Windham v. Board of Medical Quality Assurance

• Decision Date: 28 March 1980
• Citation: 104 Cal.App.3d 461,163 Cal.Rptr. 566
• Parties: Marion Ray WINDHAM, M.D., Petitioner and Respondent, v. BOARD OF MEDICAL QUALITY ASSURANCE, Appellant and Respondent. Civ. 55965.
• Court: California Court of Appeals Court of Appeals

Page 566

163 Cal.Rptr. 566

104 Cal.App.3d 461

Marion Ray WINDHAM, M.D., Petitioner and Respondent, v. BOARD OF MEDICAL QUALITY ASSURANCE, Appellant and Respondent.

Civ. 55965.

Court of Appeal, Second District, Division 5, California.

March 28, 1980.

As Modified on Denial of Rehearing April 23, 1980.

Hearing Denied June 4, 1980.

Cohen & Ziskin, Terry S. Kaplan, Peter D. Collisson, Los Angeles, Beach, Beach, Luckett & Ross, and Fred A. Ross, Jr., Jackson, Miss., for petitioner and respondent

Evelle J. Younger and George Deukmejian, Attys. Gen., Alvin J. Korobkin and Lawrence C. Kuperman, Deputy Attys. Gen., for appellant and respondent.

KAUS, Presiding Justice.

The Board of Medical Quality Assurance ("the Board") appeals from a judgment granting a peremptory writ of mandate ordering the Board to set aside and dismiss a disciplinary action against respondent, Doctor Marion Ray Windham, one of its licensees.

FACTS

Respondent was graduated from medical school in 1957 and, before moving to California, had been licensed to practice medicine in Mississippi and Louisiana. He was admitted to practice in California on November 2, 1972, where he started a psychiatric residency which he completed in 1975. Since then he has engaged in private practice, specializing in the area of forensic psychiatry. ¹

In 1973, that is after he had resided in California for some time, respondent was indicted in the United States District Court for the Southern District of Mississippi. The grand jury charged two violations of section 7201, title 26, United States Code. Count 1 pertained to the calendar year 1967, count 2 to the year 1968. The counts charged that with respect to each year respondent "did knowingly and wilfully attempt to evade and defeat a large part of the income tax due and owing by him to the United States of America . . . , by preparing and causing to be prepared, by signing and causing to be signed, and by mailing and causing to be mailed . . . a false and fraudulent" income tax return. The 1967 income was understated by about.$19,000, the 1968 income by nearly $65,000. With respect to each year it was alleged that the doctor "then and there well knew" what his taxable income was. The total tax deficiency alleged was about $65,000. After a jury trial respondent was convicted in June, 1973. ² He was fined and placed on five years' probation. There is nothing in the record to indicate when the Board learned of the Mississippi convictions.

The accusation was filed in May 1977. It referred to the fact that section 2383 of the Business and Professions Code provides that the conviction of a felony constitutes unprofessional conduct. ³ It then recited that under Respondent filed a notice of defense pursuant to section 11506 of the Government Code. Of interest at this time is that he did not raise any defense based upon the passage of time between the finality of the Mississippi federal conviction and the commencement of the disciplinary proceedings. (Cf., Bohn v. Watson (1955) 130 Cal.App.2d 24, 36, 278 P.2d 454.) In fact no "new matter by way of defense" (Gov.Code § 11506(a)(5)) was alleged.

section 490 the Board could suspend or revoke a license on the ground that the licensee had been convicted of a crime, if the crime was substantially related to the qualifications, functions or duties of the profession for which the license had been issued; ⁴ it concluded that respondent was subject to disciplinary action because of the 1973 Mississippi conviction for tax evasion.

The hearing took place on January 31, 1977. During the discussion between the administrative law judge and counsel concerning the admissibility of the Court of Appeals' opinion affirming respondent's conviction, counsel for respondent requested the court to take judicial notice of the title and section of the United States Code under which his client had been convicted of "wilful and unlawful evasion of income taxes." The judge then said: "It gets down to the bottom line as to whether conviction of this section is moral turpitude or not." The deputy attorney general representing the Board replied: "No." He then explained that in his view it was not necessary to prove that section 7201 necessarily implied moral turpitude. In this he correctly relied on the fact that at the time in question section 2383 of the Business and Professions Code provided that "(t)he conviction of either (1) a felony or (2) any offense, misdemeanor or felony, involving moral turpitude constitutes unprofessional conduct within the meaning of this chapter." ⁵ In answer to further questions the deputy made it clear that it was his contention that "the conviction for income tax evasion (was) substantially related to the profession, the practice of medicine."

