No. C062435.

JOSEPH R. BANISTER, Plaintiff and Appellant, v. CALIFORNIA BOARD OF ACCOUNTANCY, Defendant and Respondent.

Court of Appeals of California, Third District, Sacramento.


RAYE, Acting P. J.

As provided in Business and Professions Code section 5100, subdivision (h), the California Board of Accountancy (Board) revoked petitioner Joseph R. Banister's accounting license because he had been disbarred by the Internal Revenue Service (IRS) and the grounds for the disbarment were substantially related to the qualifications, functions, or duties of an accountant. (Clare v. State Bd. of Accountancy (1992) 10 Cal.App.4th 294 (Clare).) In his petition for a writ of mandate, Banister alleges the IRS denied him the kind of due process he would be entitled to receive in California revocation proceedings of his vested property right to practice accounting. On appeal, he contends, in essence, the Board has a sua sponte obligation to scrutinize the federal proceedings to determine whether he was accorded due process as required to revoke his license in California. The failure to examine the federal proceedings, in Banister's view, constitutes an unconstitutional application of subdivision (h). We disagree and affirm the judgment.


The IRS disbarment is the sole basis for the revocation of Banister's license. The record of the IRS proceedings discloses that Banister admitted the conduct for which he was disbarred. He self-reported the disbarment to the Board. There is no evidence of any client complaints or other disciplinary proceedings.

Business and Professions Code section 5100 provides, in pertinent part: "After notice and hearing the board may revoke, suspend, or refuse to renew any permit or certificate . . . or may censure the holder of that permit or certificate for unprofessional conduct that includes, but is not limited to, one or any combination of the following causes: [¶] . . . [¶] (h) Suspension or revocation of the right to practice before any governmental body or agency."1

The Record of the IRS Proceedings

On March 19, 2003, the Director of the IRS's Office of Professional Responsibility filed a formal complaint alleging that Banister had committed misconduct by giving advice that had no basis in law or fact; by knowingly counseling clients to illegally evade federal taxes; by providing false opinions to taxpayers; by failing to exercise due diligence in making representations to taxpayers; and by signing federal income tax returns that did not have a realistic possibility of being sustained on their merits. All of the charges involved Banister's advice to clients not to report income on their federal tax returns. Based on these allegations, Banister faced disbarment from practicing before the IRS.

The decision of the IRS administrative law judge (ALJ) granting summary judgment indicates that Banister, in his answer, admitted the facts alleged in the complaint.2 Based on those admissions, ALJ Moran found that each of the offenses had been established by clear and convincing evidence and granted the Director's motion for summary judgment. He explained, as quoted in the "Decision on Appeal": "`A fundamental purpose of a hearing or trial is to determine whether the allegations of fact, as set forth in the Complaint, occurred. But where there is no dispute as to the underlying facts, obviously there is no need for a court to resolve whether one party's version of the facts is more believable than the other side's version. That is what happened in this case. In fact, in Mr. Banister's answer to the original Complaint he admitted that the facts alleged in the Complaint occurred. Thus, Mr. Banister admitted that he so advised his client "C" that the Sixteenth Amendment to the United States Constitution was not ratified and he admitted that he advised client "C" that Internal Revenue Code sections 861 through 865 defined "source of income" so as to exclude C's earnings. Similarly, Banister admitted that he also advised client "T" that Internal Revenue Code sections 861 through 865 defined "source of income" so as to exclude T's earnings. The very significant problem with Banister's advice is that it is absolutely wrong. Both of Banister's assertions have been long resolved by the Federal Courts as completely without merit. Thus, Banister was not presenting some new theory in support of the dream entertained by some United States citizens that somehow they don't have to pay their federal income taxes. In fact, Banister's assertions have been addressed by so many federal courts that they are no longer accorded the dignity of repeating the explanations as to why the claims are meritless. Accordingly, with no factual dispute as to the allegations in the original Complaint, and having determined as a matter of law that such advice to clients "T" and "C" constituted misconduct and disreputable conduct under the regulatory sections cited in the Complaint, the court directed summary judgment in favor of the IRS.'"

Following the ruling, Banister was accorded a hearing on December 1, 2003, to determine the appropriate penalty and was thereafter disbarred from practice before the IRS.

