Jurisdictional Statement — Shakin v. Board of Medical Examiners of Cal.

ee ' Supreme Court, U.S

SUPREME COURT, U. & FILED

“ ‘INTHE: | FEB 1 169

Sapene Court of the wei, i \

ea or mb, Pra 1967-5 * sea

| me { 1

a

7 WHRLJAM LLOYD SHAKIN, M.D.

be eas ’ Petitioner and Appellant;

>) aaa

BOARD OF MEDICAL EXAMINERS eS.

THE PrArS OF CALIFORNIA, en, 2

- Defendant and Respondent.

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, Appeal From The J wleuiant Of The Supreme

Caurt Of The State Of California ©

MARKS & SCHNEIDER . .

* BURTON MARKS and 0

HARVEY A: SCHNEIDER

8447 Wilshire Blvd., Suite 217

Beverly Hills, Calif. 9021 Ss oe

Telephone (213) 653-4141 I achicha huss

: etre ‘ Attorneys for Petitioner and

| Appellant. ,

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/\ TOPICALINDEX st

(a) Nature of appeal ke POT ae hr mf 1 )

2 panes ee (b): Grounds for invoking pire teens 7 e..

© Questions presented pera git Ser NE ee

(a) Statement Of The Case Cen te ee - .9

(e) Federal questions présented are ,

substantial 1... -. 0. eee epee eee eo e.

Conclusion ........ waveae beet ca ian al oe 2

_ FABLE OF AUTHORITIES CITED

Elforandtv. Russell, 384 U.S. 11, oe

- 86 S.Ct. 1238, 16 L.Ed. 2d 321 Beye Me

Giles v. Maryland, _- US. - ye cee

87 S.Ct. __ TTL.Ed.24 737 Sen ee

Seas: Stewart & Co: v. Sadrakula, .

309 U.S. 94, 60 S.Ct. 431, 84 L.Ed, 396,

127 ALR EM ose. .e eee eee ea

. Lemnbiogt 2, Celieente, $85 ae 225, 7 s =

788. 240, 2 L.Ed.2d 228° 2.2... os ee %

. Meyer v. Nebraska; 262 U.S:390, . -—

: 43 S.Ct. 625, 67 L.Ed. 1042 ......... ba -

. of a? gover ;

vos Morgan.y. United States, 304 U.S. 1, , 7 5

. 58 S.Ct. 773, 82 LEG. 1129 3.2.05... 6. 4.

» Most v. State Bar, 67 A.C WU Atsekviceetesyt: \

Doo Dene Deters tie page

— ‘83 S.Ct. 1240, 10 L.Ed.24 349 PRS Pee

he

“TABLE OF AUTHORITIES CITED

“Cases (cont), Bat Varn ae ~ Page

* NAACP v. Button, 371 U.S.415, - SA aes

“83 S.Ct. 328, 9 L.Ed. 24 405 - ekevaxescs oo

New York ex rel. Bryant v. Pisisnatmnn, .

"(278 US. 63, 49 S.Ct: 61, 73 LEd. 184... 3

Heiko v. Coaieouaat, 08US519,/ —

* 58 S.Ct. 149, 82 L.Ed. 288.022... 2... 4

"Pointer v. Texas, 380 U.S. 400, Ss

85 S.Ct. 1065, 13 LB 20923 Pas iY

~ Right ¥. Georgia, 373 US. 284,

ware v. Board of Bar Beekeied

“+ ~ 353 U.S. 232; 77 S.Ct. 752,

» A LBA2d 796 222.

"Scott v: Donald, 165 U:S. 58," fds =

170 S.Ct. 265, 41 L.Ed. 632)... 2... 3:

Sorrels v. United States, 287U.S.435,.° =

: SBR AG TLRS 5 Y..62 os... 4

-. Zitney v. State Bar, 64 Cal. 24787, aN oo

A era 66 Cafes osaegnsns 4

| ene?” 7 ae ps

a. S. Constitution First. hineineia aria os : 4, 7,

‘Fifth Amendment ...... 7,

; Fourteenth Amend. ..... 3, 4, 7, 8

98 USC.1257(2) .:....). By, Ss epee pen

1094.5 C.C.P.(Calif.) ....... 2,4, 5, 6,7, 8, 11, 12, 13

1203.4 P.C. (Calif.) ...... hoki caeuisouas eta ee

«

*

7. | October Term, 1967

foe _. SUPREME COURT OF THE UNITED STATES

r es 7 : No.

p : We. .

