CARSTEN v. PSYCHOLOGY EXAMINING COMMITTEE OF BOARD OF MEDICAL QUALITY ASSURANCE

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Court of Appeal, Fourth District, Division 1, California.

Arlene CARSTEN, Petitioner and Appellant, v. The SUPERIOR COURT OF the State of California, COUNTY OF SAN DIEGO, Respondent, The PSYCHOLOGY EXAMINING COMMITTEE OF the BOARD OF MEDICAL QUALITY ASSURANCE of the State of California, Real Party in Interest.

Civ. 18506, 18603.

Decided: September 21, 1979

McCarty & Quackenbush and William M. McCarty, San Diego, for petitioner and appellant. Evelle J. Younger and George Deukmejian, Attys. Gen. and Alvin J. Korobkin, Deputy Atty. Gen., for defendant and respondent and real party in interest.

The Citizens Advisory Council of the State of California and Michael B. Eddy as Amicus Curiae on behalf of Real Party in Interest.

Petitioner Arlene Carsten (Carsten) filed a petition for writ of mandate in the superior court seeking to compel the Psychology Examining Committee (P.E.C.) of the Board of Medical Quality Assurance to license only those applicants receiving a passing grade of 75 percent on written and oral examinations in compliance with Business & Professions Code section 2942.1 P.E.C.‘s demurrer was sustained without leave to amend on two grounds: first, petitioner lacked standing to sue she was not a beneficially interested party as required by Code of Civil Procedure section 1086; and, second, the subject matter of the controversy was “largely a political or policy matter, and one into which the Court should not meddle.” For reasons which we will discuss, we decide otherwise and, accordingly, reverse the judgment.2

Factual and Procedural Background

We accept as true the following facts as alleged in the petition for writ of mandate. (Isrin v. Superior Court (1965) 63 Cal.2d 153, 155, 45 Cal.Rptr. 320, 403 P.2d 728.)

On May 11, 1976, Carsten was appointed by the governor as a public member of P.E.C., which has the duty to ensure the qualified practice of psychology in California. Only those applicants who achieve a passing grade of 75 percent on both written and oral examinations may be licensed. (s 2942; Cal.Admin.Code, tit. 16, s 1388, subd. (e).) Beginning in April 1977, P.E.C. substituted an objective national examination for the written examination. In evaluating the new test, P.E.C. adopted the national mean for the passing score rather than 75 percent of the raw score as required by section 2942. The national mean includes candidates statutorily disqualified from taking the California Psychology Examination.

Petitioner is a citizen and taxpayer concerned and beneficially interested in P.E.C.‘s performance to the challenged duty in order to protect the consumers of California from the unqualified practice of psychology; she has exhausted her administrative remedies and has repeatedly expressed her opposition to the challenged conduct in her capacity as a public member of P.E.C. and she is without an adequate remedy at law.

Petitioner Is A Beneficially Interested Party and Has Standing To Sue

Under Code of Civil Procedure sections 1085 and 1086, only a beneficially interested party has standing to bring a petition for writ of mandate.3 Ordinarily, this means a person must have some private right to be protected or preserved or an interest which is other than that which he holds with the public at large. (California Civil Writs (Cont.Ed.Bar 1970) s 5.20, p. 75; Fritts v. Charles (1904) 145 Cal. 512, 78 P. 1057.) An exception to the foregoing rule has developed, however, “where the question is one of public right and the object of the writ is to procure performance of a public duty.” (Fuller v. San Bernardino Valley Mun. Wat. Dist. (1966) 242 Cal.App.2d 52, 56-57, 51 Cal.Rptr. 120, 124.) The responsibility of issuing the mandate rests in the wise discretion of the court and when the question is one of both public interest and duty, the requirements relating to the petitioner's rights and respondent's duties are “relaxed.” (American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 256, 109 Cal.Rptr. 22; McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 440, 111 Cal.Rptr. 637.) “When the duty is sharp and the public need weighty, the courts will grant a mandamus at the behest of an applicant who shows no greater personal interest than that of a citizen who wants the law enforced. (Bd. of Soc. Welfare v. County of L. A., 27 Cal.2d 98, 100-101 (162 P.2d 627); American Friends Service Committee v. Procunier, 33 Cal.App.3d 252, 256, (109 Cal.Rptr. 22).)” (McDonald v. Stockton Met. Transit Dist., supra, 36 Cal.App.3d at p. 440, 111 Cal.Rptr. at p. 641.) Under such circumstances, it is sufficient that the petitioner is interested as a citizen in having laws executed and the duty in question enforced. (Hollman v. Warren (1948) 32 Cal.2d 351, 357, 196 P.2d 562.)

