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Court of Appeal, Second District, Division 4, California.

Nelson F. LEONE, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent.

Shashi D. GANTI, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent.

Nos. B103344, B101297.

Decided: September 24, 1997

Andrew R. Willing, Los Angeles, James Jay Seltzer, Emeryville and Albert J. Garcia, Compton, for Plaintiffs and Appellants. Daniel E. Lungren, Attorney General, Beth Faber Jacobs, Nancy Ann Stoner, and Cindy M. Lopez, Deputy Attorneys General, for Defendant and Respondent.


 If the Division of Medical Quality of the Medical Board of California (the Board) wishes to discipline a physician, it files an accusation and a hearing is conducted before an administrative law judge who issues a recommendation.  (Gov.Code, § 11503 et seq.)   If discipline is imposed (e.g., license suspension or revocation), the physician can challenge that action by filing a mandamus action in the superior court.  (Code Civ. Proc., § 1094.5.) The trial court exercises its independent judgment in reviewing the administrative decision.  (See, e.g., Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1057-1058, 220 Cal.Rptr. 426.)

Prior to 1996, the physician could seek appellate review of the superior court's decision by filing an appeal from the judgment entered in the mandamus proceeding.   That meant that following preparation of the record on appeal, the parties would submit briefs and be entitled to present oral argument and the Court of Appeal would be required to file a written opinion resolving the appeal.   In that context, this court would determine whether the superior court's findings were supported by substantial evidence.  (See, e.g., Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135, 181 Cal.Rptr. 732, 642 P.2d 792.)

 Effective January 1, 1996, the statutory procedure governing appellate review has changed.   This change is part of legislative action designed to expedite the process of disciplining physicians and other health care professionals subject to the Medical Practice Act.1 (Bus. & Prof.Code, § 2000 et seq.)   The law, Business and Professions Code section 2337,2 now provides that appellate review in the Court of Appeal will be done solely through the process of a writ petition.   The change means that absent the issuance of an alternative writ or an order to show cause, the Court of Appeal is not required either to place the case on calendar for oral argument or to file a written decision explaining its analysis and resolution of the claims of error.  (See, e.g., Kowis v. Howard (1992) 3 Cal.4th 888, 894, 12 Cal.Rptr.2d 728, 838 P.2d 250.)   Consequently, the Court of Appeal may dispose of the case simply by issuing a summary denial of the petition.  (Id. at p. 893, 12 Cal.Rptr.2d 728, 838 P.2d 250.)

 This matter requires this court to determine if the new statutory scheme passes constitutional muster.   It arises in the context of motions brought by the Board to dismiss separate appeals taken by two physicians from judgments entered in the superior court denying each physician's request for administrative mandamus to overturn the Board's decision revoking his license.3  Because of the important issues raised by the motions, we consolidated the two cases, requested supplemental briefing from the parties, and placed the matter on calendar for hearing.  (See UAP-Columbus JV 326132 v. Nesbitt (1991) 234 Cal.App.3d 1028, 1030, 285 Cal.Rptr. 856, and rules 21(a) and 41(b), Cal. Rules of Court.)   We now conclude the statute violates the provision of the California Constitution vesting appellate jurisdiction in this court of all original proceedings in the superior court and therefore deny the motions to dismiss.4


The enactment of section 2337 was the result of a process commenced in 1990 to overhaul the entire medical disciplinary process.   The purpose was to improve the disciplinary system and to protect the public.   One particular concern was that the entire process-from the administrative hearing to review by the Court of Appeal-took too long.   To implement this goal, beginning in 1990, section 2337 gave preference in the superior court to mandamus review of Board decisions over all other civil actions.   However, the issue of how to expedite appellate review remained unresolved for several years.   One proposal, which was opposed by the Judicial Council and never took effect, eliminated review in the superior court entirely and substituted in its place writ review to the Court of Appeal in which the Court of Appeal would exercise independent judgment.   One criticism of this approach was that it would cause more delays at the appellate level.   Ultimately, the Legislature adopted the language in issue in this case, preserving trial court review but limiting appellate review to a writ proceeding.

