AMICO v. The Board of Osteopathic Examiners and John L. Bolenbaugh, its President, Respondents.

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Court of Appeal, Third District, California.

Theodore A. D'AMICO, et al., Plaintiffs, Respondents and Cross-Appellants, v. The BOARD OF MEDICAL EXAMINERS and Genest de L'Arbre, its President, Defendants, Appellants and Cross-Respondents, The Board of Osteopathic Examiners and John L. Bolenbaugh, its President, Respondents.

Civ. 13376.

Decided: December 07, 1972

Tobin & Gassner, Upland, for plaintiffs, respondents and cross-appellants. Hassard, Bonnington, Rogers & Huber, San Francisco, amicus curiae for Medical Assn., for defendant-appellant. Evelle J. Younger, Atty. Gen. by Joel E. Carey and Talmadge Jones, Deputy Attys. Gen., Sacramento, for defendants-appellants and cross-respondents. Clarence S. Brown, Sacramento, for defendants-respondents, Bd. of Osteopathic Examiners, etc.

Eight petitioners, graduates of out-of-state colleges of osteopathy, seek a writ of mandate to compel the State Board of Medical Examiners and State Board of Osteopathic Examiners to process their applications for certification either as allopathic physicians (i. e., doctors of medicine) or as osteopathic physicians. All hold Doctor of Osteopathy (D.O.) degrees granted by out-of-state colleges of osteopathy. Several of the petitioners want original licenses, others reciprocity licenses. The two boards had taken the position that the amendments to the Osteopathic Initiative Act approved by the California voters at the 1962 general election, prohibit osteopathic graduates' admission to practice either profession in this state. Petitioners assert a denial of the constitutional guarantees of equal protection because the law permits original and reciprocity licensing of medical school graduates but denies licensing to graduates of osteopathic colleges.

The first stage of the litigation culminated in a superior court judgment rejecting petitioners' claim of unconstitutionality and declaring that petitioners were eligible for original (but not reciprocity) certification as allopathis physicians, provided their osteopathic colleges received approval of the State Board of Medical Examiners. Petitioners appealed. In a decision filed April 17, 1970, we reversed the judgment. (D'Amico v. Board of Medical Examiners (1970) 6 Cal.App.3d 716, 86 Cal.Rptr. 245.) The State Supreme Court denied a petition for hearing.

After the remand, a second round of trial court activity culminated in a summary judgment declaring petitioners' entitlement to apply for certification as osteopaths. The summary judgment decreed invalidity of the 1962 amendments as a denial of constitutional guarantees of equal protection; declared that the Board of Osteopathic Examiners was empowered to license petitioners (and other graduates of osteopathic colleges) as osteopaths; declared that the Board of Medical Examiners had no power to license such graduates and called for a writ of mandate requiring the osteopathic board to receive and process petitioners' applications to practice osteopathy in California. Represented by the Attorney General, the State Board of Medical Examiners appeals. Represented by separate counsel, the State Board of Osteopathic Examiners, albeit with some reluctance, has joined petitioners in seeking affirmance of the judgment. Petitioners have filed a cross-appeal, objecting only to that portion of the trial court's decision which denied an award of attorney fees. Counsel for the California Medical Association have filed an amicus curiae brief supporting the contentions of the Board of Medical Examiners.

In our published opinion on the former appeal, we described the 1962 ballot proposition and accompanying statutes, which had been designed to ‘merge’ the osteopathic and allopathic medical professions in California. We also described the history of the California licensing laws governing these professions. We do not repeat those descriptions. Suffice it to say that between 1913 and 1922 the Board of Medical Examiners had statutory authority to grant licenses as physicians and surgeons both to graduates of medical schools (i. e., to holders of the M.D. degree) and to graduates of osteopathic colleges (D.O.s). in 1922 the voters approved an initiative act eliminating the licensure of osteopathic graduates by the Board of Medical Examiners and establishing a separate licensing system for osteopaths under a Board of Osteopathic Examiners. (See Gamble v. Board of Osteopathic Examiners (1942) 21 Cal.2d 215, 216–217, 130 P.2d 382.) We then described a 1961 agreement between the statewide associations representing the two professions. That agreement envisioned a ‘merger’ of the two professions by eliminating future licensure of osteopaths and by permitting presently practicing osteopaths to elect either of two alternatives: continued osteopathic practice under licenses administered by the Board of Osteopathic Examiners or practice as physicians and surgeons under licenses administered by the Board of Medical Examiners. (See Osteopathic Physicians & Surgeons v. California Medical Association (1964) 224 Cal.App.2d 378, 36 Cal.Rptr. 641.) The merger agreement became the basis of a legislative act which was submitted to the voters in 1962 as an amendment to the initiative act of 1922. (See Bus. & Prof.Code, § 3600–1 et seq.)

In our opinion on the former appeal, we expressed a series of holdings, which we now summarize as follows:

(1) Except for those osteopaths and students covered by a grandfather clause, the 1962 law prohibited the licensing of new osteopaths (6 Cal.App.3d at pp. 723–725, 86 Cal.Rptr. 245).