Here, Carsten alleges she is a citizen and taxpayer. The controversy she has described involves the performance of a public duty legislatively mandated in order to protect a public interest, since the alleged illegal licensing of psychologists necessarily adversely affects the quality of psychological practice in California. Section 2900 provides the “practice of psychology . . . is to be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of psychology . . . .”

P.E.C. argues if Carsten has standing, a new class of individuals entitled to seek writs of mandate has been established, i. e., disgruntled members of governmental agencies who disapprove of actions taken by the boards upon which they sit.

We have not established a new class of persons. Petitioner is a citizen and taxpayer and only incidentally an agency board member. Her position gives her the opportunity of being more informed and aware of administrative conduct potentially in conflict with statutory law. As a member of P.E.C., petitioner has been willing to devote substantial amounts of time and energy toward the stated objectives of the committee. In her willingness to serve, she should not lose her rights as a taxpayer and citizen.

P.E.C. also raises the spectre that the application of the citizen-taxpayer exception to the case before us would effectively destroy the administrative agency system of government. Permitting an agency board member to seek mandamus against the conduct of the majority of an agency board is (1) disruptive to the entire governmental administrative process adversely affecting the working relationship of the board; (2) exhausts limited agency budgets through litigation expenses; and (3) breeds chaos, repetition of agency board meeting debates before the court, placement of the judiciary in an advisory role, and discloses information obtained at agency board executive sessions.

We do not accept P.E.C.‘s predictions of the dire ramifications of our decision. Had the Legislature intended to confer upon P.E.C. discretion to determine a minimum level of competence, it would not have enacted section 2942. Courts are still capable of weeding out disputes which do not merit judicial intervention. We have resolved the case before us on our observation that the duty of the agency is sharp and the public need weighty.

P.E.C., like any administrative agency, must follow the law. It has been delegated the authority to administer and enforce the psychology licensing law except as to those functions specifically vested in the Board of Medical Quality Assurance. (ss 2920, 2928; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 938, 123 Cal.Rptr. 563.)

It “shall examine and pass upon the qualifications of the applicants for licenses as provided by (the psychology licensing law).” (s 2931.) Section 2942 expressly declares that 75 percent “shall” constitute the minimum passing grade. We cannot ignore the responsibilities placed upon an administrative body because of the alleged increased burden on the courts in resolving the controversy.

The Matter is Justiciable

In granting the demurrer, the court described the subject matter of the controversy as political, relying on settled law that the judicial branch is without authority to adjudicate political matters. (5 Witkin, Summary of California Law (8th ed. 1974) Constitutional Law, s 52, pp. 3289-3290.) Factors which are considered in determining whether a case is political include the following: (1) the subject matter is constitutionally vested within the sole discretion of a particular political body; (2) absence of manageable standards to resolve the dispute and/or lack of necessary information to make the judgment; and (3) deference due another branch of government. (See Comment (1974) 62 Cal.L.Rev. 1344, 1355; Baker v. Carr (1962) 369 U.S. 186, 82 S.Ct. 691, 706, 7 L.Ed.2d 663.)

This case does not contain any of the foregoing factors. The statute provides a manageable standard for resolution. The only issue is whether the challenged grading procedure of P.E.C. complies with the legislative mandate of section 2942. Petitioner seeks only to enforce the statute and thus a determination of whether P.E.C. has properly exercised discretion.

Disposition

The judgment of dismissal is reversed; the application for writ of mandate is denied.

FOOTNOTES

1.  All references are to the Business and Professions Code unless otherwise indicated.Section 2942 provides: “The committee may examine by written or oral examination or by both. The examination shall be given at least twice a year at the time and place and under such supervision as the committee may determine. A grade of 75 percent shall be a passing grade.”

2.  Carsten also filed a petition for writ of mandate before this court seeking extraordinary relief to compel the trial court to accept jurisdiction of the matter and to vacate its order sustaining the demurrer without leave to amend. In light of our disposition of the appeal, we deny the application for writ of mandate.

3.  Code of Civil Procedure section 1085 provides:“It may be issued by any court, except a municipal or justice court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.Code of Civil Procedure section 1086 provides:“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.”

WIENER, Associate Justice.

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