We note, parenthetically, that we know of no constitutional requirement that in a proceeding such as this, discipline can only be imposed for acts or omissions involving moral turpitude. The constitutional requirement is, rather, the nexus between the act or omission and the respondent's fitness or competence to practice his profession. (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254.)

In any event, after offering evidence of the Mississippi conviction, the Board rested. The respondent then called his California probation officer who had supervised him here for a year and a half and who had nothing but nice things to say about him. Nevertheless, although his office had at one point recommended that the doctor's probation be terminated, "the Judge (in Mississippi) did not go along with that recommendation."

The next witness was respondent himself. He testified to facts from which one could conclude that he was rehabilitated. He also testified that he was particularly concerned about being disciplined inasmuch as in his practice of forensic psychiatry he was often called as a witness and he "would hate to be dragged through every case that I have to sit up and testify, I would have to go back through my background." In fact, however Cross-examination of respondent developed the previously noted fact that he was a law school graduate, that part of his practice was "with Medi-Cal," and that some of his fees as a forensic psychiatrist are paid out of public treasuries. Attempts to prove that the income which respondent had failed to report in 1967 and 1968 was derived from then illegal abortions were stopped by the administrative law judge who ruled that the matter was "pretty remote" and that, in any event, the issue was not how respondent had acquired the income which he had failed to report but whether or not it was reportable.

he had never even been impeached with the conviction for tax evasion.

Near the end of the hearing the following colloquy occurred:

"ADM. LAW JUDGE: The posture of the present case is that the respondent has been convicted of a felony?

"MR. ROSS: Yes, sir.

"ADM. LAW JUDGE: That in itself is the grounds?

"MR. ROSS: Yes, sir.

"ADM. LAW JUDGE: Beyond that, the agency does not claim that it involves moral turpitude?

"MR. KUPERMAN: Well, we're not attempting to prove that at this time."

After the matter was submitted the administrative law judge ordered the respondent's license to be suspended for fifteen days, but stayed the suspension and placed him on probation for three years. The Board, however, did not adopt the proposed decision and later decided the case itself. In connection with the hearing before the Board, respondent himself filed a declaration which injected into the record what had been kept out by the hearing officer: the source of the income which had not been declared in the late 60's. ⁶ In any event, the Board, in December 1977, issued its own decision in which it ordered respondent's license revoked, but stayed the revocation and placed him on probation for a total of three years. ⁷ In its findings the Board found that respondent's Mississippi conviction "does involve moral turpitude and it is substantially related to the qualifications, functions or duties of the business or profession for which the respondent is licensed." The order imposing discipline was based on the Board's determination that the respondent had been guilty of unprofessional conduct in "that he has violated sections 2383 and 490 of the Business and Professions Code. . . ."

The petition for a writ of mandate was filed in February 1978 and after a hearing, the superior court made certain findings relevant to this appeal. Thus, it found that "(n)o evidence was presented to the Board to support the Board's findings that Dr. Windham's conviction (a) involved moral turpitude, (b) was substantially related to the qualifications, functions or duties of the business or profession for which he was licensed, or (c) constituted unprofessional conduct." Further: "The weight of evidence did not support the Board's findings that Dr. Windham's conviction of income tax evasion constituted (a) conduct involving moral turpitude, (b) unprofessional conduct, or (d) (sic) the conviction of an offense that substantially related to the qualifications, functions or duties of the business or profession for which Dr. Windham was licensed." In addition, the court found that the "weight of evidence presented to the Board was that Dr. Windham had become Other relevant findings will be discussed in connection with the various points raised on appeal. In its conclusions of law the trial court found that the Board's findings were not supported by the evidence, that the discipline imposed was an abuse of discretion, that a violation of section 7201 of title 26 United States Code "without any evidence connecting the factual basis of said conviction to the qualifications, functions or duties of a licensed physician and surgeon, does not constitute a showing of unprofessional conduct," that the "crime of federal income tax evasion . . . is not substantially related to the qualifications,...