Banister then appealed to the Secretary of the Treasury, based on the purported denial of due process. He alleged the ALJ denied him the right to call witnesses or to testify on his own behalf. In an exhaustive 104-page analysis, David O'Connor, special counsel to the senior counsel as the authorized delegate of John W. Snow, Secretary of the Treasury, rejected Banister's due process arguments, among others, affirmed the ALJ's findings with respect to the charges contained in the initial complaint, and affirmed the decision to disbar Banister from practice before the IRS. We quote at length the pertinent analysis of Banister's sweeping due process allegations, both because the special counsel's analysis is apt and thorough and because Banister has not provided a record containing any evidence to the contrary.

Right to Discovery.

"[Banister] claims that his rights of discovery with respect to documents and witnesses have been abridged. [He] has not indicated all that he seeks to include within this sweeping claim . . . . [His] requests to present witness testimony, introduce documents, or gain discovery were often untimely (prejudicially so with respect to both Complainant and Judge Moran's efforts to conduct orderly proceedings) and often made on the basis of not even the most minimal showings of relevance of materiality, let alone with the type of particularity required by the court in United States v. Willie [(10th Cir. 1991) 941 F.2d 1384]."

Denial of the Right to Testify.

"[Banister] claims that he was denied his right to testify. Judge Moran, in no uncertain terms . . . has flatly denied this claim: [¶] `[Banister] was permitted to offer any evidence he could muster to rebut the charges set forth in the Complaint and the Amended Complaint. As this decision reflects, he was also given the opportunity to offer any factors for the Court to consider, in mitigation of the violations, in determining the appropriate sanction.'

"While [Banister] has again failed to provide any specifics in support of another broad claim, it would seem that his assertion is premised on what he believes to be the unfairness embodied in his possible loss of the Fifth Amendment privilege against self incrimination if he testifies in these proceedings and in certain of the evidentiary exclusions arising from Judge Moran's determinations of irrelevance and immateriality. . . . I would also note that Judge Moran did everything he could to address even these concerns by allowing [Banister] to submit his unsworn statement at the December 1, 2003 hearing and refusing to allow Complainant's counsel to cross-examine him with respect to that statement or any other matters relevant to these proceedings."

Right to a Hearing.

"[N]o constitutional right to procedural due process precluded the resolution of the liability issues in these proceedings through motion for summary judgment if the charges before Judge Moran did not involve disagreements with respect to relevant and material facts."

"Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where there are no genuine issues as to any material fact and when the moving party is entitled to judgment as a matter of law. Similar standards apply in the context of disciplinary proceedings under Treasury Circular 230. [Citation.] These standards are in accord with decisions such as Puerto Rico Aqueduct and Sewer Authority v. United States Environmental Protection Agency,35 F.3d 600, 606 (1st Cir. 1994), cert. denied,513 U.S. 1148 (1995), which find that there is no constitutional due process right to an evidentiary hearing absent an actual dispute as to a material fact.

"As to the fundamental underlying facts pertaining to the charges contained in the Initial Complaint, Judge Moran has found that [Banister] has admitted the underlying facts with respect to liability and has been accorded a hearing on all matters pertaining to the sanction to be imposed with respect to that conduct. I agree."

Right to Call Witnesses.

The special counsel, O'Connor, analyzed the relevancy and materiality of each of the witnesses Banister hoped to call to testify. As to some of the witnesses, Banister missed the deadline for identifying them. Moreover, as to some of these and others, Banister failed to provide specifics that would have permitted the ALJ to determine if their testimony would be relevant. Other witnesses' testimony would have been irrelevant and/or immaterial. Others would have been duplicative.

There is no evidence in the record that Banister appealed the Secretary of the Treasury's decision to affirm Banister's disbarment before the IRS. He asserted he was planning to appeal within the six-year statute of limitations. The United States Treasury affirmed the disbarment on June 25, 2004.

The Record of the California Administrative Proceedings

On February 25, 2005, the Board filed an accusation against Banister alleging that his license should be revoked based on the revocation of his right to practice before the IRS. At the hearing, Banister challenged the IRS proceeding, asserting a lack of due process in that he was not allowed to conduct discovery, to subpoena witnesses, to testify under oath, or to fully cross-examine any witnesses. He did not, however, introduce any evidence at the hearing to establish the lack of due process he alleged.

