Petition for Writ of Certiorari — Chung v. Superior Court of California, San Francisco County (No. 08-1435)

| Supreme Court U.S.

FILED

Case No. 081435 MAY 12 2008

In The _

Supreme Court of the Uni é as

States

WAYNE CHUNG

Petitioner.

Vv.

The Superior Court of the City

and County of San Francisco,

Respondent

THE MEDICAL BOARD OF CALIFORNIA

Real Party in Interest

On Petition For Writ Of Certiorari

To The San Francisco Superior Court

Case No: CPF 08-508852

PETITION FOR WRIT OF CERTIORARI

Wayne Chung, MD

One Embarcadero Center, Suite 500

San Francisco, CA 94111

(415) 350-0926

QUESTIONS PRESENTED

] Whether the Medical Board of California

violated the First Amendment of the United States

Constitution’s guarantee of free speech by disciplining a

physician based solely on his writing complaint letters to a

federal agency

2. Whether the Medical Board of California

violated the Fourteenth Amendment of the United States

Constitution’s guarantee of equal protection of the laws, by

using fraud and perjury to deprive a physician his right to

due process and property

PARTIES TO THE PROCEEDINGS

Petitioner, Wayne Chung, MD, is a party to the

action maintained in the administrative writ filed in

Respondent Superior Court entitled Wayne Chung us.

Medical Board, San Francisco Superior Court No. CPF-08-

508852.

Respondent is the Superior Court of the State of

California, for the County of San Francisco. Real Party of

Interest, Medical Board of California, is an agency of the

State of California.

ul

TABLE OF CONTENTS

Page

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PETITION FOR A WRIT OF CERTIORARI................ 1

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a es iueleowdaendanie 1

RELEVANT STATUTORY PROVISIONS ................... 1

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B. Factual BOGRMPOUNG.............0.ccsccccscsessecone 8

C. Procedural Background......... euenecossieekeeel 11

REASONS FOR GRANTING THE WRIT.................. 14

I. The U.S. Constitution’s Guarantee

Of Free Expression Has Been Violated........... 14

II. The U.S. Constitution’s Guarantee Of

Due Process Has Been Violated..................... 20

A. Lack of Reasonable Cause For Exam

Violates Equal Protection Clause............ 20

B. Emergency Suspension Violates

Guarantee of Property Rights................. 21

C. Lack of Complete Discovery And

Regular Proceedings Violates

Guarantee of Due Process ..................... 22

1. Falsified Compelling Order............... 24

2. Concealed 2007 DOJ Faxes............... 25

3. Irregular 2005 DOJ Faxes................. 26

4. Investigation Report Withheld........... 27

III. The Medical Board’s Decision Is

EIN 3. 5, occas ononesccaucscsptencaalevmedes 28

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TABLE OF AUTHORITIES

CASES Page

Alexander D. v. State Bd. Of Dental Examiners

re I ihc is os cossuhaedebvncsacsswsssceiceaeas 20

Ashford v. Culver City Unified School Dist.

(2005) 130 Cal.App.4th 344, 349...........0000....0.. 26

Beechwood Restorative Care Ctr. v. Leeds,

(2d Cir. 2006) 436 F Sd 147, 151-52 ...............+. 16

Bennett v. Hendrix

(1ith Cir. 2005) 423 F.3d 1247, 1254................. 15

Bixby v. Pierno

ee GEE BI, Wr divc sn ci ces ccvsncecesecssesensstes 6

Blueford v. Prunty

CO Civ. TOT AOS FG ZG, BOA. .... 60 ceccccccccsccsses 17

Blumenthal v. Board of Medical Examiners

a oe eds pebceesan dues 6

Boos v. Barry

Se Se Bic css akanse sdvcdsaseanvin 29

Cf. Franco v. Kelly

(2d Cir. 1988) 854 F.2d 584, 588-89 .................. 15

Daniels v. Williams

Ge vs BR. Oe. A: > Renn ee 5,30

Desert Turf Club v. Board of Supervisors

CRIT BN ES Oe ook occ vnvnncessccessrsnccves |

Elbrader v. Blevins

(D. Kan.1991) 757 F.Supp. 1174, 1183............... 15

Endler v. Schutzbank

eo Le 8 & y rr erent rer sn 22

Fleishman v. Superior Court

(2002) 102 Cal.App.4th 350, 355.................. ecco eee 7

Garrison v. Louisiana

Ce ee et ig FF Oiincnccke denied dicascencstiesssans 2

Gertz v. Robert Welch, Inc.

(1974) 418 U.S. 3ZS, S3O-BAO..............cccccvccssesvecess 2

Gray v. Superior Court

(2005) 125 Cal.App.4th 629, 640...................... 6,22

Greene v. Barber

(6th Cir. 2002) 310 F.3d 889, 895...................... 15

Greene v. McElroy

SE GEE, META, OEE sc icvcissvacksccsesscaesctevsenes 22

Hartman v. Moore

gg Eg ee 7 er 15

Houston v. Hill

Se EE A, MOR OD nip cies v cane cnevaivedcnssesesneves 15

Hydrick v. Hunter

(9th Cir. 2007) 500 F.3d 978, 989................ ccc eee 17

Intel Corp. v. Hamidi

Coe er Ges. 4 1967. 1365........... 20.0. . ccc cecceece 30

In re Porterfield

(1946) 28 Cal 2d 91...........cc0cccees eantcusnakioes aie 30

Johnson v. Duffy

(i ar. 1070) G60 F.20 740, 74S .........cccccccsssures 19

Kelly v. Trunk

(1998) 66 Cal.App.4th 519, 523.............0..... ce 24

L.A. Alliance for Survival v. City of L.A.

SEE Wee MSS I, occas sce ncsecsccccsenseceone 29

Medical Board v. Superior Court

(20S) 232 Cal. Ann, 4% 176..............00..0cccccecceees 3

Mendocino Environmental Center v. Mendocino County

(9th Cir. 1999) 192 F.3d 1283, 1300................. 15

Miller v. Medical Quality Assurance

SRE DU GE, FT Bg asic caiscsccctcessaccenscssuncs 21

Mitchum v. Foster

ee sa vavacsduuseeueyseceesivus 28

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

ST A MR UO os ccpunciesanevnscodedecscessdeiceres 17

New York Times Co. v. Sullivan

SN I Ot Oe Ps snc snc cecnsesnsvenenarcavasdonens 2

Rakovich v. Wade

(7th Cir. 1988) 850 F.2d 1180, 1211................... 15

Saucier v. Katz

(3002) 643 U.S. at 202.........:..... Nes See athe APA» 17

Shively v. Stewart

(1996) 65 Cal.2d 475, 478-480.......................005, 28

Smart v. Board of Trustees of University of Illinois

(7th Cir. 1994) 34 F.3d 432, 434.....0000000 0, 15

Smith v. Board of Medical Quality Assurance

(1988) 202 Cal. App.3d 316, 326.......................... 6

Soranno’s Gasco, Inc. v. Morgan

(9th Cir. 1989) 874 F.2d 1310, 1314 .................... 16

Street v. New York

SCN 7 40D, CPU, UPR, vn ccccceccceaavevscvasdascavances 2

Texas v. Johnson

Rs a ee 2

Zurn Engineers v. State of California ex rel. Dept.

Water Resources (1977) 69 Cal.App.3d 798.......... 25

STATUTES

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Bus. & Prof. Code § 2292.............. Le Sua ae win aesrecue rane 11,21

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Code of Civ. Proc. § 1094.5(b).................. ccc cee cece ee eeee 6,30

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CONSTITUTIONAL PROVISIONS

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PETITION FOR WRIT OF CERTIORARI

Petitioner Wayne Chung, MD respectfully requests

for a Writ of Certiorari to review the judgment of the San

Francisco Superior Court in this case.

OPINIONS BELOW

The judgment of.the San Francisco Superior Court is

unpublished.

JURISDICTION

The judgment of the San Francisco Superior Court

was entered on Dec. 18, 2008. On Jan. 15, 2009, Petitioner

filed a Petition for Writ of Mandate and Stay in the

California Court of Appeals, First Appellate District. On

Jan. 22, 2009, the Petition and Stay were denied by

summary order. On Jan. 28, 2009, Petitioner filed a

Petition for Review in the California Supreme Court. On

March 18, 2009, the Petition was denied by summary order.

