Rudolph v. Athletic Commission

Prior to its revocation appellant Harry Rudolph, also known as Babe McCoy, held a license as boxing matchmaker issued to him by respondent Athletic Commission of the State of California. An accusation was duly filed charging him with nine separate and distinct counts of violations of sections 18681, 18682 and 18762 of the Business and Professions Code, and sections 436, 468, 470, 559 of title 4 of the California Administrative Code pertaining to boxing. The commission upheld all of said charges and ordered his license revoked upon each separate count. Rudolph thereupon sought mandate under section 1094.5, Code of Civil Procedure, annulling the commission’s order of revocation and directing it to restore his license. The trial court affirmed and Rudolph has appealed.

One of his major contentions is that the evidence is insufficient to support the finding upon any count of the accusation and hence the trial court’s affirmance of the commission’s order is erroneous. The argument is predicated upon the assumption that it was the duty of the trial judge to independently weigh the evidence and to make his own finding with respect to each charge. Respondent contends that the Athletic Commission is one of those statewide agencies whose findings must be tested by the substantial evidence rule of section 1094.5, subdivisions (b) and (c), Code of Civil Procedure.

We hold that respondent’s position is correct. While legislatively created statewide agencies do not have judicial powers without constitutional sanction in some form, and their rulings are subject to independent weighing of the evidence by a court, that is not true of such agencies as are created by the Constitution and thereby given adjudicatory power or given such power by the Legislature in the exercise of a delegation of authority conferred upon it by the Constitution. (See Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557 , 559 [ 59 P.2d 119 ]; Covert v. State Board of Equalization, 29 Cal.2d 125 , 131 [ 173 P.2d 545 ]; Weiss v. State Board of Equalization, 40 Cal.2d 772 , 775 [ 256 P.2d 1 ]; Boren v. State Personnel Board, 37 Cal.2d 634 , 638 [ 234 P.2d 981 ]; Shepherd v. State Personnel Board, 48 Cal.2d 41 , 46-47 [ 307 P.2d 4 ] Sandstrom v. California Horse Racing Board, 31 Cal. 2d 401 [ 189 P.2d 17 , 3 A.L.R.2d 90 ].)

The Athletic Commission was created by an initia

In 1941 the Legislature adopted sections 18600-18782, Business and Professions Code. (Stats. 1941, ch. 45, p. 632.) Section 18681, as amended at the same session (Stats. 1941, ch. 1151, p. 2867) and since said time, has provided: “Licenses issued under this chapter may be suspended or revoked by the commission upon such cause as it deems sufficient. If any license is suspended or revoked said board shall publicly state its reasons for so doing and cause an entry of said reasons to be made on the minute book of the commission. Such action shall be final, except that the propriety of such action is subject to review, upon questions of law only, by the

Although said Imes had been convicted of robbery and did live with appellant for about a year, the record leaves uncertainty as to whether appellant then had knowledge of such conviction and the commission made no finding on the subject.

Concerning Piascik, it appears that appellant, after he had been informed of the fact that Piascik had been in San Quentin, promised boxing manager Cardenas to give him a fight when he got into shape, but the parole officer would not let him fight. He visited appellant with Imes at times after the latter ceased to live with appellant but was still working for him.

Concerning one Mickey Cohen the evidence shows that he visited appellant a few times, appellant loaned him some money for which Cohen is now indebted in the sum of $5,000, and that appellant testified in behalf of Cohen when he was tried upon a charge of Federal income tax evasion. In support of the characterization of Cohen as a “notorious criminal and racketeer” the evidence consists of the opinion of a retired officer of the Los Angeles Police Department that after some four years of investigation of Cohen he considered him “a racketeer, a hoodlum and a mobster.” The witness also said, on cross-examination: “However, he was engaged in, as he stated to me, a gambling enterprise; had several games going. That he had considerable in this enterprise, and he was going to get it back by gambling. And then we had information that he was engaged in bookmaking, and pretty well cut in all over this entire territory. In other words, he had an organized racket with a number of people around him, bodyguards, and which involved arrests of some of these people for being armed, even with a machine gun. Therefore, from my experience with him I am of the very strong opinion that he was a mobster, hoodlum, a racketeer.” We cannot accept this as anything other than hearsay which, under

