Respondents Opposing Brief — Furnish v. Board of Medical Examiners of California (No. 248)

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: : /| iN THE S JOHN T. Pr leh

Supreme Court of the United States.

October Term, 1959/

—. a. a

No. aAS

?

Riemarp Doveras Forxisn, M.D..

Petitioner and ippeliant,

2S.

Tne Boarp or MepicaL EXAMINERS OF THE STATE OF

CALIFORNIA, :

Defendant and Respovdent,

. - * and

THE District Court oF APPEAL OF THE STATE OF CALT-

FORNIA [TN AND POR THE SECOND APPELLATE DISTRICT,

. Respondent.

RESPONDENT'S OPPOSING BRIEF.

- Epmunp G. Brown,

Attorney General of the State of California,

HOWARD SEYMOUR Coxpih,-

‘

Deputy Attorney General,

* 600 State Building,

: Los Angeles 12, California,

cittortieys for Respondent.

jJamMes L. Mam Akos,

Deputy clttorney. General,

Of Counsel. << L

Phone MA. 6-9171

Angeles

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Parker & Son, Inc.,

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SUBJECT INDEX *

“PAGE

V4

Statement of the case and statement of taetS:,...<.-<c.55..0:-: ae

en ae Remap eraier err emnee ee STS Phen oa: eee tec te tasaentins eaente Ree Ae

AP RUNIONY | -...-- <a -ngncn cee connedenenensennnnnnnns pet, Brak n en Gears: Sept: 5

I.

There is no federal question herein involved............. ee

IT.

- No problem of ex post -facto legislation is herein involved...” 11

; ITI.

The extent of the penalty is for the administrative agency, to

* GOUCTETVING © <ccs-.ecccoiescce-ctooeneeucssceswersnntonsnenesausesnsnsnenscstecntsemeanseriesteness 15

IV.

The California State Board of Medical examiners has exclu-

sive jurisdiction to discipline its eA oe ca 17

Conclusion ..oinncccoe Pete to wre er UL NR Tok Arteta 19

4

.

ache. we NOE TA MET TES CIThp

CASES | : PAG!

Black vo State Personnel ek 136 Calo App. 2d 004: 2890 P. °

2 83 ie Rca eae tanta ees Ae ee 7

Butcher v- Maybury.& F.2d, 155, °C RAL TNS.) F273 12

Caminetti y Imperial Mutual Life Insuranee Co. 89 Sal \pp.

2d 476, 139 PF. 2d O81 EE Ne eee ee GQ

Cartwright vo United States, 146 F. 2c 133 Q ,

Dent v. West Virginia, 1229 U.S. 114, 9S, Ct. 231, 32 L. Ea.

034 a ede Pherae ot ar

Douglas vo Neble, 261 UL S$. 168, 43S. Ct. 303,.67°T Ed 59000 18

Fuller vo Board of Medieal Examiners, 14 Calo App. 2d. 734.

50-2. 2d 171 ies ee et 1s

Hallinan, In re. 43 Cal. 2d 243, 272 P. 2d'708......... eet

‘Hawker v. New York, 170 U. §. 180, 18.8. Cr. $73, 42 1.. Fa.

10027 Seen eer eae : 12, 13. 14

WKarreil v. Watson, 116 Cal. App. 2d 769, 254 Po 2d G51.-. Pade

Wing ve Board of Medical Examiners, 65 Cal App. 2d 644, 151

. 2d? gee a eR ; eres see seaman} |.

Lawrence vo Board of Registration, 239 Mass 424. 132 N. EF.

EFA: sn -nenceozss ae Bo Sat ln bea Sree a

Lorenz vo Board «of Medical Exanmners, 46 Cal. 2d G84. 298 Pp.

2 337 BO Ie acct ekextaaesees shay Se Bee ven one an EOS

> 6

Meifert vo State Baard of Medical Revistration, 66 Kan. 710,

72 Pac. 247, 1 L: R.A. CN. S.) 811... SS

Minner, In re. 3 1. 2d 473....... ee eA are Re het b. ,

Murrill vo State Board of Accountaney, 97 Cai. App. 2d 709,

218 f: 2d 569 ARs) eee Setters oer ONE. BO Fe B

Newman v. Board of Civil Service Com., 140 Cal. App. 2d 907,

ee re a ee r

Olson.v. Wathon, 143 Cal. App. 2d 343, 300 Ps 2d 35 li

Pamless” Parker v. Board of Dental Examiners, 216 Cai. 285,

REG F a ea ee ee ee bscnert =) $5

8 ee ENRON PETE re wee no

People 'v, Theodore, 121 Cal. App. 2d 17, 262 VT. 2d 630

Rosenblatt vo Cal State Board of Pharmacy, 69 Cal

a9, 158 P. 2d BF

Schneider vy. Civil Service Cor.. 137 Cal App. 2d

2d 306)

State vo Hovorka,

ON.S.) 1273, 10 Ann. Cas. 398

State Medical Board, 32) Minn. 324.

