Petition — Nara v. Michigan State Board of Dentistry

a Supreme ( om, U.% b

FILED

i}

| | JUL 12 1979

—— ,

MICHABL RODAK, JR., CLERK

IN THE .

Supreme Court of the United States

July Term, 1979

No. @9-56@ —

DR. ROBERT O. NARA, D.D.S.

Petitioner,

: v.

MICHIGAN STATE BOARD OF DENTISTRY

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO -GEABE-OP MICHIGAN Mi. 4 Cthpp

DR. ROBERT O. NARA

200 E. Montezuma

Houghton, Michigan 49931

Attorney pro per

TABLE OF CONTENTS

ESE

Constitutional Provisions .....................

es re eee Ss yoda eel...

Reasons for Granting the Writ .................

1. THE DECISION BELOW IS ABDICATION OF

MICHIGAN SUPREME COURT SUPERVI-

SORY POWER; THEREBY SANCTIONING

ABROGATION OF CONSTITUTIONAL

RIGHTS FOR LICENSEE(S) ACCUSED, BY

THE BOARD OF DENTISTRY, OF CRIMI-

a

. THE DECISION BELOW LETS STAND A

CONVICTION OF ‘‘MISLEADING, DECEP-

TIVE—IF NOT FRAUDULENT—ADVERTI-

SING,’’ A MATTER TOUCHING UPON NOT

ONLY FIRST AMENDMENT PROTECTION,

BUT UPON CAUSES NOW BEFORE THIS

COURT IN WHICH THE U.S. GOVERN-

eS” 5

. GRANTING THIS WRIT PROVIDES OPPOR-

TUNITY FOR THIS COURT TO WEIGH

WHETHER A STATE MAY DEPEND UPON

AMENDMENT X OF THE U.S. CONSTITU-

TION—BY MISAPPLICATION—TO DISEN-

FRANCHISE CLASSES OF PEOPLE OF

Be

14

17

SEVERAL SPECIFIC CONSTITUTIONAL- TABLE OF AUTHORITIES

RIGHTS ghee eB ee ee eee eee ee 20 Rogers v. State Board of Cosmetology, 68 Mich

ek as Ck eva Rae Re Kw ee

NS 5, ince von ee wks 22 Virginia State Board of Pharmacy v. Virginia

Citizens’ Consumers’ Council, Inc., 425 U.S.

Appendix A: 748 96 S Ct 1817, 48 L Ed 2d 346 (1976) .........

ay ; ; : pe , i , 97 1;

Administrative Hearing Officers findings of | “a hs b tong wd citar

Pe AIRES I PRE GARR hl

of Dentistry and Final Orders of the Board of CONSTITUTION

EE i ec. ee ita oe Eee 28

Constitution of the United States:

ph TRY a pan Ge eet

ES ai ag a aay cn ak eg aia

i ig a re a ag io

i ea ae a Ae Att

Asticte Tf, Section lenmd?...............5....

STATUTES

BU Ar Ce BFW eon ee A es eee

Mich 122 PA 1939 as amended (MCLA 338.201

et seq) MCLA 24.292; MSA 3.560 (192)........

ii. iii.

IN THE

Supreme Court of the United States

July Term, 1979

DR. ROBERT O. NARA, D.D.S.

Petitioner,

v.

MICHIGAN STATE BOARD OF DENTISTRY

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF MICHIGAN

TO THE HONORABLE, THE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

The Petitioner, Dr. Robert O. Nara, in pro per, prays

that a writ of certiorari issue to review the judgment

of the Supreme Court of the State of Michigan entered

February 6, 1979 and April 19, 1979, which judgment

refused leave to appeal the April 24, 1978, refusal by

the Michigan Court of Appeals to grant leave to appeal

from the Board of Dentistry of the Michigan State

Department of Licensing and Regulation, which

Board, on February 6, 1978, suspended Petiticner’s

license to practice dentistry. within the State of

Michigan.

2

OPINION BELOW

The (unreported) Final Order of the Michigan Board

of Dentistry, H.O. (Hearing Office) Nrs. 77-32 and

77-68, attached at Exhibit A, suspended Petitioner’s

(dentistry) license for 90 days and 365 days,

consecutively.