WILLIAM LLOYD SHAKIN, M.D. _ a oe

: Petitioner and Appellant, - °* *

© * _= os . > 4

» ‘ BOARD OF MEDICAL, EXAMINERS OF

THE STATE OF CALIFORNIA,

2 | : Defendant and Respondent. --

«

Peg i, Appeal From The Judgment Of The

‘ __ . Supreme Court of The State Of.

California. .

" “JURISDICTIONAL STATEMENT =,

: att . 9 | ’ z . : . . a : ~ T *

es (RULE 13(2) and 12)

RULES OF THE UNITED STATES

. SUPREME COURT”

(a) This is an appeal taken from the order ofthe °

Supreme Court of the State of California dated November 1; a on

1967, denying, without opinion, 4 hearing on the decision of :

the Court of Appeal for the State of Calif ig dated Septem-.

- ber 5, 1967 (Appendix A), affirming the denial of a Petition

.e for Writ of Mandate, which denial was made and entered by

the Superior Court of the State of California | for the County’

of Los Angeles on May 27, 1966. Prior to the denial of. the.

Petition for Hearing by the California Supreme Court, a Peti-

_tion for Rehearing had been denied, without opinion, by the

Court of Appeal on Octoberl4, 1967. The opinion of the -

Court-of Appeal i is reported officially i in Volume 254 Advance

California Appellate Reports at page 109. There is no official IOP ae.

report of the decision to date. _ ati,

(b) The jurisdiction, of this Court is invoked on the

grounds, inter alia, that section 1094. 5 of the California

Code of Civil Procedure has been sustained against a claim

of unconstitutionality under the F ederal Constitution.

Other questions also invoke federal corstitutional questions

and invoke the jurisdiction of this Court. (See infra.)

‘ . @) Appellant’s certificate to practice medicine

and surgery in the State of California was revoked by the |

respondent. BOARD OF MEDICAL EXAMINERS. OF THE.

STATE OF CALIFORNIA after administrative proceedings . ie

were held purportedly pursuant to the provisions of section. . >)

1094:5 Of the California Code of Civil Procedure. Appel- |

lant’s Petition for Writ of Mandate, which sought reinstate- . |

‘ment of his certificate, was denied by the Superior Court of ) ‘

. the State of California for the County of Los Angeles, and Seah

this denial was affirmed by the California Court of Appeal, ; :

as aforesaid. The California Supreme Court denied a hearing

after the decision by the Court of Appeal. ra

> Ue Re ee

_ Gi) The judgment of thie Superior Court of the

County of Los Angeles was entered on May 27, 1966. The .

decision of the Court of Appeal of the State of California -

affirming the judgment of the Superior Court was rendered

on September 5; 1967 (Appendix A). “A rehearing was

‘ denied by the Court of Appeal on Octoberl4, 1967. The .

California Supreme Court denied a hearing on November 1,

1967." -The Notice of Appeal was filed on November 26, '

1967, in the Cou of Appeal of the State of California, the

COMET WTA Poseenned of the septen (Rutes of the Palted

States Supreme Court, Rule 10(3) ).

(iii) Jurisdiction ofthis Court is conferted by

- Title 28, U.S.C.,section 1257(2).

Sn; ot ~ band Cases believed to sustain the uridction of

, , dL. Appellate jurisdiction: New York ex

rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 73

- L.Ed. 184, 187; James Stewart &.Co. v. Sadrakula, 309 US.»

94, 60 8.Ct. 431, 84 L.Ed. 596, 127 ALR 821; Lambert v..

California; 355 US. 225, 78 S.Ct. 240, 2 L.Bd,2¢ 228. |

2. Generally as to subsidiary questions

involving constitutional issues: Scott v. Donald, | 165 U.S.

538, 170 S.Ct. 265, 41 L.Ed. 632. i. }

= The right to-have a.license to practice

medicine is one of those rights protected under the First | .