The ALJ in the state revocation proceedings gave short shrift to his constitutional challenge. He wrote: "[Banister] raises various constitutional law concerns, including the due process provisions of the United States and California constitutions. He asserts there was a `manifest lack of due process' in the federal proceedings against him. This decision determines no issues of constitutional law. (Cal. Const., art. III, § 3.5.)"

The ALJ concluded: "Taking into account the board's duty to protect the public, the disciplinary guidelines, the conduct that led to his disbarment from practice before the Internal Revenue Service, and his lack of mitigation, revocation of [Banister's] certified public accountant certificate is appropriate." The Board adopted the decision as its order.

Record of the Mandate Proceedings

On March 27, 2007, Banister filed a petition for a writ of mandate challenging the Board's decision. He alleged that the Board improperly relied on IRS proceedings that "violated the Federal Constitution" and "failed to consider due process issues." As for relief, Banister "prays this Court resolve all legal issues, including all Constitutional issues, and remand this proceeding to conduct a hearing in which Banister is allowed to cross-examine his accusers, examine the underlying merits of the alleged improper conduct and present witnesses in his own defense."

In a memorandum in support of his petition, he further asserted that in the IRS proceedings, he was denied the right to conduct discovery, the right to testify under oath on his own behalf, the opportunity to present witnesses, the opportunity to issue subpoenas, the right to fully cross-examine his accusers, and the right to oral argument.

Banister did not augment the record with any evidence of due process violations. Rather, he argued the IRS disbarment could not be considered unless the ALJ in the California proceedings first conducted an independent review of the record of the proceedings to ascertain whether any of his rights to due process had been violated. The trial court denied the petition, incorporating his oral decision at the hearing.

The court explained: "There is no dispute here that the action for which he was suspended in the IRS is substantially related to the qualifications, functions, and duties of a certified public accountant. This Court recognizes that there's a property interest there which gives rise to due process . . . ." Nevertheless, the court concluded that the petition was, in effect, a collateral attack on the IRS decision. The court held that Banister's remedy for any due process violation was to appeal the IRS decision.

The court also offered an alternative rationale. Although it relied on its collateral attack analysis, it pointed out: "There isn't automatically a right to evidentiary hearing where all the witnesses are called. It's a streamline proceedings [sic] and especially in those instances where the summary judgment is dominantly an issue of law based on facts that are fundamentally beyond dispute. [¶] That's not the basis of my decision, but I observe that in the sense that even if I was correct, I don't see the inherent on the surface due process violation that the petitioner is urging on me." Banister appeals.



Our first formidable task is to decipher Banister's arguments. He argues subdivision (h) requires that before the Board could rely on the IRS proceedings as evidence to revoke his license, it was required to determine that the proceedings comported with the due process protections he would receive in a California proceeding; the Board's failure to examine the due process accorded him by the IRS constitutes an unconstitutional application of subdivision (h). But incongruously, he also argues that the use of the prior administrative decision raises an evidentiary, not a constitutional, issue.

His words are vague and ambiguous. At one point he formulates the question as follows: "[W]hether the Board can revoke Banister's license to practice based solely on the decision of another agency when the other agency did not provide any meaningful due process before rendering its decision. By basing its actions solely on the actions of another agency that failed to provide due process, the Board revoked a constitutionally protected property right without the accused receiving meaningful due process and based its actions on untested assumptions."3

He condemns the Board's "pernicious variant of `per se liability' in licensure proceedings — a specie of strict liability completely at odds with fundamental due process . . . ." Aligned with this ostensible challenge to the constitutionality of the Board's application of subdivision (h) is yet another iteration of the issue in his opening brief: "The Board's proceeding involved a property right and Banister sought to consider whether the procedure the IRS used to determine Banister's continued eligibility to the privilege to practice before the IRS sufficiently complied with due process such that Banister's California property rights were adequately protected by the IRS procedure."

But in reply to the Board's argument that the utter failure to present evidence he had been denied due process was fatal to his appeal, Banister insists that "[a]s long as the [Board] ALJ considered § 5100(h) to be a `per se' rule and impervious to attack, the entire issue was a pure question of law and was preserved for appeal through exhaustive briefing and discussion." He insists that by failing to address the issue, the Attorney General has conceded that the denial of his "request for an evidentiary hearing challenging the trustworthiness of the Internal Revenue Service . . . determination on due process grounds, constituted an evidentiary question rather than a constitutional determination . . . ."