State v.

”)

’

50 Am. Rep. 575...

Zucht v. King, 260 U.S. 174, 43S. Ct. 24

Calitornia Business

‘ os % , s

California Business

Calitarnia Pusimess

California }yusiness

Cahtormia Statutes

Calitornia Statutes

California Statutes

- /United States Code

United States Code

United States Code

United States Cocte

United

2 Gahiornia Jurisprudence 2d, pp. 393

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277, 20 P.

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STATUTES

and Professions Code, Sec. 2300

and Professions Code, Sex 236)

and Protessions Code, Sec 2372

and Professions Code, See, 2383

ieeveseabanasets 16, 4: 2, 0

of 1937, Chap. 399, p. 1275

of 1937, Chap. 414. p. 1377

of 1951, Chap. 792, Sec. 1

Title 26, Sec. 143(a)

» Tithe 20, Sec. 1450)

> Title 3x,

, Title 38, Sec.

tig ag

Pa Set Spe Pee

pif t7

715

States Constitution, Art. TP. sec. 10

FeXT BOOK

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, 67 1., Ed. 194

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IN THE ene ‘

Supreme Court of the United States:

OctoBer Perm, 1oS60

PGS. ose

RirewaArRD Doteras Porstsu. MOD.

‘THe Boarp o¢ Merntoart EXAMINE OF: THE STATE OF

¢

CALIFORNIA,

. Defendant and Nespendent,

and s

fre Distkiet Cot eror \prear ot rae StAtE oF Cant

PORNEA TN AND FOR THI Sptoonp APPELLATE District,

Res pode ne.

RESPONDENT'S OPPOSING BRIEF.

Statement of the Case and Statement of Facts.

On about Pauly 21. 1954 an Accusation’ was tiled with,

the Board of Medical lexaminers of the State ot Cali-

é

fornia alleging that petitioner, Richard Douglas Furnish,

M.D... had been gilt. of unprotessional conduct con-

trary te the provistons of Section 2383 of the Business

and Protessions Code in that on or about May 4, 1953,

in the United States District Court, he was

onvieted of telonies and criminal offenses invelving moral

turpitiyle. te wits, two counts of violation of Title 26

Loos. ©. Section I43¢b), in that he did wiltully and

Yr

ann. Take

knowingly attempt to defeat and evade a large part’ of

the ancome tax owing. by him te the United State Ot

America tor the calendar vears 19497 -and 19048. and each

ot osad vears” [Clk Tro pp. 39-40]. A hearing was

held on February TP, 1955 before a Hearing Officer duly

assstuned. by saad Beard (Clk. Trop. 33] at which time

the c mplainant offered and there waseintroduced a duly

coritied copycat the record of conviction in the case in

the United States Distriet Court’ for the ‘Sonthern Dis-

wich of California, Central Division. entitled “United

States of America vs. Richard Douglas Furnish (charged

gs Richard D0 Furnish’. No. 22.754 Criminal, estab-

»’

shine that Richard Donglas Furnish, on May*4. 1933,

was convicted, tollowime his pleas of polo contendere, of

tweocounts of viddation of 26 UL S.C. Secticn’ 143¢b)

“ Tncorte Pax Evasion tor the calendar vears 1047 and

IS PCUK. PP. pp. S132.) At this: administrative

hearme, comphunant coneeded that it had not sustained

t he Parden of prow! to establish that the aforesaid con-

at turpittide. jCtK. Troop. 60.7.

Wdainant based its) sought for disciplinary

action oon petitioner's convichion of aes under Busi--

Ness and Protessions Code Section 2383, 40k. Tr. p. O67. ]

Peollowing said) administrative oe the Hearing

Otheer in his Proposed Decision found that Dr. Furnish

had beer convicted of two felonies (Ok. Trop. 79] and

Proposed a oohe Vear suspension of his license ‘but. sus-

pended: the exteution thereof and Placed the doctor on

three vears’ pre bation on speciticd terms and conditions.

