Zuckerman v. Bd. of Chiropractic Examiners

• Decision Date: 26 August 2002
• Docket Number: No. S096127.,S096127.
• Court: California Supreme Court
• Parties: Robert ZUCKERMAN, Plaintiff and Appellant, v. STATE BOARD OF CHIROPRACTIC EXAMINERS, Defendant and Respondent.

124 Cal.Rptr.2d 701

29 Cal.4th 32

53 P.3d 119

Robert ZUCKERMAN, Plaintiff and Appellant, v. STATE BOARD OF CHIROPRACTIC EXAMINERS, Defendant and Respondent.

No. S096127.

Supreme Court of California.

August 26, 2002.

Ronald B. Kaplan, Chicago, IL, for Plaintiff and Appellant.

Catherine I. Hanson and Astrid G. Meghrigian, San Francisco, for California Medical Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Davis, Cowell & Bowe and Andrew J. Kahn, San Francisco, for Union of American Physicians and Dentists as Amicus Curiae on behalf of Plaintiff and Appellant. Russell Iungerich, Rolling Hills, for California Academy of Attorneys for Health Care Professionals as Amicus Curiae on behalf of Plaintiff and Appellant.

Manatt, Phelps & Phillips, Ellen M. Berkowitz and Jack S. Yeh, Los Angeles, for California Chiropractic Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Bill Lockyer, Attorney General, Antonio J. Merino and Zaven V. Sinanian, Deputy Attorneys General, for Defendant and Respondent.

Bill Lockyer, Attorney General, Carlos Ramirez, Assistant Attorney General, and Joseph P. Furman, Deputy Attorney General, for the Medical Board of California as Amicus Curiae on behalf of Defendant and Respondent.

KENNARD, J.

Under California law, the State Board of Chiropractic Examiners (Board) may discipline any chiropractor who engages in professional misconduct. A chiropractor accused of misconduct is entitled to a hearing before an administrative law judge, whose proposed decision is reviewed by the Board. A chiropractor found to have committed misconduct may be ordered to pay the "reasonable costs of investigation and prosecution of the case," including attorney fees, that the Board incurred "up to the date of the hearing...." (Cal.Code Regs., tit. 16, § 317.5.)

Here, a disciplined chiropractor raises a facial challenge to this regulation. He claims the regulation violates the due process rights of chiropractors whom the Board seeks to discipline, by chilling their right to request a hearing to contest charges of misconduct. We disagree.

I

In October 1997, the Board's executive director issued an "accusation" alleging that plaintiff Robert Zuckerman, a licensed chiropractor, should be disciplined because he engaged in sexual misconduct during the treatment of two female patients and incompetently treated a third patient. The accusation gave notice that the Board would seek an order directing Zuckerman to pay its costs of investigating and prosecuting the matter.

Zuckerman requested a hearing on the allegations, asserted various defenses, and challenged the constitutionality of the regulation authorizing the Board to order him to pay the costs of investigation and prosecution. A hearing was held before an administrative law judge, who found the allegations of sexual misconduct true. The transcript of the hearing is not part of the appellate record, but it appears that the Board offered no evidence on the allegation of incompetence. The administrative law judge issued a proposed decision revoking Zuckerman's license, but staying the revocation and placing him on probation for three years, subject to various conditions, including payment of $17,500 for the Board's prehearing costs of investigation and prosecution. The Board voted not to adopt the proposed decision and notified the parties that it would decide the case itself, based on the record of the administrative hearing. After the parties submitted written argument, the Board issued a decision finding the allegations of misconduct true and revoking Zuckerman's license, but staying the revocation and placing him on probation for five years, subject to conditions that included 60 days of actual suspension. The Board accepted the administrative law judge's recommendation that Zuckerman be ordered to pay $17,500 for the prehearing costs of investigation and prosecution. Zuckerman filed a petition for administrative mandate in the superior court, alleging that the Board's findings were contrary to the weight of the evidence and that the cost assessment was unconstitutional. The trial court denied the petition. Zuckerman appealed.

The Court of Appeal concluded that substantial evidence supported the superior court's decision upholding the Board's findings of misconduct. But it held that the Board's order that Zuckerman pay for the prehearing costs of investigation and prosecution violated his right to due process of law, and it directed the trial court to grant Zuckerman's petition insofar as it challenged the Board's order directing him to pay those costs.