(2) The objectives of the 1962 act were inconsistent with any intent to revive the licensing of holders of the D.O. degree by the Board of Medical Examiners (6 Cal.App.3d at pp. 725–726, 86 Cal.Rptr. 245). Failure to provide ‘equal protection of the laws' was an appropriate constitutional challenge to a statute which permitted the licensing of medical school graduates and prohibited licensing of osteopathic graduates. The governing constitutional principle was the law-making authority's power to draw classifications which are not arbitrary but have a rational basis, bearing a substantial relation to a legitimate public objective (6 Cal.App.3d at p. 727, 86 Cal.Rptr. 245).

(3) Application of that constitutional principle turned on factual considerations and entailed the taking of evidence. The constitutional inquiry into the question of reasonableness versus arbitrariness could not be determined on demurrer but by a trial and ‘full scale hearing.’ Accordingly, we remanded the proceeding to the trial court to ‘be tried in accordance with the views herein expressed.’ (6 Cal.App.3d at pp. 727–728, 86 Cal.Rptr. at p. 252.)

Our decision on the first appeal became ‘the law of the case,’ governing the future course of the litigation. (6 Witkin, Cal. Procedure (2d ed.), Appeal, § 633, pp. 4552–4553.) Unfortunately, the proceedings following remand have been characterized by misinterpretation, misunderstanding and misapplication of the law of the case. This lawsuit has gone sadly awry. Public and private litigation expenses, legal effort, judicial effort and 2 1/2 years or time have been wasted without advancing petitioners' entitlement to proper judicial review of the 1962 law's constitutionality. We will reverse the judgment. To guide future proceedings it is necessary to restate the law of the case in unmistakeable language and to analyze past proceedings in critical terms.

THE LAW OF THE CASE.

For six years after adoption of the 1962 law, both the Board of Medical Examiners and the Attorney General as its counsel had taken the position the (aside from existing osteopathic licensees) the law now prohibited licensing osteopathic graduates as allopathic physicians. The Board of Osteopathic Examiners, moreover, viewed the 1962 law as a prohibition against the grant of new licenses to practice osteopathy. These positions caused rejection of the applications of the eight petitioners, impelled this lawsuit and supplied the target for petitioners' claim of unconstitutionality.1

In 1969, more than a year after this lawsuit had been filed, the Board of Medical Examiners radically altered its version of the California electorate's 1962 objectives. It now took the position that the voters of 1962 had not prohibited the future licensing of osteopathic graduates, but intended to permit their certification as physicians and surgeons at the hands of the Board of Medical Examiners, provided only that the board approved the osteopathic colleges granting their degrees. (In this case the colleges are in other states. None of them has received or applied for such approval.) The Attorney General similarly altered his view of the voters' intent. Thus, in this lawsuit, the Attorney General has sought to eliminate the constitutional issue raised by petitioners, contending that the only impediment to relief was petitioners' own failure to seek the medical board's approval of their osteopathic alma maters.2

In our opinion on the first appeal we distinctly rejected the position now advanced by the Board of Medical Examiners and the Attorney General. We stated (6 Cal.App.3d at pp. 724–725, 86 Cal.Rptr. 245 at p. 249):

‘Even as late as May 23, 1969 (this action was filed March 15, 1968), the Medical Board continued to take the position that it was without authority to grant licenses to graduates of osteopathic schools. Interpretation of statutes by the agencies which must administer and enforce them is entitled to great weight in the courts. [Citations.]

‘It is true that since the filing of this action both the Attorney General and the Medical Board have changed their position in regard to the effect of the 1962 Osteopathic Act. Nevertheless, their long continued contrary opinion is still entitled to consideration by us in determining the effect of the act; nor should their less than enthusiastic change of opinion, practically forced by the bringing of this action, upset the value of their original six-year interpretation. [Citations.]

‘. . .

‘Certain acts of the Legislature indicate that it, too, has interpreted the act as prohibiting new osteopaths from licensure. Section 2310 of the Business and Professions Code, to become operative in the event of the passage of the 1962 Osteopathic Act, provides reciprocity for persons authorized to practice medicine and surgery in another state provided he is a graduate of an approved medical school but denies it to a graduate of any other school. This would include osteopathic school graduates.

‘. . .

‘. . . Thus the eliminated section 2 of the 1922 act provided that graduates of osteopathic schools should make application to the Osteopathic Board for licenses provided for in the Medical Practice Act, but nothing is [now] stated as to whether osteopathic graduates could still apply for such licenses or to whom application should be made.’

Our distinct acceptance of the original view taken by the state agencies and our distinct rejection of their altered view became the law of the case, governing later proceedings. For the purpose of later proceedings, it was now settled that one of the objectives of the 1962 law was to prohibit future California licensing of graduates of osteopathic colleges to practice either as osteopaths or as allopathic physicians and surgeons.