The (unreported) order of the Michigan Court of

Appeals, COA 78-901 and .78-902 stated in full:

‘‘In these causes an application for leave to

appeal, motion for immediate consideration, and

motion for stay of proceedings are filed by

plaintiff-appellant, and an answer in opposition

thereto having been filed, and due consideration

thereof having been had by the Court, IT IS

ORDERED that the motion for immediate consid-

eration be, and the same is hereby GRANTED. IT

IS FURTHER ORDERED that the application be,

and the same is hereby DENIED for lack of merit

in the grounds presented.

IT IS FURTHER ORDERED THAT the motion for

stay of proceedings be, and the same is hereby

DENIED.

The (unreported) order of the Supreme Court of the

State of Michigan, CR 23-198(a)(b)(c), Robert O. Nara

v. Michigan State Board of Dentistry stated in full:

‘‘On order of the Court, the application for leave

to appeal is considered, and it is DENIED,

because the Court is not persuaded that the ques-

tions presented should be reviewed by this Court.

The motion for immediate consideration regard-

ing a stay pending appeal is considered and is

GRANTED. The motions for stay have become

- moot by deniel of the application and are

DENIED.

3

Levin, J., would remand to the Court of Appeals

as on leave granted.’’

The (unreported) order of the Supreme Court of the

State of Michigan, CR 23-198D, Robert O. Nara v.

Michigan State Board of Dentistry stated in full:

‘‘On order of the Court, plaintiff-appellant’s

application for rehearing is DENIED because GCR

1963, 864.4 provides for the filing of such

applications only in opinion cases. Plaintiff-

appellant’s application is treated as a motion for

reconsideration of this Court’s order of February

6, 1979, and the motion is DENIED, because it

does not appear to the Court that said order was

entered erroneously.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(3). Petitioner believes that a

conviction, as his, before a quasi-judicial Board

created by state statute and armed with criminal

enforcement powers, comprising an improper tribunal,

is violative of the Sixth and Fourteenth Amendments

to the United States Constitution. Petitioner further

believes the state to have enacted and enforced a

statute permissive of —in the instant case, responsible

for —contravention of Amendment Eight to the U.S.

Constitution: Revocation of professional license for an

inordinate period for reasons other than protection of

the public constitutes an excessive fine; greatly in

excess of the statutory limit of penalty fine provided

under said law and is therefore by common definition

an unusual punishment.

Petitioner further believes the operative state law to be

in contravention to the First Amendment to the U.S.

Constitution. There is disagreement among the states

4

as to application of this Constitutional guarantee

regards advertising by professionals. Moreover, a

Federal agency, the Federal Trade Commission (FTC)

has now pending before this Court several causes

against professional associations: The American Bar

Association (ABA), the American Medical Association

(AMA) and the American Dental Association (ADA),

which causes hinge upon this Constitutional question.

This Court or its inferior branches having cogni-

zance of the matters described, jurisdiction of this

Court in the instant matter is invoked under Article

Three of the U.S. Constitution.

Petitioner finally believes jurisdiction of this Court is

inherent in its supervisory powers over courts below

which, through the device of refusing appeal, tacitly

consent to the state’s abdication of legislative and

judicial responsibility by creating, through statute, an

administrative quasi-judicial Board having criminal

jurisdiction and latitude, through legislation unconsti-

tutionally vague, to interpret governing statute(s) to

suit the Board’s whim; in essence granting de facto

legislative powers, most especially when the enabling

statute is expressly lacking in requirements protective

of Federal law and Constitutional warrants.

QUESTIONS PRESENTED

1. Shall a state enact or enforce existing laws patently

contravening the First Amendment to the U.S.

Constitution, when such law(s) manifestly oppose

the intent of orders handed down by this Court

during process of Federal indictments now pending

before this Court?

2. Shall a state enact or enforce law which may be, and

usually is, prosecuted in a manner which systemati-

5

cally denies the accused most if not all of the

guarantees of the Sixth Amendment to the U:S.

Constitution?

3. Shall any state court, through intention or default of

supervisory power, allow to stand penalties in

contravention to the Eighth Amendment to the U.S.

Constitution; thereby tacitly concurring in the state

law(s) under which excessive fines and unusual

punishment were imposed?