This Court has jurisdiction pursuant to 28 U.S.C. 1254(1).

RELEVANT STATUTORY PROVISIONS

The First Amendment of the United States

Constitution states, “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of

grievances.”

The Fourteenth Amendment of the United States

Constitution states, “Section. 1. All persons born or

naturalized in the United States and subject to the

jurisdiction thereof, are citizens of the United States and of

l

the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

A. LEGAL FRAMEWORK

The United States Supreme Court has emphatically

declared, "[ilf there is a bedrock principle underlying the

First Amendment, it is that the government may not

prohibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable." (Texas uv.

Johnson (1989) 491 U.S. 397, 414; see also Street v. New

York (1969) 394 U.S. 576, 592.) "[Slpeech concerning

public affairs is more than self-expression; it is the essence

of self-government.

The First and Fourteenth Amendments cmbody our

‘profound national commitment to the principle that debate

on public issues should be uninhibited, robust, and wide-

open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government and

public officials.'" (Garrison v. Louisiana (1964) 379 U.S. 64,

74-75, quoting New York Times Co. v. Sullivan (1964) 376

U.S. 254, 270.) "Under the First Amendment there is no

such thing as a misleading idea. However pernicious an

opinion may seem, we depend for its correction not on the

conscience of judges and juries but on the competition of

other ideas." (Gertz vu. Robert Welch, Inc. (1974) 418 US.

323, 339-340.) Thus, speech criticizing the government and

governmental officials receives the highest protection under

both the United States and California Constitutions, Cal.

Const. Art. I, § 2(a), U.S. Const. Amend. I.

This Petition For Writ of Certiorari presents an

unprecedented situation in which a highly qualified and

competent physician faces lengthy and severe discipline for

having complained as a private US. citizen to a

government agency. Although no patient or peer has ever

registered a complaint of any kind regarding Petitioner, the

Medical Board of California (“MBC”) targeted him for

investigation, forced psychiatric examination, emergency

suspension, and public discipline.

This sequence of events was precipitated by the

Petitioner having written complaint letters to the United

States Department of Justice (“DOJ”) in 2005 and 2007. He

merely asked for an investigation of suspected privacy

violations and electronic surveillance conducted against

him based on circumstantial evidence. In 2005, a

representative of the Department of Justice, Ken Gibson

purportedly sent an irregular fax to the MBC (but not

released to Petitioner until 2008) alleging that Petitioner

suffered from “severe mental illness” based solely on his

writing of such a complaint letter. This unqualified

medical “diagnosis” has continued to preoccupy the MBC

ever since. An investigation of Petitioner’s practice lasting

nearly three years has uncovered absolutely no patient

harm or breach in the standard of care. He has, however,

been repeatedly forced to justify the legitimacy of his

complaint letters, all without any investigation into his

allegations even attempted.

The MBC never carried out its obligation to truly

investigate the circumstances underlying Petitioner’s

complaint letters and simply assumed that all of the

allegations were untrue. The Courts have previously ruled

that it is the responsibility of the MBC to establish

reasonable certainty by investigating the test results first,

before discipline could be imposed. In Medical Board uv.

3

Superior Court (2003) 111 Cal. App. 4 at 178 the MBC

failed to investigate first, and as a result, the Board's

disciplinary action against the physician was struck down

by the Court.

In Petitioner’s case, the MBC failed to establish

reasonable certainty regarding grounds for discipline in

failing to first investigate Petitioner’s complaint letters,

before declaring them untrue on its face. Administrative

Law Judge Steven Owyang acknowledges in his opinion

that the U.S. government has been known to

surreptitiously conduct surveillance on its private citizens.

(Book 8, 58:fn 2.) 1 Again, the burden of proof is on the

MBC to investigate first if they intend to take disciplinary

action against Petitioner solely on the basis of his DOJ

complaint letters.

Petitioner asked for an investigation based on

circumstantial evidence, but the MBC would not

investigate. (Book 1, 121:16-18.) The claims made by

Petitioner are not the type a private citizen or private

investigator would have the technical capability to

investigate thoroughly. Rather, a government agency’s

powers are required to truly determine one way or another

whether allegations in the DOJ complaint letters are true.

Recent lawsuits brought by the ACLU on behalf of lawyers,

academics and journalists regarding accusations of illegal

government surveillance also relied upon circumstantial

evidence.

The US DOJ Inspector General, Glenn Fine issued a

report to Congress in February 2007 that documented

multiple abuses of the Patriot Act by law enforcement

officials across the country during the time period described

by Petitioner in his DOJ complaint letters. A _ recent

1 Books 1-7 were originally submitted as exhibits for the San Francisco

Superior Court in the Nov. 13, 2008 writ proceeding. Books 1-8 were

submitted as exhibits to California Court of Appeals on Jan. 15, 2009.

whistleblower in the government has come out in December

2008 and publicly stated to national media sources that he

witnessed firsthand illegal surveillance of private U.S.

citizen’s telephone conversations; with the FBI agents often

making jokes in the background on sensitive topics such as

the U.S. citizens’ sexual conversations.

Petitioner's DOJ complaint letters cannot be used

as the basis for a false accusation of mental illness by the

MBC without a legitimate investigation first by the

appropriate government agency to provide’ the

incontrovertible evidence to the contrary required by DSM-

IV (definitive psychiatric textbook) and Dr. Seaman’s own

diagnostic criteria for a delusional belief. (Book 4, 109:19-

21). Petitioner’s claims are in fact, plausible. Since 2005,

there have been frequent reports and criticisms of the FBI’s

surveillance activities over the Internet and the telephone,

and the widespread scope of violations of privacy and civil

liberties. The Court can certainly take official notice of

events in the news regarding surveillance by the

government 2.

The due process clause of the Fourteenth

Amendment provides: "(Nor shall any State deprive any

person of life, liberty, or property, without due process of

law." It was "' “intended to secure the individual from the

arbitrary exercise of the powers of government." '" (Daniels

v. Williams (1986) 474 U.S. 327, 331). Petitioner was

deprived of a fair proceeding guaranteed by the due process

clause contained in the United States and California

2 (Sce e.g., USA Today, FBI Stops Using Carnivore Wiretap Software

(Jan.19, 2005); CNN, Watchdog Says FBI Violated Surveillance Rules

(Oct.25, 2005); UPI, Judges Deal FBI Surveillance Setback (Oct.28,

2005); New York Times, Live Tracking of Mobile Phones Prompts Court

Fights on Privacy (Dec.10, 2005); NPR, NPR Talk of the Nation:

Surveillance Via Cell Phone (Dec.14, 2005); U.S. Department of Justice,

Office of the Inspector Generai, A Review of the Federal Bureau of

Investigation’s Use of National Security Letters (February, 2007)

Constitutions, the Administrative Adjudication Bill of

Rights, Government Code §11425.10 et seq., and Code of

Civil Procedure §1094.5(b).

To be consistent with equal protection, persons

similarly situated with respect to the legitimate purpose of

a law are entitled to receive like treatment. (Blumenthal v.

Board of Medical Examiners (1962) 57 cal.2d 228.)

Petitioner, a healthy licensee, by not being shown

reasonable cause for a forced psychiatric exam under Bus.

& Prof. Code § 820, was not given the same fairness, and

justice in this procedure as other providers had been prior;

and therefore was discriminated against and denied equal

protection of the laws, U.S. Const. Amend XIV, Cal. Const.

Art. I §7. By issuing its emergency interim suspension

order on Feb. 5, 2008, and final decision effective Sept. 11,

2008, the MBC has continued depriving Petitioner of his

Constitutionally protected due process and property rights.

The San Francisco Superior Court erred in concurring with

the MBC’s decision, denying his petition, and simply

ignoring these multiple violations of Petitioner’s

Constitutional rights.

Deprivation of Petitioner’s right to practice was an

“emergency” response out vf all proportion to the

circumstance of Petitioner expressing his right to free

speech in writing complaint letters to the DOJ. Under the

Due Process Clause, courts have undertaken to protect

vested, fundamental mghts, particularly the right to

practice one’s trade or profession from untoward intrusions

by government. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.)