In the trial court proceedings following our remand, none of the parties espoused the objective sought by the California Legislature when it proposed the 1962 law and by the voters who approved it. The eight petitioners recognized existence of the statutory prohibition but alleged its unconstitutionality. The Board of Osteopathic Examiners reluctantly joined in that contention. The Board of Medical Examiners and the Attorney General ignored the law of the case and continued to urge the viewpoint this court had rejected. Although adversary proceedings of a sort occurred, there was an unseen and unrecognized party who received no representation—the lawmaking branch of the state, that is, the legislature which proposed and the electorate who approved the 1962 amendments.3 None of the parties advocated the constitutionality of the California voters' objective—the exclusion of osteopathic graduates from future licensing as medical doctors.

THE TEST OF CONSTITUTIONALITY.

This court's directive for a trial and the taking of evidence had been premised upon the conventional standard for reviewing economic and social welfare legislation challenged as a denial of equal protection. The standard upholds the legislature's discretionary choice of differentiated treatment if it bears a rational relationship to a conceivably legitimate state purpose, i. e., if it has a rational basis; it requires the reviewing court to draw a presumption that the facts supply a rational basis and imposes the burden of demonstrating arbitrariness upon the statute's assailant. (Allied Stores of Ohio v. Bowers (1959) 358 U.S. 522, 526–527, 79 S.Ct. 437, 3 L.Ed.2d 480; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487.) This standard is traditionally employed in judicial dealings with occupational licensing laws, including those governing practitioners of the healing arts. (Williamson v. Lee Optical of Oki. (1955) 348 U.S. 483, 488–489, 75 S.Ct. 461, 99 L.Ed. 563; Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 232–233, 18 Cal.Rptr. 501, 368 P.2d 101; see also, Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 548, 63 Cal.Rptr. 21, 432 P.2d 717; Gamble v. Board of Osteopathic Examiners, supra, 21 Cal.2d at p. 219, 130 P.2d at 382; Oosterveen v. Board of Medical Examiners (1952) 112 Cal.App.2d 201, 208, 246 P.2d 136.)

An alternative test is employed when the statute imposes a ‘suspect classification’ or trenches upon ‘fundamental interests.’ In the latter cases, the burden of support does not fall upon the assailant but upon the state, which must establish not only that it has a compelling interest in the law but that the law's distinctions are necessary to further its purpose. (Sail'er Inn, Inc v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; Westbrook v. Mihaly, supra, 2 Cal.3d at pp. 784–785, 87 Cal.Rptr. 839, 471 P.2d 487; Purdy & Fitzpatrick v. State (1969) 71 Cal.2d 566, 578–579, 79 Cal.Rptr. 77, 456 P.2d 645.)

In Sail'er Inn v. Kirby, supra, the State Supreme Court considered a statute barring females from employment as bartenders; in Purdy & Fitzpatrick, supra, a statute barring aliens from employment on public works projects. The court placed both statutes in the fundamental-interest-suspect-classification category and both failed to meet the test. The fundamental interest was the opportunity to gain a livelihood in a lawful occupation or, as it is often said, ‘in the common occupations of the community.’ (See, e. g., Bixby v. Pierno (1971) 4 Cal.3d 130, 145, fn. 12, 93 Cal.Rptr. 234, 481 P.2d 242.) Petitioners contend here that the 1962 osteopathic law bars them from livelihood in California; that its ban against licensing osteopathic graduates evokes the fundamental-interest test.

In granting the summary judgment of unconstitutionality, the trial court adopted the fundamental-interest test, specifically resting its decision on Sail'er Inn v. Kirby. It held that the state had failed to produce evidence establishing a compelling state interest in the classification drawn between holders of the M.D. and D.O. degrees.4 This appeal requires us to decide whether the court applied the appropriate test.

The verbal signals which evoke one test or the other are semantically suspect. The present legislation bears simultaneously the earmarks of economic legislation and that restricting the opportunity for livelihood. Most of the myriad forms of economic legislation pervading American life trench upon livelihood, however indirectly. This truism does not mean that all classifications affecting occupational activity are constitutionally suspect. One must recognize that the phrases which trigger these tests are only judicial shorthand for relatively extended analysis.

The two-level test of equal protection describes a shifting quantum of judicial power in relation to the legislative branch. An analogous shift occurs when the courts review administrative decisions of the executive branch. There too, judicial power expands in direct ratio to the action's impact upon the fundamental interests of the individual citizen. Bixby v. Pierno, supra, 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, analyzes the factors denoting existence of a ‘vested fundamental right.’ At this point we attempt a paraphrase of the Bixby opinion (4 Cal.3d at pp. 142–146, 93 Cal.Rptr. 234, 481 P.2d 242): The courts must decide on a case-by-case basis whether the governmental act substantially affects fundamental vested rights; in this inquiry the courts consider the nature of the individual's right; if it is a fundamental right, whether the individual already possesses or only seeks to gain it; to determine whether the right is fundamental, the courts weigh not only its economic aspect, but its effect in human terms and its importance in the individual's life situation; the opportunity to continue in a trade or profession is more zealously guarded than the opportunity for entrance to it.

