“When there is a direct conflict or inconsistency between a statute and a regulation, the statute which represents the true legislative intent must necessarily prevail” and the regulation “is a nullity.”
How later courts described this case
- “When there is a direct conflict or inconsistency between a statute and a regulation, the statute which represents the true legislative intent must necessarily prevail” and the regulation “is a nullity.”
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
concurring in result.
I concur in the result reached and in substantially everything that is said in the carefully analyzed principal opinion.
My reservations relate to the statutory reference to advertising of “practice limited to.” The prohibition against saying, “practice limited to pedodontics” is appropriate to maintain the integrity of state certification of specialists in that explicit field. The required disclaimer is somewhat demeaning, and in this respect it stands in contrast to Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 , 105 S.Ct. 2265 , 85 L.Ed.2d 652 (1985), in which the disclaimer simply required a statement that one who signed a contingent fee contract might nevertheless be liable for expenses and costs of an unsuccessful suit. The legislature could appropriately conclude, however, that if the plaintiff used the statutory term, some people might be led to believe that he had the credentials of a licensed certified pedodontist.
I am not so sure that the same considerations would apply to the use of the phrase, “practice limited to,” if the field of limitation is not expressed in the precise terms employed for a statutorily recognized specialty. The statement of limitation is perfectly true and not misleading. The public may draw an inference of special competence on account of the limitation, but the inference is not an illegitimate one. Cf. Zauderer, 105 S.Ct. at 2276-77 , as to the discussion of the lawyer’s experience in certain types of litigation. The only justification for a restriction is to protect the public from confusion. Protection of the licensed specialist’s turf is not a proper motive. The licensed specialist who fears the cheapening of his speciality may state in so many words that he is state licensed. There is an interesting discussion in Durham v. Brock, 498 F.Supp. 213, 223, n. 16 (M.D.Tenn.1980).
As Zauderer points out, the “least restrictive” test of Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980) does not apply to properly required disclaimers. But disclaimers of the kind here involved have potential for harm and should be subject to a degree of judicial scrutiny.