ARLENE CARSTEN, Plaintiff and Appellant, v. PSYCHOLOGY EXAMINING COMMITTEE OF THE BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.
L.A. No. 31202
Supreme Court of California
Aug. 7, 1980.
Appellant‘s petition for a rehearing was denied October 3, 1980.
27 Cal. 3d 793
MOSK, J.
William M. McCarty, McCarty & Quackenbush and Douglas C. Brown for Plaintiff and Appellant.
George Deukmejian, Attorney General, and Alvin J. Korobkin, Deputy Attorney General, for Defendant and Respondent.
OPINION
MOSK, J.—May a member of an administrative agency employ judicial processes to challenge the legality of action taken by the very board on which he or she serves as a member? In probing this unique issue we plow untilled ground: our attention has not been directed to authority in any jurisdiction directly on point.1
Appellant Arlene Carsten (hereinafter petitioner) filed a petition for writ of mandate in the superior court to compel the Psychology Examining Committee of the Board of Medical Quality Assurance of the State of California to comply with
On this appeal we accept as true the allegations of the petition. (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 member of the Psychology Examining Committee of the Board of Medical Quality Assurance (PEC), which has the statutory obligation to insure that only qualified individuals practice psychology in California.
Prior to the April 1977 examination, in screening applicants PEC used a written examination prepared by its members in combination with an oral examination. Beginning with the April 1977 examination, and over petitioner‘s dissenting vote, PEC substituted an objective national examination for the written portion of its test. In administering the new test PEC adopted a national mean for its passing score rather than 75 percent of the raw score as required by
PEC‘s demurrer was sustained and the petition dismissed primarily on the ground that Carsten lacked standing to sue because she was not a “beneficially interested” party as required by
It is clear that since petitioner is neither seeking a psychology license, nor in danger of losing any license she possesses under the rule adopted by the board, she is not a beneficially interested person within the meaning of the statute. Our view under state law is consistent with federal law and a long line of decisions of the United States Supreme Court. (See, e.g., Warth v. Seldin (1975) 422 U.S. 490 [45 L.Ed.2d 343, 95 S.Ct. 2197]; Simon v. Eastern Ky. Welfare Rights Org. (1976) 426 U.S. 26 [48 L.Ed.2d 450, 96 S.Ct. 1917]; United States v. Richardson (1974) 418 U.S. 166 [41 L.Ed.2d 678, 94 S.Ct. 2940]; Schlesinger v. Reservists to Stop the War (1974) 418 U.S. 208 [41 L.Ed.2d 706, 94 S.Ct. 2925]; Ex parte Levitt (1937) 302 U.S. 633 [82 L.Ed. 493, 58 S.Ct. 1]; Massachusetts v. Mellon (1923) 262 U.S. 447, 488 [67 L.Ed. 1078, 1085, 43 S.Ct. 597].)
But, urges petitioner, there are exceptions to the foregoing rule for property owners, taxpayers and voters, and she qualifies under the exceptions. We agree there are circumstances under which a citizen-taxpayer may compel a governmental instrumentality to comply with its constitutional or statutory duty. (See, e.g., Hollman v. Warren (1948) 32 Cal.2d 351, 357 [196 P.2d 562]; but also see Atlanta v. Ickes (1939) 308 U.S. 517 [84 L.Ed. 440, 60 S.Ct. 170]; Davis, op. cit. supra, p. 266.) However, the cases relied upon by petitioner are not apposite; and in any event she possesses none of the virtues discussed therein, and has noteworthy detriments, for entitlement to exemption from the requirements of
In Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98 [162 P.2d 627], the county had cancelled welfare checks; the social welfare board, acting as parens patriae, brought an action on behalf of three needy recipients who would otherwise be dependent upon public relief. Though there was incidental dictum about citizen interest in enforcing a duty, unquestionably the Board of Social Welfare was beneficially interested in the result within the meaning of
Similarly in Hollman v. Warren, supra, 32 Cal.2d 351, the plaintiff was herself an applicant for a notary commission, and thus had a mani-
Nothing in the foregoing decisions justifies reliance thereon by petitioner. On the other side of the coin are persuasive legal and policy reasons why an exception to the statutory requirement of beneficial interest should not be carved out for a person in this posture.
