CARTWRIGHT v. BOARD OF CHIROPRACTIC EXAMINERS (1975)

Court of Appeal, Second District, Division 2, California.

Adam C. CARTWRIGHT, Jr., Petitioner and Respondent, v. BOARD OF CHIROPRACTIC EXAMINERS of the State of California, Appellant.

Civ. 43332.

Decided: February 04, 1975

Evelle J. Younger, Atty. Gen., Alan Hager, Deputy Atty. Gen., for appellant. Roger Jon Diamond, Hecht, Diamond & Freis, Pacific Palisades, for petitioner and respondent.

Board of Chiropractic Examiners (Board) by Accusation filed February 2, 1972, charged respondent with convictions of violations of sections 316 and 315 of the Penal Code. Predicated upon undisputed evidence¹ at a hearing regularly held Board revoked respondent's license as authorized by section 10 of the Chiropractic Act.²

Board's Accusation filed in February of 1972 alleges: in the first count, a judgment of conviction on a nolo contendere plea to violation of section 316 of the Penal Code (keeping a disorderly house), fortified by specific facts of the violation, including date and place; in the second count, a judgment of conviction of violation of section 315 of the Penal Code (keeping a house of prostitution) as a result of a guilty plea, but neither date, place or underlying facts were detailed.

Respondent was present in person and by counsel throughout the hearing. The record before Board, in addition to the documents embracing the Accusation and prehearing exchanges, comprised the testimony of four witnesses, inclusive of respondent, and a transcript of the two judgments of conviction received as Exhibit 2 without objection by respondent.

In respect of the 316 violation, it was established and respondent admitted in pertinent part that: he was employed at a weekly wage at four locations owned by Hall and McGee womaned by masseuses who solicited and performed sex acts; the xeroxed copy of his license was displayed in the reception room in the place identified in the charged violation; he periodically appeared at these places and knew female operators sold sex in various ramifications to the customers. There was no testimony that he performed chiropractic services at any of the places.

In respect of the 315 violation, respondent testified that: he had been working at 872 Ladera Street in Pasadena for approximately one and one-half years, at which place a xeroxed copy of his license was displayed; that he had originally been working there for Hall and McGee, but that he presently and for approximately six months prior was the sole owner and boss of the place; he bought McGee out in ‘May of this year * * * and since I have run it strictly on my own’; since his sole ownership three girls were employed; he took precautions to avoid illegal activity such as having curtains instead of doors on the massaging cubicles and having the girls checked for improper solicitation by friends who acted as undercover agents for him; sometimes during a massage he looks through the curtains; he needed a chiropractic license to operate an office in which females could give bathroom massages;³ and his intention is ‘to continue with my present operation * * * not to allow any acts of prostitution to go on in my place of business.’

The superior court (mandate court), exercising independent judgment, after a mandate review initiated by respondent pursuant to section 1094.5, Code Civ.Proc., reviewed the identical record upon which Board had based its decision and issued its peremptory writ vacating the Board's decision. Board appeals.

Respondent contends, and the mandate court agreed, that the literal Accusation filed by Board rested upon separate judgments of conviction upon two separate criminal charges, one for the 316 violation to which a nolo plea was entered, and the second for the 315 violation to which a plea of guilty was entered, and that the undisputed evidence before Board could not be considered in respect of the 316 violation and was insufficient in respect of the 315 violation.

We disagree.

In respect of the 316 violation, the mandate court in its findings recognized that the Board's Accusation ‘also purported to allege the ‘circumstances' of the conviction’, but the mandate court omitted to make findings on the undisputed record of the circumstances, holding that such evidence could not be considered by Board because ‘the plea may not be held against defendant [respondent] in any civil suit * * *’, citing Penal Code section 1016(3), and Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 557, 96 Cal.Rptr. 863, which includes an administrative hearing as a ‘civil suit’,⁴ and concluded, in respect of the 316 violation, ‘A plea of nolo * * * may not be considered to be a conviction for the purpose of applying section 10 of the Chiropractic Act.’ As to the 315 violation, the trial court declared: ‘* * * mere conviction * * *, without underlying evidence * * * does not demonstrate moral turpitude sufficient to apply section 10 of the Chiropractic Act.’

