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Criminal Law-Due Process
(Gray v. Sup. Ct. )

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Criminal Law-Due Process-Suspension Professional License
(Gray v. Sup. Ct.)

As a condition of bail on pending criminal charges, the trial court prohibited Dr. Jeffrey Thomas Gray (Gray) from practicing medicine. The bail condition was requested by the Medical Board of California (Medical Board), which appeared without prior notice at Gray’s arraignment. We hold the bail condition is not unreasonable per se but that its imposition violated Gray’s procedural due process rights under the circumstances presented. We grant a writ of mandate directing the trial court to vacate its order.

Factual and Procedural Background

Gray is a licensed physician and surgeon, specializing in psychiatry. In a complaint filed May 12, 2004, Gray was charged with felony counts of unlawfully prescribing and possessing a controlled substance. (Health & Saf. Code, §§ 11153, subd. (a) & 11350, subd. (a).) The complaint also charges Gray with misdemeanor counts of possessing child pornography (Pen. Code, § 311.11, subd. (a)), possessing a designated controlled substance (Health & Saf. Code, § 11375, subd. (b)(2)), and sexually exploiting a patient or former patient (Bus. & Prof. Code, § 729).

Gray entered a plea of not guilty at his arraignment on May 12, 2004. The trial court reduced bail to $30,000 from the $50,000 specified in the arrest warrant,[1] and ordered Gray to stay away from the alleged victim, a former patient. Without prior notice, the Attorney General appeared for the Medical Board at the arraignment and asked that “as a condition of release on bail that Dr. Gray’s [medical] license be suspended so that he will not be able to prescribe drugs or have access to any kind of patients at all.” The trial court agreed with the Medical Board and entered an order prohibiting Gray from practicing medicine as an additional bail condition.[2] The order also requires Gray to surrender his professional certificates to the Medical Board until the criminal charges are resolved.

Gray filed a petition for a writ of habeas corpus, challenging the bail condition. The trial court issued an order to show cause, held a hearing on July 27, 2004, and ultimately denied the petition, reasoning that public safety is the primary consideration in setting bail. The court noted the matter could have gone before the Medical Board, which presumably possessed greater expertise than the court in assessing a defendant’s competence to practice medicine. The court articulated a concern that the Medical Board faces a dilemma if it commences administrative proceedings to suspend or revoke a medical license while a criminal action is pending, because a determination favorable to the defendant could have a collateral estoppel effect and preclude a criminal prosecution.

After the trial court denied his petition for a writ of habeas corpus, Gray filed a petition for a writ of habeas corpus here, arguing he was deprived of due process and that prohibiting him from practicing medicine is an unreasonable condition of bail. We construed the habeas petition as one seeking a writ of mandate[3] directing the trial court to vacate its May 12, 2004 order prohibiting Gray from practicing medicine, and we issued an order to show cause.

Discussion

I. The Trial Court Violated Petitioner’s Due Process Rights When It Suspended His Medical License as a Condition of Bail.

The state may not deprive a person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) “Due process requires that before one … is disciplined by deprival or abridgement of the right to engage in his business or profession, he be given reasonable notice of the charges against him, notice of the time and place of a hearing, and thereafter a fair hearing on the charges. [Citations.]” (Fort v. Board of Medical Quality Assurance (1982) 136 Cal.App.3d 12, 23.)

In Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 326-329 (Smith), the court analyzed both federal and state due process requirements in a case involving the former Board of Medical Quality Assurance, now known as the Division of Medical Quality of the Medical Board. (See Kees v. Medical Board of California (1992) 7 Cal.App.4th 1801, 1804, fn. 2; Bus. & Prof. Code, § 2003.) “Under federal constitutional analysis, [one] must first establish that the due process clause applies by showing a protected liberty or property interest.” (Smith, supra, 202 Cal.App.3d at p. 326.) “Unquestionably, a physician has a vested property right in his or her medical license, once acquired.” (Ibid., citing Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396.) “Until a formal accusation is filed against a physician, his or her license is valid. [Citations.] Once an accusation is filed, the physician enjoys the protection of a full range of due process rights. [Citations.]” (Smith, supra, 202 Cal.App.3d at p. 326.)