The nub of the opposition to dismiss the appeals is the contention that a physician has a constitutional right to take an appeal from the superior court's judgment denying the writ and that, to the extent section 2337 limits review to a writ proceeding, the statute violates that right.   Two constitutional provisions are pertinent.  California Constitution, article VI, section 11 provides that with the exception of cases in which the death penalty has been imposed, “courts of appeal have appellate jurisdiction when superior courts have original jurisdiction and in other causes prescribed by statute.”  Article VI, section 10 provides that superior courts have original jurisdiction in, inter alia, “proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.”   Because mandamus includes administrative mandamus (Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 826-827, 43 Cal.Rptr. 270), the superior court has original jurisdiction of the mandate actions filed by Drs. Leone and Ganti.   The issue therefore becomes whether the Constitution's grant to this court of appellate jurisdiction over that trial court proceeding gives appellants a constitutional right to a direct appeal, thereby rendering constitutionally deficient section 2337's requirement that any review be taken solely by writ.

The Board urges that our Supreme Court's recent opinion in Powers v. City of Richmond (1995) 10 Cal.4th 85, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (Powers) “provides a constitutionally sound road map for concluding that a ‘direct appeal’ is not constitutionally required in the instant case[s].”  We disagree.

Powers involved the Public Records Act (Gov.Code, § 6250 et seq.) which governs the public's right to gain access to various government records.   A party may bring an action in the superior court seeking disclosure.  (Gov.Code, § 6259, subd. (a).)  The trial court's order granting or denying disclosure “is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.”  (Gov.Code, § 6259, subd. (c).)  The issue in Powers was whether the Legislature could constitutionally make a writ proceeding the exclusive mode for appellate review of the trial court's decision.   Unfortunately, in resolving the issue, the Supreme Court did not fashion a clear majority opinion.   Instead, three separate opinions, none of which commanded a majority, were issued.

The three-justice lead opinion stated:  “[T]he ordinary and widely accepted meaning of the term ‘appellate jurisdiction’ is simply the power of a reviewing court to correct error in a trial court proceeding.   By common understanding, a reviewing court may exercise this power in the procedural context of a direct appeal, a writ petition, or otherwise.   Thus, a provision conferring ‘appellate jurisdiction’ does not necessarily or strongly imply a right of litigants to bring direct appeals.”  (Powers, supra, 10 Cal.4th at p. 93, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)   The lead opinion therefore concluded that the Constitution did not confer upon a litigant a right to a direct appeal to the Court of Appeal for a case falling within the superior court's original jurisdiction.   Stated another way, the lead opinion concluded that the Constitution merely guarantees the right to appellate review but does not guarantee the specific procedure by which review is conducted, e.g., direct appeal or writ.   The opinion reached this conclusion based upon a textual analysis of the constitutional provision (id. at pp. 91-93, 40 Cal.Rptr.2d 839, 893 P.2d 1160) as well as a lengthy analysis of the antecedents to this provision and case law interpreting them (id. at pp. 93-110, 40 Cal.Rptr.2d 839, 893 P.2d 1160).

A two-justice concurring opinion did not join in the lead opinion's overall analysis that a litigant does not possess a constitutional right to prosecute a direct appeal from a judgment in the superior court.  (Id. at pp. 115-116 and 123-124, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)   Instead, the concurring opinion limited its analysis to the Public Records Act provision under review.   The concurring opinion decided that the Legislature's decision “that appellate review by extraordinary writ, rather than by direct appeal, would better protect the rights afforded by the Public Records Act [ ] did not violate article VI, section 11․”  (Id. at p. 123, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)   Consequently, the concurring opinion did not believe it necessary to decide in what other contexts the Legislature could substitute writ review for review by direct appeal.  (Id. at pp. 123-124, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)

A two-justice dissenting opinion analyzed the historical data about the California Constitution and case law differently than the lead opinion had done and concluded that “article VI, section 11 grants a constitutional right to review on appeal-i.e., review on the merits and a written opinion-of judgments that arise from the original jurisdiction of the superior court.”   (Id. at p. 174, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)

Thus, in Powers, the only real point upon which a majority of the court agreed was that Government Code section 6259, subdivision (c) did not violate the state Constitution.   Contrary to what the Board urges, this singular holding hardly constitutes a compass by which to resolve appellants' contention that section 2337 violates article VI, section 11.   For one thing, the constitutional analysis which supports the view that the Legislature may substitute review by writ for review by appeal is only found in a three-justice plurality opinion.   The analysis therefore lacks authority as precedent so it is not binding upon this court.  (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918, 13 Cal.Rptr.2d 245, 838 P.2d 1198.)   In addition, the concurring opinion rested its analysis upon its finding that furthering the goal of disclosing public information when the material was still newsworthy or significant to the moving party was better effectuated by providing for review of superior court decisions through a writ proceeding instead of an appeal.   Thus, the concurring opinion is limited to a discrete situation unlike that presented here.5  In sum, Powers does not resolve this matter.