Bixby v. Pierno supplies only a partial analogy, for it dealt with an individual adjudication, not a legislative regulation of general application. Decisions applying the fundamental-interest test to occupational regulations reveal further factors. In Purdy & Fitzpatrick the court exposed the relatively shallow public interest in barring aliens from employment on public works projects. (71 Cal.2d at pp. 580–581, 79 Cal.Rptr. 77, 456 P.2d 645.) In Sail'er Inn the court prefaced its equal protection discussion by noting the relative lack of physical danger in bartending. (5 Cal.3d at pp. 9–10, 95 Cal.Rptr. 329, 485 P.2d 529.) We infer, then, an additional set of factors which enter into the choice of tests applied to occupational regulations the complexities of the occupational field; the comparative abilities of the judicial and legislative branches to investigate the need and kind of regulation; the possibility of differing regulatory judgments, all possessing rationality; finally, the intensity of the public's need for regulation in the particular field.

In the matter of qualifications neither calling, osteopathic or allopathic medicine, is a ‘common occupation of the community.’ Both demand extensive education and high skill. Lack of professional competence in either threatens acute danger to public health and safety. Courts have usually deferred to legislative judgment in the regulation of practitioners of the healing arts. (See, e. g., Williamson v. Lee Optical of Okla., supra, 348 U.S. at pp. 487–489, 75 S.Ct. 461, 99 L.Ed. 563; Dent v. West Virginia (1889) 129 U.S. 114, 123, 9 S.Ct. 231, 32 L.Ed. 623; Gamble v. Board of Osteopathic Examiners, supra, 21 Cal.2d at p. 219, 130 P.2d 382; Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d 124, 140–141, 40 Cal.Rptr. 171.) The extent of deference is illustrated by statements describing the legislature's ‘plenary’ power to regulate the practice of medicine. (Mann v. Board of Medical Examiners (1947) 31 Cal.2d 30, 41, 187 P.2d 1; Savelli v. Board of Medical Examiners, supra.) Moreover, regulations dealing with the treatment of disease may vary according to the schools or methods of practice so long as they entail no unreasonable discrimination. (Gamble v. Board of Osteopathic Examiners, supra.)

When the law bars a woman from bartending or an alien from construction work, judges may readily draw inferences of arbitrariness. Simple qualifications for simple jobs are vulnerable to the ad hominem appraisals which characterize the fundamental-interest test. Appraisals of that sort are inappropriate in dealing with legislative choices touching the qualifications of medical practitioners. Courts have no ready means of discerning whether a rational basis exists for the criteria of entry into the healing arts. As medical technology becomes increasingly complex and recondite, the choice of entry standards entails increasing delicacy and care. A finding of no rational basis for such standards is rarely possible without taking evidence.

The challenged statute affects petitioners adversely and vitally, prospectively barring them from an otherwise lawful occupation. Nevertheless, it cannot be tested by the fundamental-interest criterion. Petitioners seek admission to professional status, not preservation of an existing status. More important, the field of regulation, the sharp public need for regulation and the complex factors involved in fixing entry standards—these elements impel the conclusion that the presumptive validity test accorded to economic and social welfare legislation is the governing test here. Evidence is necessary in order to establish lack of a rational basis.

PROPRIETY OF THE SUMMARY JUDGMENT

In passing upon the summary judgment motion, the trial court erred by applying the fundamental-interest test. The state did not have the burden of coming forward with evidence of a rational basis for the law's restrictions; rather, petitioners bore—as they still do—the burden of showing legislative arbitrariness. The summary judgment was erroneous for the added reason that it didn't rest upon objective evidence of the public conditions underlying the statute, but upon the subjective appraisals of the parties. We elaborate upon the latter point to provide guidance for the future conduct of this lawsuit.

A summary judgment is available when the parties' pleadings and declarations reveal the absence of a triable issue of fact or, in equivalent terms, that the case turns on a question of law unmixed with fact. (4 Witkin, Cal. Procedure (2d ed.), Proceedings Without Trial, pp. 2825–2828.) If a question of constitutionality may be decided on the face of the statute or by resort to judicial knowledge of commonly known and undebatable facts, a summary judgment motion is one of several procedural platforms for the inquiry. (See, e. g., Purdy & Fitzpatrick v. State, supra, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645; Weaver v. Jordan (1966) 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289.)

Other constitutional inquiries entail fact-finding and the taking of evidence. A court examines an issue of claimed arbitrariness in terms of the statute's immediate objective, its ultimate effect and the conditions preceding its enactment.5 (Reitman v. Mulkey (1967) 387 U.S. 369, 373, 87 S.Ct. 1627, 18 L.Ed.2d 830; Mulkey v. Reitman (1936) 64 Cal.2d 529, 534, 50 Cal.Rptr. 881, 413 P.2d 825; see also, Westbrook v. Mihaly (1970) 2 Cal.3d 765, 774, 87 Cal.Rptr. 839, 471 P.2d 487.) Where the rational basis for legislation defends upon facts beyond the range of judicial notice, the courts must have recourse to evidence; the statute, although valid on its face, may be assailed by proof of fact. (United States v. Carolene Products Co., supra, 304 U.S. at pp. 153–154, 58 S.Ct. 778, 82 L.Ed. 1234; D'Amico v. Board of Medical Examiners, supra, 6 Cal.App.3d at p. 727, 86 Cal.Rptr. 245; 16 C.J.S. Constitutional Law § 97, p. 356.)