LCIk. Tr. pp. 780.) The Board Gf Medical Examiners

ided not te adopt the Hearing Wfficer’s Proposed De-

cision, notified the parties accordingly. and attorded to

them an opportunity to file written argument with the

ae a

Boal [CIk. Tr. p. 77.] Following the filing of briefs

(Clk. Tr. pp. 83-97]. the Board itself decided the case

cand, after finding that Dr. Furnish had been convicted of

two telenies as: alleged in the Accusation [Clk. Tr. p.

Ol]. thereafter “suspended. His license to practice medt-

cine ands surgery for a period of one year. [Clk. Tr. p.

1Ol.| . Dr. Furnish’s Petition tor Rehearing [ Clk. Tr.

p. LOF] was denied by ‘the Board. [Clk. a, 0. 442.)

Petitioner then sought-a Writ of Mandate from. the

Los Angeles Superior Court to set aside the order of

the Board setting the aforessd stispension for one year,

(Clk. Tr. pp. 1. 14} The administrative record was.

incorporated ino the Petitioner's First Amended Petition

for Writ of Mandate. [CTk. Tr. p. 30.]) .The Board's

Demurrer (Clk. Tre p. TLL was sustained avithout leave

te amend [Ck Tr. p. 116] and’ an appeal rm. er. aK

TO] was taken trom: the Judgment of Dismissal [C1k.

Troy 117] oa. 2

On appeal the Judgement of the Superior Court was

affirmed by the District Court of Appeal of the State

of California, Second Appellate District. Division One,

HO ALC A. 361, 308 P. 2d 924. A Petition for Re-

hearing was denied by said District Court of Appeal on

\prilO. 1987, and a subsequent application for said Court

to grant a rehearing on its.own motion alse was denied

on April 19; 1957, (150 A. C. A: 324. 309 P. 2d. 493.)

Thereafter a Petition tor Heanine in the California

Supreme Court was denied on May 15, 1957. (48 A.C, -

No, 12. Minutes p. 2.) The Petition for this Writ. of

Certiorart. toll awed.

, ‘ : { &

Issues.

Succinctly stated, respondent's major contentions are

as follows: |

Ll. Under the California Medical Practice Act (Bus.

and Prot, Code, Sec. 2383), conviction of a fe ‘ony, and

conviction of a criminal offense involving moral turpitude

each is an independent grouhd) for? disciplinary action,

2. Under the California Medical Practice Act (Bus.

and Prof. Code, See. 2383). a conviction follgwing a

plea of nolo contendere made to a.charge of felony ex-

pressiy is deemed to be ‘a conviction for disciplinary

Purposes,

3. No problem of ex .post facto is herein invalved

since petitioner was disciplined for his two felony con-

cictions in the year 1953, subsequent to the enactment

of LOST legislation which made suc h convictions grounds

for disciplinary action,

4. The extent of the penalty within the Board's ,jur-

isdiction was. tor the Board to«determine. Further, the

penalty of a one year suspension was reasonable.

5. The California Board of Medical Examiners is’

vested with exclusive power ‘and jurisdiction to discipline

one of its licentiates for cause prescribed by law. and

said Board cannot be ‘divested of such jurisdiction by

any voluntary declarations ef a Trial Judge in a prior

criminal pr weeding. :

‘

Vv

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ARGUMENT.

I. .

There Is No Federal Question Herein Involved.

Conviction of a felonyis am independent ground for

disciplinary action under Section 2383-of the California

Business and Professions Code. Said code section also

expressly provides that a conviction. following a plea of

nolo contendere is a conviction for disciplinary purposes.

‘It is undisputed that petitioner, in the case entitled

“The United States of America. vs. Richard Douglas

Furnish (charged as Richard D. Furnish}, No. 22754

Criminal, in the United. States District: Cotirt) for the

Southern Distriet of California, Central Division, was

convicted, after pleas of nolo contendere, of two counts

of felonies, to wit: violation of Tithe 26 U.S. C. Seetion ,

145¢b) (Income Tax Evasfon), |

The accusation against petitioner, Riehard Douglas

Furnish, M.D... in paragraph TIE thereot, charged:

“That the respondent has been guilty of unpro-

fessional conduct contrary to the provisions of Sec-

tion 2383 of the Business and Prefessions Code of

the State-of California, as follows:

"That on Gr about May 4, 1953, in a proceeding

then pending in the United States District Court for

the Southern District of Califorrfia, Central Divi-

sion, entitled ‘United States of America ys: Richard

Douglas. Furnish (charged as Richard D. Furnish)’,

No, 22.754 Criminal. the respondent was convicted

cot felonies and criminal offenses involving moral

turpitude, te wit: tiwe ce ants of vielatior of Title |

26 ULS.C. Section 145¢b). in that he did wilfully.

and knowingly attempt to defeat and evade a large

,

——

part of the income tax owing by him to the United

a

States*ot America for the. calendar years 1947 -and

1048, and each of said years.) [ Clk. Tr. p. 40.]