On the whole we conclude that the evidence in support of count IX is too unsubstantial to support the commission's finding thereon. That charge seems to be but a make-weight. However, that does not affect the result for appellant was found guilty of eight other violations of law or applicable rule of the commission, and his license was revoked because of each separate violation. The ninth count therefore becomes immaterial, whether the finding thereon is correct or not. It cannot affect the penalty or change the ultimate result, revocation, in any manner or degree. See Black v. State Personnel Board, 136 Cal.App.2d 904 , 912 [ 289 P.2d 863 ] ; Thayer v. Board of Osteopathic Examiners, 157 Cal.App.2d 4 , 9 [ 320 P.2d 28 ].

Appellant was denied due process, so he says, because (1) he had insufficient notice of hearing, and (2) was denied a continuance for the purpose of procuring the presence of numerous and scattered witnesses.

The accusation was filed on October 23, 1956, and served upon appellant on the following day, together with a notice that the hearing had been set for November 8, 1956. This gave him a full 15 days to prepare, the same period prescribed by Government Code, sections 11506 and 11509, for a hearing under the California Administrative Procedure Act, which act does not govern the instant procedure (Gov. Code, § 11501; 2 Cal.Jur.2d, § 103, p. 195) but furnishes a persuasive precedent. Procedural due process demands that reasonable notice of an administrative hearing be given as a prerequisite to validity thereof. Litchfield v. County of Marin, 130 Cal. App.2d 806 , 813 [ 280 P.2d 117 ] : “The questions of notice and due process are so inextricably part and parcel of each other that there could be no due process without the sovereign following, some procedure which according to common experience should reasonably give notice of impending interference with ownership or right to possession. But there is no constitutional mandate of which we are aware which makes specific how that notice is to be given or which form it- must take. Therefore the Legislature in prescribing the notice to

In this case we experience no difficulty in reaching the conclusion that the notice was reasonable. The matters here under investigation were substantially the same as those which had been canvassed by a committee appointed by the governor to conduct an inquiry on behalf of the Department of Professional and Vocational Standards of the State of California, Departmental Boxing and Wrestling Survey. The present record is replete with references made to testimony of appellant and other witnesses who testified at that hearing and again in the instant proceeding. Little of surprise could have been concealed in the nine charges brought before the Athletic Commission.

On November 8, the first day of the hearing, appellant appeared through his attorney who made a motion for a reasonable continuance to enable him to prepare his defense. No showing of diligence was made nor any offer to prove what the witnesses would testify. No affidavit in support of the motion was presented. It was denied. Thereupon proof was taken for three days, the only testimony being that of persons called in support of the accusation plus one witness called out of order by the defense. Thereupon a continuance was taken from November 10 to November 29. Upon resumption of the hearing on the last named date the motion for a continuance was not renewed and no showing was made of inability to contact or produce any of the many witnesses counsel had mentioned in the motion of November 8th. Without further objection to proceeding the evidence on behalf of the defense was produced on November 29 and 30.

It is true that an amendment to the accusation was filed over appellant’s objection at the opening of the hearing on the 8th of November; it added a tenth count, making an

The adequacy of the notice of hearing and the propriety of denial of the continuance blend into the single question of whether appellant was denied due process. We hold that the notice was not unreasonably short in view of all the circumstances, that there was no abuse of discretion in denying the continuance and that appellant was not deprived of due process of law.