As a broad proposition, state taxpayers have standing to challenge the legality of the expenditure of public funds by any governmental agency (Davis, op. cit. supra, p. 245) and, unlike federal courts, most states permit such citizen-taxpayer suits even on nonfiscal issues (id. at p. 249). The issue here, then, is whether an administrative board member is, for purposes of this litigation, a mere taxpayer.
First of all, the law is clear that courts are reluctant to give advisory opinions. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [83 Cal.Rptr. 670, 464 P.2d 126].) Since petitioner has no personal interest in the outcome of the litigation, she is in effect seeking to have the courts render an advisory opinion on the propriety of an administrative action. A judgment here would affect no person either favorably or detrimentally; it would purely and simply offer gratuitous advice to the board on how to conduct its examinations in the future as they may possibly affect some applicant other than this petitioner.
Second, petitioner is in effect suing herself. She is the moving party in this litigation; the named defendant is the Psychology Examining Committee of the Board of Medical Quality Assurance, of which petitioner is part as a duly appointed member. It is unique to say the least, for one to sue herself and be both plaintiff and defendant in the same litigation. It may be said that she cannot lose the lawsuit, but we doubt that courts should encourage or permit this type of narcissistic litigation. We reach this conclusion because of the inevitable damage such lawsuits will inflict upon the administrative process.
From the vantage point of the judiciary such litigation has ominous aspects. It is purely and simply duplicative, a rerun of the administrative proceedings in a second, more formal forum. The dissident board member, having failed to persuade her four colleagues to her viewpoint, now has to persuade merely one judge. The number of such suits emanating from members on city, county, special district and state boards, will add significantly to court calendar congestion.
While it is true that this petitioner is not only a board member but also a taxpayer, it is as a board member that she acquired her knowledge of the events upon which she bases the lawsuit. Her interest in the subject matter was piqued by service on the board, not by virtue of the neutrality of citizenship. The suit was brought in the former, not the latter capacity.
The law is replete with examples of forfeiture of some rights available to others by virtue of acceptance of public service. The classic illustration is McAuliffe v. Mayor, etc., of City of New Bedford (1892) 155 Mass. 216 [29 N.E. 517], in which a policeman sought reinstatement to his position after discharge for exercising his right to engage in political activity. Justice Holmes, with his trenchant pen, wrote: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract.” (Id. at pp. 517-518.)
The Second Circuit court was in accord in Holtzman v. Schlesinger (2d Cir. 1973) 484 F.2d 1307. Congressman Holtzman, having failed to persuade her congressional colleagues that the United States bombing of Cambodia was illegal, brought a court action as a citizen-taxpayer. Like the instant petitioner, Holtzman did not allege a mere policy disagreement but illegality of action by a government department. The court held she lacked standing, that she had her opportunity to present her views in the proper forum, the Congress, and “The fact that her vote was ineffective was due to the contrary votes of her colleagues....” (Id. at p. 1315.) Holtzman had a better case than this petitioner; she did not sue the Congress, in which her views had been rejected—as petitioner sues the board in which she was defeated—but she proceeded against the Defense Department which was administering the alleged illegal activity. Nevertheless her suit was dismissed on the standing issue.
Professor Davis mused on whether the counsel for a board may bring a lawsuit: “Although it is not clear whether, as a theoretical matter, the General Counsel [of the NLRB] would have standing to challenge his own Board‘s orders, it is abundantly clear that such standing, if extended and invoked, would produce nothing but embarassment and paralysis to the administrative process.” (Davis, Standing of a Public Official to Challenge Agency Decisions: A Unique Problem of Administrative Law (1964) 16 Admin.L.Rev. 163, 169-170.) Obviously he could not even contemplate a board member judicially challenging her own board.