Thus, on the first appeal, we remanded the suit to the trial court for the purpose of a trial of ‘constitutional fact.'6 At that point petitioners pursued tactics which clashed with the law of the case. They sought to replace the conventional procedures of a trial by a voluminous interchange of paper interrogatories, paper admissions and the paper beliefs of untested expert witnesses. They addressed elaborate interrogatories and requests for admissions to the Board of Medical, Examiners and the Attorney General.

In a general was these interrogatories sought to tie down the contentions of the Board of Medical Examiners; to get concessions as to the expertise of certain expert witnesses; to require the production of elaborate data concerning the quality and character of each of the American colleges of medicine approved by the Board of Medical Examiners; in sweeping terms, to elicit the collective belief of the individuals comprising the Board of Medical Examiners as to the comparative quality of allopathic medical and osteopathic education and the comparative efficacy and acceptability of osteopathic and conventional medical care throughout the United States.

In reply to these demands, the Attorney General tendered limited and partial responses, which stimulated petitioners to move for an order compelling further answers. Three sets of supplemental responses failed to satisfy either petitioners or the court. Petitioners then filed a motion for summary judgment (in which the Board of Osteopathic Examiners joined) and sought sanctions for resistance to their discovery attempts. The court denied the summary judgment but assessed costs of $750 against the Attorney General.

Petitioners again moved for a summary judgment against the Board of Medical Examiners. Affidavits were submitted in support of the motion. Some of these affidavits described adversities the statute imposed upon petitioners; others sought to establish (although in a vague and argumentative fashion) that American osteopathic colleges offered education of equal scope with medical schools.7 The Attorney General filed a fifth response to the interrogatories. The trial court then granted a summary judgment in petitioners' favor. The order for summary judgment stated that the written admissions of the Attorney General on behalf of the Board of Medical Examiners8 demonstrated that ‘there are no longer any material factual contentions . . ..’ It declared that the state had failed to meet the burden of justifying the statutory classification.9 The summary judgment invalidated the distinction between medical and osteopathic graduates; found that this invalidity caused the entire statute to fall; it directed the Board of Osteopathic Examiners to entertain petitioners' applications for licensing as osteopaths.

In resting a judgment of statutory invalidity on the concessions of a litigant, the court erred. Constitutional adjudications are played out on the same stage, surrounded by the same scenery as private litigation, but the actors have far less freedom. All must heed the demarcation between judicial power and legislative authority. The court exercises ‘an extraordinary power over a coordinate branch of government and perform[s the] correspondingly narrow function [of determining] whether the statute reasonably relates to a legitimate governmental purpose.’ (Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control, 65 Cal.2d 349 at p. 359, 55 Cal.Rptr. 23, at p. 30, 420 P.2d 735, at p. 742.) It receives evidence and examines judicially known facts, not for the purpose of substituting judicial for legislative judgment, but only to determine ‘whether it is possible to say that the legislative decision is without rational basis.’ (Clark v. Paul Gray (1939) 306 U.S. 583, 594, 59 S.Ct. 744, 751, 83 L.Ed. 1001; Lord v. Henderson (1951) 105 Cal.App.2d 426, 433, 234 P.2d 197.) The court's constitutional role may not be expanded by the litigants' tactics or their ability or willingness to bring in the evidence.10 Endowed with little capacity for independent investigation, the court should not hesitate to impose its needs on the litigants.

The parties are similarly inhibited. They should not mistake their own versions of the facts for those which prompted the lawmaking branch. In private litigation courts habitually accept the evidentiary concessions and stipulations of the parties and their attorneys. Most constitutional attacks upon statutes are defended by public officials. Neither the legislative branch nor officers of the executive branch may limit judicial inquiry into the historic facts underlying the statute. (See United States v. Carolene Products Co., supra, 304 U.S. at pp. 153–154, 58 S.Ct. 778, 82 L.Ed. 1234; Crowell v. Benson (1932) 285 U.S. 22, 56–57, 52 S.Ct. 285, 76 L.Ed. 598.) Judicial responsibility for finding constitutional facts is not dispelled by declarations and concessions emanating from the executive branch, no matter what their guise—stipulations, admissions in response to interrogatories or the papers surrounding a summary judgment motion. Declarations of this sort may not be inadmissible but their consistency with the historic facts should be scrutinized.11

By accepting the factual concessions of the Board of Medical Examiners and not inquiring whether there were other facts on which the 1962 law rested, the trial court limited its inquiry to the litigants' offerings. Because the court was passing upon an exercise of authority by a coordinate branch of government, it could not escape its duty of inquiring into the historic facts which might supply a conceivable, rational basis for the 1962 law's restrictions.

