The opinion
Holmes, J.,
dissenting. The primary question that needs to be
answered is one of the jurisdiction of the trial court over this matter. The complaint was one seeking a declaratory judgment pursuant to R.C. 2721.03, which section provides in pertinent part:
“Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”
First, pertaining to the application of such procedure, we should note, as did the court of appeals herein, that there must be a justiciable controversy between adverse parties wherein “speedy relief is necessary to the preservation of rights.” American Life & Accident Ins. Co. v. Jones (1949), 152 Ohio St. 287 [ 40 O.O. 326 ], paragraph two of the syllabus. Courts may not render abstract or hypothetical opinions. The issue presented to the trial court here did not question the constitutionality of a statute or a rule; it did not question the interpretation of a statute or a rule — instead, it concerned the application or meaning of a letter from an administrative agency, the Ohio State Dental Board (“board”), in answer to a query from the Ohio Association of Orthodontists as to the practical application of an existing rule of the board as it would apply to those working in dental offices, and known as “Basic Qualified Personnel.”
The letter in question does not constitute a rule, rather it represents the professional opinion of the board as to the permissible scope of the activities of the basic qualified personnel operating under the direction of dentists. This is in essence, and in law, only an advisory opinion letter. *27 This is the type of opinion and professional commentary regularly and commonly written by the executives or staff of professional boards or state agencies in order to provide useful guidance to practitioners who wish to comply with statutes and regulations promulgated thereunder. These types of letters do not have the force of a statute or regulation. As such, the advisory letter here at issue is not subject to judicial review on assertion of a third party. Therefore, at the outset, the court of appeals was correct in concluding that there was no live case or controversy for a determination pursuant to the Declaratory Judgments Act.
Second, if one must arrive at the merits of the case, this court, in overriding the professional determination of the Ohio State Dental Board, has consecrated itself as Ohio’s “Super Dental Board” with assumed professional dental knowledge beyond that of those who obtained their professional skills in the school of dentistry. I have no such knowledge; therefore, I follow the law as I see it.
The trial' court improperly ruled upon the opinions of appellants’ experts in substituting its judgment for that of the board. The record is void of fraud or gross abuse of discretion. In the absence of such, the informed and expert opinions of the board should be afforded deference from the courts. The purpose of the board, composed of persons with necessary knowledge and experience in dentistry and representing all interests, is to facilitate the promotion of the safe practice of dentistry. R.C. 4715.03(C). See, also, Farrand v. State Medical Bd. (1949), 151 Ohio St. 222 [ 39 O.O. 41 ], paragraph one of the syllabus.
The letter from the board to the Ohio Association of Orthodontists, in interpreting Ohio Adm. Code 4715-3-01, stated, inter alia, that: “* * * Some of these procedures which may be lawfully delegated to the BQP would include: removal of cement, making of impressions for diagnostic study models and orthodontic appliances, removal of loose bands, and removal of debris from the coronal portion of a tooth which would interfere with the cementation or bonding process. This removal of debris may be done with any instrument or device which would not be construed as ‘preventive polishing of the clinical crown of teeth’ as that phrase is used in Rule 4715-9-01.” Thus, the board’s advisory letter, interpreting the meaning of language used in Ohio Adm. Code 4715-3-01 (and 4715-11-03), applied to tasks allowed to be performed by basic qualified personnel of basic remedial intraoral dental and/or procedures within the existing rules.
The expert for the board, Dr. Frank A. Recker, a dentist and the secretary of the board, testified that one of the activities authorized by Ohio Adm. Code 4715-3-01 explained in the questioned letter was the removal of cement from the teeth, and that such was not considered to be an “accretion” by the board, but that an “accretion” is a “deposit that accumulates over time.” The common usage of the term is a “growth or increase in size by gradual external addition, fusion, or inclusion.” *28 American Heritage Dictionary (2 College Ed.). The courts, meaning the trial court and this court, should take judicial notice of such professional usage. The term “accretion” was intended to mean the natural gradual growth or accumulation, not that material which was placed there inadvertently by man in the orthodontic process.
The explanatory material included in the board’s letter was only in conformity with the rules promulgated by the board, which rules were in accord with statutory enactments providing for them.
Accordingly, I would affirm the judgment of the court of appeals.