At the ‘alfninisirative hearing on February 11, 1955

the complainant made it clear that the Board of Medical

Examiners was not, seeking to discipline Dr. Furnish for

the cawiviction of a criminfal offense or offenses involv-

ing moral turpitude. Indeed, the complainant frankly

conceded that it had not sustained the burden of proof

on the issue of moral turpitude. [@lk. Tr. p. 66.] How-

ever, the, complainant unquestionably proved convictions

of felduies which, pursuant to Business “and Professions:

R. . . > > . - a .

Code Section 2383, are independent grounds tor disct-

~plinary action.

Mm PNY ae A ET TUTTE tt RE a ne

Pursuant to Section 2383 of the Business and Profes-”

sions Cade, corivietion of a felony or offense ‘involving

moral turpitude constitutes unproféssional conduct. The

use of the disjunctive in such section makes it clear that

these are separate and alternative grounds for disciplinary

action. Further, for purposes of Section 2383, <the

record of conviction is concktsive evidence of such un-

‘professional conduct and a conviction following a plea of

nolo contendere is deemed to’ be a convictions for disci-

plinary purposes, Also holdtag that within,.the meaning

of -Business and Professions Code Section 2383 the

record-of cdnviction is conclusive evidence of unprofes-

sional conduct is the recent case.of Lorenz v. Board of °

Medical Examiners, 46 Cal. 2d 684, 686, 298. P. 2d 537,

Specifically, Business. and) Professions Code Section

2383 reads as follows:

‘The convietion 6f a felony,.or of any offense

invelvitig moral turpitude, constitutes unprofessional

conduct within the meaning of this chapter. ©The

. a

recordget the conviction is) conclusive) evidence cof

such unprofessional conduct. A plea or verdict of

~ guilty or a conviction tollowing a plea of nolo con-

tendere made to a charge of a felony or of any

offense involving moral (turpitude is deemed to be -

a conviction within thefaeaning of this section. The

board anay order the: license suspended or revoked,

oF may dechiife to issue a license. when the time for

-appeal has elapsed, or the judgment of conviction

has been affirmed on appeal or when’ an order. grant-

Ing probation is made SUSPCT nding the imposition of

senterice, irrespective of a subsequent order under the

‘provisions of Section 1203.4 of the Penal Code al-

‘lewing such person to withdraw his plea of guilty

and to enter a plea of not guilty, or setting aside

~~ the verdict of guilty, or dismissing the accusation,

| information or indictment. .|Amended = by Stats.

998) ch. FOZ 817" 3?

Petitioner contends thag under Business aaa Profes-

sions Code Section 2383 o@viction of a felony not in-

volving moral turpitude, based on a plea of nolo con-

tendere, dees not constitute grounds for disciplinary

action. (Pet. for Writ. of Cert. p. 13.) This: conten-

tion, requiring nioral turpitude for a felony, renders

meaningless the language actually used in said section.

It is clear that the language cf said Section 2383, to wit:

“made to a charge of’a felony or of any offense involving

moral turpitude is deemed to be a conviction within the

meaning of this section” applies equally to a plea or

verdict of enilty as well as a conviction following a plea

of nolo contendere. The first sentence of Section 2383

makes it clear that the conviction ofa felony of. ef any

offense involving moral turpitude are alternative grounds

of unprofessional conduct. Each is an independent basis

a | a

for disciplinary action. The third sentence’ of Section

2383 merely defines what constitutes a corviction, namely

a plea or verdict of guilty or a conviction following a plea

of aolo contendere; but) said sentence in) ne manner

changes the alternative grounds of unprofessional con-

duct to wit: conviction of a felony, or of any offense

involving moral turpitude. If a conviction under Section

2383 requires moral turpitude in connection with every

plea of guilty, verdict of guilty, or conviction following

a plea of nolo contendere, only the phrase “any offense

involving moral turpitude” would have been necessary

for such term. would necessarily include felonies, How-

ever, the language “made to_a charge of a felony” also

was used in the third sentence of Section 2383 and

meaning must be. attributed to_it. .The only meaning

which can be attributed is that a conviction following a

plea of nolo contendere made to a charge of a felony, is

a conviction within the meaning of Business and Pro-

fessions Code Section 2383, whether such felony does

or does net involves moral turpitude.