4. Shall any state so interpret Federal law, or create

state law, which through intent and ambiguity

establishes entire classes within its populace

subject to criminal prosecution whose rights, under

the Fourteenth Amendment to the U.S. Constitu-

tion, are expressly abridged within the letter and

intent of the law?

5. Is it permissible in the contemplation of justice that

any state supreme court shall elect to be deaf to the

appeal of a citizen who seeks to raise, for the first

time before an unbiased and lawfully-constituted

tribunal, these same questions now brought to this

Court’s attention?

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment I:

‘‘Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free

exercise thereof: or abridging the freedom of

speech, or of the press; * * *’’

Constitution of the United States, Amendment VI:

‘In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury * * * and to be informed of the nature

6

and cause of the accusation: to be confronted with

the witnesses against him; to have compulsory pro-

cess for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.’’

Constitution of the United States, Amendment VIII:

‘‘Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.’’

Constitution of the United States, Amendment XIV:

‘‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the priveleges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.’’

Constitution of the United States, Article II:

‘Section 1. The judicial power (of the United

States) shall extend * * * to controversies to which

the United States shall be a party * * *.’’

‘Section 2. * * * In all the other cases before

mentioned, the Supreme Court shall have appellate

jurisdiction, both as to law and fact, with such

exceptions and under such regulations as the Con-

gress shall make.”’

7

STATEMENT OF THE CASE

As an expedient, abbreviated terms will be used

throughout to designate these agencies or statutes:

1.

10.

Michigan 122 P.A. 1939, as amended, being the

Dental Practices Act: Hereafter, ‘‘the Act,’’ or

‘*Dental Act.’’

The Supreme Court of the State of Michigan:

Hereafter, ‘‘State Supreme Court.’’

. The Michigan Court of Appeals: Hereafter,

‘*Appellate Court.’’

The Department of Licensing and Regulation of

the State of Michigan: Hereafter, ‘‘the Depart-

ment.’’

Case Numbers of the Department, e.g. ‘‘Hearing

Office No. ,’’: Hereafter, ‘‘H.O. No.’’

The Board of Dentistry of the Department: Here-

after, ‘‘the Board’’ or ‘‘the State Board.’’

. The American Dental Association: Hereafter, the

ADA.

. The Michigan Dental Association: Hereafter, the

MDA.

. The Federal Trade Commission: Hereafter, the

FTC.

The administrative judge appointed by the Depart-

ment as Preliminary Hearing Examiner: Here-

after, ‘‘Hearing Examiner.’’

Petitioner, Robert O. Nara, a practicing dentist

licensed within the State of Michigan for over 17 years

at the time, was charged on January 5, 1977, with two

violations of the Dental Act (MCLA 338.201 et seq):

1,

That he had allowed an unlicensed person to

perform dental prophylaxis (cleaning teeth) upon

members of the public, and

8

2. That he had caused the following advertisement to

be placed in the Houghton-Hancock (Michigan)

telephone directory Yellow Pages:

Specializing in Oramedics — for people with

teeth who want to keep them.

Formal Hearings were scheduled for July 26, 1977,

upon the matters above, being entitled H.O. 77-32 and

H.O. 77-68, respectively, the causes to be combined in

the one Hearing.

At the Hearing, Appellant argued that he had been

deprived of an opportunity to show compliance as

provided in Michigan law:

‘“‘Before the commencement of proceedings for

suspension, revocation, annulment, withdrawal, re-

call, cancellation or amendment of a license, an agency

shall give notice, personally or by mail, to the licensee

of facts or conduct which warrant the intended action.

The licensee shall be given an opportunity to show

compliance with all lawful requirements for retention

of license * * *.’’

-MCLA 24.292: MSA 3.560(192)

The Hearing Examiner found Petitioner to have

been improperly served on January 27, 1977, with the

‘‘Complaint and Opportunity to Show Compliance,’’

and an informal Compliance Hearing was scheduled in

Ann Arbor, Michigan on August 22, 1977. At that

hearing, Petitioner agreed to do all things necessary to

satisfy the Board that he would comply and on the

following day, through his attorney, Petitioner’s letter

of compliance was sent as a matter of record to the

Board.

