11503). Petitioners filed notices of defense and requested hearings. (Gov.Code, § 11506.) On June 6 the board set Dr. Shively's hearing for July 25 and Dr. Smith's for July 27. (Gov.Code, § 11509.)

On June 27 petitioners presented four subpoenas duces tecum to respondent hearing officer requesting prehearing depositions and production of documents. By letter dated the same day, the hearing officer refused to sign the subpoenas.

On June 30 petitioners filed a petition for a writ of mandate in the superior court to compel issuance of the subpoenas, and on July 14 that court denied the petition.

On July 22 petitioners filed a petition for an alternative writ of mandate and a restraining order in this court. We issued an alternative writ and stayed the administrative hearings pending final disposition of the writ proceeding.

The Administrative Procedure Act (Gov.Code, §§ 11501--11524), which was adopted in 1945 before pretrial discovery became a legal norm, contains no express provisions authorizing prehearing discovery in administrative proceedings. (See generally Judicial Council of California, Tenth Biennial Report (1944); Comment, Discovery Prior to Administrative Adjudications--A Statutory Proposal (1964) 52 Cal.L.Rev. 823.) Although section 11510 of the Government Code provides that 'Before the hearing has commenced the agency, or the assigned hearing officer, shall issue subpoenas and subpoenas duces tecum at the request of any party * * *' (subd. a), section 11511 indicates that the Legislature expressly contemplated the use of the subpoena power to secure the attendance of witnesses and the production of evidence at hearings. Thus, in authorizing the taking of depositions when the witness will be unable to or cannot be compelled to attend, section 11511 provides for depositions, not for the purpose of discovery, but to secure evidence for use at the hearing.

The Legislature's silence with respect to prehearing discovery in administrative proceedings does not mean, however, that it has rejected such discovery. Instead, as in the case of criminal discovery (see Jones v. Superior Court, 58 Cal.2d 56, 58, 22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213, and cases cited), it has left to the courts the question whether modern concepts of administrative adjudication call for common law rules to permit and regulate the use of the agencies' subpoena power to secure prehearing discovery.

Statutory administrative procedures have been augmented with common law rules whenever it appeared necessary to promote fair hearings and effective judicial review. In Fascination, Inc. v. Hoover, 39 Cal.2d 260, 246 P.2d 656, we construed a statute requiring a licensing agency to 'ascertain' facts to require the agency to give notice and hold a hearing. In English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547, we augmented the applicable statutory rules and required the agency involved to afford the accused an opportunity to rebut ex parte evidence before it. In Brotsky v. State Bar, 57 Cal.2d 287, 19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310, we held that discovery was appropriate in State Bar disciplinary proceedings. These cases illustrate Professor Davis' observation that the law determining the adequacy of administrative ministrative hearings 'is mostly judge-made law * * *' and 'the standards are essentially the same whether judges are giving content to due process, whether they are giving meaning to inexplicit statutory provisions, or whether they are developing a kind of common law.' (Davis, 1 Administrative Law Treatise (1958) § 7.20, p. 506.)

We need not recanvass the arguments for and against at-trial and pretrial discovery in civil and criminal cases. We are committed to the wisdom of discovery, by statute in civil cases (Code Civ.Proc., §§ 2016--2036), and by common law in criminal cases. (Jones v. Superior Court, supra, 58 Cal.2d 56, 58, 22 Cal.Rptr. 879, 372 P.2d 919, and cases cited.) The criminal law analogy is appropriate here. The medical board has the resources of the state at its command to enable it to secure complete information and to prepare its case before filing an accusation. (Gov.Code, §§ 11180--11181.) Such investigatory powers have been liberally construed. (Brovelli v. Superior Court, 56 Cal.2d 524, 528--529, 15 Cal.Rptr. 630, 364 P.2d 462; see Redding Pine Mills v. State Board of Equalization, 157 Cal.App.2d 40, 44, 320 P.2d 25; United States v. Morton Salt Co., 338 U.S. 632, 642--643, 70 S.Ct. 357, 94 L.Ed. 401.) A disciplinary proceeding has a punitive character, for the agency can prohibit an accused from practicing his profession. (See Reich, The New Property (1964) 73 Yale L.J. 733, 751--755, 781, 784.) Since the agency is the accuser, a party to the proceeding, and ultimately makes a decision on the record, its concentration of functions calls for procedural safeguards. (Ibid., p. 752, fn. 97.) Petitioners have been charged with crimes and should have the same opportunity as in criminal prosecutions to prepare their defense. (See Funk v. Superior Court, 52 Cal.2d 423, 424, 340 P.2d 593.) Moreover, when, as in this case, a busy professional board must be assembled to hear the charges, it is of the utmost importance that full preparation be promoted so that needless continuances can be avoided.

The Attorney General contends that even if subpoenas duces tecum should have issued to compel prehearing production of documents and statements, the denial of the subpoenas was an interlocutory decision of an administrative agency that cannot be reviewed until administrative remedies are exhausted. (See Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715.) There is no administrative remedy, however, for the erroneous denial of a subpoena before a hearing. Section 11510 of the Government Code provides that on proper application before the hearing subpoenas 'shall issue,' and whether subpoenas are sought for the production of evidence at the hearing or to secure prehearing discovery, their issuance is a ministerial act with respect to which the agency or the hearing officer has no discretion. (Southern Pacific Co. v. Superior Court, 15 Cal.2d 206, 210, 100 P.2d 302, 130 A.L.R. 323; see Code Civ.Proc., § 1986; Judicial Council of California, Tenth Biennial Report (1944) 17--18.) The agency can move to quash, vacate, or modify the subpoena in the superior court if the subject matter is privileged or the subpoena is too broad. (Filipoff v. Superior Court, 56 Cal.2d 443, 452, 15 Cal.Rptr. 139, 364 P.2d 315.) Thus, the agency does not pass on the scope of its adversary's subpoenas and need not assign hearing officers before hearings have actually begun. The procedure is similar to that set forth in Government Code sections 11187--11189, under which agencies must seek enforcement of their subpoenas in the superior court. It is only at the hearing that the issuance...