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 of hearing rights in every case, or at least in the generality of cases. (CTA, supra, 20 Cal.4th at p. 359 (dis. opn. of Werdegar, J.).) Since many chiropractors with a subjective belief in the merits of their position would presumably also have some degree of confidence that their position will prevail in the administrative hearing, that all or the great majority of such professionals would give up their hearing rights because of a possible cost assessment should they lose the hearing, were there no guarantee their subjective belief would be considered, seems doubtful. (See id. at pp. 359, 367-369.) Nonetheless, I agree CTA compels this conclusion and demands adherence as a matter of stare decisis.1
At the same time, one must note in the court’s approach to constitutional adjudication a significant divergence between the present decision and CTA. *49In the present case, the court accepts the agency’s assertion that regulation 317.5’s purpose is “to reduce its operating costs by requiring chiropractors who engage in acts of misconduct or incompetence to pay for the prehearing costs . . . .” (Maj. opn., ante, at p. 42.) In CTA, the state’s asserted purpose, similarly, was “ ‘to promote accurate administrative outcomes without undue taxpayer expense.’ ” (CTA, supra, 20 Cal.4th at p. 359 (dis. opn. of Werdegar, J.), quoting the state’s attorney at oral argument.) But there, as I explained in dissent, “[bjecause the statute is not limited to frivolous hearing demands, the majority rejects the state’s asserted purpose out of hand and posits a different, obviously indefensible purpose: to deter all unsuccessful teacher requests, meritless or not.” (Ibid.) As in CTA, here too, under the regulation as written, costs may be imposed regardless of whether the chiropractor had a potentially meritorious defense to the charges. Yet the majority here accepts the rationale it dismissed in CTA. I join because I think the CTA majority was in error and today’s approach is the correct one. (See id. at pp. 359-360.)
Chin, J., concurred.
In the present case, I note, the investigative costs imposed amounted to $17,500, whereas in CTA the adjudicative costs imposed were less than $7,750. (CTA, supra, 20 Cal.4th at p. 332.) That the CTA provision nevertheless would serve as the greater deterrent to a litigant, as the majority in that case held, seems problematic.