Shakin v. Bd. of Med. Exam'rs

This is an appeal from a judgment denying Doctor William Shakin’s petition for a writ of mandate directing the Board of Medical Examiners of the State of California (hereinafter sometimes referred to as the Board) to vacate and annul its order revoking the doctor’s license to practice medicine and surgery in the State of California and to reinstate said license.

On January 29, 1965, an accusation was filed by the executive secretary of the Board charging appellant with unprofessional conduct as grounds for disciplinary action. The accusation, in substance, charged the doctor with (a) conviction of a felony, the violation of a state statute regulating narcotics; (b) using narcotics and dangerous drugs—regulated by statute—to the extent and in such manner as to be dangerous to himself and to the public; (e) selling similar narcotics, without making a record of the sales, to a male addict who was not a patient and did not receive them in the regular course of the doctor’s practice; (d) prescribing, furnishing and administering to himself morphine, a narcotic drug regulated by statute.

The doctor filed a notice of defense, requesting a hearing, and on March 2, 1965, he appeared without counsel before the Board and a hearing officer. Because it appeared that the doctor had misunderstood the nature of the proceeding and his right to counsel, the Board, after hearing both oral and documentary evidence in support of the charges, voted to continue the matter and to assign the case to a hearing officer. Accordingly, on June 28, 1965, a new hearing was held before a different hearing officer, and on that occasion the doctor appeared in person and with counsel. On or about July 8, 1965, the hearing officer filed with the Board his proposed decision, which the Board, on July 23, 1965, adopted as its decision to become effective on August 23, 1965. That decision provided that “The certificate to practice medicine and surgery in the State of California heretofore issued to respondent William Lloyd Shakin, M.D. is hereby revoked on each cause for disciplinary action established.”

Appellant makes numerous contentions. He first claims that the trial court erred in finding the administrative proceedings regular in the light of the following alleged defects: (a) the administrative hearing did not conform to Administrative Procedure Act requirements (Gov. Code, § 11517) ; (b) appellant was denied due process because he had no opportunity to present, and the Board wilfully suppressed, evidence of entrapment; (c) appellant was denied the right to cross-examine the officer who filed the police report and testified at the March 2d hearing; (d) the Board based its decision on ex parte evidence, i.e., the officer’s testimony at the March 2d hearing; (e) appellant’s extrajudicial admissions were used as the basis of the Board’s decision in violation of his constitutional rights; and (f) appellant’s admissions were allowed to prove the corpus delicti of certain charges. In addition, appellant contends that it was error for the trial court to refuse to receive evidence of entrapment, that the court’s findings of fact were unsupported by competent evidence, and that the court should have remanded the case to the Board for reconsideration of the penalty. Each of appellant ’s contentions is without merit.

At his first hearing on March 2, 1965, appellant appeared in person and without counsel before the Board in open session. At that time he was advised that he had the right to have an attorney, to cross-examine any witnesses called to testify against him, and to offer evidence on his own behalf. In support of the charge concerning the doctor’s earlier narcotics conviction, a certified copy of the judgment, the probation officer’s report, and psychiatric evaluations by two doctors were received in evidence. With respect to the charge that

On June 28, 1965, the second hearing was held before a hearing officer of the Office of Administrative Procedure, appellant appearing with counsel. At that time counsel for appellant entered a stipulation with the Board whereby the doctor admitted as true his conviction of the felony sale of narcotics; his personal use of narcotics and dangerous drugs for a one-year period ending on or about August 1962; that on or about January 1964, he did self-prescribe and administer morphine and Demerol; and that he sold narcotics to an addict outside the regular conduct of his profession and without making records of such sales. Following the acceptance of this stipulation the Board’s attorney rested, reserving the right to call appellant to the stand.

The doctor then introduced the testimony of a psychiatrist who originally had been contacted to render an opinion with respect to appellant’s probation and sentence hearing in superior court following his narcotics conviction. The psychiatrist testified that appellant regularly had used large doses of narcotics since the age of 17, but that he believed appellant had taken none since the latter part of 1964. At this hearing a probation officer also testified, based upon his report, that appellant’s problem was principally medical rather than criminal.