Although the Smith court noted that Smith, a physician, had a vested property interest in his medical license, the court concluded no federal due process rights were at stake because the proceedings at issue—proceedings that at most would result in ordering Smith to take a competency examination—did not immediately jeopardize Smith’s license. (Smith, supra, 202 Cal.App.3d at p. 326.) Here, the trial court’s action jeopardized Gray’s medical license immediately and indefinitely by “suspending” his license while the criminal proceedings were pending.[4] This action directly implicates Gray’s federal due process rights.

As for the due process analysis under the California Constitution, the Smith court noted one “need not establish a property or liberty interest as a prerequisite to invoking due process protections. [Citations.] Instead, the extent to which procedural due process is available depends on a careful weighing of the private and governmental interests involved.” (Smith, supra, 202 Cal.App.3d at p. 327.) This weighing process “generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (People v. Ramirez (1979) 25 Cal.3d 260, 269; accord Smith, 202 Cal.App.3d at p. 327.)

Of these four factors, only the governmental interest appears to have been given much weight by the trial court. Little consideration was given to Gray’s private interest in his license or the risk of erroneously depriving Gray of his license. Nor did the court appear to consider the probable value of additional safeguards or the dignitary interest Gray had in receiving notice of the proposed action and the opportunity to present his side of the story. Indeed, Gray was given no advance notice of the Medical Board’s recommendation that his license be suspended. The Attorney General simply appeared at Gray’s arraignment with a motion in hand, giving Gray’s attorney no opportunity to research the issue before arguing against it. The trial court significantly impaired Gray’s freedom to pursue a private occupation without giving him notice, an effective opportunity to confront the charges or witnesses against him, or a full hearing, in violation of his due process rights.

The Medical Board acknowledges a number of procedures are available to immediately suspend a physician’s right to practice. For example, the Medical Board 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, subd. (a).) The licensee must receive at least 15 days’ notice of a hearing at which witnesses may be called and cross-examined. The required noticed hearing may be avoided if an affidavit establishes by admissible evidence that serious injury would result to the public before a noticed hearing could occur. In such a case, a suspension order may be issued without notice. (Gov. Code, § 11529, subds. (b), (c) & (d).) However, where an immediate license suspension is based on an evidentiary showing by affidavit, the licensee must be given a full hearing within 20 days. (Gov. Code, § 11529, subd. (c).) If an accusation is not filed with the Board within 15 days after the matter is submitted, the order is dissolved. (Gov. Code, § 11529, subd. (f).)

The Medical Board may also seek a temporary restraining order from a superior court restraining a licensee from practicing his or her profession. (Bus. & Prof. Code, § 125.7.) Like an interim suspension order, a temporary restraining order must be based on affidavits, and it must not be issued without notice to the licensee unless evidence establishes that serious injury would result to the public. (Bus. & Prof. Code, § 125.7, subd. (a) & (b).) If no accusation is filed with the Medical Board within 30 days after the restraining order is issued, the order is dissolved. (Bus. & Prof. Code, § 125.7, subd. (d).)

With both interim license suspensions and temporary restraining orders, therefore, an accusation must be filed within a short time after issuance of the order to ensure that the licensee is given all of the due process protections associated with administrative adjudications. (Bus. & Prof. Code, § 125.7, subd. (d); Gov. Code, § 11529, subd. (f); see generally Gov. Code, § 11500 et seq.) If an accusation is filed, a licensee is entitled to a hearing within 30 days and a decision within 15 days after the matter is submitted. (Bus. & Prof. Code, § 125.7, subd. (d); Gov. Code, § 11529, subd. (f).)

Another alternative available to the Medical Board is a superior court injunction against a physician if the Division of Medical Quality has reasonable cause to believe that allowing the physician to practice medicine would endanger the public health, safety, or welfare. (Bus. & Prof. Code, § 2312.) Such proceedings are governed by Code of Civil Procedure provisions concerning injunctive relief. (Bus. & Prof. Code, § 2311; Code Civ. Proc., § 525 et seq.)