 We therefore turn to the case law interpreting the pertinent provisions of our state Constitution.   Over a hundred years ago, the California Supreme Court held that the Legislature could not abridge the jurisdiction vested in it by the Constitution and “take from parties the right of appeal, by the easy device of a change of procedure, in many cases, where the right and jurisdiction are unquestioned.”  (People v. Perry (1889) 79 Cal. 105, 107, 21 P. 423.)   In In re Sutter-Butte By-Pass Assessment (1923) 190 Cal. 532, 213 P. 974, the Supreme Court was confronted with a statute which abrogated the right to appeal in cases challenging the legality of a tax assessment.   The court found the statute unconstitutional.   In language we believe to be equally applicable to this case, it held:

“ [I]t is the settled rule of law that if the right of appeal is constitutionally granted in any given case such right cannot be destroyed nor delimited by legislative enactment.  ‘The courts of this state derive their powers and jurisdiction from the constitution of the state.   The constitutional jurisdiction can neither be restricted nor enlarged by legislative act.   An attempt to take away from the courts judicial power conferred upon them by the constitution is void.’  [Citation.]  [Case law precedent] recognize[s] that litigants have a constitutionally guaranteed right of appeal in all litigated matters within the express jurisdiction of appellate courts.  [¶] And if the legislature cannot take away this right by direct enactment neither can it accomplish the same result by any indirect device․  [I]t cannot, under the guise of creating a new statutory remedy, deprive a litigant of an existing constitutionally guaranteed right to defend, even unto a court of last resort, against the enforcement of an alleged right.   This right to so defend, once existing, continues regardless of the form in which the legislature may cast the remedy․  ‘This court retains jurisdiction of the case notwithstanding the legislature may have changed the procedure, enlarged the remedy and given it a new name.   To hold otherwise would be to admit a power in the legislature to abridge our jurisdiction and to take from parties the right of appeal by the easy device of a change of procedure in many cases where the right and jurisdiction are unquestioned.’ ”

(190 Cal. at pp. 536-537, 213 P. 974.)

 Simply stated, the Legislature does not have the power to destroy the right of an appeal that is constitutionally granted.  (See also Byers v. Smith (1935) 4 Cal.2d 209, 213-214, 47 P.2d 705.)  Section 2337 effectively destroys a physician's right to appeal by relegating him or her to filing a petition for an extraordinary writ in this court.   Absent issuance of an alternative writ or an order to show cause, the requirement of article VI, section 14 that “[d]ecisions of the ․ Courts of Appeal that determine causes shall be in writing with reasons stated” does not attach.   This requirement is significant because it “is designed to insure that the reviewing court gives careful thought and consideration to the case and that the statement of reasons indicates that appellant's contentions have been reviewed and consciously, as distinguished from inadvertently, rejected.”  (People v. Rojas (1981) 118 Cal.App.3d 278, 288-289, 174 Cal.Rptr. 91;  see also Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1265-1268, 48 Cal.Rptr.2d 12, 906 P.2d 1112 [constitutional requirement of a decision with reasons stated is not satisfied by an opinion from the Court of Appeal in which lead justice authors an opinion, concurring justice simply states she “concurred in the result” without any explanation or opinion, and third justice wrote a dissenting opinion].)  Furthermore, absent the issuance of an alternative writ or order to show cause, the matter would not be placed on calendar for hearing, thereby depriving the petitioner of the right to present oral argument.   The right to present oral argument in civil appeals in the Courts of Appeal is recognized by the Constitution (Cal. Const., art.   VI, § 3;  Moles v. Regents of University of California (1982) 32 Cal.3d 867, 872, 187 Cal.Rptr. 557, 654 P.2d 740) and is extremely valuable to a litigant.  (Moles, supra, at pp. 872-873, 187 Cal.Rptr. 557, 654 P.2d 740.)   Because both the right to a written decision with a statement of reasons and the right to present oral argument do not attach in a writ proceeding, we reject the Board's argument that a physician's right to an appeal is adequately preserved because “when writ review is the exclusive means of appellate review of a final order or judgment, such as in the instant case, an appellate court may not deny the petition without reaching the merits.”  (Emphasis in original.)