“Unquestionably, a physician has a vested property right in

his or her medical license, once acquired.” (Smith v. Board

of Medical Quality Assurance (1988) 202 Cal.App.3d 316,

326.) Thus, some measure of due process must be given to

a professional license holder before license suspension.

(Gray v. Superior Court (2005) 125 Cal.App.4th 629, 640.)

An emergency interim suspension order, like an injunction,

6

is an extraordinary remedy, to be issued with great caution

and only in those cases where it appears that the public

will suffer irreparable injury if the interim suspension

order is not granted. (Gov. Code, §11529(e) [applying

injunction standards to interim’ suspension orders];

Fleishman v. Superior Court (2002) 102 Cal.App.4th 350,

355 [injunction case].) The MBC made no such showing in

this case.

The overwhelming evidence in this matter

established that Petitioner is safe to practice and in fact

has never caused any patient harm, nor impaired in his

ability to practice safely, there was no authority for the

MBC to discipline Petitioner under Bus. & Prof. Code § 822,

which allows discipline if “the physician suffers from a

mental illness that impairs, i.e., lessens or diminishes, his

competency to practice safely.” The MBC did not produce

one actual example of any lessening or diminishing of

Petitioner's competency to practice safely, yet decided to

discipline him, nevertheless, in effect retaliating against

and silencing any further attempts to exercise his right to

free speech.

Petitioner’s complaint letters to the DOJ was an

attempt to seek redress for grievances against the

government. The MBC has no jurisdiction or legal/moral

right to discipline a physician who provides competent

medical care and who has been determined to present no

danger to patients. There is no statutory authority for

what the MBC has done to Petitioner. There is no evidence

to support any conclusion that Petitioner poses a risk to the

public. The right to criticize the government and

governmental officials is among the quintessential rights

Americans enjoy under the First Amendment of the United

States Constitution, and Californians enjoy under the

California Constitution, article I, section 2.

The general public’s interest is greatly served by an

examination of whether the MBC, as a state governmental

7

agency, has set a chilling precedence for silencing of

protected free speech not only by the Petitioner, but also of

other license holders and the public at large. If the MBC’s

decision is left to stand, any U.S citizen can be retaliated

against for writing complaint letters to the government, by

simply having the very complaint letters used against him

as the basis for a false accusation of mental illness, and

subsequent public discipline in order to silence the

complaint. Such precedence should not be allowed to stand

in the United States of America. Therefore, Petitioner

respectfully requests the Court grant review of his Petition

for Writ of Certiorari.

B. FACTUAL BACKGROUND

Petitioner attended Harvard College, majoring in

biochemistry and graduating with honors. (Book 5, 156:15 —

21, 157: 15 - 16) He then graduated from Harvard Medical

School. (Book 5, 156:22 — 25, 159:14 — 22). Petitioner

received his license to practice medicine in California on

November 14, 1997. He became Board certified in internal

medicine in November 2003. (Book 5, 167:25 — 168:8). In

late October 2004, Petitioner started a private practice in

downtown San Francisco, focusing sn preventive health

care. (Book 5, 168: 8 — 170:25).

While building this practice, Petitioner worked at

various California hospitals as a “hospitalist” — providing

inpatient medical care on twelve-hour shifts to acutely ill

patients. (Book 5, 172:20-175:16). Petitioner has never

been the subject of a malpractice claim, has never been

subject to discipline in any state, or been the subject of any

quality of care peer review proceedings. (Book 5, 184:8 —

25). The MBC has never disclosed the existence of a single

quality of care concern raised by anyone at any time in

regard to Petitioner!

On June 22, 2005, Petitioner wrote a letter to the

Department of Justice expressing his concern that he may

have been subjected to unlawful surveillance and invasion

of privacy. This was the first time Petitioner had ever

written such a letter. (Book 5, 190:18-25). All four signed

letters were returned to Petitioner by U.S. postal service,

addressee unknown. The entire MBC disciplinary

proceedings have been based on an unsigned copy.

On July 6, 2005, Petitioner received a telephone call

from DOJ representative, Ken Gibson who asked him to

email him a copy of the complaint letter and a daily log of

unusual activity. (Book 2, 10-12; 17-19);(Book 5, 191: 4 —

193:3). Petitioner complied, but had no further contact

with Mr. Gibson. (Book 5, 193: 4 — 19). The MBC learned of

Petitioners DOJ correspondence from Mr. Gibson, who

opined in irregular faxes on July 7 and 13, 2005 (despite

having the complaint letter in his possession less than 24

hours) that Petitioner might have a “severe mental illness.”

(Book 2, 9;16). In fact, Brian Lee of the DOJ, sent an

official letter dated July 11, 2005 to Petitioner stating it

was not in his department’s jurisdiction to investigate, and

there was no mention of mental illness or Mr. Gibson’s

irregular faxes (Book 3, 181-182).

On October 28, 2005, the Medical Board’s

Investigator, Craig Stewart, and another investigator,

Victor Sandoval arrived at Petitioner’s office -—-

unannounced — and informally questioned Petitioner

regarding his complaint letter to the DOJ and requested

that Petitioner submit to a voluntary psychiatric

evaluation. (Book 1, 6:13-22; 31:4-17; 121:9-12.) Mr.

Stewart stated there was no formal investigation of

Petitioner by the MBC at that time. Petitioner requested

Investigator Stewart’s assistance in investigating his

complaints, to which Investigator Stewart initially agreed.

(Book 1, 6:26~-27; 31:15-17; 121:12—-15.) Petitioner made

several requests to Mr. Stewart to investigate Petitioner’s

9

allegations in his DOJ complaint letter. (Book 1, 121:16-

17.) Despite Petitioner’s numerous requests, Mr. Stewart

failed to do anything. (Book 1, 121:18.)

In late October 2006, Petitioner heard again from

Mr. Stewart who requested an interview. (Book 1, 121:18-

20.) Petitioner agreed to be interviewed on January 10,

2007. However, Mr. Stewart inexplicably failed to appear

at this interview. (Book 1, 121:20-24.) MBC investigator

Craig Stewart proceeded to conduct an investigation of

Petitioner's practice, lasting nearly three years and

continuing even after this matter went to hearing. (Book 2,

2-7); (Book 5, 5: 12 — 16; 21: 4 — 22: 14). Despite the lengthy

investigation, Mr. Stewart is still not aware of any patient

quality of care complaints made by anyone against

Petitioner. (Book 5, 24: 9 — 14).

On May 14, 2007, Petitioner sent a second letter to

DOJ Inspector General Glenn Fine regarding an

investigative report Mr. Fine had authored concerning

abuses of the Patriot Act by law enforcement officials.

(Book 2, 76). Petitioner reasonably believed that his

original DOJ letter had led to a “cascade of events” which

he perceived to be potentially retaliatory. At the request of

DOJ representatives (Book 3, 183-184), Petitioner detailed

those potentially retaliatory events, including the MBC

investigation and the loss of some employment

opportunities. (Book 3, 63-67); (Book 5, 205 :11 — 208: 4).

On August 13, 2007, Petitioner sent a letter to Ken

Gibson (U.S. DOJ) requesting an opportunity to meet with

a field agent to discuss his June 22, 2005 complaint letter.

(Book 1, 28.) On September 5, 2007, Mr. Gibson (U.S.

DOJ) notified MBC investigator Craig Stewart of

Petitioner’s complaint letters to the DOJ (Book 2, 4).

Eleven pages of faxes were sent by Ken Gibson (U.S. DOJ’

to MBC investigator Stewart (Book 1, 7:5-7; 31:28—-32:4.)

Five pages of these DOJ faxes (pp.1,2,9,10,11) have still not

been provided to Petitioner as of this date, in clear violation

10

of Government Code section 11507.6. (Book 1, 115-118; 146-

148). Investigator Stewart showed Petitioner’s complaint

letters to psychiatrist Melvin Brown M.D., who never

examined, treated or met with Petitioner, yet nevertheless

submitted a declaration on Sept. 30, 2007 in support of a

compelled psychiatric examination based solely on his

reading of Petitioner's DOJ complaint letters. (Book 2, p.

26-29).