We granted the Board's petition for review.

II

The Board was established by the Chiropractic Initiative Act (Act), a voter initiative enacted in 1922.¹ The Board's purpose is to regulate the practice of chiropractic care in California.

Under the Act, disciplinary proceedings before the Board are governed by the California Administrative Procedures Act, which appears in section 11500 and ensuing sections of the Government Code. (Act, § 10, subd. (b).) Hearings are ordinarily held before an administrative law judge employed by the Office of Administrative Hearings. (Gov.Code, §§ 11502, 11517.) After a hearing, the administrative law judge submits a proposed decision to the Board (id., § 11517, subd. (c)), which may adopt it, reduce the proposed penalty, or, as occurred in this case, reject the proposed decision and decide the case itself. If the Board chooses the latter option, it may base its decision on the record of the hearing before the administrative law judge (as occurred here) or it may take new evidence. (Ibid.) The Board's decisions are subject to judicial review by administrative mandamus. (Code Civ. Proc., § 1094.5.)

The Act authorizes the Board to adopt "such rules and regulations as the board may deem proper and necessary for the performance of its work, the effective enforcement and administration of [the Act], ... and the protection of the public" (Act, § 4, subd. (b)), as well as "rules of professional conduct appropriate to the establishment and maintenance of a high standard of professional service and the protection of the public" (Act, § 10, subd. (a)). Based on its rulemaking power, the Board adopted title 16, section 317.5 of the California Code of Regulations (regulation 317.5), the subject of Zuckerman's constitutional challenge.

In disciplinary proceedings, the Board "may request the administrative law judge to direct [a chiropractor found to have violated the Act] to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case." (Reg.317.5, subd. (a).) These costs "shall include the amount of investigative and enforcement costs up to the date of the hearing, including, but not limited to, charges imposed by the Attorney General." (Id., subd. (b).) The Board "may reduce or eliminate the cost award." (Id., subd. (c).)² Although regulation 317.5 applies only to the Board and not to other disciplinary bodies, similar provisions apply to proceedings before most, if not all, professional disciplinary agencies in California. For example, an almost identical provision (Bus. & Prof.Code, § 125.3) permits all disciplinary boards within the jurisdiction of the California Department of Consumer Affairs (including most professional and vocational licensing boards) to recover prehearing investigation and enforcement costs. (Recently, the Legislature amended § 125.3 to include disciplinary hearings before the Board, but this amendment (Stats. 2001, ch. 728, § 1 did not become effective until after the proceedings at issue here.) Other similar provisions include Business and Professions Code sections 6086.10 (disciplined attorneys may be ordered to pay investigation and other costs), 2497.5 (disciplined podiatrists may be ordered to pay costs of investigation and prosecution), 2661.5 (disciplined physical therapists may be ordered to pay costs of investigation and prosecution), 4959 (disciplined acupuncturists may be ordered to pay costs of investigation and prosecution), and 7403, subdivision (b) (disciplined barbers and cosmetologists may be ordered to pay investigation costs).

III

Zuckerman argues that regulation 317.5 is facially unconstitutional. He claims it violates his due process rights by discouraging chiropractors whom the Board has accused of misconduct from requesting a hearing on the charges. We evaluate the merits of a facial challenge by considering "only the text of the measure itself, not its application to the particular circumstances of an individual." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) A plaintiff challenging the facial validity of a statute "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215.) The precise standard governing facial challenges "has been a subject of controversy within this court." (Kasler v. Lockyer (2000) 23 Cal.4th 472, 502, 97 Cal.Rptr.2d 334, 2 P.3d 581; see also San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 673, 117 Cal.Rptr.2d 269, 41 P.3d 87; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 342-343, 66 Cal.Rptr.2d 210, 940 P.2d 797 (plur. opn. of George, C.J.); id. at p. 421, 66 Cal.Rptr.2d 210, 940 P.2d 797 (dis. opn. of Brown, J.); California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 345, 347, 84 Cal.Rptr.2d 425, 975 P.2d 622 (CTA); id. at pp. 358-359, 84 Cal.Rptr.2d 425, 975 P.2d 622 (dis. opn. of Werdegar, J.); Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145; Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at p. 181, 172 Cal.Rptr. 487, 624 P.2d 1215.) We need not resolve this controversy here,...