We think that the trial court's application of section 1016(3) of the Penal Code to the Penal Code section 316 conviction is error, and its failure to find facts in respect of the 316 conviction is error and that its findings in respect of the 315 conviction are contrary to the law and in disregard of the only evidence before it.

Grannis, upon which the mandate court relied, applies Penal Code section 1016(3) to the Board of Medical Examiners, a Board created by and subject to continuous legislative regulation. Assuming the soundness of Grannis which is questioned by my brother Compton, J., it is not applicable at bench.

The Chiropractic Act is an initiative measure enacted on November 7, 1922. Since there is no provision in the Act for legislative amendment, it can be amended only by the People of the State and not by legislative action alone. (Art. 1, § 4 of the California Constitution.)

Subidivision 3 of section 1016 of the Penal Code (enacted 1963) if applied to the Chiropractic Act is in effect an amendment to the Act. Any other construction permits the Legislature to indirectly amend an initiative law adopted by the People.

Although the Act has been by the People amended since 1922, our research reveals no amendment and we have been cited to none, which affects authority of the Chiropractic Board to revoke the license or to impose some other form of discipline upon one of its licensees when such licensee suffers conviction for a crime involving moral turpitude (section 10 of Act).

In the absence of background facts to the contrary, and we have been supplied with none, we have no reason to suspect or assume that the People of the State when they adopted the Chiropractic Act by initiative in 1922, had in mind the possibility that proof of the fact of conviction or of the facts which led to conviction of a crime involving or purporting to involve moral turpitude would be nullified by the Legislature by adding section 1016(3) to the Penal Code 41 years later, and thus by legislative fiat emasculate the inherent right of the People independently of the Legislature to regulate the practice of chiropractic in this state which right had been constitutionally assumed by the People. (Art. 1, sec. 4, California Constitution.) General rules of construction and interpretation dictate and impel the conclusion that since Penal Code 1016(3) was no part of the law of California in 1922, and since the People of the State have not amended the Chiropractic Act to include Penal Code section 1016(3), it has no application to the Chiropractic Act now.

Unless, therefore, there is a United States Constitutional infirmity in the Chiropractic Act which prevents a due process hearing upon the absence or presence of a basic qualification to continue to practice chiropractic, it is clear to us that the People of this State intended that the fact of conviction by way of guilty or nolo plea of a crime ordinarily involving moral turpitude was in itself evidence sufficient to authorize revocation of a chiropractic license if the evidence of such conviction is not rebutted by a showing on the part of a licensee that there was no moral turpitude involved or none equating with a licensee's unfitness to continue to practice under the license. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 227–29, 82 Cal.Rptr. 175, 461 P.2d 375.)

The proof of lack of fitness required by Morrison was affirmatively and amply supplied by Board on each count without dispute. The only defense offered to the facts was the dubious and tenuous one of respondent's knowledge of how his license was being used.

The Accusation in its charge of the nolo plea and the conviction of Penal Code section 316 defined the offense involving a breach of section 10 of the Chiropractic Act, and thereafter set out the facts upon which it intended to rely. After the Accusation was filed, respondent was formally notified and fully advised of the procedure which would follow, and specifically that evidence would be taken and that the burden was upon Board to prove its charges. In respect of the 315 violation, it is true that the Accusation did not, as it did in connection with the 316 violation, aver the background facts which Board expected to and did prove. The record of the guilty plea and judgment of conviction thereon, as a part of Exhibit 2, were introduced without objection, together with oral evidence of the background facts. Respondent was given the opportunity to, and the record above detailed shows he did reply. The judgment of conviction on the 315 offense was on a plea of guilty and was admissible for all purposes. Irrespective of respondent's position in respect of evidence or lack of it on the 315 violation, he was accorded the due process opportunity to respond.

At bench Board did not, as did the Board of Medical Examiners in Weissbuch v. Board of Medical Examiners (1974) 41 Cal.App.3d 924, 116 Cal.Rptr. 479, rely solely on the judgment of conviction as a conclusive presumption to establish unfitness of respondent to practice chiropractic or for the proof of moral turpitude as an inherent part of the guilty plea. Board made the Accusation and presented evidence thereon, its witnesses were subjected to full cross-examination, and respondent was given an opportunity to and he did testify. Board did not rely alone on either conviction, but considered each as part of the evidence and made its decision to revoke respondent's license only after respondent had been afforded due process complete in all respects.⁵

In these circumstances it is clear that the mandate court's comments upon the Board's decision in respect of the 315 violation was error when it said ‘a mere conviction * * * without evidence of the underlying facts, [is] not * * * a demonstration of moral turpitude sufficient to apply section 10 of the Chiropractic Act. * * *.’

