Strode v. Board of Medical Examiners of Cal.

• Decision Date: 01 September 1961
• Parties: Willard L. STRODE, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS for the State OF CALIFORNIA, Joseph M. De Los Reys, President, Charies E. Vongeldern, Vice President, Louis E. Jones, Secretary, Clayton D. Mote, Leo J. Adelstein, Henry Gibbons, III, William F. Quinn, Daniel W. Sooy, Justin J. Stein and Frederick N. Tyroler, Defendants and Respondents. Civ. 24179.
• Court: California Court of Appeals Court of Appeals

Page 879

15 Cal.Rptr. 879

195 Cal.App.2d 291

Willard L. STRODE, M.D., Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS for the State OF CALIFORNIA, Joseph M. De Los Reys, President, Charies E. Vongeldern, Vice President, Louis E. Jones, Secretary, Clayton D. Mote, Leo J. Adelstein, Henry Gibbons, III, William F. Quinn, Daniel W. Sooy, Justin J. Stein and Frederick N. Tyroler, Defendants and Respondents.

Civ. 24179.

District Court of Appeal, Second District, Division 1, California.

Sept. 1, 1961.

Rehearing Denied Sept. 20, 1961.

Hearing Denied Oct. 25, 1961.

Van Dyke & Ritchie, by Graham A. Ritchie, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Matthew M. Kearney, Deputy Atty. Gen., for respondents.

LILLIE, Justice.

Appellant is licensed to practice medicine and surgery in the State of California. By accusation filed by the State Board of Medical Examiners he was charged with three counts of unprofessional conduct relative to the use and dispensation of drugs, and a prior disciplinary action; at the hearing before the hearing officer on February 3, 1958, he appeared in propria persona and stipulated to the truth of 'all statements of fact' in the allegation; the hearing was devoted solely to the presentation of evidence in mitigation of the charges. Thereafter, the proposed decision of the hearing officer was submitted to the Board. Appellant then secured counsel and requested permission to appear before the Board for the limited purpose of introducing additional evidence by way of mitigation. The Board denied it but did not adopt the proposed decision and referred the case back to the same hearing officer directing him to hear the additional evidence and to prepare in accord with subdivision (b), Section 11517, Government Code, a proposed decision based upon the additional evidence and the record in the prior hearing. At the second hearing before the hearing officer, on April 5, 1958, further evidence in mitigation was introduced and the matter argued on its merits. On May 13, 1958, the hearing officer submitted his proposed decision to the Board; therein he determined that appellant's conduct was contrary to certain sections of the Business and Professions Code and proposed his license be revoked. The proposed decision was adopted by the Board on June 30, 1958; the Board then served upon appellant a copy of its decision to which was attached a copy of the proposed decision. Obtaining new counsel, appellant filed a petition for reconsideration with the Board, which it denied; he then filed a petition for writ of mandate. The matter was heard in the trial court March 25, 1959; eight doctors testified for appellant. On May 21, 1959, it filed a memorandum decision; on June 17, 1959, it denied appellant's motion to reopen the case after submission. Judgment was entered August 5, 1959, denying the writ; on August 31, 1959, appellant's motion to vacate the judgment and enter a different judgment or for new trial was denied. The within appeal is from the judgment and the orders of June 17 and August 31.

By way of stipulation the following facts were admitted by appellant before the hearing officer on February 3, 1958: From December 17, 1956, to May 19, 1957, appellant dispensed 111 morphine sulphate solution 1/4 cc tablets, 417 dolophine 5 mg tablets and 530 dolophine 10 mg tablets without making a record of each transaction showing the name of the patient, date, character, quantity of narcotic involved, pathology and purpose, and personally used said narcotics; between December 17, 1956, and May 19, 1957, appellant was addicted to the use of the narcotics, morphine sulphate and dolophine. Between September 21, 1956, and April 15, 1957, appellant issued 38 prescriptions for narcotics (morphine sulphate and dolophine), which narcotics and prescriptions were not for the persons named therein and such persons were not under his treatment; and all or a portion of the narcotics in each instance were actually secured for and used by him for his own use. On May 23, 1957, appellant was convicted upon his plea of guilty of 4 counts of violation of Section 11164 and one count of violation of Sections 11225, 1126, Health and Safety Code, in the San Diego Municipal Court. On April 11, 1953, the Board revoked appellant's certificate to practice, the order was stayed for three years and he was placed on probation; on August 23, 1954, the probationary terms were modified by removing the restriction on his narcotic privileges; on April 11, 1956, he completed probation.