Petitioner suggests, finally, that even if she lacks standing to sue, others may be induced to do so on her behalf. That, of course, is a possibility, but it is a slender reed on which she can lean. We cannot
The history of modern administrative law has been that of expansion, with correlative restraint by the judiciary. As the United States Supreme Court has said on more than one occasion: “We certainly have neither technical competence nor legal authority to pronounce upon the wisdom of the course taken by the Commission.” (Board of Trade v. United States (1942) 314 U.S. 534, 548 [86 L.Ed. 432, 433, 62 S.Ct. 366]; also see Udall v. Tallman (1965) 380 U.S. 1, 16 [13 L.Ed.2d 616, 625, 85 S.Ct. 792].) With such uncharacteristic expressions of modesty, courts for the first half of this century yielded to administrative expertise. But, as Professor Schwartz observed in his treatise on Administrative Law (1976) at page 22, “Administrative law is now at a turning point in its history.... We now seem to be moving toward a new period whose essential outlines are not yet clear.” The trend, not altogether salutary, is for the courts to exercise “an increasingly activist role... the courts have come to assume a virtual ombudsman function.” (Id. at p. 29.) We believe, however, that the California judiciary is ill-equipped to add to its already heavy burden the duty of serving as an ombudsman for the plethora of state administrative agencies and local agencies that exist in every one of our 58 counties.2 Yet that role will inevitably be imposed if minority board members may bring their defeats and frustrations to courts for a second chance at persuasion.
Providing her own example of this danger, petitioner filed three lawsuits against PEC in the San Diego Superior Court, the most recent case challenging the validity and regularity of oral examinations, charging the examinations were not given in a uniform manner and that all applicants were not questioned in all required areas of learning. The handwriting is on the wall: if petitioner were to prevail courts will be asked constantly to resolve internal board conflicts over licensing examination procedures. And if that were permitted, the utility of admini-
We choose to avoid taking, as requested, a giant step toward immobilizing administrative process in California and in time rendering it impotent and chaotic. Whether it is wise to transfer to the courts all administrative matters that lack unanimity is a policy issue to be debated in legislative halls. We deem it improper to achieve such result through this misguided petition.
The judgment is affirmed.
Clark, J., Manuel, J., and Newman, J., concurred.
RICHARDSON, J.—I respectfully dissent. In my view, a public member of a government agency has standing to challenge by petition for writ of mandate that agency action which fails to comport with its obligatory duties. There is no provision of law, constitutional, statutory, or decisional, which shuts the courthouse doors to such a person. The issue therefore becomes one of policy and, while arguable, I am unpersuaded by the majority that a citizen‘s important right of access to the courts should thus be denied.
The general rule on standing for mandamus relief, as described in
The foregoing general principle, however, has been considerably extended by numerous court decisions which have subsequently recognized as “beneficially interested” a cluster of property owners, taxpayers, and voters in those cases in which the purpose of the proceedings is enforcement of a clear public duty and the public interest would suffer from a failure to perform such duty. (Hollman v. Warren (1948) 32 Cal.2d 351, 357 [196 P.2d 562]; Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98, 100-101 [162 P.2d 627]; Coldwell v. Board of Public Works (1921) 187 Cal. 510, 520 [202 P. 879]; McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 440 [111 Cal.Rptr. 637]; American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 256 [109 Cal.Rptr. 22]; Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 198 [81 Cal.Rptr. 683]; Fuller v. San Bernardino Valley Mun. Wat. Dist. (1962) 242 Cal.App.2d 52, 57
Several of these cases both disclose the rationale and define the ambit of these judicial extensions. In Bd. of Soc. Welfare v. County of L. A., supra, 27 Cal.2d 98, Los Angeles County had cancelled certain welfare checks six months after their issue date pursuant to provisions of the
Similarly, in Hollman v. Warren, supra, 32 Cal.2d 351, an applicant for a notary commission sought a writ of mandate to compel the Governor to exercise his discretion regarding the appointment of notaries public for San Francisco. Apart from the fact that she was personally interested as an applicant, we held that, as a resident and taxpayer of San Francisco, the applicant had an interest in having a sufficient number of notaries commissioned therein. The law imposed a mandatory duty on the Governor to act on the appointment of notaries public. We noted that “[a]side from her character as an applicant for appointment as a notary it is alleged that she is a resident and taxpayer of the city and county of San Francisco. As such she is interested in having a sufficient number of notaries commissioned to act therein.” (Pp. 356-357, italics added.)