The burden in respect of proof of moral turpitude had been assumed and discharged by Board in respect of both counts. The burden to prove lack of moral turpitude then shifted to respondent. (Evid.Code, §§ 110, 550; Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 92 Cal.Rptr. 525.) Respondent explained in his testimony on the 315 violation that since he became the sole owner of the Pasadena property he was taking precautions to prevent the prostitution of his license at the Pasadena address. Thus, he pregnantly admitted prior misconduct at the Pasadena address and by his testimony or otherwise offered no evidence, except lack of knowledge of specific sex acts, in contradiction or extenuation of the evidence produced by Board. At the conclusion of the Board hearing the Attorney General argued: ‘* * * if the Hearing Officer believes that Dr. Cartwright had knowledge of what was going on at these premises * * * I think this is extremely a gross abuse of a chiropractic license. It is using it * * * to avoid the laws which are made to control this type of activity.’

Respondent's counsel in reply stated: ‘The abuse certainly was present and whether or not the Hearing Officer concludes it was present strictly on the part of Hall and McGee or with a complicity or implied consent of Dr. Cartwright is one thing. I certainly would feel that, * * * the fact that Dr. Cartwright has now been operating under such tight controls, * * * should serve a mitigation. It is important and I would ask that be taken into consideration.’

The evidence of acts demonstrating unfitness of respondent to practice chiropractic is clear and the lack of specific findings of the trial court raise perplexing questions and create a result unfair to the public and to the vast majority of chiropractors. The testimony before Board including that of respondent shows overwhelmingly that Board properly revoked respondent's license because he had violated section 10 of the Chiropractic Act by literally prostituting his license as a chiropractor and was unfit to practice as one. The effect of the peremptory writ is not only to absolve respondent of any unprofessional conduct involving moral turpitude, but to proclaim to the public and the profession that respondent is fit in all respects to practice chiropractic.

It is clear to us that Board on the record and by evidence independent of the nolo judgment proved the 316 violation and also that it established as a fact the 315 violation in opposition to which respondent offered promissory evidence of future conduct not in contradiction of the misconduct charged, but in hope of absolution from such conduct.

‘It is ordered, therefore, that the * * * [peremptory writ be vacated] and that the cause be remanded with directions to the trial court to set aside the findings of fact and conclusions of law; * * * thereafter having re-examined and redetermined all issues to make and file findings of fact thereon based upon * * * the record, and in conformity with the views herein expressed; to draw proper conclusions of law therefrom; and to enter judgment accordingly. Such findings of fact, conclusions of law and judgment shall be prepared, signed, filed and entered in the manner provided by law.

‘The * * * [peremptory writ is vacated] and the cause is remanded to the trial court to proceed with the disposition thereof under the direction and in conformity with the views herein expressed. Appellant shall recover costs on appeal.’ (England v. Christensen (1966) 243 Cal.App.2d 413, 435–436, 52 Cal.Rptr. 402, 416.)

I concur, but because the majority did not find it necessary to directly confront the issue of the effect of the nolo contendere plea, I feel that some comments on that are in order.

The starting point on the effect of a plea of nolo contendere should be Penal Code section 1016, which authorizes such a plea. The language of that statute simply says that the plea may not be used as an admission in any civil suit. The statute does say that the ‘legal effect’ of such a plea, i. e., conviction, is the same as that of a plea of guilty. Christensen v. Orr, 275 Cal.App.2d 12, 79 Cal.Rptr. 656, contains a correct interpretation of the effect of that language.

The effect of a nolo contendere plea to a criminal charge in a later civil proceeding depends upon whether, in the civil proceeding, the critical issue is the fact of conviction or the inculpatory effect of the plea.

For example, if a person involved in an automobile accident is charged with drunk driving, his conviction of that offense does not establish civil liability but his admission whether in court or out that he was in fact guilty of drunk driving could be used to establish liability. Thus if he pleads nolo contendere to the drunk driving charge that plea may not be used against him as such an admission. If on the other hand, a conviction, whether by plea or jury verdict was relevant to the issue of the civil proceeding, then it would be immaterial how that conviction came about.