It is possible that Banister's concern with the limitations imposed by article III, section 3.5 of the California Constitution led him to state his due process claim in deliberately vague terms. Article III, section 3.5 prohibits an administrative agency from declaring a statute unconstitutional. The Board ALJ reminded the parties of this constitutional limitation and asked them to address the ban in their closing written briefs. The ALJ ultimately concluded that the decision determined no constitutional issues. No matter how Banister's due process claim is characterized, we agree that in light of his admissions before the IRS, he raises no viable constitutional issues. Subdivision (h) is constitutional and its language does not support the relief Banister seeks. The logic of a federal case on which he relies heavily cannot be applied to the present facts. And most importantly, the record provides no evidentiary support for his due process claim.


A. Banister's Admissions and the Summary Judgment

According to the ALJ in the IRS proceedings, Banister admitted the underlying conduct alleged in the IRS accusation, and on that basis, the ALJ granted summary judgment. The special counsel to the Secretary of the Treasury affirmed the propriety of granting a summary judgment in the absence of triable issues of fact.

Banister complains he was not provided a hearing, was not allowed to testify, and was not allowed to confront witnesses, but he never acknowledges that the reason for those deprivations was not an arbitrary policy of the IRS or a capricious denial of his right to due process but the granting of the summary judgment motion based on his own admissions. He does not dispute the dispositive fact that he admitted advising taxpayers not to report income on their federal tax returns in derogation of established law. He simply does not confront the issue that it was the summary judgment that rendered a hearing on his liability unnecessary.

B. Subdivision (h) is Constitutional

The constitutionality of subdivision (h) was upheld in a case similar to the present one. Kenneth Clare appealed the denial of his petition for a writ of mandate challenging the Board's suspension of his accountant's license based solely on the earlier suspension by the Federal Home Loan Bank Board. (Clare, supra, 10 Cal.App.4th at pp. 297-298; Bus. & Prof. Code, § 5100, former subd. (g).)4 On appeal, he argued that subdivision (h) was unconstitutional because it facially permits discipline "without regard to whether the federal suspension was related to his qualifications, functions, or duties as a certified public accountant." (Clare, at p. 301.)

The Fourth District Court of Appeal rejected Clare's constitutional challenge to the statute on multiple grounds. First, the court concluded there was an implicit requirement to demonstrate a "substantial relationship" between the conduct meriting discipline and the professional's fitness or competence to practice that profession. (Clare, supra, 10 Cal.App.4th at p. 304.) With that limitation, the statute could only be applied to those circumstances that are constitutionally valid. (Ibid.) The facial attack on the constitutionality of the statute failed.

Second, the court rejected Clare's claim that the statute was unconstitutional because it established an irrebuttable presumption that any government agency discipline was related to an accountant's qualifications, functions, or duties. The court held that because a finding of a "substantial relationship" was required, the statute did not create such a presumption. (Clare, supra, 10 Cal.App.4th at p. 304.)

Third, the court was not troubled by different standards of proof or different accounting standards. The court wrote: "We see no merit in this contention, since the Legislature presumably was cognizant of actual or potential differing standards of proof applied by various governmental agencies when it adopted [the] subdivision. . . . [¶] . . . [¶] . . . [B]y adoption of subdivision (g) allowing the [Board] to discipline an accountant based upon discipline imposed by other governmental bodies or agencies, the Legislature must have intended to allow the [Board] the power to discipline accountants for actions which violate professional standards regulating conduct of licensees in other jurisdictions even where they would not have directly violated California's own rules. We do not believe it unreasonable for this state to rely on a licensee's failure to conform to professional conduct regulations imposed by, and voluntarily assumed in other jurisdictions." (Clare, supra, 10 Cal.App.4th at p. 305.)

Fourth, the court found subdivision (h) was not unconstitutionally vague as applied to Clare's misconduct. An accountant has a responsibility to be aware of and comply with the rules of practice in other jurisdictions before which he or she practices. "Subdivision [h] clearly states that a suspension by a governmental agency is grounds for disciplinary action by the [Board]. Although Clare asserts he did not know he could have been disciplined by the [Board] as a result of the [earlier] suspension, any subjective unawareness could not have been based on ambiguity in the statute." (Clare, supra, 10 Cal.App.4th at p. 306.)