The Attorney General contends that the summary judgment papers were insufficient to satisfy even the suspect-classification-fundamental-interest test. He points out that in a summary judgment proceeding, the moving party's own showing must negate the existence of triable issues, even if the ultimate burden of proof is on the other side. (See Pearl v. Shore (1971) 17 Cal.App.3d 608, 613, 95 Cal.Rptr. 157.) The summary judgment was erroneous for other reasons; hence we refrain from accepting or rejecting this contention.

FUTURE COURSE OF THE LAWSUIT.

A summary judgment proceeding is not a substitute for a trial of issues of fact; rather, the motion may be granted only where no triable issues of fact exist. (Coyne v. Krempels (1950) 36 Cal.2d 257, 260, 223 P.2d 244.) Despite the generality of the summary judgment statute, there are issues of fact whose intrinsic character ill adapts them to resolution by the summary judgment method. (See Zack, California Summary Judgment: The Need for Legislative Reform (1971) 59 Cal.L.Rev. 439, 453–456.) A summary judgment proceeding is appropriate to resolve a question of statutory constitutionality which turns on considerations of law or on observations within the general realm of judicial notice. (See, e. g., Purdy 7 Fitzpatrick v. State, supra, 71 Cal.2d 566, 79 Cal.Rptr. 77, 456 P.2d 645; Weaver v. Jordan, supra, 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289.) When the reasonableness of a statutory classification requires objective evidence of generalized socioeconomic conditions, the summary judgment procedure is ill-suited to the inquiry. The biases of the parties and their expert witnesses color their affidavits with arguable assertions of ‘fact’ and subjectively selected data. Neither side's expert witnesses are available for cross-examination to test their qualifications and the reliability of their inquiries. In seeking the historic facts which determine whether the legislative choice had a rational basis, the court has need for witnesses whose qualifications and knowledge can be tested by cross-examination.12 If there is any debate over the historic facts bearing upon the rational basis issue, a triable issue of fact usually if not inevitably exists. In the present lawsuit we reiterate the need, expressed on the earlier appeal, for a ‘full scale’ trial of fact.

It is appropriate, although not strictly necessary, to consider our decision's practical impact on the economics of this ‘constitutional’ litigation. Petitioners seek vindication of their constitutional claim to equal protection of the laws. That claim should bear a price tag no higher than necessary. The litigation expense of the statute's assailant is heavier when he, not the state, bears the burden of producing evidence. Also, a conventional trial is likely to cost far more than a summary judgment proceeding. Petitioners ask the court to assume the responsibility of negating an exercise of authority by the lawmaking branch, a responsibility not lightly borne. In the interest of furnishing an inexpensive forum, the courts should not be led into shallow constitutional inquiries. In the long run, judicial authority in the realm of constitutional adjudication will be weakened by indulgence in shortcuts. The need for responsible constitutional judgments weighs heavily on the scale of competing social interests. We recognize but cannot avert the economic burden our decision imposes on petitioners.

Thus far, the constitutional argument has revolved around that phase of the statute which bars holders of the D.O. degree (but not holders of the M.D. degree) from qualifying as allopathic physicians and surgeons. That argument has been expressed in terms of constitutional guarantees of equal protection. Petitioners, nevertheless, seek certification either as physicians and surgeons or as osteopathic physicians. By allowing osteopathic practice only by practitioners covered by the grandfather provisions, the 1962 law spells the eventual death of the osteopathic profession in California. Hence an additional question arises—may California constitutionally prohibit the pursuit of osteopathy, an otherwise lawful profession or calling? Although the latter question can be formulated in equal protection terms, it is primarily one of substantive or economic due process of law. In that area, too, the statute will be sustained if it conceivably serves a legitimate governmental purpose. (Williamson v. Lee Optical of Okla., supra, 348 U.S. at pp. 487–489, 75 S.Ct. 461, 99 L.Ed. 563; Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control, supra, 65 Cal.2d at p. 359, 55 Cal.Rptr. 23, 420 P.2d 735.)

We make no attempt to narrow the trial court's inquiry into the constitutional facts. The case has progressed far enough, nevertheless, to focus upon a factual area whose exploration might reveal whether the statutory restrictions conceivably serve a legitimate governmental purpose. The ultimate objective of any system for licensing practitioners of the healing arts is the health and safety of their patients. Although the practice of osteopathy originally had more limited scope, it eventually developed to the point where (at least in California) osteopathic physicians could lawfully engage in all diagnostic, therapeutic and surgical techniques available to medical practitioners generally. (Osteopathic Physicians & Surgeons v. California Medical Association, supra, 24 Cal.App.2d at pp. 397, 399–400, 401, 36 Cal.Rptr. 641; D'Amico v. Board of Medical Examiners, supra, 6 Cal.App.3d at p. 721, 86 Cal.Rptr. 245.) In the hands of unskilled or inadequately trained practitioners, many of these techniques expose patients to the risk of injury or death. Because both fields of practice, osteopathic and allopathic medicine, are coextensive, the public interest may reasonably demand approximate parity in academic and clinical education for each. The parity demand would include both scope and quality. Educational quality is no less a matter of concern than educational scope.13

Evidence that in 1962 and thereafter, osteopathic training in the United States had approximate parity, in scope and quality, with training for allopathic medicine would tend to establish a lack of rational basis for the statutory restrictions and impel the court to inquire into the possibility of some other rational basis. Evidence of inferiority, either in scope or quality, would tend to establish the restrictions' reasonable relationship to the public health and safety and impel a finding of constitutionality.

