Dare v. Board of Medical Examiners

136 P.2d 304, 21 Cal. 2d 790, 1943 Cal. LEXIS 311

• Court: California Supreme Court
• Decided: April 7, 1943
• Docket: S. F. 16609
• Status: Published

Opinions

SHENK, J.

— This is a proceeding in mandamus to compel the respondents, Board of Medical Examiners and its members to cancel the order of the board revoking the petitioner’s license to practice as a drugless practitioner, and to restore or re-issue his license. The petition was filed in the superior court. An alternative writ was issued. The respondents filed an answer and the cause was set down for trial. Upon the trial judgment was entered denying the peremptory writ. The petitioner has appealed from that judgment.

The petitioner alleged that he was licensed as a drugless practitioner under a certificate issued by the Board of Medical Examiners; that he also was licensed to practice chiropractic under the provisions of the Chiropractic Act; that he also held a certificate as a clinical laboratory technologist; that in May, 1940, he was charged by the board with displaying a sign using the prefix “Dr.” without expressly indicating the type of certificate held, and that, inasmuch as he did not hold a physician’s and surgeon’s certificate issued by the board, his act was in violation of the Business and Professions Code (sec. 2409); that he filed an answer in the proceedings before the board and that thereafter a hearing was had resulting in the order complained of. The petitioner purported to state a résumé of the oral, documentary and photographic evidence taken at the hearing before the board, including his own testimony. It was alleged that the board failed to produce any evidence that the use of the suffix “N.D.,” assuming that it was so used, constituted unprofessional conduct, or that it tended to mislead the public. It was then alleged that the board found the petitioner guilty as charged and ordered that his license as a drugless practitioner be revoked unless he would agree not to use any form of advertising except the words “drugless practitioner” on his professional card, in which case his license would be restored and he would be placed on five years probation; that similar action was taken as to each of the charges; and that “said order has no support whatsoever under the testimony and evidence submitted to and received by defendant Board.”

A short time prior to the hearing before the board, the District Court of Appeal had rendered an opinion in the case of Laisne v. State Board of Optometry, (Cal.App.) [102 P.2d 538]. However, at the time of the trial in the superior court, a petition for hearing in that case had been granted and the cause was then pending in this court. At the commencement of the' trial the court inquired about the record of the proceedings before the board. Counsel for the petitioner stated that, regardless of what took place before the board, he was demanding a trial de nova in the sense of a re-trial of the issues involved in the controversy; that he had no intention of producing that record before the court; that he felt that he was not bound by that record and that he participated in the hearing before the board on that theory; and that he would “not stipulate to the introduction of the evidence taken before the board, or the rulings made before the board.” When admonished by the court that he was “taking an awful chance” in assuming such an attitude counsel nevertheless insisted upon his demand for a trial anew without qualification or limitation. No offer of proof was made.

On this appeal it is likewise contended by the petitioner that he was entitled to proceed as on a new trial of the issues of fact without the production of the record of the evidence before the board and without any limitation or qualification because of this court’s declarations in the case of Drummey v. State Board of Funeral Directors, 13 Cal.2d 75 [87 P.2d 848], and in the ease of Laisne v. State Board of Optometry, 19 Cal.2d 831 [123 P.2d 457], decided since the hearing in the superior court, to the effect that in the proceeding in court to question the action of such a board the court is not confined to the record before the board and that the petitioner is entitled to a hearing in the nature of a trial de nova on the issues presented.

The petitioner may not now contend that he was not accorded the right to question the sufficiency of the record before the board, if it had been produced, or was not accorded the right to introduce evidence before the court substantially in accordance with the procedure herein outlined. The record shows that the court offered him such an opportunity but he declined to so proceed on the ground that he was entitled to a trial anew without the introduction of the record before the board.

Prior to the present proceeding the propriety of producing in court and there considering the record of the proceedings before the board had not been questioned. That question is now presented to this court for the first time. The extent of the independent judgment to be exercised by the court in the mandamus proceeding is also pertinent to the discussion and to the determination of the appeal.

The discussion has centered first on the nature of the remedy available to one aggrieved by the order of such a board, and secondly on the scope of that remedy. This court has held in numerous cases that such a board does not and cannot exercise judicial functions unless authorized so to do by the Constitution. A few of the more- recent cases are Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557 [59 P.2d 119] ; Whitten v. State Board of Optometry, 8 Cal. 2d 444 [65 P.2d 1296, 115 A.L.R. 1]; Drummey v. State Board of Funeral Directors, supra; Laisne v. State Board of Optometry, supra. It followed necessarily that certiorari was not the appropriate method of reviewing the action of such a board. Since no other legal remedy was made available this court declared and has adhered to the proposition that a citizen, feeling aggrieved because of the action of such a board, which if undisturbed would have the effect of depriving him of a constitutional right either of liberty or property, should be entitled to have the validity of that action inquired into in a court of justice; that the proper method of inquiring into the propriety of the official acts of such a board is by means of a mandamus proceeding, and that in such a proceeding the court is not confined to the record before the board but may exercise an independent judgment on all of the competent evidence before it.