Nevertheless, the Board held that no compliance

had been shown and scheduled formal Hearing(s) on

these matters for September 27, 1977. Through his

9

attorney, Petitioner filed, on September 14, 1977, a

MOTION TO DISMISS, in support of which he said:

1. That on or about August 22, 1977 in the City of

Ann Arbor, Michigan an informal compliance con-

ference was held as required by MCLA 24.292.

2. That at said conference ROBERT O. NARA,

D.D.S. offered to ccrrect any and all alleged vio-

lations of the Dental Code of the State of Michi-

gan, being MCLA 338.201 et seq and any inter-

pretations thereof.

3. That on or about August 23, 1977, ROBERT O.

NARA, D.D.S., by and through his attorney, dis-

patched a letter to the Michigan State Board of

Dentistry, which letter is attached hereto and

made a part thereof, whereby said ROBERT O.

NARA, D.D.S. again offered and advised that he

would correct any and all alleged violations of the

Dental Code of the State of Michigan, being

MCLA 338.201 et seq and any interpretations

thereof.

WHEREFORE ROBERT O. NARA, D.D.S. prays

that these matters be dismissed.’’

This motion was argued at the Hearing on

September 27, 1977, before Hearing Examiner Wayne

C. Lusk, who denied the motion. The hearing

proceeded.

On January 6, 1978, Hearing Examiner Lusk filed

with the Board his findings of fact and conclusions of

law. (see Appendix A). Mr. Lusk held that Petitioner

had, in the Examiner’s opinion, violated the Act with

respect to allowing an unlicensed person to perform

prophylaxis; and that Petitioner had not violated the

Act with respect to advertising.

On January 25, 1978, the Board considered

Petitioner’s case (Board meeting transcript incorpor-

10

ated at Appendix A). The Board accepted the Hearing

Examiner’s opinion with regard to unlicensed person-

nel (H.O. 77-32) snd, on this cause, suspended

Petitioner’s license for 90 days.

The Board then considered the Hearing Examiner’s

opinion regarding advertising and, by resolution,

rejected it. The Board then found Petitioner guilty of

‘‘misleading and deceptive, if not fraudulent’’

advertising and, on this cause, suspended his license

for one year, imposition to commence at the conclusion

of the above 90 day suspension; thereby imposing 4

suspension of 15 months.

The Board further ordered that Examiner Lusk

never again be assigned to conduct preliminary

examinations in matters before the Board.

Following action by the Board, Petitioner attempted

to perfect his constitutional guarantees of due process

in the Court of Appeals (denied 17 April 1978) and in

the Michigan Supreme Court (denied 6 February 1979

and, upon re-application, denied 19 April 1979).

The federal questions raised within this Petition

have been asked and ignored below, at the levels of the

State Board of Dentistry, the Court of Appeals and the

State Supreme Court. In his ‘‘Application for Leave to

Appeal’’ from the Court of Appeals to the Supreme

Court (May 9, 1978), Petitioner stated, and in his

accompanying Brief amplified, these reasons for

Appeal:

1. That Appellee failed to properly construe and

abide by the provisions of MCLA 24.292; MSA

3.560 (192) and the case of Rogers v. State Board

of Cosmetology, 68 Mich App 751, and that said

Appellee’s actions were clearly erroneous and that

the action of the Court of Appeals in denying leave

to appeal was clearly erroneous and that said de-

cision regarding MCLA 24.292; MSA 3.560 (192)

11

is of major significance to the jurisprudence of the

State of Michigan;

. That Appellee was not a proper body to decide the

guilt or innocence of Appellant, since Appellee is

the body which filed the charges against Appellant

and that Appellee was otherwise biased and there-

by deprived Appellant of due process of law and

that Appellee’s deciding Appellant’s guilt or inno-

cence was clearly erroneous and the action of the

Court of Appeals in denying leave to appeal was

clearly erroneous and that a decision relative to

the hearing tribunal’s bias is of major significance

to the jurisprudence of the State of Michigan;