In Fuller v. San Bernardino Valley Mun. Wat. Dist., supra, 242 Cal.App.2d 52, petitioners obtained a peremptory writ of mandate ordering a municipal water district to terminate its proceedings for the annexation of lands underlying Big Bear Lake. The water district contended that petitioners lacked any beneficial interest. The Fuller court
In American Friends Service Committee v. Procunier, supra, 33 Cal.App.3d 252, several nonprofit corporations active in the area of prison reform brought suit to require the Department of Corrections and the Adult Authority to comply with the Administrative Procedure Act in the formulation of their rules and regulations. The Court of Appeal, in discussing plaintiffs’ standing to sue, stressed that the petition was one “for mandate alleging that a government department is not complying with the law and seeking a court order compelling such compliance.” (P. 256.) Relying on Bd. of Soc. Welfare, the Friends court in recognizing plaintiffs’ standing said: “Petitioner in a mandamus proceeding must demonstrate that the writ is necessary to enforce or protect a specific legal right that is clear, present, certain and substantial. (Parker v. Bowron (1953) 40 Cal.2d 344...; Monarch Cablevision, Inc. v. City Council (1966) 239 Cal.App.2d 206...; 5 Witkin, Cal. Procedure (2d ed. 1971) p. 3841.) Where, however, the question is one of public, as opposed to private, interest, and petitioner seeks performance of a public duty, it is said the foregoing requirements of petitioner‘s rights and respondent‘s duty have been ‘relaxed.’ (5 Witkin, supra, p. 3847; Cal. Civil Writs (Cont.Ed.Bar 1970) p. 73; Fuller v. San Bernardino Valley Mun. Wat. Dist. (1966) 242 Cal.App.2d 52...).” (Ibid.)
Petitioner is a citizen and taxpayer, presumably endowed with all of the constitutional and procedural rights of every other citizen. She alleges that the committee is violating a statutory command contained in
In similar fashion, and with due deference, I suggest that the majority‘s contention that petitioner is “suing herself” withers under closer inspection. The defendant is a committee, statutorily created (
The majority must rely on policy considerations alone. Why should courts strip “citizen-taxpayer” status from an entire section of the public composed of persons who also happen to be public members of a government agency? The majority‘s reasons are insufficient.
In my opinion the majority substantially exaggerates the judicial “burdens” that would be imposed were we to permit access to the courts to petitioner, and others similarly situated. The majority, fearing an explosion of lawsuits, conjures a litigation disaster that would engulf us were petitioner‘s rights as a citizen to be honored. It is overreaction to anticipate that the entire administrative process will thus be transported, wholesale, to the courts. I predict that the dreaded, and overused, Pandora‘s box would prove to be comparatively empty. Taxpayers and aggrieved persons generally have been permitted for years to bring suits challenging certain government actions. While I have no statistics either way, I doubt that the volume of such types of actions has become unmanageable. Nor is there any proof that such proceedings have become notoriously triggered by bad faith. Trial courts have shown themselves fully capable of weeding out those disputes which are not the proper subjects of judicial intervention.
The issue herein presented is not “political.” Rather, it concerns the enforced compliance with a professional grading standard which the Legislature has clearly, and with full authority, explicitly fixed. No deference is due another branch. The only issue is whether the challenged grading procedure of PEC complies with the legislative mandate of
The efficacy of limiting standing of agency members in order to avoid administrative complications is equally doubtful, as shown by a mere consideration of the available alternatives. If petitioner herself is denied standing, she could readily have a friend or family member as a representative citizen indirectly bring the action on her behalf. If challenged, our courts would then have to resolve the question of who is the “real” party behind the suit. In such case, the identical “intra-mural” agency conflict which the majority fears would arise as would the same potential “threat” of an internecine quarrel. In the alternative, petitioner could resign her government position and then seek mandate. In either case, I see no net administrative gain in stripping from petitioner her status as a citizen taxpayer thereby denying to her the precise relief which we might well have to give her proxy or, alternatively, forcing her to resign from public service. We would thus be honoring the shadow while rejecting the substance.
A firmly established series of cases has held that petitioner‘s standing to pursue her remedy is based on a generally recognized right and not on any exception that need be drawn in her case. A holding by this
The right of access to our law courts is a very important attribute of citizenship. Petitioner is a citizen and taxpayer as well as an agency board member. She, and others like her, may be particularly well informed and uniquely suited to assure that public agencies conform their procedures to statutory duty. Petitioner as an interested citizen devotes substantial amounts of time and energy toward the stated objectives of the committee. The public interest is not advanced when her willingness to serve is penalized by forfeiture of one of her important civil rights.
I would reverse the judgment of dismissal.
Bird, C. J., and Tobriner, J., concurred.
Appellant‘s petition for a rehearing was denied October 3, 1980. Bird, C. J., Tobriner, J., and Richardson, J., were of the opinion that the petition should be granted.