—_

_Moreover, there can be no doubt but that Title 26.

U.S.C. Section 145¢b) ¢€ 1939 Code) is a felony section.

That section provides:

“Any per required -under this title to collect,

account for, and pay over any .tax imposed by this

title, who willfully: fails to collect or truthfully ac-

count for and pay over such tax, and any person who

Ww illfully attempts in any manner to evade or defeat

any tax imposed by this title or the payment thereof,

* shall, in addition to other penalties provided by law,

be guilty” of a felony and, upon conviction. thereof,

be fined not more than $10,000, or imprisoned for not

more than. five years, or both, together with the costs

of prosecution.”

~™

oe

—9.

_ For disciplinary purposes, it has heen established that

it is the kaw of the jurisdiction. where the crime wax

committed which determines the character af an offense

as acfelony or a misdemeanor, and that where the ground

for disciplinary action. is based on a conviction of a crime

it includes crimes denounced by the+Federal statutes as

well as-under California statutes. :

Caminetti v7. Imperial Alutual Life Insurance Co..

59 Cal. App. 2d 476, 489-490, 139 P. 2d 681:

See also: ) | ms, .

People v. Theodore, 121 Cal. App. 2d -17, 29-30,

262 PF. 2060:

Karrell vv Watson, W6 Cal. App. 2d 769, 771,

774, 254 P. 24-651. where a real estate broker's

license. was revoked for conviction of Sections

697 and 715 of Title 38 U.S. C.:

In re Hallinan, 43 Cal. 2d 243, 250, 253, 272 P.

2d 748, Uiscussing disciplinary action against

1 attorney for violation ef 26 U. S. C. See.

145 sub. (b):

Murrill o. State Bd. of elecountancy, 97 Cal. App.

2d 709, 710, 712, 218 P. 2d 569, disciplining an

accountant for violation of Section, 145(a) of

Title 26 U. S. C.

i>

Moreover, it has been uniformly held that under federal

law it is not the actual punishment imposed but that which

‘the statute authorizes which determines whether the crime

is a fefony or misdemeanor, | 5

Cartwright v7. United States, 1460 F. 2d 133, 135;

See also: y

In re Muiner, 3B. 2d 473, 474 (Supreme Court

ot Kansas).

a

_ : °.

In the -instant case. the duly certified record of con.

Vietion in thevcase entitled “United States of America vs.

Richard Douglas. Furnish ccharged as Richard D. Fur-

nish)", United States District Court tor the Southern

District of California, Central Division, No, 22,734 Crini-

nal, was introduced in evidence. Such record of convic-

tion, pursuant to Business and Professions Code Section

2383, was conclusive evidence of unprofessional conduct

in that Dr. Furnish was convicted of felonies, to wit: two

counts of violation of Tithe 26 U.S. C. Section 145(b).

Hence, the conclusion is inescapable that there ee

ev identiary support for Finding No. IIT, to wit:

“That en or about May 4, 1953, in a ‘proceeding

then pending in the United States District Court tor

the Southern District of California, Central Division,

entitled ‘United States of America vs. Richard Doug-

las Furnish (charged as Richard D. Furnish)’, No.

22.754 Criminal. the respondent was convicted upon

his plea of nolo contendere of two felonies, being

two counts of violation of . Title 26 U.S.C. Section

145(h), charging, that he did wilfully and knowingly

attempt to defeat and evade a large part of the income

tax owing by him to the United: States of America

for the calendar vears 1947 and 1948, and each oi

said vears.” [Clk. Tr. p. 101] |

and Determination of Issues, No. I, namely:

“That respondent has been convicted of two fel-

onies, thereby subjecting his license and certificate to

disciplinary action by virtue of the provisions ot

Section 2383 of the Business and Professions Code

of the State of California,” [Clk. Tr. p. 101]

set forth in the November 10, 1955 Decision of the

Board of Medical Examiners.

: ¢

”

pate tees

= . = . . . ° k

For the teregoing reasons it is respectfully submitted

that the trial court herein, correctly sustained respondent's

demurrer without leave to amend based upon Petitioner's

failure to state a cause of action.

I].