Fifth, the court concluded there was substantial evidence to support the constitutional application of the statute to Clare. Like Banister, Clare had admitted the underlying conduct that led to his suspension. The court found the conduct "clearly is related to his functions or duties as an accountant, as the conduct occurred in the performance of his duties as an accountant for Sun." (Clare, supra, 10 Cal.App.4th at p. 307.)

Undeterred by a decision expressly upholding the constitutionality of subdivision (h), Banister tries to use Clare to his advantage. He points to the court's willingness to imply a legislative intent not found in the express terms of the statute in order to save it. In similar fashion, he posits that the Legislature must have intended that the Board would scrutinize other governmental agency proceedings to assure they comported with the due process expectations of California licensees. There are no cases to support the imposition of such an expansive sua sponte obligation on the Board. But more to the point, neither the language of the statute nor the dearth of evidence presented in this record justifies such an expansion here.

C. The Express Language of Subdivision (h)

Banister's invitation to imply a duty glosses over the most basic rules of statutory construction. We are constrained by the express language of the statute, and we remind Banister that the plain meaning of the words of the statute does not require the Board to independently review prior proceedings to determine whether a licensee was afforded due process, as that concept is understood in California revocation proceedings. Thus, subdivision (h) itself presents a barrier to the relief he seeks.

D. A False Analogy

Faced with a constitutional statute that does not compel the Board to undertake a sua sponte examination of the IRS proceedings and no cases to support his novel interpretation of the statute, Banister asks us to apply the logic of a federal deportation case (United States v. Mendoza-Lopez (1987) 481 U.S. 828 [95 L.Ed.2d 772] (Mendoza-Lopez)) in which the court held that, in the absence of any other avenue for judicial review of an earlier deportation proceeding, an alien who was prosecuted for reentering the country could collaterally attack the proceeding. The attempt to apply such a faulty analogy only highlights the chasm between what the law is and what he would like it to be.

We need not point out each of the glaring differences between the federal deportation proceedings and the earlier misdemeanor prosecution because the linchpin of the analysis rested on the lack of judicial review available to the deportee. (Mendoza-Lopez, supra, 481 U.S. at pp. 837-839.) Here, as the Board aptly points out, Banister exercised his right to administrative review and assured us he would seek judicial review by the June 2010 deadline. Whatever the motivation for his delay in seeking review of the IRS decision, the fact remains that, unlike Mr. Mendoza, Banister had the right to obtain judicial review of the administrative decision.

Moreover, there is a second critical distinction. In Mendoza-Lopez, the courts assumed that the deportation hearing violated due process. (Mendoza-Lopez, supra, 481 U.S. at pp. 839-840.) Here no court or administrative agency has made that assumption. Nor should they. Factually, the case bears no resemblance to Banister's administrative proceedings. This record is barren of any evidence comparable to the violations suffered by Mendoza-Lopez, an illegal immigrant. Consequently, a deportation case that is predicated on the deprivation of due process does not support a new rule triggering a sua sponte search for deprivations without evidence that such deprivations actually occurred.

E. The Record

An appellant bears the burden of producing a sufficient record to support his or her claims. Unfortunately, the record we have is quite skimpy. Because Banister has failed to include many of the documents from the IRS proceedings, including his answer, we do not have the actual record of his admissions. We do have, however, the special counsel's exhaustive recitation of the chronology of the case, including the motions and the rulings by the IRS ALJ. The Special Counsel quotes the ALJ verbatim that Banister had admitted the underlying conduct.

Banister does not dispute he admitted the conduct alleged in the accusation, but he objects to the characterization of the conduct as "`misconduct before the I.R.S.,'" and he insists that using his admissions "is nothing more than circular reasoning." In the absence of the record of his actual admissions, he simply has not sustained his burden on appeal. Moreover, the reasoning is linear, not circular. It begins with the factual predicate that Banister admitted the alleged conduct. Based on that pivotal premise, further testimony about Banister's or his former IRS employers' or other witnesses' motives was immaterial. The conclusion, therefore, was straightforward — there were no material triable issues of fact.