Viewing this as a class suit, petitioners sought an award of attorney fees, which the trial court denied. They prosecute a cross-appeal, contending that establishment of a fund is not a prerequisite to an attorney fee award at the hands of equity. Even if a fund is not the sine qua non of the award, success is. (See Estate of Stauffer (1959) 53 Cal.2d 24, 132, 346 P.2d 748; Fletcher v. A. J. Industries, Inc. (1968) 266 Cal.App.2d 313, 321–322, 72 Cal.Rptr. 146; Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 203, 81 Cal.Rptr. 683.) Quite aside from other aspects of the fee award question, petitioners have not yet brought their lawsuit to a successful conclusion.

The order denying attorney fees is affirmed. The judgment is otherwise reversed.

Each party will bear its own costs on appeal.

FOOTNOTES

1.  An expression of the position of the Board of Medical Examiners appears in letters sent to the individual petitioners prior to this lawsuit. A typical letter states: ‘We note that you are a graduate of the [named] College of Osteopathy and Surgery . . . and therefore are not eligible under the provisions of the California law to apply for a physician's and surgeon's certificate from the Board of Medical Examiners.‘The provisions of the Business and Professions Code relating to the practice of medicine and surgery require applicants to be graduates of medical schools approved by the Board.’In a letter dated February 8, 1968, the Attorney General responded to an inquiry of a member of the legislature, which included this question: ‘. . . is the present law in California, which makes no provision for the examination and licensing as physician and surgeon of qualified persons with a degree of Doctor of Osteopathy, invalid?’ The Attorney General responded that the present legislation relating to osteopaths was valid.

2.  An expression of the altered position of the Board of Medical Examiners appears in this board resolution adopted on February 17, 1971: ‘Moved by Dr. Wilkins, seconded by Dr. Grunigen that the board re-affirm its position that under the laws of this state the board has the authority to license graduates of osteopathic schools as physicians and surgeons, if those schools are approved: that the board has power to approve osteopathic schools if requested to do so either by the school or an applicant and if the schools met the standards applied to medical schools. The procedure for such an inspection and approval would be the same as that used at this time for the approval of medical schools, that is, inspection and approval of the schools by the Council on Medical Education and Hospitals, American Medical Association, and the Association of American Medical Colleges; and that the board does not have authority to grant licenses by reciprocity to graduates of osteopathic colleges.’An expression of the Attorney General's new position appears in his brief on the first appeal filed on September 3, 1969. The brief declared: ‘The appellants are in error when they assert that the Board of Medical Examiners does not possess the power to approve osteopathic schools and to issue a physician and surgeon license to qualified graduates of such approved schools. It does have such power (Bus. & Prof.Code §§ 2135–2173).’

3.  The Attorney General, of course, is statutory counsel for the Board of Medical Examiners. (Gov.Code, §§ 12511–12512.) He is also chief law officer of the state (Cal.Const., art. V, § 13). ‘The Attorney General, as the chief law officer of the state, has broad powers derived from the common law, and in the absence of any legislative restriction, has the power to file any civil action or proceeding directly involving the rights and interests of the state, or which he deems necessary for the enforcement of the laws of the state, the preservation of order, and the protection of public rights and interests. [Citations.]’ (Pierce v. Superior Court, 1 Cal.2d 759, 761–762, 37 P.2d 460, 461.)An instructive decision is Progressive Party v. Flynn (1948) 401 Ill. 573, 82 N.E.2d 476, 480. There the Attorney General presented a state official's appeal from an adverse judgment and urged reversal, but ‘under his higher, greater and paramount duty to the people,’ also presented the opposite argument and asked the court to affirm the judgment. Moreover, when a conflict of interest evolves, the Attorney General may consent to the employment of special counsel by a state agency. (Gov.Code, § 11040.)

