The opinion
NEWSOM, J.
I respectfully dissent.
I am entirely at a loss to understand how one can be penalized for furthering a fraudulent scheme in the absence of any showing whatever of knowledge or evil intent.
In fact, express findings of the respondent board negate the existence of any such mens rea, stress that Dr. Fort acted “altruistically,” and establish that he authorized use of his name only for a “lawful” purpose and in a “legal” manner.
Contrary to popular opinion and the careless decisions of a number of appellate courts, no absolute liability attaches to the commission of acts which, like those at issue here, are mala prohibitam and not mala in se. (Morissette v. United States (1952) 342 U.S. 246 [ 96 L.Ed. 288 , 72 S.Ct. 240 ]): evil intent cannot be inferred, but must be proved. It was not proved here.
Observing no evidence, let alone substantial evidence, of any wrongdoing by Dr. Fort, I would reverse the decision of the superior court.
I will add that, in light of the board’s findings of Dr. Fort’s innocent intent and professional competency, the penalties imposed upon him seem to me unjust, gratuitous and irrelevant. Particularly inapposite is an order that the time Dr. Fort spends outside California will not be applied “to the reduction of this probationary period.”
Who is the craftsman of such decrees?
A petition for a rehearing was denied October 22, 1982. Newsom, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied December 15, 1982. Bird, C. J., was of the opinion that the petition should be granted.