Fettgather v. Board of Psychology ( 2017 )

Filed 11/21/17; Certified for Publication 12/4/17 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ROBERT P. FETTGATHER, C074166
Plaintiff and Appellant, (Super. Ct. No.
34201280001206CUWMGDS)
v.
BOARD OF PSYCHOLOGY,
Defendant and Respondent.
Appellant Dr. Robert P. Fettgather (Fettgather) appeals from an order of the trial
court denying his petition for writ of administrative mandamus. His petition challenges
the revocation of his license to practice psychology by Respondent California Board of
Psychology (the Board). The trial court denied Fettgather’s petition on the ground that
the only relevant inquiry before the Board was whether Fettgather failed to comply with
an order for an examination under Business and Professions Code section 820;
undesignated section references will be to this code. Further, the trial court found that
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“[t]he evidence in the record unquestionably establishes that petitioner failed to submit to
the examination that had been ordered in this case.”
Fettgather appeals arguing he should be permitted to challenge the merits
underlying a section 820 order before he is required to comply with that order. He also
argues that revocation of his license pursuant to section 821 for his failure to undergo a
section 820 examination is unlawful.
We affirm the judgment of the lower court. We hold that the Board is not required
to show good cause for a section 820 order nor is a licensee entitled to challenge the basis
for the order before submitting to the required examination. It follows that the question
of good cause supporting such an order is not relevant to a revocation of Fettgather’s
license for noncompliance with the section 820 order. This strikes the appropriate
balance between the public and private interests as explained herein.
FACTS AND PROCEEDINGS
Fettgather obtained his California license to practice psychology in 1990.
On April 28, 2011, Fettgather was notified by the Board it was investigating
complaints against him concerning his behavior and communications with patients.
Board investigator Jeremy Singleton requested that Fettgather contact Singleton to
schedule an interview.
On May 4, Singleton and Fettgather spoke at length on the telephone but
Fettgather would not agree to an interview.
On May 13, Fettgather was personally served with an investigational subpoena to
appear and give testimony on June 6. Fettgather did not comply with the subpoena.
A second subpoena for testimony was issued for an interview on July 18, and was
served upon Fettgather’s counsel, who told the Board that Fettgather would not appear
for the interview.
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On August 8, 2011, a petition to compel a psychiatric evaluation of Fettgather was
filed pursuant to section 820. On August 15, 2011, the Board issued an order compelling
Fettgather to submit to a psychiatric examination within 30 days. The Board issued an
amended order on September 14, 2011, extending the deadline for Fettgather’s
compliance until October 17 in order to allow the investigative interview to precede the
examination. This interview took place on September 26, 2011.
Thereafter, Fettgather’s neurologist wrote the Board on October 15, 2011, arguing
that a psychiatric evaluation of Fettgather was not needed.
Fettgather did not submit to the ordered evaluation, nor did he file an appeal
thereof.
On October 25, 2011, the Board filed an accusation against Fettgather for
discipline arising from his failure to comply with the Board’s section 820 order.
On May 14, 2012, an administrative law judge (ALJ) conducted a hearing on the
accusation and issued a recommendation that the Board revoke Fettgather’s license
pursuant to sections 821 and 2960 for failure to comply with an order for a mental
examination under section 820. In so doing, the ALJ found that Fettgather “willfully
failed to comply with an Order of the Board and gave no indication that he will do so in
the future. Compliance with Board Orders is essential for public protection. In these
circumstances, revocation is the appropriate level of discipline.” The ALJ refused to
allow the submission of evidence concerning the lack of good cause for the order
compelling the examination.
The Board adopted the ALJ’s recommended revocation of Fettgather’s license on
June 28, 2012; the revocation was to become effective on July 27, 2012. Thereafter,
Fettgather filed his verified petition for writ of administrative mandamus on July 24,
2012, and the lower court granted his request for a stay of the revocation of his license on
July 27, 2012.