With reference to the validity of the administrative procedure, appellant argues that when the Board does not adopt the hearing officer's proposed decision, reassigns the case to a hearing officer for additional testimony and thereafter receives the proposed decision, prior to adopting the same, Section 11517(c), Government Code, requires (1) the respondent be furnished with a copy of the proposed decision, (2) respondent be afforded the opportunity to present oral or written argument to the Board, and (3) the Board to familiarize itself with the record.

Initially the Board assigned the matter to a hearing officer alone; the Board itself neither heard nor decided the case; its ultimate act was the adoption of the proposed decision as its own. Section 11517, Government Code, in pertinent part provides: '(b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record and a copy of the proposed decision shall be served by the agency on each party in the case and his attorney. The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision. (c) If the proposed decision is not adopted as provided in subdivision (b), the agency itself may decide the case upon the record, including the transcript, with or without taking additional evidence, or may refer the case to the same or another hearing officer to take additional evidence. If the case is so assigned to a hearing officer he shall prepare a proposed decision as provided in subdivision (b) upon the additional evidence and the transcript and other papers which are part of the record of the prior hearing. A copy of such proposed decision shall be furnished to each party and his attorney as prescribed by subdivision (b). The agency itself shall decide no case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself no agency member may vote unless he heard the additional oral evidence.'

Subdivision (c) provides for two procedures if the Board does not adopt a proposed decision--that wherein the Board refers the case back to the hearing officer for hearing; and the other, wherein the agency itself keeps the case and hears and decides it. The purpose and language of the Administrative Procedure Act (Government Code, Section 11500 et seq.) reflect that these two procedures were intended to be and are separate and distinct. Throughout Section 11517, the term 'agency itself' is distinguished from the term 'hearing officer' to whom the agency has delegated its power to act. There is nothing in the procedure wherein the Board refers the case back to the hearing officer under subdivision (c) and (b) that requires a copy of the proposed decision to be served on respondent prior to its adoption by the Board; there is nothing therein that permits a respondent to argue orally or in writing before the Board; and there is no requirement that the Board must familiarize itself with the transcript of the hearing before the hearing officer. To read such requirements into this procedure appellant resorts to that used when, after rejecting a proposed decision, the Board itself hears and decides the case; therein subdivision (c) specifically provides that if the Board itself chooses to hear and decide the case, it must do so upon the record, including the transcript, with or without taking additional evidence and afford the parties the opportunity to present either oral or written argument before the Board. Thus the right to present oral or written argument before the Board and the necessity for it to read the record, refer solely to the situation in which the 'agency itself' decides the case instead of referring it back to the hearing officer. Appellant interprets the words 'decide no case' in subdivision (c) to include the Board's act of adopting the hearing officer's proposed decision as well as the act of the Board of hearing and determining the issues where it decides the case itself. But it is clear from Section 11517 that it is only when the agency itself hears the case, it decides it. See Frost v. State Personnel Board, 190 Cal.App.2d 1, 11 Cal.Rptr. 718, and the Tenth Biennial Report of the Judicial Council, Part Two, cited therein, relative to the adjudicative power under Section 11517.

Appellant herein was served with a copy of the Board's decision to which was attached a copy of the proposed decision. Although Section 11517 provides that a copy of the proposed decision must be served, it is silent concerning when it must be done; but time of service seems to be immaterial for there is no provision for argument before the Board before it adopts the proposed decision. Appellant relies upon Hohreiter v. Garrison, 1947, 81 Cal.App.2d 384, 184 P.2d 323, to the effect that under subdivision (c) if the agency does not want to adopt the proposed decision each party must be furnished a copy thereof; but this point is no longer controlling, for thereafter, in 1955 the Legislature, amending Section 11517(c), eliminated the phrase upon which the ruling was based.

However, the court in Dami v....