Appellant, who testified in his own behalf, said that he received his D.O. degree from the College of Osteopathic Physicians and Surgeons in Los Angeles in 1956 and in 1962 received his M.D. degree because of the amalgamation of these disciplines under the law. After a one-year internship, he opened his own office where he practiced until August 1962. He separated from his wife in late 1961 and thereafter

Appellant first sold narcotics to Officer Shaw because he was completely broke and needed the money for daily living. Although he admitted that to dispense narcotics to an addict or a former addict is not good medical practice, he sold narcotics to Officer Shaw, believing him to be a former addict who was cured and wanted narcotics for his addicted wife. He also occasionally self-administered narcotics, however, and he admitted recognizing similar hypodermic marks on the arms and hands of Officer Shaw which would indicate that he might be a current user. Confronted with statements he purportedly made to Officer Shaw concerning his own use of narcotic drugs, appellant testified in self-defense that he had told the officer many untrue facts because he wished to appear to be ‘ ‘ one of the boys ’ ’ in order to avoid suspicion in the course of his sales of drugs. Although appellant denied he was ever addicted to narcotics, he admitted , that he had a drug problem. His practice of medicine, which he resumed on November 15, 1964, disintegrated once more when he was forced to file a petition in bankruptcy on May 18,1965.

Appellant’s contention that the Board held a “hybrid hearing” not specifically sanctioned by section 11517 of the Government Code and thus violating the Administrative Procedure Act cannot be sustained. The Board acted in appellant’s best interests when it abandoned the March 2d hearing, after appellant, who appeared without counsel, offered to stipulate to the facts alleged in the accusation in lieu of Offieér. Shaw’s testimony.' requested a continuance to retain counsel when the stipulation'was rejected, later withdrew his

Appellant contends that the Board rendered its decision on ex parte evidence since it retained the memory of the officer’s testimony introduced at the earlier hearing. The Board, however, adopted the hearing officer’s proposed decision in its entirety; that decision rested completely upon the evidence adduced at the June 28 de novo hearing. The hearing officer was not present at the earlier hearing and no resort to ex parte evidence of any sort occurred, as the trial court properly found.

Appellant further contends that the Board’s findings of unprofessional conduct were based, in part, on the extrajudicial statements made by appellant to Officer Shaw concerning his own use of narcotics. This contention cannot be sustained since appellant, through his counsel, at the June 28 hearing stipulated to the truth of the accusation, freely and voluntarily, and he therefore is bound by his stipulation. The “corpus delicti” of the accusation was not, as appellant claims, proved by his extrajudicial statements, and even if it were this circumstance would not demand reversal because an administrative hearing to revoke or suspend a professional license is not a criminal procedure or governed by criminal legal precedents. (Webster v. Board of Dental Examiners, 17 Cal.2d 534 , 537-538 [ 10 P.2d 992 ] ; Murphy v. Board of Medical Examiners, 75 Cal.App.2d 161 , 166-167 [ 170 P.2d 510 ].) The admissions of a party may, therefore, be relied upon in the absence of independent evidence to support the Board’s findings and decision with respect to charges of unprofessional conduct. (Hansen v. Civil Service Board, 147 Cal.App. 2d 732 , 738 [ 305 P.2d 1012 ].)

Also appellant unjustifiably attacks the trial court’s ruling in declining to accept evidence of entrapment, its findings, and its decision to deny the petition without remanding the ease for modification of the penalty.

In order for the petitioner to be entitled to introduce additional evidence for the court’s consideration in a man-

Appellant attacks the trial court’s findings that the grounds of the accusation were true, a fact to which appellant stipulated. He also claims his narcotics conviction has not become final and the matter is still pending on appeal. In fact, appellant filed no notice of appeal and his motion to set aside his conviction and guilty plea, which is merely a collateral attack on the judgment, was ultimately denied after consideration by the trial, appellate and Supreme Courts of California. His conviction has been final since the time for appeal

Finally, the trial court affirmed the Board's decision in its entirety and that decision revoked appellant’s license “on each cause for disciplinary action established.” Thus, even if the court had vacated one or more, but not all counts, appellant would not be entitled thereby to have his license reinstated, or to have the matter remanded to the Board for farther consideration of the penalty. “ ‘When an administrative tribunal after considering several charges against a licentiate makes a separate finding and imposes a specific sanction for each offense, the accused, in a mandate proceeding, is not entitled to have the cause sent back to the administrative agency for reconsideration of the penalty because the court vacates the administrative order as to some accusations, as would be the ease if the penalty imposed had been based on collective rather than separate findings.’ ” (Randle v. California State Board of Pharmacy, 240 Cal.App.2d 254 , 262 [ 49 Cal.Rptr. 485 ] ; Mast v. State Board of Optometry, 139 Cal. App.2d 78 , 91-93 [ 293 P.2d 148 ] ; Caro v. Savage, 201 Cal. App.2d 530 , 544 [ 20 Cal.Rptr. 286 ].)