No Problem of Ex Post Facto Legislation Is Hefein|

Involved. *

The Petitioner was disciplined for conviction of felonies

and these convictions eccurred after Business and: 'Pro-

ressions Code Section 2383 made such convictions grounds

for disciplinary action, Respondent submits that no prob-

lem of ex post facta legisiation is herein presented for the

reasons hereinafter set forth.

1.) The disciplinary action against’ petitioner was not

hased upon substantive acts which occurred in the vears

1947 and 1948. The disciplinary action against petitioner

was predicated solely and exclusively on his two felony-

convictions in the ¥ear 1952,

It is clear that the petitioner was convicted of two

counts of felonies (violation of Title 26 U.S. C. Section

145(b)) on May. 4, 1953. [CIk., Tr. pp. $1-52.]..

Section/ 2383 of the Business and. Professions Code

was adopted in the vear 1951 by Statutes 1951. Chapter

792, Section 1. Petitioner’s convictions of felonies, and his

nolo contendere pleas in 1953, each ‘occurred subsequent

to the 1951 amendment of Business and Professions Code

Section 2383. When petitioner entered his nolo contenderé

pleas and was convicted of two counts of felonies, the law

at such time, and since 1951, made convictions of felonies

vrounds for. disciplinary action iad the law also ex-

pressly provided that a conviction following a plea of

nolo contendere made to a charge of a fexony was deemed

to. be a conviction for disciplinary purposes.

‘

et, ee

2 .

>

- THe offenses commartted Inn the heensee are not diréctly

involved. Tt is the judgment of convietion ov reason of

those acts which ts the basis for disciplinary action herein,

Karrell ve Watson, Wo Cal. App. 2d 7609, 774, 254

gee Bin) B

.

.

2. It has been held that under -both the State and

United States Constitution the phrase ex post facte is not

applicable to civil laws. | (.Murrill @. State Board of Ae-

countancy, 97 Cal. App. 2d 709, 711; 218 P. 2d 569 and

‘cases therein cited.) |

3. The right of a medical doctor to practice his pro-

‘ fession is a property right. Such right is a qualified one,

~and.is held in subordination to the duty of the State un-

der the police power to protect the public health.

Hawker 7. New York,.170 U. S. 189, 18 S. Ct.

573, 42 L. Ed. 1002;

Lawrence 7. Bd. of Registration, 239 Mass. 424,

132 N. E. 174, 176... : ‘

In Butcher 7. Maybury, & F. 2d 155, at 158. the court

quotes from a note found on page 1273 of & LRA.

(N.S.) as fe Mows:

“*The granting of a license in such cases is merely

the means taken by the state, in the exercise of its

police power, to regulate and restrict the engaging

in certain professions and occupations for the public

good, and confers no rights whatever, in the way of

a contract with the state. upon the licensee. He takes

the same subject to the right of the state; at any

time that the public good demands, to make further

restrictions and regulations thereto: and.) if such

restrictions and regulations are reasonable, they will

be upheld, even thotigh they may actually prohibit

—13—

-

some people from further engaging in such oceiupa-

tions or @protessions under a lieense previously

granted. "-

e

In accord: | S :

Statev. Hovorka, 100, Minn, 249, 252, 110 NW:

870, 871, 8 LR. AL ON. S.) 1273, 1275 (10

‘Ann: Cas. 398): _

Rosenblatt v. Cal. St. Bd. of Pharmacy, 69 Cal.

App. 2d 69, 73-74, 158 P. 2d 199.

Indeed, the courts have held that the legislature may

prescribe qualifications, both as to character and learning,

which will require those in practice to give up. their:

occupation. :

Dent v. West Virginia, 129 U, S. 114, 122, 9:

S.-Ct.-251,32.L__Ed_ 634: | = aes

Hawker v. New York, 170 U.S. 189, 18 S. Ct.

_ $73, 42 L. Ed. 1002; : |

_ Rosenblatt v. Cal. St. Bd. of Pharmacy, 69, Cal. °

App. 2d 69, 73-75, 158 P. 2d 199.

Legislation prescribing qualifications which a practi-

tioner cannot meet because of conditions or acts antedat-

ing the enactment of the particular legislation is valid.

“uch legislation does not, constitute -punishment ; it is

legitimate regulation. . inn,

Hawker v. New York, 1700. S. 189. supra;

Murrill v. State Bd. of Accountancy, 97 Cal. App..