4.  The Board of Medical Examiners and its counsel had placed themselves in the position of supplying factual justification for a statutory classification whose existence they denied. In opposition to the summary judgment motion, the Attorney General submitted studies and reports (federal, state and quasi-public) to the general effect that existing osteopathic colleges had inadequate physical plants; that they suffered from a shortage of qualified faculty; that they were incapable of meeting the accreditation standards applied to medical schools; that post-graduate education and clinical opportunities for osteopathic graduates were severely limited. These surveys and reports were not offered to show a rational basis for the 1962 law's prohibition against the licensing of future osteopathic graduates but only for the limited purpose of supporting the prohibition against reciprocity licensing of osteopaths from other states.In contrast, the Attorney General's final response to petitioners' interrogatories declared in part:‘84. Respondent admits that in recent years, the practice of osteopathy has evolved into a complete school of medicine and surgery and that, in those jurisdictions, which give full practicing powers to osteopathic physicians and surgeons, said physicians and surgeons generally integrate all accepted methods of treatment of disease and injury including manipulation, drugs, operative surgery and physical therapy as dictated by diagnosis of individual patients.‘86. Respondent admits that in recent years, osteopathy has developed into a full school of medicine engaging in all the activities commonly thought of as constituting medical science.’‘117. Respondent admits that the People of the State of California can be protected by proper screening of all applicants for licensure as physicians and surgeons and believes that the laws now provide for such screening of all such applicants.’In finding a discriminatory classification, the trial court accepted the last quoted concessions but did not recognize any issue pivoting upon the general quality of osteopathic education.

5.  The notion that the statute's rational basis depends upon conditions preceding its enactment is tempered by recognition that constitutionality of a statute predicated upon a given state of facts may be challenged by proof that those facts no longer exist. (United States v. Carolene Products Co. (1938) 304 U.S. 144, 153, 58 S.Ct. 778, 82 L.Ed. 1234.)

6.  See Note, Consideration of Extrinsic Evidence on Question of Constitutionality or Unconstitutionality of Statute, 82 L.Ed. 1244–1262. The phrase ‘constitutional fact’ usually appears in the context of judicial review of administrative decisions (e. g., Bixby v. Pierno, supra, 4 Cal.3d at p. 140, fn. 5, 93 Cal.Rptr. 234, 481, P.2d 242) and obscenity determinations (Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 910, 31 Cal.Rptr. 800, 383 P.2d 152). It is also appropriate to judicial review of the public conditions put forth as justification for regulatory statutes. (See Strong, Dilemmic Aspects of the Doctrine of ‘Constitutional Fact’ (1969) 47 No. Caro.L.Rev. 311; Jaffe, Judicial Review: Constitutional and Judicial Fact (1957) 70 Harv.L.Rev. 953.)

7.  On a summary judgment motion the moving party's affidavits must state evidentiary facts and not conclusions and must show that the affiant, if sworn as a witness, can testify competently to the evidentiary facts he describes. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468–469, 33 Cal.Rptr. 661; Snider v. Snider (1962) 200 Cal.App.2d 741, 748–749, 19 Cal.Rptr. 709.) Petitioners' affidavits comparing osteopathic and medical education did not measure up to these demands. Moreover, they emphasized scope and curriculum and offered only scanty qualitative insights.

8.  See footnote 4, ante.

9.  In deference to the trial judge, we should point out that the grant of summary judgment was premised on Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, a decision handed down subsequent to our decision on the first appeal. Certainly a change in the law justifies departure from the law of the case. (6 Witkin, Cal.Procedure (2d ed.) Appeal, § 651, pp. 4568–4569.) As we have observed, the fundamental-interest test utilized in Sail'er Inn v. Kirby was appropriate.

10.  The differences between conventional, private lawsuits and those which involve ‘the public law function’ of the courts usually come to the fore in discussions of justiciability and standing to sue. Here these differences are expressed in the context of judicial refusal to let the parties' tactics limit the scope of a trial of ‘constitutional fact.’ See Scharpf, Judicial Review and the Political Question: A Functional Analysis (1966) 75 Yale L.J. 517, 524–529; Strong, op. cit. supra, fn. 6, ante; Jafe, Standing to Secure Judicial Review: Private Actions (1961) 75 Harv.L.Rev. 255, 302–305.

11.  One commentator expresses the note of caution thusly:‘Even though constitutional questions are decided in ordinary lawsuits, the litigants are in an important sense . . . representatives of the public interest in constitutional government. And the public interest in responsible and realistic constitutional decisions is much too serious to be left unprotected against the accidents of ordinary litigation.’ (Scharpf, op. cit. supra, 75 Yale L.J. at pp. 528–529.)

12.  This need, of course, does not bar the assistance of authoritative studies and surveys, public and private. See Rivera v. Div. of Industrial Welfare (1968) 265 Cal.App.2d 576, 589–590, 71 Cal.Rptr. 739.

13.  For example, applicants for certificates issued by the Board of Medical Examiners must possess a diploma issued by a school approved by the board and complete a year of internship in a hospital approved by the board. (Bus. & Prof.Code, §§ 2168, 2168.5.) By statute, the legislature itself has fixed the minimum scope of school curricula. (Bus. & Prof.Code, § 2192.) The law goes farther and specifically authorizes the board to consider the quality of each school's resident courses of professional instruction. (Bus. & Prof.Code, § 2173.)

FRIEDMAN, Associate Justice.

RICHARDSON, P. J., and JANES, J., concur.

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