Pursuing the same line of thought counsel for appellant assert that the commission was prejudiced against him to the extent that it denied him a fair hearing. He inveighs against the commission for having acted as prosecutor and judge, saying that “ [a]lthough such combination may not in and of itself constitute a denial of due process, it may become so if the bias or prejudice of one or more members of the administrative tribunal manifests itself to a degree which appellant considers was present at the hearing before the State Athletic Commission.” Pertinent is this passage taken from 2 Cal.Jur.2d, §126, page 226: “While the combination, in quasi judicial administrative proceedings, of the functions of prosecutor and judge may offend concepts of fair play deeply rooted in the Anglo-American judicial tradition of justice, such a combination within the agency is not necessarily a denial of due process, although it may become so if the bias or prejudice of a member of the administrative tribunal becomes such as to persuade a court on review that the hearing was grossly unfair. But in the absence of a showing of such extreme bias or prejudice, the performance by the agency of both the prosecuting and the judging function is permitted.” Supporting the text are Murphy v. Board of Medical Examiners, 75 Cal.App.2d 161 , 162 [ 170 P.2d 510 ]; Hohreiter v. Garrison, 81 Cal.App.2d 384 , 392 [ 184 P.2d

Appellant’s attempt to show that the hearing was vulnerable according to the foregoing standards consists of an implied claim that the commissioners were consulting a document not in evidence and that one commissioner was excessively zealous in the cross-examination of witnesses, especially appellant. The examples set forth in the brief are not sufficient to sustain those charges. Counsel say: “To set forth in this brief all of the comments, statements and questions of Commissioner Bueciarelli would unduly prolong this brief. The foregoing are cited as examples.” It is not our function to comb the record for support for counsel’s contention. Moreover it is true, as stated in West Coast etc. Co. v. Contractors’ etc. Board, 72 Cal.App.2d 287 , 300 [ 164 P.2d 811 ], that “the fact that the hearing officer may have exceeded the bounds of propriety does not entitle petitioner to have the decision of the administrative board annulled when competent and admissible evidence sustains the findings and order made by such board.’’ The argument of prejudice and unfair hearing cannot be sustained.

The claim that the commission exceeded its jurisdiction in various respects is untenable. Concerning several counts it is asserted that the commission had power to suspend appellant’s license but not to revoke it. This applies to counts I, III, IV, VII and IX. The basis of the argument is section 436 of title 4 of the Administrative Code, which says: “Any promoter or matchmaker found guilty of managing a boxer shall have his license suspended, and, in the case of a promoter, his club license may be revoked”,- also section 470 of the same

It is argued with respect to counts II, III, V, VIII, each of which alleges that appellant instructed a boxer directly or through his manager to lose a fight arranged by appellant and that the fight was held and lost pursuant to said instructions, that the applicable statute is section 18762, Business and Professions Code, which makes revocation mandatory in the case of any licensee “who conducts, gives or participates in any sham or collusive contest”; also that the evidence does not show and the commission did not find that the fighter lost the match “pursuant to said instructions” and hence it cannot be held that appellant participated in a sham or collusive fight. True, the commission’s findings do not cover the fact of the fight or its loss pursuant to the instructions. Had one been made the evidence clearly would have supported it, for such facts, like any other, may be established circumstantially, and that was done in this case.

So far as the defect in the findings is concerned it is not fatal because the issue was fully tried, a penalty assessed which necessarily presupposed the fact of a fight and its deliberate faking pursuant to appellant’s instructions. The applicable law is thus stated in Steele v. Los Angeles County Civil Service Com., 166 Cal.App.2d 129 , 136-137 [ 333 P.2d 171 ] : “Findings of administrative tribunals are liberally

“Bailey v. County of Los Angeles, 46 Cal.2d 132 , 136 [ 293 P.2d 449 ] : ‘ “[I]n connection with the action of such commission and board, composed usually of laymen, the fact that a certain action is taken or recommendation made raises the presumption that the existence of the necessary facts had been ascertained and found. [Citations.] We cannot perceive wherein appellant has been prejudiced by the absence of formal findings under the facts here present.” ’ (To the same effect, see also Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90 , 102 [ 280 P.2d 1 ]; Miller v. Planning Commission, 138 Cal.App.2d 598 , 603 [ 292 P.2d 278 ]; Sobo v. Board of Police Commissioners, 145 Cal.App.2d 783 , 788 [ 303 P.2d 104 ].)