2d 709,711. 218 P. 2d 669;

Meffert v. State ‘Board of Medical Registration;

66 Kan. 710, 72 Pac. 247, 1 1. R. A. (N.S.) 811.

The only limitation onthe above doctrines is the prin-

ciple that the regulatioffS must be reasonable and must

—l4+— 6

hear some relation te the service te be rendered by the.

licensee: Ay

In Vazker v Neze York. supra, the appellant was

tried and convicted in New York of the crime of dhortion

In 1X78, In. 1893 the legislature of the Stare of New

York passed a statute which prohibited anvone to practice

medicine atter he had been convieted of a felony. The

single question presented in) Hazeker v. New York was

whether the statute prohibiting one who had been convicted

of a felony to practicé medicine, and making it a mis-

demeanor if he should do so, was an cr fest facto law in

contravention of Article 1, Section 10, of the Constitution

of the United States, In holding that the statute was

Not an ea’ post facto law and not unconstitutional, the

Supreme Court sti ated that the police power of the state.

entitled the state to enact legislation which defined the

qualifications of those who attempted to” practice medi-~

cine, and. that stich legislation: is a proper exercise of the

police power. The-Court then stated, at page 196:

“That the form in which this legislation is cast

suggests the idea of the imposition of an additional

punishinent for past offenses is not conclusive. We.

must look at the substance, and not the form, and the

statute should be regarded as though it in termes de-

clared that one who had violated the criminal laws

of the state should be deemed of ‘such bad character

as to be unfit te practice: medicine, and that the

record of a trial and conviction should be conclusive,

evidence of such violation. All that. is embraced in

these propositions is condensed into the single clause

ot the statute, and it means that, and nothing more.

The state is not secking to further punish a criminal,

but only to protect its citizens from physicians of

bad character. The vital matter ts, not the conviction,

-

- .

.

—15—

but the violation of law. The fermer is merely the

prescribed evidence of the latter... 2” ( Eaphasis

added. ) sot we a

4. Finally. respondent rsepectfully points out that even

during: the years 1948 and 1949, wheti Petitioner com-

Jnitted the substantive agts, the expressed California Leg-

islative policy made conviction of a felony, in and of itself

and without regard to whether moral turpitude was in-

volved, grounds for disciplining a licensed California doc-

tor. Specifically, Section 2383 of the California Business

and Professions Code read as follows:

“The conviction of a felony or of any offense in-

volving moral turpitude constitutes unprofessional

conduct withim the meaning. of this chapter. The

record of the conviction is conclusive evidence of such

unprofessional conduct.” (Added by Cal. Stats.°1937,

Ch. 414) p. 1377, making effective Stats. 1937, Ch.

399, p. 1275.) t

No | - . HLL

The Extent of the Penalty Is for the Administrative

Agency to.Determine. :

Once it is settled that grounds for disciplinary action

exist, it is well settled that the extent of the penalty within

the area of the Board's discretion is tor the Board to

determine. _ ae

“2 Cal. Jur. 2d, Administrative Law, p. 393;

Fuller. Board of Medical Examiners, 14 Cal.

App. 2d 734, 737-738, 59, P. 2d 171;

King v. Board of Medical Examiners, 65 Cal. App.

‘2d 644, 652, 151 P. 2d 282:

Painless Parker v. Board of Dental Examiners,

216 Cal. 285, 300, 14 P. 2d 67;

a ” am

Black ii ‘Strate Personnel Board, 136 Cad. App.-

7 2d 904, 912, 289 TP 2d 863:

AY Aneider “ae Crs] Seratce Com... Lae « Cal. App.

-2d 277, 285, 200 BP. 2d 300:

Newman v. Beard of Cistl Service Com., 140° Cal.

App. 2d 907, 912, 296 P. 2d 41:

Olson v. Watson, 143 Cal. App. 24-343, 351, 300-

P. 2d 35. .

In the instant case. the Board of Medical [examiners

suspended petitioner’s Heense as a physician and surgeon

for a period of one vear.

,

There is no question but that the penalty of a’ one

year suspension was within the jurisdiction of the Board. |

Indeed, the Board by law was authorized to have imposed.

a penalty ef revocation. (Bus. and Prot. Code, Sec.

2372.) Speetically. Business and Professions Code Sec-

tion 2372 reads as follows: os . ies

“The board shall discipline the holder of any cer-

tiftcate, whose default has been entered or who has:

been héard by the board and’ found guilty. by any of

the following -methods: |

(a) Suspending judgment.

(b) Placing him upon’ probation.

(c} Suspending his right*to practice for a period

not exceeding one year. .

(d) Revoking his certificate. |

(¢) Taking such other action in relation to dis-

ciplining him as the board i in its discretion may

deem proper.