Because the hearing to which the petitioner was entitled was said to be in the nature of a trial de nova, it is contended that the record of the evidence before the board had no proper place in the evidence at the trial. There is no merit in the contention. The significance of the trial designated as a trial de nova must be tested in the light of the nature and scope of the remedy in mandamus thus made available. In its nature mandamus is a proceeding in which equitable principles are applicable. (Lukens v. Nye, 156 Cal. 498, 507 [105 P. 593, 20 Ann.Cas. 158, 36 L.R.A. N.S. 244]; Hutchison v. Reclamation Dist., 81 Cal.App. 427, 433 [254 P. 606]; Dierssen v. Civil Service Commission, 43 Cal.App.2d 53, 57 [110 P.2d 513].) The scope of such a trial is not to be deemed to be the unqualified or unlimited trial de nova to which a litigant is entitled in the superior court on appeal from a justice’s court on questions of fact or on questions of both law and fact (Code Civ. Proc., sec. 976), where, justifiably or not, he may present a “skeleton” case in the lower court and reserve the real showing on the merits for the trial in the superior court. And such a trial is not governed by the rules applicable to the statutory review of the action of the Board of Governors of The State Bar in which this court exercises an independent judgment solely on the facts contained in the record before that board.

The conditions attending the trial in the consideration and determination of the mandamus proceedings may he said to include the following:

First, the petitioner comes before the court governed by the provisions of the Code of Civil Procedure applicable to mandamus proceedings (Code Civ. Proc., sees. 1084 to 1097 inclusive). In the disposition of such proceedings the court is likewise governed by those code sections. The powers and duties of the court in the premises are provided for therein. Historically the writ of mandamus was devised to provide a remedy where no other remedy existed. Its purpose was to afford a means of procuring justice in the proper field of its operation where there was an asserted legal right and no specific legal remedy for the enforcement of that right. The code provides (see. 1085) that the writ “may be issued by any court, except a municipal, justice’s or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.”

Section 1086 provides: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued up on the verified petition of the party beneficially interested.”

Provision is then made for the issuance of an alternative and a peremptory writ (sec. 1087). “When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative [writ] must be first issued____” (Sec. 1088.)

From an early date in this state, as noted in the Drummey ease, it has been held that, where no other remedy is available, mandamus is the proper remedy for one improperly deprived of a professional license by a state-wide administrative board to secure the restoration of his license. Such is the purpose of the present proceeding. The proceeding is initiated by the filing of a verified petition. The practice is to present the petition to the court with a request that the alternative writ be issued ex parte. But a petitioner is not entitled as a matter of right to the issuance of that writ. He must make a proper showing by the allegations of his petition. If his petition fails to state a prima facie ease entitling him to the issuance of the alternative writ, it is within the power of the court to deny it out of hand. This is familiar practice in all courts having original jurisdiction in mandamus. Furthermore, the power of the court is not without a discretion, wisely exercised, to grant or deny either the alternative or the peremptory writ. (Wiedwald v. Dodson, 95 Cal. 450 [30 P. 580]; Betty v. Superior Court, 18 Cal.2d 619 [116 P.2d 947]; Bartholomae Oil Corp. v. Superior Court, 18 Cal.2d 726 [117 P.2d 674].) For an abuse of this discretion on the part of a lower court appropriate remedies are available in a higher court, unless the proceeding is entertained originally in the Supreme Court, where an order denying the writ is not generally reviewable except on a petition for rehearing.

Second: If the alternative writ is issued it may be said that the matter then proceeds as an ordinary civil action. But this is not so in some important particulars. The requirements of the alternative writ are that the respondent do the act demanded or show cause at a specified time and place why he has not done so. In the event of non-compliance the order then is in the nature of an order to show cause where the burden is cast upon the respondent to proceed and show to the satisfaction of the court why he has not performed the act demanded by the petitioner. On the return day, in original proceedings in the Supreme Court and District Courts of Appeal, the rule is that “the respondent may make return, either by demurrer or by answer, or by both. If the return be by demurrer alone, and the demurrer is not sustained, the [peremptory] writ may be ordered to issue without leave to answer over.” (Rule XXVI, sec. 3, of Rules for the Supreme Court.) In the superior court, on the return of the alternative writ, the respondent may file an answer under oath (sec. 1089), in which questions of law also may be raised" (sec. 1094). But the petitioner is not precluded by the answer from any valid objection to its sufficiency (sec. 1092).