Where relevant the fact of conviction may be established even though a defendant has pleaded not guilty, yet has been found guilty in a court or jury trial. The plea in such cases is not the critical factor. A conviction is a conviction whether based on a plea or a verdict.

In my opinion, Grannis v. Board of Medical Examiners, 19 Cal.App.3d 551, 96 Cal.Rptr. 863, is in error in quoting without critical analysis the language from Kirby v. Alcoholic Bev., etc., App. Bd., 3 Cal.App.3d 209, 83 Cal.Rptr. 89. Kirby was dealing with a statute that had rather specific and peculiar language and can be distinguished on that basis alone. Even in Kirby the court recognized that the use of the words ‘convicted or conviction’ in a statute such as Vehicle Code section 13352, which was the statute in Christensen, or as used in sections 1–10 of the Chiropractic Act, would produce a different result than was reached in Kirby.

The thing that is wrong with Kirby is its attempted analysis of the development of the law on this point in California and its purported conclusion that California has adopted a so-called ‘minority’ view in regard to this problem. The authority upon which Kirby appears to rely does not support that conclusion.

Caminetti v. Imperial Mut. L. Ins. Co., 59 Cal.App.2d 476, 139 P.2d 681, simply says that a plea of nolo contendere cannot be used as an admission against the party entering the plea. It is to be noted that Caminetti was decided before the enactment of Penal Code section 1016. It dealt with the effect of a plea of nolo contendere entered in a federal court in proceedings which were being conducted in a state court where proof of fraudulent conduct was at issue not a conviction per se.

In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, another case relied on in Kirby, refers to Caminetti in a passage which is pure dicta. Hallinan was contending in a disbarment proceeding that there were other lawyers who had been convicted of the same offense as he, i. e., income tax evasion, who had not been disbarred. The Supreme Court simply stated, in rejecting Hallinan's contentions, that he had been improperly singled out, that the State Bar was justified in not taking action against these other attorneys because they had pleaded nolo contendere. Hallinan is far from a definitive ruling on the issue insofar as California is concerned. Thus the Kirby court relied on dicta, erroneously interpreted it, and the Grannis court quoting verbatim from Kirby purports to establish a rule which is clearly not warranted by the language of the basic statute—Penal Code section 1016.

It is interesting to note that throughout this tortuous history no court has ever disapproved or overruled the Christensen decision. Some courts have labored mightily and, in my opinion, unsuccessfully to distinguish it.

The basic point is that where the fact of conviction provides the basis for disciplinary action a conviction may be so used even though based on a plea of nolo contendere. I would simply refuse to follow Grannis.

FOOTNOTES

1.  The evidence in respect of the several violations was undisputed. Respondent denied knowledge of the specific acts shown by the evidence.

2.  In West's Annotated Business and Professions Code, each section of the Chiropractic Act is preceded by the number 1000. In Deering's Annotated Business and Professions Code the Chiropractic Act [Stats. 1934 p. lxxxviii; Deering's Gen.Laws, 1954, Act 4811, p. 232] is included as an appendix to the code.

3.  It appeared from the record that a Pasadena City ordinance prohibits female operators in ordinary massage parlors rendering that service to males.

4.  Penal Code, section 1016(3): ‘Nolo contendere, subject to the consent of the district attorney and with the approval of the court. The legal effect of such plea shall be the same as that of a plea of guilty, but the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.’

5.  In 25 Hastings L.J. (1974) in an article ‘How Much Process is ‘Due’? Parolees and Prisoners' Justice Tobriner and Harold Cohen say at p. 804: ‘Similarly, when state law provides for the dismissal of a teacher on the basis of a conviction of a specific crime, the teacher's guaranteed hearing may be very limited in scope, passing only on whether or not the teacher has in fact suffered such a conviction. * * * To illustrate how the importance of a particular safeguard varies with the substance of the inquiry, and how the individual attributes of a particular decision must be scrutinized in determining which safeguards should be provided, we shall briefly discuss three specific ‘due process' safeguards: (1) the location of the hearing, (2) the right to counsel, (3) the burden of proof.’The record at bench complies in all respects with the three specifics as discussed in detail in the above article.

ROTH, Presiding Justice.

BEACH, J., concurs.