To a certain extent, the Board attempts to avoid the force of this conclusion by pointing out that in numerous other situations, a litigant is limited to review by writ rather than review by appeal when seeking judicial review of an administrative decision.   These include decisions of the Public Utilities Commission, the State Bar Court, the Workers' Compensation Appeals Board, the Alcoholic Beverage Control Appeals Board, the Agricultural Labor Relations Board, and the Public Employee Relations Board.   These matters are clearly distinguishable because in none of them is a litigant entitled to file an administrative mandamus action in the superior court.   Thus, the linchpin of our analysis-article VI, section 11's grant to this court of appellate jurisdiction of all matters over which the superior court has original jurisdiction-does not even apply.

Contrary to the Board's argument, legislative changes to the procedures governing judicial review of the Alcoholic Beverage Control Appeals Board (ABC Appeals Board) do not support the Board's present position.   In fact, a brief review of the history of the ABC Appeals Board provision demonstrates the fallacy of the Board's analysis.   The authority for the formation of the ABC Appeals Board is found in article XX, section 22 of the California Constitution.   Prior to the Legislature's enactment in 1967 of amendments to the Alcoholic Beverage Control Act, the superior court had jurisdiction to review decisions of the ABC Appeals Board.   However, the 1967 amendments abrogated trial court jurisdiction and limited a litigant to filing a writ of review in the Court of Appeal or Supreme Court.   A litigant challenged this change in the law, urging that it constituted an unauthorized attempt by the Legislature to limit the constitutional jurisdiction of the superior courts.   The Court of Appeal rejected this contention, finding that article XX, section 22's grant of authority to the Legislature to regulate alcoholic beverages included the power to change the method by which a litigant sought judicial review of an administrative decision.  (Dept. of Alcoholic Bev. Control v. Superior Court (1968) 268 Cal.App.2d 67, 71-75, 73 Cal.Rptr. 780.)

These matters stand in marked contrast to the matter before this court.   The Board has not cited any provision of the state Constitution which grants the Legislature the power to regulate the manner of judicial review of administrative mandate proceedings filed in the superior court.   The only pertinent constitutional provision is the one granting this court appellate jurisdiction over those proceedings.   Thus, unlike the situation presented by the 1967 amendments to the Alcoholic Beverage Control Act, we are not presented with a class of cases for which the Legislature is constitutionally empowered to regulate issues of appellate jurisdiction.

In conclusion, that portion of section 2337 which provides that an appellate challenge to the superior court's judgment entered in an administrative mandamus action can only be done by extraordinary writ is an impermissible attempt to limit the constitutional jurisdiction of the Court of Appeal.   We will therefore deny the Board's motion to dismiss the two pending appeals.


The motions to dismiss the appeals are hereby denied.   Our orders of October 25, 1996, and March 5, 1997, relieving the parties of their obligations to file briefs on the merits of the respective appeals, are to remain in effect pending finality of this opinion.


1.   The Board has furnished two volumes of legislative history as part of its motion to dismiss.   The Board's motion that we take judicial notice of this material is granted.

2.   Business and Professions Code section 2337 provides, in toto:  “Notwithstanding any other provision of law, superior court review of a decision revoking, suspending, or restricting a license shall take preference over all other civil actions in the matter of setting the case for hearing or trial.   The hearing or trial shall be set no later than 180 days from the filing of the action.   Further continuance shall be granted only on a showing of good cause.  [¶] Notwithstanding any other provision of law, review of the superior court's decision shall be pursuant to a petition for an extraordinary writ.”  (Emphasis added.)All subsequent references to “section 2337” are to the italicized portion of this provision.