Appellant is not entitled to a reconsideration of the penalty imposed by the Board on any ground. The hearing officer, as found by the trial court, “considered all relevant evidence presented at the administrative hearing on June 28. 1965, and properly considered, weighed and summarized said evidence in his proposed decision to the Board; it is not true that the hearing officer arbitrarily, capriciously or in any other respect failed to consider and set forth in his proposed decision any relevant mitigatory evidence presented at the administration hearing on June 28, 1965.” The court found further that the Board “in revoking petitioner’s physician’s and surgeon’s certificate, acted reasonably and its action did not constitute an abuse of discretion.” On this basis the conduct of the Board is deemed justifiable and appropriate.

‘ ‘ In determining whether there has been an abuse of discretion the Supreme Court of this state has stated that ‘if reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion that the . . . [administrative body] acted within the area of its discretion. ’ [Citations.] It is equally well settled that in reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own

Section 170 of the Code of Civil Procedure deals with the disqualification of judges. That section in part provides, in effect, that whenever a judge shall have knowledge of facts

There are several reasons for the striking of the declaration and the supplemental declaration in the present ease. First, they were not presented at ‘‘the earliest practicable opportunity.” It was known by Doctor Shakin and his counsel for over a year (since August 1966) that this division of the court was to hear the petitions for the writ of supersedeas and the appeal. The membership of this division of the court is presently constituted as it was at the time the proceedings were lodged in this court. Had counsel any intention of attempting to disqualify this court, he should have instituted or caused to be instituted proper disqualification proceedings many months before August 13, 1967, and not waited until eleven days before the matter was calendared to be heard on oral argument.

It is obvious that timeliness is extremely important, otherwise the sections of the law with reference to disqualifying judges might, on occasions, be abused by dishonest litigants or unscrupulous lawyers. In other words, it would create an intolerable situation to permit an attorney or a party who knew, or claimed to know of disqualifying facts, deliberately to withhold the making of a disqualification statement until he knew that the filing of such a statement would disrupt the orderly processes of a court. Too, if disqualification is not urged at the earliest practicable opportunity, there is a waiver of such alleged disqualification. (Sacramento etc.

“The bias and prejudice which must be shown in order to disqualify a judge under section 170 of the Code of Civil Procedure is bias and prejudice against the party moving for disqualification.” (Italics added.) (People ex rel. Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 , 110 [ 223 P.2d 37 ].) There is no declaration or statement by Doctor Shakin in this ease—in other words, Doctor Shakin, the party plaintiff in this cause, has made no claim of bias or prejudice upon the part of any member of this court. It is his counsel who complains or declares in part, to the effect that the court has decided matters, in which he, the attorney, was not involved, in a manner not to his liking. This shows so little basis for claiming personal bias or prejudice against Doctor Shakin as to justify the conclusion that the charge of disqualification is sham and frivolous. (See Bompensiero v. Superior Court, 44 Cal.2d 178 , 183 [ 281 P.2d 250 ] ; People v. Sweet, 19 Cal.App.2d 392 , 396 [ 65 P.2d 899 ] ; Evans v. Superior Court, 107 Cal.App. 372 , 379-380 [ 290 P. 662 ] ; Kreling v. Superior Court, 63 Cal.App.2d 353 , 362 [ 146 P.2d 935 ].)

It is true that this court on three separate occasions denied petitions for a stay of the judgment. In the first declaration (filed August 11, 1967) counsel sets forth that the denials of the petitions were within the discretion of this court and nowhere does he indicate that the court abused that discretion in denying such petitions. He disagreed with the determinations this court made, and sought a hearing in the Supreme Court where such a hearing was denied. Even had this court’s denials of a stay been faulty, it would make no difference under the circumstances of this case. “Erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias and prejudice, especially when they are subject to review on appeal.” (Kreling v. Superior Court, 63 Cal.App.2d 353 , 359 [ 146 P.2d 935 ].) “Nor are a judge’s expressions of opinion, uttered in what he conceives to be the discharge of his judicial duty, evidence of bias or prejudice.” (McEwen v. Occidental Life Ins. Co., 172 Cal. 6 , 11 [ 155 P. 86 ].) “[A] wrong opinion on the law of a case does not disqualify a judge, nor is it any evidence of bias or prejudice. . . . Where a judge is mistaken as to questions of law, a litigant cannot substitute for his remedy by appeal, proceedings for the disqualification of a judge for alleged bias