Banister cites to argument of his counsel as support in the record for his contention that he was denied due process. But argument at any of the proceedings does not constitute evidence. We can find no evidence in this record that he was denied due process.

Indeed, the record we have suggests just the opposite. Although the ALJ granted the summary judgment as to liability, Banister was provided a hearing to determine what penalty would be appropriate. The judge went to great lengths in that hearing to accommodate his Fifth Amendment rights and allowed him to testify while not under oath and not subject to cross-examination. He was allowed to testify and to cross-examine the government's witness. He thereafter appealed the determination. He recognized he had a further right of appeal he had yet to exercise. Thus, having scoured the record we were provided, we can find no evidence to support his due process claim.

He offers yet another excuse for his failure to produce a prima facie showing he was denied due process. He argues that he would have presented evidence if only he had been given an evidentiary hearing. But in his view, the threshold question was a matter of law, and that question, whether the Board must review the IRS proceedings to determine whether he was provided his right to due process, had to be resolved before any evidentiary issues. He asks us to remand the case for an evidentiary hearing after resolving the legal question in his favor. But he insists that the Board erred as a matter of law by relying on an IRS determination that is untrustworthy because the proceedings failed to provide due process.

Banister's analytic approach is clever but wrong: clever in that he tries to escape the fatal consequences of providing no evidence by characterizing the threshold issue as a question of law, but wrong because an appellate court does not rule on abstract questions. He invites us to conclude the statute was unconstitutional as applied based on no evidence it was applied unconstitutionally.

Yet in analogous cases, both the federal and California courts require the party challenging the prior administrative proceedings to prove he was deprived of due process and that the deprivation prejudiced him. In federal bar proceedings based on discipline imposed by a state bar, courts impose the burden on the attorney to establish, by clear and convincing evidence, any due process violation alleged to have occurred during the state administrative proceedings. (Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934, 943; In re Kramer (9th Cir. 2002) 282 F.3d 721, 724-725.) In those rare federal cases in which a collateral attack is condoned, federal courts have required the defendant to prove a violation of due process and prejudice. (United States v. Torres (3d Cir. 2004) 383 F.3d 92, 103; United States v. Arevalo-Tavares (10th Cir. 2000) 210 F.3d 1198, 1200.) California is as reticent to allow a collateral attack of prior conviction allegations, but when allowed, the defendant bears the burden of producing evidence of the violation and, in addition, of showing he suffered prejudice as a result. (People v. Allen (1999) 21 Cal.4th 424, 435-436.)

Rather than evidence, Banister presents wild hypotheticals. Below he speculated about due process in Rwanda; now he raises the possibility that fanatic Islamists would ban female witnesses. Neither hypothetical is factually supported, of course. But Banister's resort to hypotheticals instead of evidence is telling. His appeal masquerades as a question of law when it is nothing more than an abstraction.

Kenneth Clare attempted the same thing and lost. He suggested that a foreign jurisdiction might suspend a license on the basis of race. The court rejected the notion, as do we, that the existence of some hypothetical situation in which the statute might be unconstitutional as applied was not sufficient to invalidate the statute. (Clare, supra, 10 Cal.App.4th at pp. 303-304.)

In sum, we reject Banister's contention that he must do no more than raise the specter of due process to trigger an obligation on the Board to independently scrutinize the entire administrative record from the prior proceeding. This contention, as pointed out, is unsupported. There is no law and no evidence to support it. In the end, the blurring of the constitutional and evidentiary arguments was for naught. In the absence of some evidence he was denied due process and that he suffered prejudice as a result, the Board had no sua sponte obligation to hunt for evidence, and we have no opportunity to consider whether a revocation based on subdivision (h) can be set aside for egregious violations of due process in the underlying administrative proceedings.


The judgment is affirmed.

We concur.




1. Business and Professions Code section 5100, subdivision (h) will be referred to simply as "subdivision (h)" throughout this opinion.
2. Banister did not provide a copy of his answer for the record. He has not challenged the ALJ's assertion.
3. There is no evidence in the record to support Banister's naked charge that "the other agency did not provide any meaningful due process." And the "untested assumptions" to which he refers are his own admissions, all of which we discuss below.
4. Business and Professions Code section 5100, former subdivision (g) was a predecessor to what is now subdivision (h). We will refer to the prior subdivision (g) as subdivision (h).


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