C. PROCEDURAL BACKGROUND

On October 23, 2007, the MBC filed a Petition for

Order Compelling Psychiatric Examination. (Book 8, 10-

14.) The Petition falsely stated, “There is no fictitious name

permit on file for this practice.” (Book 8, 11: FN 1.)

Petitioner has had at all pertinent times, a valid fictitious

name permit on file with the Board. Petitioner was not

served or provided with a copy of this Petition prior as per

standard procedure accorded to other physicians and

required by Bus. & Prof. Code § 2292 (he received it on Feb.

29, 2008, after he had already been emergently suspended).

Petitioner had no notice it was being considered by the

MBC. Petitioner had no prior history of the alleged mental

disorder and was not seeing any mental health professional

at the time. There was no professional misconduct or

quality of care issues raised or violation of the Medical

Practice Act, yet the MBC decided to compel Petitioner to

see a MBC appointed psychiatrist based solely on his DOJ

complaint letters.

On October 31, 2007, the Division of Medical Quality

entered an Order Compelling Psychiatric Examination.

(Book 8, 15-18). This order was issued without any prior

hearing provided to Petitioner as required by Bus. & Prof.

Code § 2292. On November 23, 2007, Petitioner submitted

to a psychiatric exam conducted by Charles Seaman, M.D

(Book 1,122:4-5.) This exam lasted 98 minutes. Dr.

1]

Seaman did not ask one question as to the Petitioner’s

actual practice of medicine. On December 10, 2007,

Dr. Seaman issued his Report to the Medical Board, which

opined that Petitioner suffers from a delusional disorder,

“persecutory type” that renders him unable to practice

medicine safely.

On January 3, 2008, the Medical Board filed a

Petition for an Interim Order of Suspension Pursuant to

Gov. Code § 11529 (the “IOS Petition”). Relying solely upon

Dr. Seaman’s Report, the IOS Petition alleged that

Petitioner was unable to practice medicine safely due to a

mental condition. (Book 8, 26:18-22) On January 28, 2008,

Administrative Law Judge Judge Melissa Crowell

conducted a hearing on the IOS Petition without taking any

live testimony and without requiring that the underlying

documents supporting Dr. Seaman’s report be produced to

Petitioner. (Book 1, 203-225.)

On February 5, 2008, Administrative Law Judge

Crowell rendered a Decision ordering that Petitioner’s

License be suspended on an emergency interim basis

pursuant to Gov. Code § 11529. In the Decision,

Administrative Law Judge Crowell, without providing any

analysis or supporting evidence, leapt to the conclusion that

Petitioner’s “continued licensure represents a threat of

danger to the health, safety or welfare of the people of

California.” (Book 8, 32: 72.)

On Feb 10, 2008, the Medical Board filed its

Accusation against Petitioner (the “Accusation”). (Book 8,

35-42.) Many of the 14 source documents (items

2,4,6,10,11) upon which Dr. Seaman rendered his opinion

and provided to the Board still were not provided to

Petitioner at this time. (Book 1, 93.) On Feb. 29, 2008,

MBC investigator Craig Stewart released his investigation

report to Petitioner. This report contained the Petition not

served to Petitioner prior to his compelled psych. exam.

(Book 2, 53-57).

On March 17, 20, April 2, 2008 the full evidentiary

hearing with live witnesses was held, presided by

Administrative Law Judge Steven Owyang. (Books 4,5,6).

Mental health professionals Dr. Charles Seaman, Dr.

Robert Dalgoff, Dr. Mark Zaslav all testified. So did

Petitioner and his brother Vincent Chung, MD. MBC

Investigator Craig Stewart testified.

On April 23, 2008 Administrative Law Judge

Owyang issued his Proposed Decision concluding that

Petitioner was safe to practice and that the emergency

interim suspension order be immediately vacated. He

determined that “it was not shown that Respondent (Dr.

Chung) has caused patient harm in the past or that he

currently presents a danger to his patients.” (Book 8, 59:

12.)

On May 12, 2008 the MBC issued an Order

Maintaining the Inter1m Suspension Pending Board

Decision. (Book 8, 68-69). On May 29, 2008 The MBC

issued an Order of Non-Adoption of Proposed Decision;

Order Continuing Interim Suspension Order. (Book 8, 71-

72). Despite Administrative Law Judge Owyang’s opinion,

the MBC decided to non-adopt and extend the disciplinary

proceedings even further, all the while maintaining the

intcrim suspension order on Petitioner. The MBC was not

proceeding at a pace required by law for an interim

suspension order where a licensee is entitled to a hearing

within 30 days after the accusation is filed and a decision

within 15 days after the matter is submitted. (Bus. & Prof.

Code, § 125.7 (d); Gov. Code, § 11529, (f).)

On July 24, 2008 the parties appeared before the

MBC, Panel A. The MBC members had a chance to hear

oral arguments. (Book 7.) One key missing source

document (items 6) relied upon by Dr. Seaman in preparing

his report still had not been provided to Petitioner despite

multiple discovery requests since the beginning of the

proceedings. (Book 1, 93.) On Aug. 12, 2008, the MBC

13

issued its Decision After Non-Adoption effective Sept. 11,

2008. For the most part, the Decision repeated the findings

and conclusions of Administrative Law Judge Owyang, but

significantly and without justification, edited out the

conclusion that Petitioner did not currently present a danger

to his patients. (Book 8, 102: {2.) The Decision After Non-

Adoption purports to vacate the interim suspension order,

but provides for continuing suspension of Petitioner

pending a further psychiatric evaluation to determine

whether Petitioner is fit to practice medicine, along with 5

years of onerous probationary terms. (Book 8, 106: 42.)

On Sept. 25, 2008 Petitioner filed a Petition for Writ

of Administrative Mandate seeking an order directing the

MBC to set aside its decision and reinstate his medical

license to unrestricted status in good standing. (Wayne

Chung vs. Medical Board, San Francisco Superior Court

case no. CPF-08-508852). On Oct. 8, 2008, the court issued

a stay of decision pending writ proceedings. (Book 8, 131-

132.) On Nov. 13, 2008 Judge Patrick Mahoney heard oral

arguments. (Book 8, 228-255). On Dec. 18, 2008, Judge

Mahoney denied the petition and vacated the stay of

decision. (Book 8, 214-218; 220-222; 224-226).

On Jan. 15, 2009, Petitioner filed a Petition for Writ

of Mandate and Stay in the California Court of Appeals,

First Appellate District. On Jan. 22, 2009, the Petition and

Stay were denied by summary order. On Jan. 28, 2009,

Petitioner filed a Petition for Review in the California

Supreme Court. On March 18, 2009, the Petition was

denied by summary order.

REASONS FOR GRANTING THE WRIT

I. The United States Constitution’s Guarantee Of

Free Expression Has Been Violated

i4

A violation of free speech rights may be established

when a governmental response to speech "would chill or

silence a person of ordinary firmness from future First

Amendment activities." (Mendocino Environmental Center

v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300;

see also Bennett v. Hendrix (11th Cir. 2005) 423 F.3d 1247,

1254.) "[T]he First Amendment protects a_ significant

amount of verbal criticism and challenge directed at police

officers" (Houston v. Hill (1987) 482 U.S. 451, 461), and

retaliation for this criticism is actionable as a civil rights

violation under section 1983. (Greene v. Barber (6th Cir.

2002) 310 F.3d 889, 895; Smart v. Board of Trustees of

University of Illinois (7th Cir. 1994) 34 F.3d 432, 434;

Rakovich v. Wade (7th Cir. 1988) 850 F.2d 1180, 1211;

Elbrader v. Blevins (D. Kan. 1991) 757 F.Supp. 1174, 1183.)

"Official reprisal for protected speech ‘offends the

Constitution [because] it threatens to inhibit exercise of the

protected right’ [citation], and the law is settled that as a

general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions

....' (Hartman v. Moore (2006) 126 S.Ct. at p. 1701).

Petitioner’s 2005 complaint letter to the DOJ was an

attempt to seek redress for grievances against the

government. It is undisputed that writing such a complaint

letter is protected speech. (Cf. Franco v. Kelly, 854 F.2d

584, 588-89 (2d Cir. 1988)) (describing “right to petition

government for redress of grievances” as guaranteed by the

First and Fourteenth Amendments”). Such activity is

specifically protected from retaliation by the government.