. That the Appellee’s actions in enforcing the Den-

tistry Act being MCLA 338.201 et seq; MSA

14.629 (1) et seq, are in contravention of Federal

Antitrust Laws and the enforcement of the Den-

tistry Act, supra, by Appellee is therefore clearly

erroneous and the action of the Court of Appeals in

denying leave to appeal was clearly erroneous and

that a decision regarding the enforceability of the

Dentistry Act, supra, in light of its anti-

competition effect is of significance to the

jurisprudence of the State of Michigan;

. That the Appellee’s actions in enforcing Section 12

of the Dentistry Act was clearly erroneous in that

said section in defining the practice of Dentistry is

unconstitutionally vague and overbroad and that

the action of the Court of Appeals in denying leave

to appeal was clearly erroneous and that the Con-

stitutionality of Section 12 of the Dentistry A.’ ‘s of

significance to the jurisprudence of the State ~f

Michigan;

. That the advertising ban in the Dentistry Act

supra, being Section 8 and Section 17 of said act is

unconstitutional in light of Virginia State Board of

12

Pharmacy v. Virginia Citizen’s ‘Consumers

Council, Inc. 425 US 748; 96 S Ct 1817;

48 L Ed 2d 346 (1976) and Bates v. State Bar of

Arizona 97 S Ct 2691; L Ed 2d (1977) and that the

Appellee’s enforcement of said Sections of the

Dentistry Act, supra, in this case was clearly

erroneous and denied Appellant his rights under

the First Amendment to the United States Constit-

ution and that the action of the Court of

Appeals in denying leave to appeal was clearly

erroneous and that a decision regarding proper

professional advertising under the Dentistry Act is

of major significance to the jurisprudence of the

State of Michigan;

6. That the degree of penalty imposed by Appellee

was clearly erroneous and that the action of the

Court of Appeals was also clearly erroneous in not

granting Appellant’s Application for Leave to

Appeal.

/by/ Charles R. Goodman (P26443)

Goodman & Jaaskelainen

Attorneys for Appellant

101 Quincy Street

Hancock, Michigan 49930

It may also be noted that the Hon. Noel P. Fox, U.S.

District Judge, Western District of Michigan, North-

ern Division, was apparently satisfied that the case of

Nara v. Michigan State Board of Dentistry contained

elements worthy of Federal intervention: On May 2,

1977, Judge Fox issued a temporary restraining order

enjoining and restraining the State Board from

conducting any hearing or hearings concerning

Petitioner’s case until application for preliminary

injunction could be heard in U.S. District Court. This

13

marked the first and, so far, only Federal intervention

of this nature in a state health code violation

proceeding, to Petitioner’s knowledge or the know-

ledge of his counsel.

14

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW IS ABDICATION OF

MICHIGAN SUPREME COURT SUPERVISORY

POWER; THEREBY SANCTIONING ABROGA-

TION OF CONSTITUTIONAL RIGHTS FOR LICEN-

SEE(S) ACCUSED, BY THE BOARD OF DENTIS-

TRY, OF CRIMINAL VIOLATION.

Michigan laws govern twenty-nine professions,

ranging from accountants to undertakers. In seven

professions the laws make no mention of conduct; in

nine it is defined and in thirteen it is mentioned but not

defined. Such disparity in state professional laws is the

norm, not the exception; ‘‘equal justice’’ for profes-

sionals, under such law, is not possible.

The Dental law of Michigan, however, has one

characteristic which makes it unique within the state. It

is the only professional act, in Michigan, which grants

the regulatory body (Board of Dentistry) power to

adjudicate guilt or innocence. It says, in part:

‘‘Any person who shall violate any provision of this

act shall be deemed guilty of a misdemeanor, and

upon conviction thereof shall be punished by a fine

of not more than $500 or by imprisonment in the

county jail for not more than 1 year, or by both such

fine and imprisonment in the discretion of the

court.’

‘‘Any person’’ means any dentist; any provision

means any charge brought by the Board. Section 218 of

the Act says the Board may revoke or suspend a license

if a dentist ‘‘is guilty’’ of charges alleged in any of its

subsections.

Throughout section 219 of the Act the dentist facing

the Board is referred to as ‘‘the accused.’’ Sub-section

4 reads: ‘‘If the accused pleads guilty or is found guilty

15

of any of the charges made...’’