- and Fourteenth Amendments to the United States Constiti-

tion and is encompassed within the definition and concept. -

of the word “liberty”: Schware v. Board of Bar Examiners,

353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796, 801-

802; Meyer 4. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625,

67 L.Ed. 1 21045.

.

“ ee Feet, 4. Where ey are involved affecting

First Amendment and Fourteenth Amendment rights, those

procedures, must be followed with scrupulous exactitude and -

~ the most natrow construction possible given to the statutes .

and procedures i volved, so as:to permit a minimum of inter-

ference with tt, a ae based rights: Elfbrandt v.

Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed. 2d 321; NAACP |

», ‘Button; 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405; Right

—Y, Georgia, 373 U. s. ‘284, 83 S. Ct. 1240, 10.L-Ba-24 349: Cal

b 5. “Due process” and ‘ “equal Prot€ctions”:

aa, eS 58 S.Ct. 149, 82 L.Ed. 288.

-*~6. The individual’s constitutional rightto x»

. ‘ross-examine witnesses and rebut evidence against him: Morgan .

-y, United States, 304 U.S. 1, 58 S.Ct: 773, 82 L.Ed. 1129;

--Pointer v: Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 925. ;

"es 7~ The individual’s constitutional right to

present evidence on the issue of entrapment: Sorrels v. United _

States, 287 U.S. 435, 53 S. Ct. 210, Hi L.Ed. 413: Cf. Giles v.

Maryland, a US. ___, 87 B.Ct.- o.3% Ed.2d 737..

| | 8: * In th the case of disSplinary proceedings -

involving attorneys in the State of California; all reasonabie .

déubts are resolved in favor of. the accused and if equally .

favorable inferences may be drawn from a proved fact, the

. inference which le ds toa conclusion of i innocence, rather nae és

than one leading to a conclusion of guilt, will be accepted:

Most v. State Bar, 67 A.C. 600; Zitny v. State Bar, 64 Cal.2d

787, 789-790, 51 Cal.Rptr. 825.

(v)~ “California Code of Civil nae section

1094: :5 is found in its original: form in Stats 1945, ¢. 868,

Dp. 1636, sec. 1. The section was amended in Stats 1949, c.

| 358, p. sad see. 1. Section 1094- = it existed at all times

Palko v.

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Pan

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y material to this case and as it presently exists, reads as follows:

(a) Where the writ is issued for the purpose of 7

| inquiring into the validity of any final administrative a

order or decision made as the result of a proceeding

in which by law a hearing is required to be given, |

evidence is s required to be taken and discretion in the

‘determination of facts i is vested in the inferior tribunal,

_ corporation, board or officer, the case shall be heard.

by the court sitting without a jury: All or part of the

record of the proceedings before the inferior tribumal,

-- petition, m#

. - authorities or may be

rs If,the expense of pre

7 record hes be been borne by the atic party, woh

g

corporation, or officer may be filed with the .

, ‘with respondent's points and

yidered to be filed by the court.

in, all or any part of the

expense shall be taxable as costs. - i.

~' “(®)-The iriquiry in such a case shall extend to

the sajeaias whether the respondent has proceeded

_ without, or in’excess of jurisdiction; whether there

. was a fair trial; and whether there was any prejudicial

abuse of discretion. / buse of discretion i is established —

. if the fespondent has not proceeded in the manner a

_ required by law, the order or decision is not supported

_by the findings, or the findings are not t supported by

-&

the evidence. - &

“(c) Where it is claimed that, the findings are ‘not

supported by the evidence, in cases in-which the court

is authorized by law to exercise its independent judg-

ment on the evidence, abuse of discretion is establish-

_ed if the court determines that the findings are not

. supported by the weight of the evidence; and inall ~

he ‘ .

alin

other cases abuse. of discretion is established if

the court determines that the findings are not .

. supported by substantial evidence i in the light of.