For the MBC to utilize Petitioner’s complaint letters to the

DOJ as the primary basis for disciplinary action against

Petitioner is in direct violation of U.S. Const. Amend. Cal.

Const. Art and I. I, § 2(a), § 3.

The MBC falsely states, “There simply is not a shred

of evidence in the record that Petitioner was disciplined

based upon the content of his communications to the

15

Department of Justice.” (Book 8, 175:25-176:2). The Oct.

23, 2007 Petition For Compelling Psych. Exam, the Jan.3,

2008 IOS Petition and the Feb. 10, 2008 Accusation all

referred exclusively to Petitioner’s DOJ complaint letters as

the basis for the MBC’s disciplinary action. (Book 8, 10-14;

20-27; 36-42.) Dr. Seaman’s entire diagnosis and conclusion

rests exclusively on his interpretation of Petitioner’s DOJ

complaint letters (Book 3, 74-90). The same is true of the

Administrative Law Judge Owyang’s Proposed Decision

(Book 8, 44-65) and the MBC’s Decision (Book 8, 87-110).

In all actions the MBC refers specifically only to

Petitioners DOJ complaint letters, not to any actual

examples of patient quality of care issues or unprofessional

conduct as required by Bus. & Prof. Code § 822.

Previous courts have upheld speech-based retaliation

claims by regulated entities. In Beechwood Restorative

Care Ctr. V. Leeds, 436 F 3d 147, 151-52 (2d Cir. 2006) the

court ruled that federal and state regulators’ actions

against operators of a nursing home (by revoking its

license), due to complaints regarding governmental

regulations, constituted retaliation, and was in violation of

constitutionally protected free speech rights. In recognizing

one’s protected interest in commenting on government

officials’ actions, the courts have stated that “[i]t is clear

that ‘[s]tate action designed to retaliate against and chill

political expression strikes at the heart of the First

Amendment.” (Soranno’s Gasco, Inc. v. Morgan, 874 F.2d

1310, 1314 (9% Cir. 1989) (citation concealed)). The court

held that it was unlawful for the government to

deliberately retaliate against a citizen for exercising his

right to comment on (and publicly criticize) government

officials’ actions and his right to access the courts and

administrative appeals process for redress of grievances.

874 F.2d at 1314-15 (citing Mt. Healthy City Sch. Dist. Bd.

of Educ. V. Doyle, 429 U.S. 274 (1977)).

In Soranno’s Gasco, the courts set forth the standard

for evaluating whether a regulated entity has established a

claim for retaliation based on the exercise of free speech

and petition rights. 874 F.2d at 1314-15. A “plaintiff

alleging retaliation for the exercise of constitutionally

protected rights must initially show that the protected

conduct was a ‘substantial’ or ‘motivating’ factor in the

defendant’s decision.” Jd. At 1314 (citing Mt. Healthy 429

U.S. 274, 287). If the plaintiff makes this initial showing,

the “burden shifts to the defendant to establish that it

would have reached the same decision even in the absence

of the protected conduct.’ Jd. To meet this burden, a

defendant must show by preponderance of evidence that it

would have reached the same decision; it is insufficient to

show that it could have reached the same decision. Id. at

1315. Petitioner’s case meets the first criteria, as his DOJ

complaint letters were cited repeatedly by the MBC as not

only a “substantial” or “motivating” factor, but also the sole

factor for its disciplinary decision. The second criteria is

also met, as no credible case can be made by the MBC that

it would have come to the same decision in the absence of

Petitioner's DOJ complaint letters. The administrative

record is clear that no patient or peer complaints, quality of

care issues, or examples of professional misconduct were

brought forward during the entire proceedings. (Book 8,

103).

A key question is whether the First Amendment

rights violated were “clearly established” at the time of the

alleged violations, i.e., ‘[t]he contours of the right must be

sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Saucier v. Katz, (2001) 533 U.S. at 202 (citation and

internal quotation marks concealed). The injured party

“need not establish that the Defendants’ ‘behavior had been

previously declared unconstitutional.” Hydrick v. Hunter,

500 F.3d 978, 989 (9 Cir. 2007) (quoting Blueford uv.

17

Prunty, 108 F.3d 251, 254 (9% Cir. 1997)). The disparities

inquiry is “whether it would be clear to a reasonable

[official] that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202.

In Petitioner’s case, Ken Gibson of the U.S. DOJ

worked in the Criminal section of the Civil Rights Division

and clearly should have been aware of First Amendment

rights regarding private U.S. citizens’ complaints to the

government. By purportedly sending an irregular fax on

July 7, 2005 to the MBC accusing Petitioner of “severe

mental illness” based solely on the complaint letter, he was

violating Petitioner’s free speech rights; especially since he

told Petitioner directly on the phone on July 6, 2007 the

complaint letter would be treated confidentially and free

from retaliation when asking for a copy of that letter. (Book

5, 191: 4 — 193:3).

Mr. Gibson had the complaint letter in his possession

less than 24 hours and was not qualified to make any

medical “diagnosis” of Petitioner’s mental state. In fact,

Brian Lee of the DOJ, sent an official letter dated July 11,

2005 to Petitioner stating it was not in his department’s

jurisdiction to investigate, and there was no mention of

mental illness or Mr. Gibson’s irregular faxes (Book 3, 181-

182). MBC investigator Craig Stewart then proceeded to

conduct an unofficial investigation of Petitioner’s practice,

lasting nearly three years. (Book 2, 2-7); (Book 5, 5: 12 —

16; 21: 4 — 22: 14). Despite the lengthy investigation, Mr.

Stewart could not find any professional misconduct or

patient quality of care complaints made by anyone against

Petitioner. (Book 5, 24: 9 — 14). Despite these lack of

findings the MBC decided to proceed with lengthy

disciplinary proceedings against Petitioner based solely on

the complaint letters in violation of Gov. Code § 12529.6 (b).

Significantly, the MBC’s investigation report was not

approved and signed by Deputy Attorney General Jane

Simon (Book 2, 7).

18

A person deprives another of a Constitutional right,

where that person “does an affirmative act, participates in

another’s affirmative acts or omits to perform an act which

[that person] is legally required to do that causes the

deprivation of which the complaint is made.” (Johnson v.

Duffy, 588 F.2d 740, 743 (9 Cir. 1978)). Indeed the

“requisite causal connection can be established not only by

some kind of direct personal participation in the

deprivation, but also by setting in motion a series of acts by

others which the actor knows or reasonably should know

would cause others to inflict the constitutional injury.” Jd.

At 743-44.

Such was the case with Mr. Gibson (U.S. DOJ)

taking Petitioner’s complaint letters asking for redress of

grievances against the government, and using those very

letters against him as the basis for retaliation by falsely

asserting “severe mental illness”. Of course Mr. Gibson

must have reasonably known his actions would set off

disciplinary proceedings by the MBC which would clearly

“inflict constitutional injury” on Petitioner in the form of

discipline for his exercise of free speech in writing

complaint letters to the DOJ.

There is no evidence that Petitioner's care and

treatment of any patient at any time was affected by his

attempt to petition the government for redress of

grievances through his DOJ complaint letters. The MBC

cannot impose discipline on Petitioner’s freedom of speech

when such expressions have no nexus with his ability to

practice medicine safely, U.S. Const. Amend I, Cal. Const.

Art. I, § 2(a), § 3. The San Francisco Superior Court erred

in not taking into consideration this gross violation of

Petitioner’s Constitutional free speech right; therefore

Petitioner respectfully requests the Court grant review of

his Petition for Writ of Certioran.

IT. The United States Constitution’s Guarantee Of

Due Process Has Been Violated

A. Lack of Reasonable Cause For Exam

Violates The Equal Protection Clause

To be consistent with equal protection, persons

similarly situated with respect to the legitimate purpose of

a law are entitled to receive like treatment. Petitioner, a

healthy licensee, by not being shown reasonable cause for a

forced psychiatric exam under Bus. & Prof. Code § 820, was

not given the same fairness, and justice in this procedure as

other providers had been prior; and therefore was

discriminated against and denied equal protection of the

laws, U.S. Const. Amend XIV, Cal. Const. Art. I §7. The

MBC cites Alexander D. us. State Bd. Of Dental Examiners

(1991) 231 Cal. 92, 282 Cal. Rapt. 201 in support of using a

provider’s own writings to illustrate a state of mind (Book

8, 175:11-20). The petition charged Alexander with grossly

inappropriate care of two patients. In Petitioner’s case, he

was not served his Oct. 23, 2007 petition until after the IOS

hearing and after he had been suspended on Feb. 5, 2008.