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On October 16, 2012, the Board moved to vacate the stay of revocation of
Fettgather’s license in light of Lee v. Board of Registered Nursing (2012)
209 Cal. App. 4th 793 (Lee). The court held a hearing on this motion on January 4, 2013,
ultimately ordering the stay be lifted. Fettgather’s license was thereafter revoked.
The parties briefed Fettgather’s motion for writ relief, and the court held a hearing
on March 1, 2013. On May 9, 2013, the court issued an order denying the requested
relief. Relying on Lee, supra, 209 Cal. App. 4th 793, the trial court found the only facts
relevant to Fettgather’s challenge to the revocation of his license for failure to submit to a
psychiatric evaluation under section 820 were whether he had submitted to the ordered
evaluation. It noted it was undisputed that Fettgather did not submit to that evaluation
and whether there was good cause supporting that order was not relevant. Further, the
trial court found that section 820 did not violate federal or state constitutional due process
or privacy interests, ultimately concluding “Respondent’s decision revoking petitioner’s
license for failing to comply with the order directing him to submit to a psychological
examination pursuant to Business and Professions Code section 820 is supported by the
evidence in the record and is in accord with controlling appellate authority.”
Fettgather challenges the trial court on a number of grounds, many of which we
need not recount here for reasons set forth below. While many of his arguments are
difficult to discern, Fettgather appears to argue that he should have been afforded the
opportunity to challenge the propriety of the Board’s order requiring him to submit to a
psychological evaluation under section 820 at the Board’s revocation hearing, despite his
noncompliance with that order. Specifically, he argues that his rights to due process of
law and equal protection were violated as a result of the ALJ limiting that proceeding to a
determination of whether he had complied with what he views as an unconstitutional
order obtained without good cause.
He further argues this court should “overturn” Lee, supra, 209 Cal. App. 4th 793,
which was relied upon by the trial court in upholding the Board’s license revocation
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order. While we do not have the authority to “overturn” Lee, we are not bound by that
decision.
We will not address arguments not separately stated under a separate heading as
noncompliant with California Rules of Court, rule 8.204(a)(1)(B). (See T.P. v. T.W.
(2011) 191 Cal. App. 4th 1428, review denied (2011) 2011 Cal. LEXIS 3990 [declining to
consider undeveloped argument not delineated under separate heading].)
DISCUSSION
I
Standard of Review
A trial court exercises independent judgment in its review of an agency’s
revocation of a professional license. (Rand v. Board of Psychology (2012)
206 Cal. App. 4th 565, 573-574.) On appeal, we review the trial court’s decision for
substantial evidence, resolving any conflicts in favor of the trial court’s judgment. (Id. at
pp. 574-575.) Questions of law, however, are subject to de novo review. (Id. at p. 575.)
Compliance with the constitution presents a question of law. (Tafti v. County of Tulare
(2011) 198 Cal. App. 4th 891, 896.)
II
The Statutory Scheme
The Board is entrusted with enforcing and administering the provisions of the
Business and Professions Code governing psychologists. (§ 2920.) “Protection of the
public shall be the highest priority for the Board of Psychology in exercising its licensing,
regulatory, and disciplinary functions. Whenever the protection of the public is
inconsistent with other interests sought to be promoted, the protection of the public shall
be paramount.” (§ 2920.1.)
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The Board is authorized to conduct investigations pursuant to section 820 in order
to ensure practitioners are, among other things, of sound mental health. (§ 820;
16 C.C.R. § 1380.4 [authorizing Board’s executive officer to conduct examinations
pursuant to section 820]; Arnett v. Dal Cielo (1996) 14 Cal. 4th 4, 8-9 (Arnett) [citing
Brovelli v. Superior Court of Los Angeles County (1961) 56 Cal. 2d 524, 528 and United
States v. Morton Salt Co. (1950) 338 U.S. 632, 642-43].) Section 820 states in pertinent
part:
“Whenever it appears that any person holding a license . . . may be unable to
practice his or her profession safely because the licentiate’s ability to practice is impaired
due to mental illness, or physical illness affecting competency, the licensing agency may
order the licentiate to be examined by one or more physicians and surgeons or
psychologists designated by the agency.” (§ 820.)