Although the Medical Board acknowledges these procedures were available to prevent Gray from practicing medicine, it justifies its failure to use them because a decision favorable to a licensee in an administrative proceeding might have collateral estoppel effect in a later criminal prosecution. According to the Medical Board, because there are strict time limits for filing an accusation and holding a hearing after a temporary restraining order is issued or a license suspended, it is likely that the administrative matter would be fully adjudicated before the criminal action is tried. And, when an administrative agency acts in a judicial capacity and resolves disputed factual issues after the parties have had an adequate opportunity to litigate, the administrative agency’s decision may have a collateral estoppel effect in a subsequent criminal trial. (See People v. Sims (1982) 32 Cal.3d 468, 489-490, superseded by statute on another ground as stated in Gikas v. Zolin (1993) 6 Cal.4th 841, 851-852.)

Even if a decision of the Medical Board would have a collateral estoppel effect in a later criminal trial,[5] this concern cannot justify depriving Gray of his medical license without due process. To be sure, the public safety is paramount, but some measure of due process must be given to a professional license holder before license suspension. The question is what process is due? At a minimum, the suspension must be based on evidence showing an immediate risk to the public. In a proceeding before the Medical Board involving an accusation against a physician, the standard of proof “to revoke or suspend a doctor’s license should be clear and convincing proof to a reasonable certainty and not a mere preponderance of the evidence.” (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856, emphasis in original.) In the case of an interim license suspension authorized by Government Code section 11529, the Medical Board must establish a “reasonable probability” that it will succeed on the merits of the accusation before a physician’s license may be suspended. (Gov. Code, § 11529, subd. (e)(1); see also Stats. 1993, ch. 1267, § 58, p. 7477.) Yet, the Medical Board seems to suggest it can seek an immediate and indefinite suspension of a medical license without notice, evidence, or an adequate opportunity to litigate the issues, simply because criminal charges have been filed. We find no support for the proposition that the due process and proof required for a license suspension may be ignored when a criminal complaint has been filed against a licensee.

Furthermore, one of the procedural options available to the Medical Board—a preliminary injunction prohibiting a physician from practicing medicine during the time criminal charges are pending—does not appear to raise collateral estoppel concerns. There is no requirement that the Medical Board file and adjudicate an accusation after injunctive relief granted pursuant to Business and Professions Code section 2312. The Medical Board dismisses the availability of injunctive relief, however, asserting this “adjunct procedure” affords no greater due process protection than a bail review hearing, which Gray could have pursued. We disagree.

A party moving for injunctive relief bears the burden of showing the harm that would result if a preliminary injunction were not granted. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 838.) In the absence of a verified showing of threatened harm by the moving party, a trial court exceeds its jurisdiction by granting a preliminary injunction. (Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) Although the criminal complaint was signed under penalty of perjury by the Chief Deputy District Attorney, there is nothing to indicate the attorney verifying the criminal complaint had any personal knowledge of the facts alleged. (See ibid. [injunction not permitted except on showing under oath by person with actual knowledge of supporting facts]; see also 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 377, pp. 305-306.) Moreover, the complaint alleges no facts supporting a conclusion that permitting Gray to practice medicine poses an imminent danger of serious injury to the public. Therefore, if the Medical Board had pursued an injunction instead of a bail condition prohibiting Gray from practicing medicine, the trial court’s order would constitute an abuse of discretion because there is no competent evidence demonstrating a serious threat of injury to the public. The complaint, by itself, does not provide the required evidentiary showing.

The availability of a bail review hearing does not remedy this procedural infirmity. When a party is granted a temporary restraining order, that party still has the burden of establishing the threatened harm justifying a preliminary injunction. By contrast, an order setting bail is presumed valid, and it is up to the party seeking modification to show good cause. (See Pen. Code, § 1289.) In the case of a defendant arrested without a warrant for a bailable felony offense, bail is set at the scheduled amount for the charged offense unless a peace officer files a declaration under penalty of perjury setting forth the facts justifying an order setting a higher bail. (Pen. Code, § 1269c.) If simply raising the amount of bail requires such a verified showing, then surely an order depriving a defendant of his or her livelihood and professional license requires, at a minimum, a verified showing of imminent danger to the public.

Accordingly, prohibiting Gray from practicing medicine without prior notice, an evidentiary showing, or an opportunity to be heard violated Gray’s due process rights.

Gray v. Sup. Ct. A107367A_1/5/05 CA1/3 Due Process condition of bail pending criminal charges

Jan 05 2005

A107367A
[PDF] [DOC]

Gray v. Sup. Ct. 1/5/05 CA1/3

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