The guideline set forth in Bus. & Prof. Code § 820 is

simply "[w]henever it appears that ... the licentiate's ability

to practice is impaired due to mental illness ....". In

Petitioner’s case, there was no reasonable cause under Bus.

& Prof. Code § 820 for his compelled psychiatric exam as

there was no reference to patient quality of care issues in

his petition as in Alexander’s case. Petitioner had no prior

history of the alleged mental disorder and was not seeing

any mental health professional at the time. The MBC used

psychiatrist Melvin Brown M.D., (who never examined,

treated or met with Petitioner) to submit a declaration

based solely on the DOJ complaint letters, in support of the

petition (Book 2, 26-29). Bus. & Prof. Code § 820 requires

the Medical Board to show a clear nexus to the alleged

20

mental disorder and Petitioner’s ability to practice medicine

safely.

Unlike Alexander, Petitioner’s case has absolutely no

nexus. In Miller vs. Medical Quality Assurance (1987) 193

Cal. 1371, 238 Cal. Rapt. 915, the court determined it was

an unconstitutional violation of the physician’s due process

rights to compel him to submit to a psychiatric exam

without first allowing him a right to a hearing, as required

by Bus. & Prof. Code § 2292, the exact situation Petitioner

was subject to on Oct. 31, 2007. The court therefore

ordered Miller's license reinstated in full, without any

conditions. ‘The San Francisco Superior Court erred in not

taking into consideration this serious violation of

Petitioner’s Constitutional equal protection right; therefore

Petitioner respectfully requests the Court grant review of

his Petition for Writ of Certiorari.

B. Emergency Suspension Violates

Guarantee of Property Rights

Deprivation of Petitioner’s right to practice was an

“emergency” response out of all proportion to the

circumstance of his expressing his right to free speech in

writing complaint letters to the DOJ. Under the Due

Process Clause, courts have undertaken to protect vested,

fundamental rights, partic::larly the right to practice one’s

trade or profession from untoward intrusions’ by

government. The MBC may seek an interim suspension

order from its Division of Medical Quality (or an

administrative law judge) based upon affidavits showing

the licensee has engaged in, or is about to engage in, acts

violating the Medical Practice Act. (Gov. Code, § 11529, (a).)

There were no such acts or any evidence supporting

such future acts in Petitioner’s case. Despite no showing

that Petitioner posed an immediate threat to the public, his

21

_

license to practice medicine was emergently suspended

without live testimony on Feb. 5, 2008, and continued so

indefinitely by the Medical Board’s decision effective Sept.

11, 2008, until Petitioner is examined and cleared by a

MBC appointed psychiatrist.

For purposes of a due process analysis, there is no

meaningful distinction between a license suspension and an

order prohibiting a licensee from engaging in the profession

for which the person is licensed. (Gray v. Superior Court,

supra, 125 Cal.App.4th 629, FN 4.) This is in direct

viclation of Petitioner’s constitutionally protected property

right to earn a living from his medical license, U.S. Const.,

Amend. XIV, Cal. Const. Art. I, § 7. The San Francisco

Superior Court erred in not taking into consideration this

serious violation of Petitioner’s Constitutional property

right; therefore Petitioner respectfully requests the Court

grant review of his Petition for Writ of Certiorani.

C. Lack of Complete Discovery And Regular

Proceedings Violates Guarantee of Due

Process

When government agencies adjudicate or make

binding decisions that directly affect the legal rights of

individuals, those agencies must use procedures

traditionally associated with the judicial process. (Endler

v. Schutzbank (1968) 68 Cal.2d 162, 172, quoting Greene v.

McElroy (1959) 360 U.S. 474, 507.)

"|(Wihere governmental action § seriously

injures an individual, and the

reasonableness of the action depends on fact

findings, the evidence used to prove the

Government's case must be disclosed to the

individual so that he has an opportunity to

show that it is untrue...[I]t is even more

important where the evidence consists of the

22

testimony of individuals whose memory

might be faulty or who, in fact, might be

perjurers or persons motivated by malice,

vindictiveness, intolerance, prejudice, or

jealousy... (Footnote concealed.) (360 U.S. at

p. 496 [3 L.Ed.2d at pp. 1390-1391].)

The MBC disregarded this fundamental right to due

process by denying Petitioner the right to discover the

underlying documents relied upon by the MBC’s expert,

Charles Seaman, M.D. (Book 1, 115-118; 146-148).

The MBC made misleading assertions that the Jan.

28, 2008 IOS hearing was a “summary suspension

proceeding” and not a hearing on the merits, therefore

Petitioner was “not permitted to conduct pre-litigation

discovery.” (Book 8, 176:9-10). Nowhere in Government

Code § 11529, does the statute state that an IOS hearing is

a “summary suspension proceeding”. The APA Bill of

Rights mandates that when an agency conducts an

“adjudicative proceeding,” “the agency shall give the person

to which the agency action is directed notice and an

opportunity to be heard, including the opportunity to

present and rebut evidence.” (Gov. Code, § 11425.10(a)(1).)

An “adjudicative proceeding” is defined as “an

evidentiary hearing for determination of facts pursuant to

which an agency formulates and issues a decision.” The

hearing on the IOS Petition certainly constitutes an

“adjudicative proceeding” in that the Administrative Law

Judge made findings of fact (i.e., that Petitioner suffered

from a mental condition) and a decision (i.e., an interim

suspension order). The rights afforded by the APA Bill of

Rights and the federal and California Due Process Clauses

are hollow when a respondent physician, such as Petitioner,

is prevented from seeing the underlying evidence that

supports an expert’s opinion. A respondent cannot rebut

evidence, which he or she has not seen. Thus, the APA Bill

of Rights and the Due Process Clauses serve as the

23

“authority” for requiring disclosure of the documents

reviewed by Dr. Seaman in preparing his Report.

The MBC also misleadingly stated Petitioner’s

“rights were limited to those delineated in Government

Code § 11529(d), i.e. to be represented by counsel, to have a

record made of the proceedings and to present written

evidence in the form of relevant declarations and

documents.” (Book 8, 176:12-24). In fact, Petitioner was

accorded further additional rights under Government Code

§ 11529(b), “the licensee shall receive at least 15 days’ prior

notice of the hearing, which notice shall include affidavits

and all other information in support of the order.” Again,

the administrative record shows this was not the case with

Petitioner (Book 1, 117-118; 146-148).

1. Falsified Compelling Order

One critical undiscovered document was a May 31,

2007 Compelling Order for Psychiatric Exam which was

never served to Petitioner. (Book 1, 93:item 6). We now

know it never existed. The MBC states “as shown by the

administrative record, no such documents exists” (Book 8,

177:8-9). Yet the MBC misled Administrative Law Judge

Crowell by falsely referring to this document at the Jan. 28,

2008 IOS hearing, “in mid-2007 and Dr. Chung declined to

be examined, we followed the regular procedure for a

petition and an order compelling psychiatric evaluation.”

(Book 1, 212:16-18). Dr. Seaman also _ misled

Administrative Law Judge Owyang by falsely testifying as

to its existence at the full hearing on March 17, 2008, “Well

I gleamed that there existed this order.” (Book 4, 73:12-16).

A court may also require an expert witness, before

testifying in the form of an opinion, to be first examined

concerning the basis for that opinion. (Evid. Code, § 802;

Kelly v. Trunk (1998) 66 Cal.App.4th 519, 523.) Upon

objection, a court must exclude an expert’s opinion that is

24

based in wheie or in significant part on a matter that is not

a proper basis for such an opinion. (Evid. Code, § 803.)

Dr. Seaman falsely referred to this non-existent May

31, 2007 Order Compelling Psychiatric Exam in his own

report (Book 3, 75: item 6). By doing so, Dr. Seaman misled

Administrative Law Judges Crowell and Owyang, Dr.