However, thes Th vard did not impose the extreme penalty.

The Board exe reised its discretion and fixed a lesser: ‘pen-

alty. to-wit: the one year Suspension,

“\

on, re

That the penalty. of a one vear suspension by the Board

is not excessive is demonstrated by the Judgment of the

United States Distriet Court for the Southern District

of California, Central Division, in the case entitled “United

States of America vs.-Richard Douglas Furnish”, Crimi-

nal No. 22,754, wherein the Court imposed a fine of

$5,000 on each of two counts (a total fine of $10,000)

of conviction of violation of Title 26 U. S./C. Section

145(b), namely, income tax evasion.. [Cik” Tr. p. 51.)

_ Respondent respectfully points out that the instant case

is not one where the evidence does not suffice to support

ome or more grounds for disciplinary action. The sig-

nificance of this fact is indicated by the following lan-_

guage. from Black @. State Personnel Board, 136 Cal.

App. 2d 904, 912, 289 P. 2d 863, 867:

«This case does not fall “within the ambit of

Cooper v.. State Board ‘of Medical Examiners, 35

Cal. 24.242, 252 [217 P. 2d 630, 18 A.L.R. 2d 593],

and Nelson v. Department of Corrections, supra,

110 Cal. App. 2d 335, cases in which the court, hav-

ing found one charge unsupported, remitted the mat-

ter to the administrative agenct for the purpose of. °

reconsidering the amount of the penalty. .. _

| IV. ;

The California State Board of Medical Examiners Has

Exclusive Jurisdiction to Discipline Its Licentiates.

By law, the California State Board of Medical Ex-

aminers is vested with exclusive power to discipline its —

’ .licentiates for the causes prescribed by law. (Cal. Bus.

and Prof. Code, Secs. 2360 and 2361.) It is ‘respectfully,

submitted that said Board cannot be divested of its juris-

diction and power to discipline because of the voluntary

declarations of a Trial Judge in a criminal proceeding to

—18—

which the California Board of Medieal Examiners wa.

not a party.

[tis well settled that the regulatory power of the State

properly may be committed to an administrative board.

Douglas 7. Noble, 261 U.S: 105; 170. 43. S. Ct.

303, 67 L.. Ed. 590: 525 3

State v. State Medical Board, 32 Minn. 324. 20

‘N. W. 238, 50 i sid a4, 047.

Implicit in the Trial pare 5 statgnent, to wit:

“T think on a plea of nolo contendere they do. not

consider it—at least the Medical. Board does not

consider that as a ground for revoking his license, and

‘unless they have professional grounds his license

should not be revoked for this” particular offense.

ie [Ck Tr. p. 63.)

is the Judge’ s recognition that. the power to discipline is is

exclusively vested in the State Medical Board.

Petitioner's, medical license was not before the Trial

Judge in the criminal proceeding and said Judge pur-

ported to: make no. finding or ruling with respect thereto

for the reason that such matter was not within his juris-

diction. ak

It is to be 1 noted that the Trial Judge's remarks, gratui-

tous as they were, only professed his belief that the Cali-

fornia Médical Board would not revoke Petitioner's license,

and. the Board did not revoke but rather suspended such

license for one year.

Further, despite the Trial Judge's remarks about Peti-

tioner’s license, it is apparent that-the Trial Judge con-

sidered Petitioner's conduct serious enough to warrant

convicting petitioner en two felony counts and fining him

a total of $10,000;

Pi; | a aN

The California Legislature having made. eonvietion of

4 felony grounds for disciplinary aetion against a licensed

physician ‘and surgeon, and further having specitically

designated a conviction tollowing a plea of mele contendere

as a ‘conviction for disciplinary purposes, it is respect

tully submitted that Respondent Board. properly | stus-

pended for a period of one year the license of Petitioner

7

o-

herein.

Conclusion.

— Respondent respectfully submits that. the Petitioner

Kerein has failed to present a substantial federal question

as would require this Honorable Court to exercise its

-jurisdiction within. the meaning of Zucht v7. King, 260

U. S. 174, 176, 43 S. Ct. 24,-67 L. Ed. 194; Upon the

record and fer the reasons hereinabove stated, respondent

requests that the writ prayed for. herein be denied.

Respect fully submitted,

Epmunp G, Brown,

-Attorney General of the State of California.

; | Howarp SEyYMouR GoLpIN,

Deputy lttorney General,

Atiornevs for Respondent.

James L. MAMAKOs,

Deputy Attorney General,

Of Counsel.