“The last sentence quoted from the Bailey case, supra, points to the criterion to be applied to findings of administrative boards,—whether appellant has been prejudiced by in-formalities or other inadequacies of same. . . . See also to the effect that error occurring in an administrative proceeding does not vitiate the ruling unless shown to have been actually prejudicial to the appellant, Roark, v. State Bar, 5 Cal.2d 665 , 668 [ 55 P.2d 839 ]; Maryland C. Co. v. Industrial Acc. Com., 178 Cal. 491 , 493 [ 173 P. 993 ] ; Brewer v. Railroad Commission, 190 Cal. 60 , 77-78 [ 210 P. 511 ]; Ocean A. & G. Corp. v. Industrial Acc. Com., 180 Cal. 389 , 393 [ 182 P. 35 ]; Walsh v, Industrial Acc. Com., 1 Cal.2d 747 , 748 [ 36 P.2d 1072 ]; Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56 , 60 [ 159 P. 150 ]; 2 Cal.Jur.2d § 223, p. 367; 42 Am.Jur., § 244, p. 686.” To the same effect see Palm Springs T. Club v. California Horse etc. Board, 155 Cal.App.2d 242 , 245 [ 317 P.2d 713 ]. Partici

Without citation of supporting authority counsel for appellant assert: “Furthermore, each count charging appellant with having participated in a sham and collusive boxing contest has reference to a boxing contest which took place outside of the State of California, and the Athletic Commission of the State of California has no extraterritorial jurisdiction. Its jurisdiction extends to sham or collusive boxing contests taking place within the State of California.’’ This pertains to counts II, III, V and VIII. This contention is adequately answered by Foster v. McConnell, 162 Cal.App.2d 701 , 708-709 [ 329 P.2d 32 ], which involved revocation of an insurance broker’s restricted licenses. Concerning the contention that his offenses had occurred upon federal property not subject to the jurisdiction of the State of California, the court said: “We are not concerned here with the question of the state making regulations concerning the selling of insurance on government reservations. We are concerned with the protection of the public from one holding a state insurance agent’s license and who, regardless of whether his acts occur within or without the state, demonstrates that he does not maintain professional standards in his conduct of the insurance business. The situation is very similar to that concerning attorneys. ... In his argument on this subject appellant states: ‘A state may not punish one for doing in exclusively federal territory what by the law of the United States was lawful . . . ’ He thereby implies that it is lawful for an agent selling insurance on government property to misrepresent the terms of a policy to a prospective buyer—a proposition that is absurd on its face.”

Count VI charges that appellant in testifying before a hearing officer, who had been appointed to conduct hearings into boxing and wrestling in California, falsely stated that he had not telephoned from Los Angeles to boxer Georgie Hans-ford, in Chicago, and told him to go to San Antonio, when in fact he had made said telephone call, a violation of section 118, Penal Code, of section 470, title 4, Administrative Code, and sections 18675 and 18681, Business and Professions Code. In attacking the charge and the sufficiency of the evidence to support it, appellant claims that proof “by the testimony of two witnesses, or of one witness and corroborating circumstances” was necessary under section 1103a, Penal Code. If that section were applicable the argument could not prevail,

Appellant also argues that the perjury falls within section 470 of title 4, which provides a penalty for “any action by a licensee of unbecoming conduct at any time or place which is deemed by the Commission to reflect discredit to boxing or wrestling.” Without citation of supporting authority it is asserted that this language is void for uncertainty. “ [T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.” (Mr. Justice Holmes, in Nash v. United States, 229 U.S. 373 , 377 [ 33 S.Ct. 780 , 57 L.Ed. 1232 ].) In Lorenson v. Superior Court, 35 Cal.2d 49 , 60 [ 216 P.2d 859 ], it is said: “To comply with the constitutional requirement of due process of law, the crime for which a defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its reach to understand and correctly apply them. ‘To make a statute sufficiently certain to comply with constitutional requirements it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.’ (People v. Smith, 36 Cal.App.2d Supp. 748 , 752 [ 92 P.2d 1039 ].)