Counsel seems to assert that because this court ruled adversely to his petitions for supersedeas, it necessarily and at that time decided the merits of the case on appeal against his client (this regardless of the fact that the briefs on appeal were not even on file). This court did not pass upon tiic merits of the judgment under appeal in determining whether to grant or deny supersedeas. In Estate of Dabney, 37 Cal.2d 402 , 406-407 [ 232 P.2d 481 ], it is appropriately stated: “The correctness of the decision of the trial court (at least when it is not apparent on the face of the record, and it is not so apparent here) is not involved in a supersedeas proceeding; it ‘is not'the function of such a writ to reverse, supersede or impair the force of, or pass on the merits of the judgment or order from which the appeal is taken; the validity of such judgment or order is to be reviewed on the appeal therefrom. [Citations.] Its purpose is merely to suspend the enforcement of the judgment pending the appeal. ’ ’ ’ Even though some determinations were made at the times this court passed upon the various petitions, such is permissible to the extent that it is necessary under the circumstances. However, any determinations made in a supersedeas proceeding do not preclude a re-examination of such matters upon the final argument to whatever extent their re-examination may appear to be justified. (Orange County Water Dist. v. City of Riverside, 171 Cal.App.2d 518 , 523 [ 340 P.2d 1036 ].) In any event the decisions in the supersedeas proceedings are not determinative of the appeal. (Guardianship of Walters, 37 Cal.2d 239 , 252 [ 231 P.2d 473 ].)

Further, the declarations with which we are concerned do not state facts as contemplated in the statutes. Bias and prejudice are never implied and must be established by clear averments.

The court in Calhoun v. Superior Court, 51 Cal.2d 257 , 260 [ 331 P.2d 648 ], succinctly stated the requirements under the law as follows: “Section 170 of the Code of Civil Procedure réquires a verified statement showing facts, not conclusions, from which the claimed disqualification appears to be probable, that is, from which facts the disqualification appears to follow as a conclusión of law. Furthermore, the stated facts must make the bias appear probable as to the issue or issues to bd-triedd’' -

1 ' This court said ín Agnew v. Contractors Safety Assn., 216

In other words, where the statement is legally insufficient the judge may ignore it or strike it from the files. (Ensher, Alexander & Barsoom v. Ensher, 225 Cal.App.2d 318 , 323 [ 37 Cal.Rptr. 327 ] ; Neblett v. Pacific Mut. Life Ins. Co., 22 Cal.2d 393 , 401 [ 139 P.2d 934 ] ; Fishbaugh v. Fishbaugh, 15 Cal.2d 445 , 457 [ 101 P.2d 1084 ] ; People ex rel. Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 , 109 [ 223 P.2d 37 ] ; People v. Hooper, 16 Cal.App.2d 704 , 708 [ 61 P.2d 370 ] ; Ephraim v. Superior Court, 42 Cal.App.2d 578 [ 109 P.2d 378 ] ; People v. Nolan, 126 Cal.App. 623 [ 14 P.2d 880 ].) There being no facts stated in the declarations in this case, we elected to strike the same from the files.

Counsel for appellant also stated, in effect, that he believes there is antipathy between the court and himself to the extent that no client of his can receive an impartial declaration of rights or of the law when he appears in this court. WTiat was said in Higgins v. City of San Diego, 126 Cal. 303 , at page 313 [ 58 P. 824 , 50 P. 670 ], is appropriate: “The judges might, without just provocation, have thought the attorneys guilty of contempt and might have said so, but we cannot say that for this reason they would be disposed to bear down upon the attorneys’ client or unduly favor the city. Nor can we so far impeach the sense of fairness and justice which it is presumed rests in the conscience of every judge as to say that, because the attorney has incorporated distasteful and even scandalous matter in a brief reflecting upon the judge, therefore the judge would punish the offense by mulcting the innocent client. If we must presume bias and prejudice toward the

In any event, there is no antipathy between any member of this court and counsel.

The judgment is affirmed.

Wood, P. J., and Lillie, J., concurred.

A petition for a rehearing was denied October 4, 1967, and appellant’s petition for a hearing by the Supreme Court was denied November 1, 1967.