~ the whole record, 7

~ _ “(d) Where the court finds that there is rele-

vant evidence which, in the exercise of reasonable

| diligence, could not have been produced ot which

was improperly excluded at the hearing before

‘ respondent, it may enter judgment as provided i in

; subdivision (€) of this section remanding the case

to be reconsidered in the light of such evidence;

or, in cases in which the court is authorized by

law to exercise its independent judgment on thé

evidence, the court may admit such evidence at —

the hearing on the writ without oe the

case.

“(e) The court shali enter judgment either

. commanding respondent to set aside-the order or

decision, or denying the writ. "Where the judgment

_ commands that the order or decision be set aside;

‘it may order the reconsideration of the case inthe -

light of the court’s opinion and judgment and may.

order respondent to take such further action.as is

- | _ specially enjoined upon it by law but the judgment

oe shall not.limit or control in ariy way | the discretion

legally vested i in the respondent. ;

°° “(f) The court in which proceedings under

; this section are instituted may stay the operation

of the administrative order or decision pending the

judgment of the court, or until the filing of a notice

of — from the a or until thie expiration

of the time for filing such notice whichever occurs

first; provided that no such stay shall be imposed or ©

continued if the court is satisfied that it is against

the public interest. If an appeal is taken from a

denial of the writ, the order or decision of the

agency shall not be stayed except upon the order

_ of the court to which such appeal ts taken; provided

that,»in cases where a stay is in effect at the time of

: filing the notice of appeal, such stay sliall be con-

tinued by operation of law for a period of. twenty

(20) days from the filing of such notice. If an appeal

is taken from the granting. of the writ, the order or

' decision of the agency is stayed pending the deter- *-

_ mination of the appeal untess the court to which

~ such appeal is taken shall otherwise order. Where

any final administrative order or decision is the

subject of proceedings under this section, if the

petition shall have been filed while the penalty

imposed is in full force and effect the determination .

shall not be considered to have become moot in

cases where the penalty imposed by the administra-

- tive agency has been eompleted or complied with | |

during the pendency of such proceedings.” ~

(c): The questions presented on this appeal are as follows:

1. Whether the - application and interpretation of ©

California Code of Civil Procedure section 1094. 5 with respect

to licensed physicians and surgeons denies to such physicians

and surgeons liberty, due process of law and equal protections ,

of law, in violation of Amendments I, V and XIV to the United

States Constitution, where: “

@) A licensed physician and | surgeon (as in s the

&

§

a

instant case) is not given an opportunity to confront the

administrative agency (the respondent Board of Medical

Examiners) which has the.power to revoke licenses, either

in defense of an accusation brought to revoke such license

or by way of mitigation, where members of other learned |

professions, e.g., attorneys at law, are so permitted.

~“ ~~" Gi) Physicians and surgeons are’not afford-

ed an opportunity to object to thé: finding made by'the _

hearing examiner until such time as the findings have already

been submitted to and acted upon by the respondent Board

of Medical Examiners.

ae (iii) The license of an attorney at law may be *

revoked only after all reasonable doubts are resolved i in favor

of the accused and where, if equally favorable inferences may

be drawn from a proved fact, the inference which leads to a

conclusion of i innocence, rather than one leading to a con-

clusion of guilt, will be accepted, but the same standards are |

not applied in a proceeding commenced for the purpose of

revoking the license of a physician and surgeon.

2. Whether the judicial interpretation of the oe are

scope offreview (both primary and appettate) of administra-

. ‘tive p proceedings pursuant to the provisions of California

Code of Civil Procedure section 1094. 5 violates Amendments,

I, V and XIV to the United States Constitution, either on its | ’

face or,.in the instant case, where: boll

(i) The onerous perfalties and disabilities | |

which an be imposed upon an individual such as appellant

(including, as,herein involved, the deprivation of the consti-

- tutionally protected, right to engage in the profession. of his

. own choosing) ; are subject to the most narrow and restrictive

review, with the result that, for all practicable eeccauie, no -

. 9

a ai

review at all is afforded.

(ii) The accused is denied the right to raise

thei issue of entrapment.