“Although higher standards of certainty will be required of penal than of civil statutes (Levy Leasing Co. v. Siegel, 258 U.S. 242 [ 42 S.Ct. 289 , 66 L.Ed. 595 ]), a statute is sufficiently certain if it employs words of long usage or with a common

With respect to counts I and VII, appellant complains because he was held to have violated section 559 of title 4 through participating in the management of a boxer in 1945 and 1946; that section 559 was not adopted until May 23, 1947, and cannot lawfully be given retroactive effect. Counsel cite no supporting authority. The fact is that section 559 is section 226 of the 1925 rules and regulations as amended and renumbered. Pursuant to amendment of 1931 the section read: “No club, or member or stockholder or official of a club, shall be permitted to act, directly or indirectly, as manager of a boxer or to hold any financial interest in such management or in the boxer’s ring earnings.” In 1947 the words “or matchmaker” were inserted after “official” with the result that the section then and thereafter has said: “No club, or member or stockholder or official or matchmaker of a club shall be permitted to act” etc. Respondent characterizes this as a clarifying amendment and we think it is such. Respondent’s brief pertinently says: “The function of a licensed match

Upholding respondents’ contention as to clarifying amendments are Hammond v. McDonald, 49 Cal.App.2d 671 , 681 [ 122 P.2d 332 ]; County of Sacramento v. City of Sacramento, 75 Cal.App.2d 436 , 440 [ 171 P.2d 477 ]; 45 Cal.Jur.2d § 179, page 679.

Laches on the part of the commission is asserted because of the delays just discussed, i.e., violations of rule or statute committed by appellant in 1941, 1945, 1946, 1948, 1949, 1950, 1951, 1956, and accusation not made until October 23, 1956. Counsel for appellant rightly assert that laches ordinarily is a question of fact. They also quote Kimberlin v. Los Angeles City High School District, 115 Cal.App.2d 459 , 463 [ 252 P.2d 344 ], as follows: “Laches in legal significance is not mere delay, but delay that works a disadvantage to another, mere delay being unimportant. The reasoning upon which the rule of laches is based is not alone a lapse of time during which the neglect to enforce a right has existed, but the changes of

Failure to prosecute a crime or pursue a remedy in a quasi-criminal proceeding or an administrative revocation of a license does not operate directly or indirectly as a bar in the absence of some statute of limitation. None is cited here and we are satisfied that none exists. In re Lowenthal, 78 Cal. 427 [ 21 P. 7 ], furnishes a guide for the ruling in the present case. That was a disbarment proceeding. The court said (p. 429) : “We do not understand that a charge of this kind can be barred by the statute of limitations, or that it should be, under any circumstances. The fullest opportunity should be given to investigate the conduct of an attorney who is charged with a violation of his duties as such; and while this court might not be willing to disbar or suspend an attorney if it appeared that there had been unreasonable delay in the presentation of the charges, so that a fair opportunity could not be had for procuring the witnesses and meeting the accusation, we are not prepared to say, as a matter of law upon this demurrer, that the accusation is barred either by the express terms of the statute of limitations or by analogy.” The lower court found against laches. If that plea would lie in a proceeding such as this (which is doubtful), it would be necessary in order for appellant to prevail that he show by uncontradicted evidence, all pointing in the same direction, that he has been prejudiced by the commission’s nonaetion. During all these years of delay in initiating proceedings to revoke his license appellant has been granted renewals from year to year. This fact argues that the commission did not know of the earlier transgressions of appellant and hence its delay resulted in advantage rather than prejudice to him.

Judgment affirmed.

Fox, P. J., and Herndon, J., concurred.