This report may be received as direct evidence in an accusation brought to revoke
a license (§§ 820, 822, 826), but the function of obtaining it is investigatory. (Arnett,
supra,14 Cal.4th at p. 9; Kees v. Medical Board (1992) 7 Cal. App. 4th 1801, 1814 (Kees);
Alexander D. v. State Bd. of Dental Examiners (1991) 231 Cal. App. 3d 92, 97 (Alexander
D.).) Further, the Board is authorized to consider the report in closed session (§ 827), and
the report itself remains confidential until an accusation is actually filed. (§ 828.) If an
accusation is not filed, the report is kept confidential for a period of five years and
thereafter destroyed if no new proceedings are initiated within that period of time. (Ibid.)
“[F]ailure to comply with an order issued under Section 820 shall constitute
grounds for the suspension or revocation of the licentiate’s . . . license.” (§ 821.) This is
consistent with the Board’s regulations, which find failure to more broadly cooperate
with an investigation to be “unprofessional conduct” and section 2960, which recognizes
the Board’s right to revoke a license for “unprofessional conduct.” (§ 2960, subd. (k)
[“unprofessional conduct” as including violations of regulations]; 16 C.C.R. § 1397.2,
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subd. (c) [“unprofessional conduct” includes the failure to cooperate with a Board
investigation].)
Nothing in the Business and Professions Code or associated regulations defines
the requisite threshold for an order under section 820, which speaks of authorization for
an order “[w]henever it appears” a person “may be unable to practice his or her
profession safely because” that “ability to practice is impaired due to mental illness . . . ”
(§ 820.) Nor does the legislative history shed any light on the level of showing necessary
for this inquiry. One court has noted that repetitive section 820 examinations “are
permissible if there is a showing of good cause.” (Kees, supra, 7 Cal.App.4th at p. 1814.)
Another refused to reach the inquiry where the facts of the case established “reasonable
cause” for the order. (See Alexander D., supra, 231 Cal.App.3d at p. 98.)
Fettgather requests we determine (1) what standard must be shown for an order
under section 820 and (2) when a licensee may challenge that showing. Regarding the
first issue, for the reasons that follow, we find, in accordance with the plain wording of
the statute, that the Board may issue a section 820 order “whenever it appears” to the
Board that a licensee may be unable to practice his profession due to impairment from
mental illness or physical illness or physical illness affecting competency. Regarding the
second, we need not reach that issue because Fettgather, in refusing to appear for the
examination, did not take advantage of his right to a competency hearing (§ 822) and so
the scope of the issues to be determined in such a hearing are not before us here. It is
sufficient for us to hold that a licensee has no right to challenge the basis for a section
820 order before complying with that order.
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III
Due Process of Law
Fettgather argues his right to due process of law under the United States and
California Constitutions was violated when the Board revoked his license after an
administrative hearing wherein he was not permitted to submit evidence challenging the
propriety of the section 820 order. There was no violation of his right to due process of
law.
A. The U.S. Constitution
The Fourteenth Amendment of the U.S. constitution prohibits state deprivation of
“life, liberty, or property without due process of law.” (Dent v. West Virginia (1889) 129
U.S. 114, 121.) Fettgather asserts the right to practice his profession is both a property
right (ibid.) and a liberty right (Conn v. Gabbert (1999) 526 U.S. 286 that was impinged
upon by the Board’s actions.
It is settled that Fettgather’s right to practice was not implicated by the order for a
mental examination. (See Arnett, supra, 14 Cal.4th at p. 9; Alexander D., supra,
231 Cal.App.3d at p. 97; see also Kees, supra, 7 Cal.App.4th at p. 1814 [construing
investigational power of similar statute].) The order did not immediately threaten his
license, but was merely an authorized administrative inquiry, falling squarely within the
police power to protect the public. (See Arnett, at pp. 7-9; Alexander D., at p. 97.)
