Court of Appeal Chips Away at Constitutional Rights of Professional Licensees

Daily Journal

Doctors, lawyers, and other professional licensees beware, a recent Court of Appeal decision creates a low burden of proof for revoking the license of a professional on probation.

A licensed health care provider has a fundamental vested right to her license (Bixby v. Pierno (1971) 4 Cal. 3d 130). Therefore, efforts to deprive her of her license require the licensing authority to prove its case by clear and convincing evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal. App. 3d 853, 856.) The Ettinger court clearly explained why it was adopting this heightened standard of proof: "It seems only logical to require a higher standard of proof when dealing with revocation or discipline of a professional licensee as opposed to mere termination of state employment."

But most disciplinary cases settle, and the standards for settlement are well understood and have even been published: so many years of probation depending on the offense; good behavior; law compliance; regular reports; payment of prosecution costs, etc. But the format of a probationary settlement is also cast in stone: the stipulation will recite that the license is revoked but that the revocation is stayed during the term of probation; and if the licensee successfully completes the probation, the charges will then be dismissed. In other words, the provider's license - physician, dentist, nurse, whoever - is theoretically revoked, but the revocation is not in force.

It is not surprising that some licensees will continue to have compliance problems while on probation. All persons may have such problems at one time or another, and most often, people will settle their cases by accepting probation because something in their conduct wasn't quite right. And people who were in trouble once may have a proclivity for more trouble. So, if there is another charge against a licensee already on probation, more discipline can be expected.

But what will be the standard for proving that new violation? Will it be the same requirement of "clear and convincing evidence," which the courts have held to be necessary because "a fundamental vested right" is in danger of being lost?

One would think so; but that turns out to be wrong. Dr. Scott Sandarg, a dentist, settled his disciplinary case by accepting standard terms of probation, which included a provision that if Sandarg violated any probation terms, the Dental Board could set aside its stay order and revoke his license. Sure enough, Sandarg continued to suffer from substance abuse problems and the Dental Board moved to revoke his license according to the terms of the stipulated probation. An Administrative Law Judge found that the Board had proved a violation by the dentist "by a preponderance of the evidence" and that his license should be revoked, which the Board did. Sandarg appealed on many grounds, but what is of interest here is that he claimed the right to have any revocation based only on the same standard that governs revocation of licenses, i.e., clear and convincing evidence.

The Court of Appeal made very short shrift of that argument. It cited a general statute, which states that "except as otherwise provided by law," the standard of proof is the preponderance of the evidence. This means that the prevailing side has to be at just a mite more credible than the losing side. But what of the "fundamental vested right" in the license and the "logic" that in such situations there must be a higher standard of proof, i.e., clear and convincing evidence?

The court answered that question in a short paragraph, pointing out that in criminal cases the standard for conviction is still higher, "beyond a reasonable doubt;" but that proceedings to terminate criminal probation have long been conducted pursuant to the "preponderance of the evidence" standard. That history was good enough for the court. By that simple analogy, it disposed of the claim that "clear and convincing evidence" was required to revoke licensing probation.

I searched for the origin of the rule that criminal probation can be revoked by a simple showing of the preponderance of the evidence, and found that the California Supreme Court had so decided in 1990 (People v. Rodriguez, 51 Cal. 3d 437). However, this decision was reached simply by reciting that courts elsewhere had long allowed criminal probation to be revoked on such a slight showing and that 18 other jurisdictions followed that standard. Justice Allen E. Broussard alone dissented, suggesting that California follow an American Bar Association standard for criminal justice to the effect "that a liberty interest should not be sacrificed simply on the 'preponderance' standard, which is normally applicable only to civil trials. Otherwise, an unfortunate incentive might arise to use the revocation hearing as a substitute for a criminal prosecution with its higher standard of proof."

That is the last time to my knowledge that anyone looked at the merits of the rule that one's liberty can be taken away by a showing that only meets the standard of a mere preponderance of the evidence. Now this can be done with a professional license, even though the license constitutes a "vested right" where courts have said that requiring a heightened standard of proof is only "logical" to take that license away.

Thus, constitutional rights can be easily lost. I doubt that the prevailing practice of resolving charges against a professional license by stipulations for revocation stayed, along with probation, will change because of this decision. But in the course of these practices, we have all lost a little bit of our freedom.

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