' .(iii) An aggrieved person’ is denied the right

Bi s to work in his chosen and lawful profession pending appellate

a review, at the discretion of the appellate court (i.e., where the

appellate court refuses to stay proceedings pending appeal,

upon timely motion being made), so that the right to eeeeel

: ‘becomes inétely a sham and the appellate “ies are

thereby rendered Se ae :

3. _ Whether the administrative procedures employ-

_ ed by the respondent Board of Medical Examiners were vicla-

tive of the Fourteenth Amendment to the United States Con-.

stitution, in that appellant was not afforded his constitutional

- right to cross-examine a witness and rebut evidence offered

against him.

AOE AP HP oh a AD

*

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_———

F @ “STATEMENT OF THE CASE ronan

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2 7 Seer

fe nal ‘On January 29, 1965, an accusation was filed against

¥ appellant, then a duly licensed physician and surgeon i in the

State of California, charging him with misconduct and pray*

ing that disciplinary action be taken against him. The basis

of the accusation was that appellant had been convicted of

the crime of unlawfully selling prescriptive narcotics (demero] |

and codeine). [Appellant was granted probation for this

offense and, as of the time a Petition for Hearing in the Calif-

orni¢ Supreme Court was denied, appellant’ s record had ‘been rs

expunged pursuant to the provisions of California Penal Code/

section 1203.4.] .

As a result of this accusation, on March 2, 1965, a hearing

DARIEN AB oH hE A ADRs I Nw a

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was held before the entire respondent Board of Medical

Examiners, at which time Officer Booth Shaw — the police *

officer who was involved i in the arrest of appellant i in the-

criminal case — testified in support of the accusation. (BT

10-30.)! Thereafter, and although appellant expressed a

desire that the matter not be continued (BT 45 ), and after

a vote teken by the Board in executive session, the matter ;

was assigned to a Hearing Officer (BT 45-46). At no.time

during the hearing held on March.2; 9965, or thereafter,

was appellant affordéd an opportunity to cross-examine -

Officer Shaw, although he requested to do so (BT 44).

On June 28, 1965, a hearing was held ‘before George

K. Bellows, a Hearing Officer, Upon the completion of

this hearing, and 0 July 8, 1965, the said Hearing Exam-

iner issued his “Proposed Decision,” by the terms of which

it was recommended that appellant’ s certificate to practice

_ medicine wt faiatids in the State of California be revoked

(CT 16-22). % | ’

On. July 23, 1965, the er Decision” of the

| Hearing Officer was adopted by the respondent Board as

its decision, and it was ordered that appellant's certificate

be revoked effective August 23, 1965 (CT 23). _

On August 23, 1965, appellant filed a Petition for Writ

of Mandate to Compel Reinstatement of His Certificate to.

Practice Medicine and Surgery Fellowing Revocation and -

‘* for Stay or (sic) Operation of Administrative Order Pending

Final Judgment (CT 35-37). "On this date, ~ court decided

ee are As used herein CT and RT refer to the Clerk’s and — Transcripts

on Appeal, respectively. Additionally, BT refers to the transcript of the hearing

before the Board of Medical Examiners on March 2, 1965. This transcript was

admitted into evidence as Exhibit “A” at the hearing held in the Superior Court

(RT 44).

Nae

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gs

to issue an Alternate Writ of Mandate and stayed execution

of the Order of the respondent Board, on condition that

appellant possess neither a Federal Narcotics Stamp nor

prescriptions and not himself use narcoti¢s except on medical

_prescription therefor (CT: 78). The Alternate Writ of Mandate

was actually issued on October .1, 1965 (CT 38-40): .

~ On Jarluary 28, 1966, the Superior Court, after motion

duly made, granted appellant’s motion to file an amendment >

to the Petition for Writ of Mandate (CT 43). On said date,

“the Amendment to Petition for Writ of Mandate (adding a

second cause of action) was filed (CT .44-48).

‘On March 25, 1966, a hearing was held on the Petition

for Writ of Mandate. During this hearing, counsel for appel-

~ lant moved the court to reopen the case resented on behalf

of appellant and further moved the court tor permission -.°

present testimony on the issue of entrapment; both motions

“were denied (RT 40 and CT 177).