The question then becomes, was Fettgather’s right to due process violated by the
ALJ’s refusal to allow him to challenge the validity of the section 820 order at the
proceedings for revocation of his license pursuant to section 821’s mandate that “failure
to comply with an order issued under Section 820 shall constitute grounds for the
suspension or revocation of the licentiate’s . . . license.” The court in Lee, supra,
209 Cal. App. 4th 793 answered this question in the negative. We agree with Lee.
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In Lee, the court was asked to decide whether the trial court erred in upholding the
revocation of a nursing license for failure to comply with an order to undergo a mental
health assessment pursuant to section 820. Fettgather suggests the Lee court only
considered “whether substantial evidence supports the trial court’s decision not to set
aside the Board’s revocation.”
But taken in context, the Lee court’s statement regarding a failure to comply
shows that it was rejecting the argument Fettgather advances and evidence submitted on
the merits of whether a mental fitness exam was warranted was irrelevant to a section 821
proceeding. (Lee, supra, 209 Cal.App.4th at pp. 797-798.) It determined such evidence
would only be relevant if the appellant had actually submitted to the order. (Id. at
p. 798.) Because she did not, all that was relevant to the propriety of the license
revocation was her failure to comply with the order. (Ibid.) It separately determined on
those facts that there was no violation of federal or state due process, nor privacy rights
because the order at issue did not impair her right to practice and the “matters had not
proceeded beyond the procedural.” (Ibid.)
While Fettgather’s interest in his license was ultimately implicated by the
proceedings to revoke for failure to comply under section 821, as we explain more fully,
post, we find the appropriate balance between the private and public interest is struck
through requiring Fettgather to submit to the section 820 mental examination and
challenge the results of that examination only after a formal accusation alleging mental
illness is brought. (See Mathews v. Eldridge (1976) 424 U.S. 319, 333-335 [noting fluid
nature of inquiry and articulating factors to be considered].)
B. The California Constitution
Fettgather argues he must be afforded the opportunity to challenge the section 820
order at a proceeding to revoke his license pursuant to section 821 and his inability to do
so violated his right to due process under the California Constitution. For the same
reasons that we reject his federal constitutional claim, we reject this one.
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As noted, the issuance of a section 820 order for a mental competency exam does
not impact Fettgather’s right to practice (Alexander D., supra, 231 Cal.App.3d at p. 98;
Lee, supra, 209 Cal.App.4th at p. 798) and his right to privacy implicated by that order is
adequately protected by the statutory mechanism that keeps the investigation confidential
up until the filing of an accusation charging incompetency on the merits. (See §§ 827,
828; Lee, at p. 798; Kees, supra, 7 Cal.App.4th at pp. 1812-1814.)
Fettgather was fully informed of the basis for the investigation, was provided an
opportunity to respond to the responsible government official, and was aware of the
potential consequences of noncompliance with the section 820 order. That
notwithstanding, Fettgather was uncooperative with attempts to investigate the claims
that he was unfit, initially refusing to voluntarily submit to an interview, failing to
comply with two subpoenaed investigational interviews, and finally providing
information to investigators only on the condition that the interview would not be under
oath. His repeated refusal to engage in the statutory process undermines his claim that he
was deprived of due process of law.
Finally, the governmental interest involved in requiring compliance with a section
820 order is compelling. “Protection of the public shall be the highest priority for the
Board of Psychology in exercising its licensing, regulatory, and disciplinary functions.”
