Weissbuch v. Board of Medical Examiners

• Decision Date: 20 September 1974
• Citation: 116 Cal.Rptr. 479,41 Cal.App.3d 924
• Court: California Court of Appeals Court of Appeals
• Parties: Randall G. WEISSBUCH, M.D., Petitioner, Appellant and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent and Appellant. Civ. 42575.

Page 479

116 Cal.Rptr. 479

41 Cal.App.3d 924

Randall G. WEISSBUCH, M.D., Petitioner, Appellant and Respondent, v. BOARD OF MEDICAL EXAMINERS of the State of California, Respondent and Appellant.

Civ. 42575.

Court of Appeal, Second District, Division 2, California.

Sept. 20, 1974.

Rehearing Denied Oct. 15, 1974.

Hearing Denied Nov. 21, 1974.

Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, James C. Maupin, Beverly Hills, Laurence F. Jay, Long Beach, for appellant Weissbuch.

Evelle J. Younger, Atty. Gen., Earl R. Plowman, Mark A. Levin, Deputy Attys. Gen., for appellant Board.

COMPTON, Associate Justice.

Petitioner Randall G. Weissbuch was licensed to practice medicine in California in 1968. On January 15, 1971, petitioner pleaded guilty to possession of marijuana in violation of Health and Safety Code section 11530 (now Health & Saf.Code § 11357). He was given a suspended misdemeanor sentence and was placed on probation.

In July of 1971 disciplinary proceedings were commenced before the State Board of Medical Examiners (Board). At the hearing it was stipulated that the petitioner had suffered the above referenced conviction. It was further stipulated that during the period January 1, 1970, to and including September 1970, petitioner had used marijuana. Petitioner testified that his use of marijuana was as an escape from feelings of depression and inadequacy and that he used the substance only at night. He admitted that his judgment was impaired during the times of such use. At the time of his arrest, petitioner was in possession of nine ounces of marijuana.

The Board made findings of fact consistent with the stipulated facts and further found that 'the episode had no effect on his medical ability of (sic) his patients' well-being.' Pursuant to the findings the Board determined that petitioner was guilty of unprofessional conduct as defined in Business and Professions Code sections 2384 ¹ and 2390. ² Petitioner's license was ordered revoked, but execution of the order was stayed during a two-year period of probation. This order was filed July 26, 1972.

Petitioner sought a writ of mandate in the Superior Court pursuant to Code of Civil Procedure section 1094.5. That court found that the charges against petitioner did not relate to his professional conduct. In pertinent conclusions of law the Superior Court declared:

'1. The charges against Petitioner do not render him unfit to practice his profession. 2. The revocation of Petitioner's license herein constituted a taking of property without due process of law notwithstanding that petitioner's conduct comes within the ambit of Business and Professions Code, sections 2384 and 2390. 3. Respondent committed an abuse of discretion, within the meaning of Civil Procedure Code § 1094.5(b), in revoking petitioner's license.'

The trial court's concurrent judgment: '* * * (remanded) the proceedings to (Board) and (commanded) (Board) to set aside its decision dated July 26, 1972, in the administrative proceedings entitled 'In the Matter of the Accusation Against Randall G. Weissbuch, M.D.' and to proceed in a manner consistent with these findings and conclusions.'

Both sides appeal. The petitioner apparently feels that the trial court's judgment though favorable to him, impliedly recognizes that conduct unrelated to professional ability can be grounds for discipline.

Petitioner asserts that sections 2384 and 2390 which embrace the charged violation were implicitly intended by the Legislature to include and that the cases hold they do include only those violations which impair his fitness to practice medicine or inherently include moral turpitude, corruption or dishonesty. Further, that when any misconduct charged is private and unrelated to the duties and responsibilities embraced within the ambit of his license, the misconduct charged and proved must per se affect his fitness or involve moral turpitude, corruption or dishonesty. (Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 64 Cal.Rptr. 785, 435 P.2d 553; Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375; In re Higbie, 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97; Vielehr v. State Personnel Board, 32 Cal.App.3d 187, 107 Cal.Rptr. 852; Comings v. State Bd. of Education, 23 Cal.App.3d 94, 100 Cal.Rptr. 73; and Grannis v. Board of Medical Examiners, 19 Cal.App.3d 551, 96 Cal.Rptr. 863.)