On May 27, 1966, the Superior Court issued its order

denying appellant’s Petition for Writ of Mandate (CT 6 1). -

On August 23, 1966, appellant filed a Motion for New

Trial (CT 205-207), which motion was denied on October 4,

1966 (CT 210). Appellant’s Notice of Appeal was also filed

‘on August 23, 1966 (CT 70). ‘Prior to the filing of the record °°

in the Court of Appeal, motions were made pursuant to sec-

tion 1094. 5 for astay of the Order of Revocation pending

appeal. All of these motions were denied. .

With the exception noted below, the federal questions |

sought to be reviewed were presented in the trial court (the

Superior Court of the State of California for the County of

Los Angeles) by.way of the Petition for Writ of Mandate

filed on August 23, 1966 XCT 1- “10), thie Supplement t to the

—~12-

Petition for Writ of Mandate (CT.35-37) and the Amendment

to the Petition for Writ of Mandate (CT 44-48) and also at

the hearing of the Petition for Writ of Mandate (See, e.g., °

RI 6-16; 25-27; 40; 43-44). The Petition for Writ of Mandate

was denied i in the trial court.

Appellant presented the federal questions séught to be

reviewed herein to the Court of-Appeal of the State of Calif-

ornia in Appellant’s Opening Brief, ina Reply. Brief, and i in..

_a Petition for Rehearing. Because of the provisions of Code ae

of Civil Procedure section 1094;5, the first opportunity that

appellant had to: raise the issue ‘that section 1094. 5 is uncon- |

stitutiqnal, insofar as the appellate review and stay on appeal

procedures established there are concerned, vas in the Court

of Appeal; all other constitutional i issues, were, as previously

indicated, timely raised in the trial court. The judgment of

_ the tria] court was affirmed by the‘Court of Appeal and the

Petition for Rehearing was denied, réspectively. In affirming.

the judgment of the trial court and holding section 1094. ,

constitutional, the Court of Appeal stated: .

| “Respondent filed its brief in this case on

: July 13, 1967. Thereafter, some 29 days later.

4 appellant filed what is denominated a reply brief

wherein he ‘submits the following for the consid-

eration of the court," — thatthe Administrative ~

’ Procedure Act (Gov. Code, sec. 11500 et seq.) is _

unconstitutional as applied to Doctor Shakin. There _

_. is no merit to such assertion. The act is constitution-

al. Appellant then refers to rule 40 of section 6068

of the. Business and Professions Code. There is no

such numbered rule under such numbered section.

Further, appellant asserts that section 1094.5, \ \

ee.

. Code of Civil Procedute i is unconstitutional as

applied to the facts of this case. This assertion

also lacks merit. The act as here applied is con-

_ stitutional. ” (254-ACA 109, 120. :)

Appellant presented the federal questions sought to

_ ‘be reviewed herein to the California Supreme Court in a

: ! Petition for Hearing, which petition was denig¢d without

opinion. . :

(e) ThStederal questions peuiinand herein are sub-

stantial, in that California Code of Civil Procedure section

1094.5 has been féid constitutional after having been

challenged on the ground, that the interpretation and. appli-

cation of this section to licensed physicians and surgeons

, in general, and to. appellant in particular, violated the First,

Fifth and Fourteenth Amendments to the United States

_ £onstitution, in that the appellant has been unconstitutionally

_ deprived of the right to engage in his chosen and lawfut pro-

fession.

Other substantial federal questions presented invol- _

ved the denial of the right to confrontation of. witnesses at

administrative proceedings and the right to present rebuttal

: evidénce i in such a proceeding, as well as the denial of the ;

right to present evidence on the issue of entrapment.

CONCLUSION

This appeal presents questions of constitutional dimen-

_ sion’ Which go to the very heart of administrative proceedings

wherein it is sought to revoke the license of a physician and

surgeon who has spent great amounts of time, effort and

* money in order to obtain his licerise to practice. Iti is respect- .

: Veh “Res eM n x eal

0 MARGIE ARIM HT ew one TOON NE RIT Ph 89 Re rete ° ~

a) ce

fully submitted that because substantial constitutional ,

questions are presented i in this appeal, plenary consideration %

- Should be given to it. Chek oe eee

Respectfully submitted, ;

Mat. oie : MARKS & SCHNEIDER ~

BURTON MARKS me se

HARVEY A. SCHNEIDER .

Attorneys for Appellant

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