Third: When the matter is at issue on controverted questions of fact, the cause may then be said to proceed as a civil action, that is, it is set down for trial and is tried as a civil action during the course of which any competent evidence may be introduced and received and the ordinary procedural rules apply. At the close of the hearing the court makes findings of fact and conclusions of law, and enters judgment either denying or granting a peremptory writ.

Fourth: In the course of the trial questions may arise as to the admissibility of offered evidence. The present ease is illustrative of those where the admissibility and effect of the record of the evidence before the board is brought into question. None of the cases has specifically declared that such a record is admissible, obviously for the reason that it had been the practice to receive it and its admissibility had not been questioned. The cases have therefore assumed that it would be admissible. It was stated in the Drummey and in the Laisne cases that the court is not confined to the record of the evidence before the board. If the record were not in evidence that statement would be without significance. The admissibility of the record before the board has been assumed for the further reason that such a record is ordinarily essential to the proper determination by the court of the question whether the respondent has performed its official duty in the premises. This is especially true where the issues turn upon questions of fact. The court may refuse to proceed in a proper ease unless the record before the board is produced in court. The problem may arise as to who should present that record. Normally the respondent has or should have it prepared as a part of its records and include it as a part of its return to the alternative writ. If not produced until during the course of the trial, the respondent should have it available for the benefit of the court at that time. If the petitioner is required to produce it at his own expense the court, in the event the petitioner prevails, is authorized to impose the expense of preparing it by way of damages pursuant to section 1095 of the Code of Civil Procedure.

Fifth: As stated the court is not confined to the record of the proceedings before the board. That is but another way of saying that the court may decide the- cause on all of the competent evidence before it, which is a truism. Since the record before the board is competent evidence it should be considered and weighed along with other evidence in the cause.

It was said in the Drummey case that “the findings of the board come before the court with a strong presumption of their correctness.” If there is no requirement for formal findings and none are made, findings in favor of the prevailing party are implied from the determination of the board. In any event the entire record is a public record, that is, it is the record of the proceedings of a legally constituted public body. It may be assumed that in the ordinary case such a record would disclose that the controversy between the parities had been tried out before the board as fairly and completely as the circumstances of the case would permit. There is nothing in any of the cases to justify the conclusion that one charged with violating the conditions of his professional license may remain silent before the board; or present a so-called “skeleton” showing and thereafter’ secure in court a trial de nova in an unlimited sense.» Nor was it ever contemplated that the time of the court should be consumed in a reiteration of the competent evidence presented to the board and contained in the record of its proceedings. (Sparks v. Board of Dental Examiners, 54 Cal.App.2d 491 [129 P.2d 405].) If the record before the board should disclose that the petitioner had intentionally presented a “skeleton” defense in the hearing before the board for the obvious purpose of transferring the controversy from the board to the court, that fact should weigh heavily against him in his endeavor to invoke the equity powers of the court in his behalf in the mandamus proceeding. If, however, it appears that the controversy has been tried out in good faith before the board there is no reason why the time of the court should be taken up or the parties be put to additional expense in duplicating the record before the board.

Sixth: As above noted the trial court is not confined to the record before the board. Nor is the court bound by the findings and determinations of the board. It must also be said that neither party is necessarily bound in all particulars by the record before the board. If it should appear from that record that incompetent evidence had been received by the board, the complaining party should not be foreclosed from objecting on the trial to its admissibility. Also if the board had improperly refused to entertain admissible evidence the litigant should not be foreclosed from offering it at the trial. If additional evidence not included in either category be sought to be introduced by a party, the court has the right to receive it upon a showing that, in the exercise of reasonable diligence, it could not have been introduced before the board. If the credibility of ■witnesses before the board be brought in question in the mandamus proceeding the opportunity should be afforded for further examination or to contradict or impeach their testimony under well recognized rules of evidence and procedure. If the proceedings before the board are to be questioned at the trial it would be the duty of the petitioner to set forth his objections in the petition for the writ.