At issue is whether the Legislature may constitutionally provide for the disciplining of a licentiate in the medical profession on the basis of conduct involving the personal use of narcotics or on the basis of a violation of the laws regulating narcotics without any showing that the conduct affected the doctor's professional ability or amounted to moral turpitude. If the answer to that question is in the affirmative, then this case raises the additional issue of whether the particular circumstances of this case fall within the legislative proscription.

At the time of petitioner's use and at the time of his conviction for possessing it, marijuana was classified as a narcotic by Health and Safety Code section 11001. Business and Professions Code section 2390 provides that the personal use of narcotics as defined in Health and Safety Code sections 11001 and 11002 without prescription or the prescribing of such narcotics for himself by a doctor constitutes unprofessional conduct. Business and Professions Code section 2384 provides that a conviction for violation of the laws regulating narcotics and dangerous drugs is in itself professional misconduct.

We must presume that the Legislature in enacting these provisions did not intend to require the additional showing that the doctor's professional ability was impaired since it did provide in section 2390 that insofar as the use of dangerous drugs or alcohol are concerned such impairment is required as a basis for discipline.

In Collins v. Board of Medical Examiners, 29 Cal.App.3d 439, 105 Cal.Rptr. 634, it was clearly decided that a charge of unprofessional conduct under Business and Professions Code section 2384 was established by a conviction for violating the laws regulating narcotics and dangerous drugs and the Board was not required to establish that such conviction amounted to 'moral turpitude.'

The State of California has enacted an elaborate scheme for the regulation and control of narcotics and dangerous drugs. The medical doctor is an integral part of this control and in fact is the key to its successful operation. The doctor in the scheme of things literally has the 'keys to the safe' and thus occupies a unique position in our society. It is the recognition of this fact that obviously led the Legislature to deny to the doctor the right to prescribe narcotics for himself or to enjoy the unlimited freedom of personal use.

It thus follows that a legislative classification which, insofar as involvement with narcotics is concerned, sets doctors apart from other licensed professionals, is immune against a claim of denial of equal protection of the laws. The prohibitions of the Equal Protection Clause goes no further than invidious discrimination. (Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369.)

In his dealing with narcotics and dangerous drugs, there is more to be considered than just the doctor's ability to perform the skills required of his profession. He is, as we have said, a part of the regulatory machinery. Thus, the line of cases exemplified by Morrison v. State, Supra, and the other cases relied upon by petitioner are not applicable here.

The Legislature which presumptively legislated in a constitutional fashion (McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739), has determined that conviction of a doctor for a violation of the laws regulating narcotics and dangerous drugs or a doctor's personal non-prescribed use of such substances evidences a sufficient danger to the public that sanctions should be imposed regardless of the availability of evidence that such conduct in fact impaired the doctor's professional skill.

There is no basis, constitutional or otherwise, for the courts to override that legislative determination by imposing a special requirement of 'nexus' between the proscribed conduct and professional conduct. (Cf. Wilson v. State Personnel Bd., 39 Cal.App.3d 218, 114 Cal.Rptr. 134.)

We think it safe to say that had Dr. Weissbuch's activities involved morphine or some narcotic other than marijuana, no serious attack would have been made on the legislative prerogative. It is only the current controversy and increasing public tolerance of marijuana which makes this case troublesome.

Under present law, this case would not have arisen. In 1972, the Legislature by enactment of the California Uniform Controlled Substances Act, eliminated marijuana as a narcotic from Health and Safety Code section 11001 and its successor section 11019 does not include marijuana as a narcotic, nor is it classified as a dangerous drug.

Since this mitigating amendment was enacted prior to the Board's decision becoming final (review by mandamus was pending at the time the amendment became effective), petitioner is entitled to the benefit thereof under the principle of In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.

The judgment is reversed and the matter is remanded to the trial court with instructions to issue a peremptory writ mandating Board to dismiss the proceeding and to vacate, annul and expunge its decision. Each party to bear his own costs.

FLEMING, J., concurs.

ROTH, Presiding Justice (concurring).

The majority reveres by applying the principle of In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, to the enactment in 1972 of the California Uniform Controlled Substances Act which eliminated marijuana as a narcotic from Health & Safety Code section 11001 and failed...