(§ 2920.1.) Section 820 was enacted for the express purpose of creating a mechanism to
ensure that the licensing agency had the power to revoke the license of healing arts
professional who was mentally ill. (Alexander D., supra, 231 Cal.App.3d at p. 97.) The
actual ability to investigate whether the medical professional is indeed mentally ill is
paramount to that call. That a revocation order may be issued suspending a license for
noncompliance with a section 820 order in pending revocation proceedings further
underscores the importance of this interest. (See Gov. Code, § 11529(a) [“The failure to
comply with an order issued pursuant to Section 820 of the Business and Professions
Code may constitute grounds to issue an interim suspension order under this section].)
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Moreover, the government’s interest would be severely impacted if licensees were
permitted to delay investigations the licensee believed were unwarranted because it
would unnecessarily delay the investigation and ultimate determination of mental fitness.
Requiring compliance with a section 820 order, in fact, not only streamlines the
procedure, but also protects a licentiate from groundless charges because it allows the
Board to initially and confidentiality determine that mental state prior to the bringing of
any accusation to revoke a license. (Alexander D., supra, 231 Cal.App.3d at p. 98.)
Because it is undisputed that Dr. Fettgather failed to comply with the section 820 order,
he was not entitled to challenge the merits of the order at the revocation proceeding.
IV
Equal Protection of the Law
Fettgather asserts the ALJ’s failure to allow him to challenge the section 820 order
on the merits violates the equal protection clauses in the California and federal
constitutions. We find his cursory statement pertaining to the California constitution
ineffective to raise a State law equal protection claim. (Cal. Rules of Court, rule
8.204(a)(2)(B); People v. Stanley (1995) 10 Cal. 4th 764, 793 [failure to provide reasoned
argument and legal authority waives that argument].)
The only authority Fettgather cites in support of his federal equal protection claim
is Bush v. Gore (2000) 531 U.S. 98. Fettgather’s argument on this issue is sparse, but
appears to be that an equal protection violation exists here on the basis that California law
treats nonlicensed and licensed individuals differently because a nonlicensed person
would not be subject to the Board’s authority to compel a mental examination under
section 820. We fail to see how this demonstrates a violation of equal protection, which
requires that “persons similarly situated with respect to the legitimate purpose of a law
are entitled to receive like treatment.” (Smith v. Bd. of Medical Quality Assurance (1988)
202 Cal. App. 3d 316, 324.) Individuals licensed by the State to provide mental health
11
care are not similarly situated to members of the general public. As such, Fettgather’s
equal protection claim necessary fails. (See id. at p. 325 [noting a meritorious equal
protection claim would show “a classification that affects two or more similarly situated
groups in an unequal manner”].)
V
The Supremacy Clause
Lastly, Fettgather invokes the federal Supremacy Clause in an apparent attempt to
show that sections 820 and 821 are somehow preempted by federal law. He utterly fails
to develop that argument other than to invoke the Supremacy Clause itself and we will
not consider it further.
DISPOSITION
The judgment of the trial court is affirmed. The Board is entitled to costs on
appeal. (Cal. Rules of Court, rule 8.278.)
HULL , J.
We concur:
RAYE , P. J.
MURRAY , J.
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Filed 12/4/17
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ROBERT P. FETTGATHER, C074166
Plaintiff and Appellant, (Super. Ct. No.
34201280001206CUWMGDS)
v.
BOARD OF PSYCHOLOGY, ORDER CERTIFYING
OPNION FOR PARTIAL
Defendant and Respondent. PUBLICATION
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kenny. Affirmed.
Law Offices of Bruce W. Ebert and Bruce W. Ebert for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Gloria L. Castro, Senior Assistant Attorney
General, Jane Zack Simon, Supervising Deputy Attorney General, Lawrence A. Mercer,
Deputy Attorney General for Defendant and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts IV and V of the Discussion.
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THE COURT:
The opinion in the above-entitled matter filed on November 21, 2017, was not
certified for publication.
For good cause it now appears that Parts I, II, and III of the Discussion should be
published in the Official Reports and it is so ordered.
BY THE COURT:
RAYE , P. J.
HULL , J.
MURRAY , J.
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