Zuckerman

*36 Opinion

Under California law, the State Board of Chiropractic Examiners (Board) may discipline any chiropractor who engages in professional misconduct. A chiropractor accused of misconduct is entitled to a hearing before an administrative law judge, whose proposed decision is reviewed by the Board. A chiropractor found to have committed misconduct may be ordered to pay the “reasonable costs of investigation and prosecution of the case,” including attorney fees, that the Board incurred “up to the date of the hearing . . . .” (Cal. Code Regs., tit. 16, § 317.5.)

Here, a disciplined chiropractor raises a facial challenge to this regulation. He claims the regulation violates the due process rights of chiropractors whom the Board seeks to discipline, by chilling their right to request a hearing to contest charges of misconduct. We disagree.

I

In October 1997, the Board’s executive director issued an “accusation” alleging that plaintiff Robert Zuckerman, a licensed chiropractor, should be disciplined because he engaged in sexual misconduct during the treatment of two female patients and incompetently treated a third patient. The accusation gave notice that the Board would seek…

I agree that California Code of Regulations, title 16, section 317.5 (regulation 317.5) does not, on its face, violate the due process rights of chiropractors by chilling exercise of their hearing rights.

Under the compulsion of California Teachers Assn. v. State of California (1999) 20 Cal.4th 327 [ 84 Cal.Rptr.2d 425 , 975 P.2d 622 ] (CTA), from which I dissented, I also agree that the various restrictions imposed today on the discretion of administrative agencies to assess costs (maj. opn., ante, at p. 45) are constitutionally necessary. But were it not for the authority of CTA, that the absence of any of the court’s new restrictions would render a cost regulation facially invalid would be unclear, to say the least. Suppose, for example, that the State Board of Chiropractic Examiners were not required to consider, in imposing investigative costs on a disciplined chiropractor, whether the chiropractor had subjectively believed in the merits of his or her defense to the charges (maj. opn., ante, at p. 45): would that render the regulation facially invalid? I doubt it, for in order to establish facial invalidity the plaintiff must show that the regulation will deter the exercise…

In this case we consider a facial challenge to section 317.5 of title 16 of the California Code of Regulations (section 317.5), which authorizes the State Board of Chiropractic Examiners (Board) to require a disciplined chiropractor to reimburse the Board for the reasonable costs of investigation and enforcement. As the majority acknowledges, section 317.5 is similar to other provisions that apply to proceedings before most, if not all, professional disciplinary agencies in California. (See maj. opn., ante, at p. 38.)

Section 317.5 and similar provisions are based on a simple premise. Incentives matter. Free or undervalued goods are overused. Thus, the creation of disincentives to discourage the overuse of public goods is both an equitable necessity and an economic imperative. Legislative bodies at all levels of government have implemented fee- and cost-shifting schemes that require litigants to decide whether their claim is worth pursuing. (See Abdul-Akbar v. McKelvie (3d Cir. 2001) 239 F.3d 307, 318 ; Flint v. Haynes (4th Cir. 1981) 651 F.2d 970, 973 .) Such schemes are generally uncontroversial unless they effectively deny access to indigents (Boddie v. Connecticut (1971) 401…