Dolgoff, Dr. Zaslay and members of MBC Panel A that

Petitioner had already been compelled to see another MBC

appointed psychiatrist over half a year earlier, a material

misrepresentation which surely biased their opinions of

Petitioner's mental condition, and influenced their

conclusions and decisions. The San Francisco Superior

Court erred in not taking into consideration this serious

violation of Petitioner’s Constitutional due process right;

therefore Petitioner respectfully requests the Court grant

review of his Petition for Writ of Certiorari.

2. Concealed 2007 DOJ Faxes

There are 5 concealed faxes (pp.1,2,9,10,11) out of 11

total faxed by Ken Gibson of the DOJ to the MBC on Sept.

5, 2007, that still have not been produced to date in clear

violation of Government Code §11507.6. (Book 1, 23-28).

These 5 concealed fax pages will likely show what Mr.

Gibson stated to the MBC after he received Petitioner’s

2007 DOJ complaint letters that resulted in the MBC’s

urgent Oct. 23, 2007 Petition to Compel Psych. Exam,

which was not provided to Petitioner until Feb. 29, 2008

when the investigation report was released (Book 2, 53-57).

In Zurn Engineers v. State of California ex rel. Dept. Water

Resources (1977) 69 Cal.App.3d 798 the court held that it

was due process error for the state to deny to a contractor

any and all access to factual matters relied upon by the

state engineer in deciding the contractor's claim for

payment.

25

The MBC did not provide Administrative Law

Judges Crowell or Owyang with these 5 concealed 2007

DOJ faxes. The remaining 6 out of 11 total 2007 DOJ faxes

appeared to have been altered when they were submitted to

Administrative Law Judge Owyang (Book 3, 62-67), as they

did not have the DOJ insignia and time/date on the top, as

did the original version in the Jan. 3, 2008 Petition for IOS

Hearing. (Book 1, 23-28). As a result, Administrative Law

Judges Crowell and Owyang did not have complete,

accurate documents to make proper, unbiased decisions.

The San Francisco Superior Court erred in not taking into

consideration this serious violation of Petitioner’s

Constitutional due process right; therefore Petitioner

respectfully requests the Court grant review of his Petition

for Writ of Certiorari.

3. irregular 2005 DOJ Faxes

The MBC has repeatedly referred to the U.S. DOJ in

their case against Petitioner. Yet there are serious doubts

regarding the legitimacy of Ken Gibson’s (U.S. DOJ)

irregular faxes he purportedly sent to the MBC on July 7,

2005 and July 13, 2005 to initiate the MBC investigation

against Petitioner. (Book 2, 9;16). The faxes are from the

Special Litigation section, not Mr. Gibson’s Criminal

Section. The DOJ insignia is cut off at the top third. The

date/time appears on top of this partial insignia. There is

no DOJ abbreviation next to the date/time as was the case

with the 2007 faxes. (Book 1, 23-28).

Although administrative bodies are not expected to

meticulously observe all of the rules of evidence applicable

to a court trial, common sense and fair play dictate certain

basic requirements for the conduct of any hearing at which

facts are to be determined. (Ashford v. Culver City Unified

School Dist. (2005) 130 Cal.App.4th 344, 349.) “Among

these are the following: the evidence must be produced at

26

the hearing by witnesses personally present, or by

authenticated documents .. . [and] cross-examination

within reasonable limits must be allowed.” (Desert Turf

Club v. Board of Supervisors (1956) 141 Cal.App.2d at

p.455., In Petitioner's case, Ken Gibson was neither

present at any hearing nor submitted any affidavits in

support of his irregular 2005 faxes and concealed 2007

faxes.

Neither fax was given to Administrative Law Judge

Croweil at the Jan. 28, 2008 IOS hearing. The July 7, 2005

fax appeared to have been altered when submitted to

Administrative Law Judge Owyang at the full hearing, as it

does not have the time and date on the top (Book 3, 53), as

did the original version in Mr. Stewart’s investigative

report. (Book 2, 9). Again, Administrative Law Judges

Crowell and Owyang did not have complete, accurate

documents to make proper, unbiased decisions. The San

Francisco Superior Court erred in not taking into

consideration this serious violation of Petitioner’s

Constitutional due process right; Petitioner respectfully

requests the Court grant review of his Petition for Writ of

Certiorari.

4. Investigation Report Withheld

MBC investigator Craig Stewart’s investigation

report contained the factual evidence relied upon by the

MBC in deciding to take disciplinary action and initiate

IOS proceedings against Petitioner. (Book 2, 2-7). Dr.

Seaman relied upon this report in preparing his own

evaluation of Petitioner. (Book 2, 98: item 2). Yet this

critical report was not released to Petitioner until Feb. 29,

2008, after the ISO hearing and after he had already been

emergently suspended by the MBC. A_ meaningful

opportunity to be heard, and fundamental due process,

necessitate that a licensee be provided with all of the

27

documents that serve as the basis of an expert’s affidavit to

support suspension of the licensee. In Shively v. Stewart

(1996) 65 Cal.2d 475, 478-480, the court recognized the

right of a licensee to discovery in administrative agency

proceedings as a corollary to the agency’s investigator

powers. No such right was accorded Petitioner.

Significantly, in violation of Gov. Code § 12529.6(b),

this report was not approved and signed by Deputy

Attorney General Jane Simon (Book 2, 7). As it was never

submitted into evidence by the MBC, both Administrative

Law Judges Crowell and Owyang did not have this report

when making their decisions on Feb. 5, 2008 and April 29,

2008. These irregularities and other due process violations

in this case have been detailed further in prior briefs before

the MBC. (Book 8, 82-84.)

Petitioner’s Constitutional rights are protected from

governmental violation under these California state and

U.S. federal laws, which give him the right to seek redress:

California Civil Code Sec. 52.3(a), and 42 U.S.C. Section

1983. The purpose of Section 1983, according to the United

States Supreme Court was to “interpose the federal courts

between the states and the people, as guardians of the

people’s federal rights-to protect the people from

unconstitutional action under color of state law, “whether

that action be executive, legislative, or judicial.” Mitchum v.

Foster (1972) 407 U.S. 225, 242. The San Francisco

Superior Court erred in not taking into consideration these

multiple violations of Petitioner’s Constitutional due

process rights; therefore Petitioner respectfully requests

the Court grant review of his Petition for Writ of Certiorari.

Ill. The Medical Board’s Decision Is

Unconstitutional

The Medical Board’s Decision intentionally omitted

reference to Dr. Dalgoffs March 10, 2008 declaration where

28

his conclusion stated unequivocally Petitioner suffered from

no current disorder. (Book 3, 172.) Instead, the Decision

referred to a non-existent Jan. 26, 2008 exam by Dr.

Dolgoff, which stated the disorder could not be ruled out.

(Book 8, 98: {35.) The Decision repeated the findings and

conclusions of Administrative Law Judge Owyang, but

significantly and without justification omitted’ the

conclusion that Dr. Chung did not currently present a

danger to his patients. (Book 8, 102: 92.) This conclusion

was explicitly stated in Administrative Law Judge

Owyang’s Proposed Decision, but was intentionally edited

out by the Medical Board.

The Decision purports to vacate the emergency

suspension order, but provides for continuing suspension

pending a further psychiatric evaluation and 5 years of

probationary conditions. (Book 8, 106: 2.) This continued

allegation of false mental illness, forced psychiatric

evaluation and public disciplinary action using fraud and

perjury continues to violate Petitioner’s right to freedom of

speech, equal protection and due process under The First

and Fourteenth Amendment of the United States

Constitution and Article I, §1,2,3,7 of the California

Constitution.

To protect constitutional free speech “our own

citizens must tolerate insulting and even outrageous

speech.” (Boos v. Barry (1988) 108 S. Ct. 1157, 1164.) So,

too, the MBC must tolerate Petitioner’s complaints to the

government. “Every person may freely speak, write and

publish his or her sentiments on all subjects, being

responsible for the abuse of this mght. A law may not

restrain or abridge liberty of speech.” Cal. Const. Art. I, §

2(a). The liberty of speech clause of the California

Constitution is more protective of speech and provides even

greater protection for expressive activity than the First

Amendment. (L.A. Alliance for Survival v. City of

L.A(2000) 22 Cal. 4» 352, 354.) Moreover, the use of

2S

government power must comply with First Amendment

limits. (Intel Corp. v. Hamidi, (2003) 30 Cal. 4% 1342,

1345; In re Porterfield, (1946) 28 Cal 2d 91.) Petitioner

clearly has a right to petition the government for redress of

grievances pursuant to Cal. Const. Art. I, § 3 without fear

of retaliation and discipline.