Finally, research discloses that there is nothing novel in denominating the hearing in the mandamus proceeding a trial “de nova,” or in placing obviously reasonable limitations upon its general scope at the hearing. The term has been accorded various meanings elsewhere, depending on the purpose of the legislation or the rules of procedure. For example, in admiralty “An appeal . . . vacates the decree of the lower court and there is a trial de nova in the appellate court. Thus, on appeal from the district court to the circuit court of appeals, the proceeding or the trial de nova is on the record on appeal, and on such new or amended pleadings, or such new evidence as the circuit court of appeals may allow or admit.” (2 C.J.S., p. 318, citing authorities.) In Shupee v. Railroad Commission of Texas, 123 Tex. 521 [73 S.W.2d 505], the statute provided for a court action by one aggrieved by the commission’s decision which should “be tried and determined-as other civil causes.” It also provided that the plaintiff had the burden of showing “by the preponderance of evidence” that the decision was unreasonable or unjust as to him. In that case in arriving at its conclusion that the commission’s denial of the plaintiff’s application for a certificate of convenience and necessity should not be disturbed the court frequently referred to the evidence adduced before the commission. It may be said that the statute there contemplated a “trial de nova.” Nevertheless the court held that the legislative intent was that the commission’s decision was not to be disturbed unless it had no basis in fact and was arbitrary and capricious; that the court should not substitute its judgment for that of the commission, unless it was shown that the judgment of the commission was without foundation in fact, or was unreasonable or arbitrary. Likewise in Texas Liquor Control Board v. Floyd, (Tex.Civ.App.) 117 S.W.2d 530, 534, we find the statement: ‘ ‘ The de nova hearing before the district court, as provided in the Act, does not mean that the issue of whether or not a permittee’s license shall be can-celled is to be heard and determined anew by the court in the same manner as if no hearing had been had by the Board or its administrator.”

The foregoing eases are referred to for the purpose of illustrating that judicial trial de nova after an administrative hearing is not usually intended as a trial without appropriate consideration of the evidence upon which the administrative body based its action. All of the decisions recognize the important administrative function of such a board in utilizing its facilities in initiating and investigating disciplinary pro-proceedings, conducting hearings, finding the facts and making its orders accordingly. (See Whitten v. State Board of Optometry, 8 Cal.2d 444, 446 [65 P.2d 1296, 115 A.L.R. 1].) Those findings and orders have not the finality of a court judgment if attacked in an appropriate court proceedings, such as in mandamus. If in such a proceeding it appears that there ivas no breach of duty in the matter of receiving or refusing to receive evidence; that there is not other pertinent evidence which the trial court, in the exercise of a wise discretion, should receive, or that such other evidence should be and has been received, then the court has the power to make its findings of fact and conclusions of law and render judgment either denying the relief sought or by an appropriate writ directing the board to perform its official duty in the premises.

The record herein shows that the petitioner drafted the allegations of his petition in line with the foregoing views and procedure. To support those allegations the introduction of the record of the proceedings before the board would have been not only proper, but necessary. However, the petitioner refused so to proceed. In effect, he refused to participate in the trial on the issues of fact if the record before the board was required to be produced.

The attitude thus taken by the petitioner left nothing for the trial court to decide except the issues of law involved. Those questions were argued and the cause was submitted thereon. About three weeks later the court determined those issues adversely to the contentions of the petitioner, and we think correctly.

There is no merit in the contention that the complaint before the board did not state a cause for disciplinary action against the petitioner. In this connection the petitioner contended at the trial and now contends that he was entitled to use the letters “N.D.,” meaning Doctor of Naturopathy, because, so he asserts, the methods of treatment of the sick by a drugless practitioner and by a naturopath are the same, and that the public was not prejudiced.thereby. He concedes that he was not licensed to practice naturopathy in this state. Section 2395 of the Business and Professions Code provides that the use by the holder of any certificate of any letters, suffix, indicating that he is entitled to practice a system or mode of treating the sick for which he is not licensed in this state constitutes unprofessional conduct. In 1909 (Stats. 1909, p. 418), the Legislature in effect ratified certificates to practice naturopathy theretofore issued by the Association of Naturopaths of California; but the act did not authorize any future issuance of such certificates and none have since been issued. There is no rule by which a person authorized to practice as a drugless practitioner under the appropriate and revised system (Stats. 1913, p. 722), may successfully claim privileges under an earlier and discontinued system. By section 2395 the Legislature forbade it, and the contention may not prevail that the Legislature could not lawfully do so, or that the restriction adopted was not appropriate to protect the public against deception. The same conclusion follows a consideration of the petitioner’s contention that section 2409 of the Business and Professions Code adopted in 1939 is unconstitutional because it is class legislation. That section provides: “Unless a person licensed and authorized under this chapter or any preceding medical practice act to use the title ‘doctor’ or the letters or prefix ‘Dr.,’ holds a physician and surgeon’s certificate, the use of this title or these letters or prefix without further indicating the type of certificate he holds, constitutes unprofessional conduct within the meaning of this chapter. ’ ’ The petitioner has failed to show wherein the distinction thus provided is unreasonable and beyond the power the Legislature to afford protection against misleading the public. An even more severe restriction was upheld in Davis v. State Board of Optometry, 83 Cal. App. 488 [257 P. 197]. (See also State v. Michaels, 226 Wis. 574 [277 U.W. 157]; State v. Pollman, 51 Wash. 110 [98 P. 88].)

In view of the state of the record here presented it follows that the trial court had no recourse but to deny the peremptory writ.

The judgment is affirmed.

Curtis, J., Carter, J., Griffin, J. pro tern., concurred.