3.   The two appellants are Drs. Leone and Ganti.The superior court conducted its hearing on Dr. Leone's petition for administrative mandamus in February 1996 and issued its judgment denying relief in April 1996.   Dr. Leone filed his notice of appeal in June 1996.   As noted above, section 2337 became effective January 1, 1996.   Other than his constitutional claims, Dr. Leone makes only one other argument as to why section 2337 cannot be applied to him.   He points to the fact that the section mandates only writ review of “the superior court's decision” (emphasis added) as opposed to the superior court's judgment denying the mandamus petition in order to argue that the section does not bar the present appeal taken from the judgment.   This argument lacks merit.   Analyzing section 2337 in context of the statute's legislative history demonstrates that the statute was intended to provide the sole vehicle for review by the Court of Appeal of the mandamus action filed in the superior court.   That is, in the context of section 2337, we construe the word “decision” to mean the superior court's final decision:  the judgment denying or granting the mandate petition.   Adoption of Dr. Leone's interpretation would mean that by enacting section 2337, the Legislature intended to broaden the scope of appellate review of medical disciplinary actions by codifying a right to seek review by writ of an interlocutory order such as the trial court's statement of decision while at the same time leaving intact the right granted by section 904.1, subdivision (a)(1) of the Code of Civil Procedure to appeal from the final judgment entered in the action.   This conclusion runs completely counter to the express legislative goal of streamlining and expediting the physician discipline process.In regard to Dr. Ganti, the superior court conducted the hearing on his mandate action in December 1995 and issued its judgment in January 1996.   Dr. Ganti filed his notice of appeal in March 1996.   Dr. Ganti urges that section 2337 cannot be applied to him because it was not operative at the time of the contested trial court hearing which resulted in the judgment from which he appeals.   Given our decision that section 2337 impermissibly trespasses upon the constitutional right to an appeal, we need not and do not address this argument.

4.   Given our analysis, there is no need for us to address appellants' additional contentions that section 2337 violates the due process and equal protection clauses of the state and federal Constitutions.

5.   In this proceeding, the Board has completely failed to establish any public interest furthered by requiring writ review instead of review by appeal of trial court judgments in medical administrative mandamus actions.  Code of Civil Procedure section 1094.5, subdivision (h)(3) provides:  “If an appeal is taken from a denial of the writ [filed in the superior court], the order or decision of the ․ agency [e.g., the Board] shall not be stayed except upon the order of the court to which the appeal is taken.”   This means that absent an order from this court, a physician whose license has been suspended or revoked will not be able to practice while this court considers the appeal.   Or stated more bluntly, the public can only be harmed by an errant physician practicing during appellate review if the Court of Appeal permits the physician to practice by granting a stay of a suspension or revocation order.In supplemental briefing on the question of whether section 2337 denied equal protection to physicians, the Board offered the following justification for the statute.  “Not all physician discipline results in a revocation.   In many instances, a physician is suspended and placed on probation (or merely placed on probation without suspension).   In these instances (and as soon as the physician has completed the suspension if one was imposed), the physician continues to practice during superior and appellate court review process.   The public is not fully protected because the physician can continue to say the matter is on appeal, implying to the public that [it] is not final, that it was wrongly imposed, and that it will be set aside.  [¶] Only completion of the appellate process fully puts the public on notice and eliminates uncertainty.   Discipline on appeal can be reversed.   Thus, the Medical Board's Action Report of Discipline (its newsletter mailed to physicians, hospitals and insurance companies, which includes discipline for all MPA licensees), does not report discipline until it is final and all judicial appeals have been exhausted.   When a member of the public telephones [the Board] and inquires about a licensee's status, the inquiree is told that the discipline has been imposed.   When the discipline has been appealed but judicial review is not concluded, the Board[ ] advise[s] the inquiree of this fact as well.   Inherently, the conclusion is not clear.   Only finality of the appellate process adds that clarity.”While the Board is searching for “clarity,” it has ignored logic.   The premise of the Board's argument is that limiting appellate review to review by writ will more quickly expedite a final disposition of the matter-affirmance of the Board's disciplinary decision-whether that affirmance flows from a summary denial of the physician's writ petition or an opinion filed after issuance of an alternative writ or order to show cause.   Assuming arguendo the vitality of this premise, the Board misses the point.   A prospective patient who inquires about a physician does not really care whether the Board's disciplinary decision is still subject to appellate review or is now final.   The only one adversely affected by the information now being disseminated is the physician but that is a consequence of the Board's policy of disclosure, a consequence which is unaffected by the mode of appellate review in force.

CHARLES S. VOGEL, Presiding Justice.

EPSTEIN and HASTINGS, JJ., concur.

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