Kenneally v. Medical Board

Page 504

32 Cal.Rptr.2d 504

27 Cal.App.4th 489

Leo F. KENNEALLY et al., Plaintiffs and Respondents, v. MEDICAL BOARD OF CALIFORNIA et al., Defendants and Appellants.

No. B075024.

Court of Appeal, Second District, Division 5, California.

Aug. 4, 1994.

As Modified on Denial of Rehearing

Aug. 23, 1994.

Review Denied Oct. 13, 1994.

Daniel E. Lungren, Atty. Gen., Calvin W. Torrance and Adrian K. Panton, Deputy Attys. Gen., for defendants and appellants.

Fleishman, Fisher & Moest and Stanley Fleishman, Los Angeles, for plaintiffs and respondents.

GRIGNON, Associate Justice.

The Medical Board of California ¹ appeals from a preliminary injunction staying a physician disciplinary hearing until the physician has the opportunity to conduct certain prehearing depositions. The physician contends Government Code, section 11511, part of the Administrative Procedure Act (Gov.Code, § 11340 et seq.), denies him equal protection by restricting prehearing depositions in physician disciplinary proceedings to those witnesses whose testimony is material and who are unable or cannot be compelled to attend the hearing, when such depositions are not similarly restricted in attorney disciplinary proceedings. We conclude a physician has no fundamental right, for equal protection purposes, to continue to practice his or her profession. Accordingly, in reviewing the challenged statute, we apply the "rational basis" test rather than the "strict scrutiny" test. Finding Government Code section 11511 to be rationally based, we reverse.

FACTS AND PROCEDURAL BACKGROUND

In April 1990, the Board filed an accusation charging Leo F. Kenneally, M.D., with gross negligence and incompetence in performing abortions on six patients, three of whom died. The accusation also charged that Dr. Kenneally's failure to use general anesthetics and to have intravenous lines available when conducting second trimester abortions fell below the standard of care. The disciplinary hearing was set for October 1991. In October 1991, Dr. Kenneally filed an action in the United States District Court for the Central District of California alleging the Board's action was brought in bad faith, for purposes of harassment and as the result of bias. The disciplinary hearing was stayed. The district court dismissed the action, based upon the abstention doctrine of Younger v. Harris (1971) 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. Dr. Kenneally appealed and the Ninth Circuit affirmed the decision. (Kenneally v. Lungren (9th Cir.1992) 967 F.2d 329.) The stay of the disciplinary hearing was lifted.

The disciplinary hearing was rescheduled for April 1993. In February 1993, two supplemental accusations were filed by the Board charging Dr. Kenneally with gross negligence and incompetence in the performance of abortions on two additional patients. Also in February 1993, Dr. Kenneally noticed the depositions of the Board's two expert witnesses, the seven members of the Board, the Board's investigator and Jeannette Drisbach, the director of an independent organization called "Woman's Advocate." The Board informed Dr. Kenneally by letter that the depositions he requested were not authorized pursuant to the Administrative Procedure Act.

In April 1993, Dr. Kenneally filed a complaint for declaratory and injunctive relief in the superior court. ² In the complaint, Dr. Kenneally alleged that the "procedures for revoking or suspending a doctor's license violate ... equal protection provisions of the Fourteenth Amendment to the United States Constitution and article I, section 7, of the California Constitution. Although doctors and lawyers facing disciplinary proceedings are identically situated, they are not treated similarly and doctors are denied crucial rights available to similarly situated lawyers. [p] a. A lawyer facing disciplinary proceedings may avail himself of the Civil Discovery Act, including the right to take depositions prior to the disciplinary hearing. By contrast, doctors facing disciplinary proceedings may not depose witnesses prior to the hearing. [Gov.Code, § 11511.]" ³

The parties stipulated to the issuance of an order to show cause for a preliminary injunction to enable the trial court to consider whether the disciplinary hearing should be stayed until Dr. Kenneally had the opportunity to take the depositions he requested. After a hearing, the trial court issued the preliminary injunction. The trial court found that "Government Code section 11511 on its face and as applied to [Dr. Kenneally] denied him the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution and by article I, section 7 of the California Constitution, because the section denies him the right to take pre-administrative hearing depositions, while lawyers who face license revocation proceedings are accorded such a right."