The due process clause of the Fourteenth

Amendment provides: "[Nlor shall any State deprive any

person of life, liberty, or property, without due process of

law." It was "' “intended to secure the individual from the

arbitrary exercise of the powers of government." ' " (Daniels

v. Williams (1986) 474 U.S. 327, 331). Petitioner was

deprived of a fair proceeding guaranteed by the due process

clause contained in the United States and Caiifornia

Constitutions, the Administrative Adjudication Bill of

Rights, Government Code §11425.10 et seq., and Code of

Civil Procedure §1094.5(b).

The MBC never carried out its obligation to truly

investigate the circumstances underlying Petitioner’s

complaint letters and simply assumed that all of the

allegations were untrue. To be consistent with equal

protection, persons similarly situated with respect to the

legitimate purpose of a law are entitled to receive like

treatment. Petitioner, a healthy licensee, by not being

shown reasonable cause for a forced psychiatric exam under

Bus. & Prof. Code § 820, was not given the same fairness,

and justice in this procedure as other providers had been

prior; and therefore was discriminated against and denied

equal protection of the laws, U.S. Const. Amend XIV, Cal.

Const. Art. I §7.

Deprivation of Petitioner’s right to practice was an

“emergency” response out of all proportion to the

circumstance of his expressing his right to free speech in

writing complaint letters to the DOJ. Under the Due

Process Clause, courts have undertaken to protect vested,

fundamental rights, particularly the right to practice one’s

30

trade or profession from untoward intrusions’ by

government. The MBC cannot discipline Petitioner on the

basis of his exercise of protected free speech, without

establishing the nexus to impaired ability to practice safely.

The MBC did not produce one actual example of any

lessening or diminishing of Petitioner's competency to

practice safely, yet decided to discipline him, nevertheless;

in effect retaliating against and silencing any further

attempts to exercise his right to free speech as guaranteed

by the United States and California Constitutions.

The right to criticize the government and

governmental officials is among the quintessential rights

Americans enjoy under the First Amendment of the United

States Constitution, and Californians enjoy under the

California Constitution, article I, § 2. The general public’s

interest is greatly served by an examination of whether the

MBC, as a state governmental agency, can set a chilling

precedence for silencing of protected free speech not only by

the Petitioner, but also of other license holders and the

general public as well.

To repeat, if the Medical Board’s decision is left to

stand, any U.S citizen can be retaliated against for writing

complaint letters to the government, by simply having the

very complaint letters used against him or her as the basis

for a false accusation of mental illness, and subsequent

licensure discipline in order to silence the complaint. Such

precedence should not be allowed to take place in this day

and age in the United States of America. To this date,

Petitioner has continued to be prevented from practicing

medicine by the MBC, in violation of his Constitutionally

protected property right. The San Francisco Superior

Court erred in not taking into consideration these multiple

violations of Petitioner’s Constitutional mghts; therefore

Petitioner respectfully requests the Court grant review of

his Petition for Writ of Certiorari.

CONCLUSION

For all of the foregoing reasons, Petitioner

respectfully requests that this Court grant this Petition for

Writ of Certiorari.

Dated: May !! , 2009 Respectfully submitted,

ov My

WAYNE CHUNG, MD

Petitioner

APPENDICES

Page

iii n dds isaciniaiess ia eeecaehiiatansiancedcedscacccies 2

(San Francisco Superior Court Order)

ih chcntncaknsugiveuadavonedetcctis daabdsiinkanbves<cecull

(California Court of Appeals Denial of Review)

iis dn nds vrais Wan aie abake dn bENaes Ger enanwaneen'es 6

(California Supreme Court Denial of Review)

APPENDIX A

IN THE SUPERIOR COURT

IN AND FOR THE COUNTY OF SAN FRANCISCO

WAYNE CHUNG, MD

Petitioner.

VS.

MEDICAL BOARD OF CALIFORNIA

Respondent.

FILED

San Francisco County Superior Court

Dec. 19, 2008

Gordon Park-Li, Clerk

By: s:/ Marjorie Schwartz-Smith

Deputy Clerk

Case No: CPF-08-508853

ORDER ON PETITION FOR WRIT OF

ADMINISTRATIVE MANDAMUS

Date: November 12, 2008

Time: 9:30 a.m.

Dept: 302

Judge: Hon. Patrick J. Mahoney

The Petition for writ of administrative mandamus

filed by Wayne Chung, MD, came on regularly for hearing

in Department 302 of San Francisco Superior Court, the

Honorable Patrick Mahoney, Judge presiding. Petitioner

was represented by John L. Fleer, Esq., and respondent

was represented by Attorney General Edmund G. Brown

Jr., by Deputy Attorney General Lawrence Mercer. The

Court, having considered the petition an answer, the

memoranda of points and _ authorities and_ the

administrative record, as well as the argument of counsel,

and good cause appearing therefore,

The Court ORDERS, ADJUDGES AND DECREES that:

The Petition for Administrative Writ is DENIED.

2. The stay order previously entered in this matter is

VACATED.

3. The Clerk of the Court shall enter judgment against

petitioner and in favor of respondent.

Exercising its independent judgment and based

solely on admissible evidence, the Court makes the

following findings and said findings shall constitute its

statement of decision:

1. Petitioner's due process rights were not

violated when he was directed to submit to a mental

examination. Alexander D. v. State Board of Dental

Examiners (1991) 231 Cal.App.3d 92; Business and

Professions Code § 820.

2. Petitioner is not deemed disciplined for

engaging in free speech. It was appropriate for respondent

and the expert witness to consider the content of the

petitioner’s letters to the government as evidence of his

mental health.

3. The decision of the respondent is supported by

clear and convincing competent evidence and is entitled to

a presumption that it is correct. Code of Civil Procedure

1094.5.

4. One of the examining physicians found

petitioner to be suffering from an active delusional state

and that he remained psychotic. Another expert disagreed

and a third expert agreed that there were delusional

episodes in 2005 and that petitioner's condition had

improved. Ai! three experts agreed that psychotherapy

would be beneficial for petitioner.

5. The evidence supports a finding to impose

discipline pursuant to Business and Professions Code § 822.

6. Respondent need not wait until a patient has

beer. harmed. On this record, respondent may protect the

public from the risk of harm. Griffiths v. Superior Court

(2002) 96 Cal.App.4th 757.

; Finally, respondent imposed reasonable

conditions of probation given the conflicting testimony as to

whether petitioner is currently impaired. The conditions

are designed to provide help to the petitioner and to protect

the public.

Dated: December 18, 2008 s/; Patrick J. Mahoney

Patrick J. Mahoney

Judge of the Superior Court

APPENDIX B

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

WAYNE CHUNG

Petitioner.

v.

The Superior Court of the City

and County of San Francisco,

Respondent

THE MEDICAL BOARD OF CALIFORNIA

Real Party in Interest

A123766 (San Francisco County

Super. Ct. No. CPF 08-508852)

Court of Appeal, First Apellate District

FILED Jan. 22, 2009

By Diana Herbert, Clerk Deputy Clerk

THE COURT:

The request for a stay is denied.

The petition for writ of mandate is denied.

(Ruvolo, P.J., and Reardon, J., joined in the decision.)

Date: Jane. 22, 2009 RUVOLO, P.J. —_—iP..J.

APPENDIX C

Court of Appeal, First Appellate District,

Div. 4-No. A123766

$170087

IN THE SUPREME COURT OF CALIFORNIA

En banc

WAYNE CHUNG

Petitioner.

v.

The Superior Court of the City

and County of San Francisco,

Respondent

THE MEDICAL BOARD OF CALIFORNIA

Real Party in Interest

Supreme Court FILED March 18, 2009

Frederick K. Ohlrich Clerk

Deputy

The petition for review is denied.

GEORGE

Chief Justice