The Board filed a petition for writ of mandate with this court which we denied because an adequate remedy by appeal existed. In May 1993, the Board filed a petition for writ of supersedeas and request for stay. On May 4, 1993, we issued a temporary stay of the preliminary injunction and expressly stated that the disciplinary hearing, set for May 6, 1993, was not stayed. After Dr. Kenneally's opposition to our temporary stay order was considered, we continued the temporary stay order. The petition for writ of supersedeas was granted on July 15, 1993. The Board appealed from the preliminary injunction.

DISCUSSION

Dr. Kenneally argues Government Code section 11511 must be reviewed under strict scrutiny analysis for equal protection purposes, based on his contention that his right to continue to practice his licensed profession is fundamental. The Board contends the right is not fundamental and the statute need only be rationally based. We first determine the appropriate standard of review and then review the statute under that standard.

Standard of Review

"[T]he equal protection clause requires that those similarly situated not be treated differently unless the disparity is justified." (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 914, 13 Cal.Rptr.2d 245, 838 P.2d 1198.) The Fourteenth Amendment's guarantee of equal protection and the California Constitution's protection of the same right (Cal. Const., art. I, § 7, subd. (a), art. IV, § 16, subd. (a)) are substantially equivalent and are analyzed in a similar fashion. (In re Demergian (1989) 48 Cal.3d 284, 291-292, 256 Cal.Rptr. 392, 768 P.2d 1069; Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 324, 248 Cal.Rptr. 704.)

In considering an equal protection challenge, "we must first determine the appropriate standard of review. [Citation.] The proper standard of review, as developed by the high court, depends upon the classification involved in, and interests affected by, the challenged law." (Bowens v. Superior Court (1991) 1 Cal.4th 36, 42, 2 Cal.Rptr.2d 376, 820 P.2d 600.) The traditional approach involves two tiers. ⁴ "The challenged law will be subject to strict scrutiny only if it operates to the peculiar disadvantage of a suspect class [citation] or impinges on a fundamental right [citation]." (Ibid.; Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198.) "Under this very severe standard, a discriminatory law will not be given effect unless its classification bears a close relation to the promoting of a compelling state interest, the classification is necessary to achieve the government's goal, and the classification is narrowly drawn to achieve the goal by the least restrictive means possible." (Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198.)

Recognizing it is the Legislature's responsibility to draw distinctions between groups, and the lines can rarely be precisely drawn, courts generally apply the rational basis test to most legislation. The rational basis test is routinely applied in areas of economic regulation. (Rittenband v. Cory (1984) 159 Cal.App.3d 410, 417, 205 Cal.Rptr. 576.) "The 'standard formulation of the test for minimum rationality' [citation] is whether the classification is 'rationally related to a legitimate governmental purpose.' [Citation.] Put another way, the classification must bear some fair relationship to a legitimate public purpose." (Board of Supervisors v. Local Agency Formation Com., supra, 3 Cal.4th at p. 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198.)

Here, neither Dr. Kenneally in particular, nor licensed physicians in general, belong to a suspect class. ⁵ Additionally, there is no fundamental right to a prehearing deposition. (Stevenson v. State Bd. of Medical Examiners (1970) 10 Cal.App.3d 433, 440, 88 Cal.Rptr. 815.) Rather, the issue is whether Dr. Kenneally has a fundamental right to continue to practice his licensed profession.

"As to the assertion of a right to continued employment, there is no fundamental constitutional right to work for, or to have continued employment with, a particular public or private employer." (Graham v. Kirkwood Meadows Pub. Util. Dist. (1994) 21 Cal.App.4th 1631, 1643-1644, 26 Cal.Rptr.2d 793 [residence requirements for public utility employees]; Rittenband v. Cory, supra, 159 Cal.App.3d 410, 205 Cal.Rptr. 576 [mandatory retirement age for judge]; Kubik v. Scripps College (1981) 118 Cal.App.3d 544, 549, 173 Cal.Rptr. 539 [mandatory retirement age for college professor]; Hetherington v. State Personnel Bd. (1978) 82 Cal.App.3d 582, 589, 147 Cal.Rptr. 300 [prohibition against employment of ex-felons as peace officers].) ⁶

Nor is there a distinction for equal protection purposes between the obtaining of a professional license and the maintaining of that license. (Board of Medical Quality Assurance v. Superior Court (1980) 114 Cal.App.3d 272, 277, 170 Cal.Rptr. 468.) "No person can acquire a vested right to continue, when...