In Michigan, only the Dental Practice Act lays such

manifest criminal stress on guilt; no other state

profession is treated in this criminal fashion. This law,

therefore, puts dentists at the mercy of criminal

charges, with criminal penalties, and with criminal

findings of fact as to ‘‘guilt’’ or pleas of guilt—but

without any of the Constitutional protections normally

accorded the lowest criminal accused of most heinous

crime:

— The law does not allow a jury trial for dentists;

—The law does not specify the standard of proof

required;

— The law does not require instructions in the law to

be given to the finder of fact;

— The law does not require the Board to accept the

findings of the unbiased preliminary Hearing

Examiner;

— The law, in fact, does not even require an exami-

nation;

—The law does not require disqualification of any

Board member for any of the reasons usually con-

sidered in selection of jurors in criminal

proceedings;

—The law allows, but does not require, that a

dentist tried, found guilty and punished by the

Board may petition higher courts on appeal.

On February 20, 1975, attorney Richard Durant of

Durant, Talbot, Grant & McQuarrie (Detroit, Michigan)

filed a brief of Amicus Curiae in a case then pending

before the Board of Dentistry (W.T. Grady, H.O. No.

74-250-80). Mr. Durant went to the heart of the

defective law when he said,

‘It is the position of your amicus curiae that no

16

dentist, no member of the profession, should sub-

ject a fellow member to the loss of the rights we

accord the common rapist or murderer.

‘It is my professional belief that the Dental

Practices Act is so deficient in constitutional

protection for every dentist that the members of this

Board should refuse to bring in verdicts except in

the most flagrant cases, until the law is changed.

‘*Failing that, the very least this Board can do is

apply the ‘‘beyond a reasonable doubt’’ theory to

the utmost. If there is any theory consistent with

innocence, the constitutional protections require a

verdict of not guilty...

‘It was precisely to avoid the misuse of power

that we have developed the protections in the

constitution. And dentists, under the present Act,

have alone among all (Michigan) professions been

stripped of that protection. ”’

Petitioner holds that given criminal laws of

constitutionally defective ambiguity, wielded by an

administrative body of manifestly incompetent

composition — being, as it is, both judge and jury—the

supervisory courts of the State of Michigan have an

obligation in fact (if not in present law) to guarantee the

appeal hearing of any dentist whose conviction before

the Board is, to him, a miscarriage of justice.

17

2. THE DECISION BELOW LETS STAND A CONVIC-

TION OF ‘‘MISLEADING, DECEPTIVE—IF NOT

FRAUDULENT—ADVERTISING,’’ A MATTER

TOUCHING UPON NOT ONLY FIRST AMEND-

MENT PROTECTION, BUT UPON CAUSES NOW

BEFORE THIS COURT IN WHICH THE USS.

GOVERNMENT (FTC) IS A PARTY.

First, this Court’s interest is invited to the language

of the conviction itself: ‘‘Misleading and deceptive, if

not fraudulent.’’ The question arises: Is it in the

interest of justice, or of arrogant bias demonstrated,

when the trier of fact renders an opinion of guilt and

imposes punishment for an alleged offence ‘‘if not

fraudulent.’’ IS it; or IS IT NOT? Consider the

professional implications facing a career dentist with

such an ambiguous finding. Was he guilty—or was he

not?

There is conflict among the states regarding the right

of professionals to advertise. Moreover, unresolved

conflict between the FTC and the ADA is pending in

this Court with respect to advertising. Since the ADA

has a patently incestuous relationship to the several

state boards of dentistry, the boards and the ADA

comprised of members who are dentists, the laws of the

state will imitate, if not duplicate, the ADA codes of

ethics which the FTC seeks to strike down.

In the FTC/ADA conflict, the Federal courts issued a

consent order in April, 1979 ordering the ADA to

include in its codes a statement which says, in part,

‘‘Advertising, solicitation of patients or business,

or other promotional activities by dentists or dental

care delivery organizations shall not be considered

unethical or improper...’’

In a 1976 FTC suit against the American Bar

Association, this Court ruled. that attorneys have a

18

Constitutional right to advertise.

Still pending is a suit, in this Court, seeking to strike

down the American Medical Association’s restrictions

on professional advertising.

In the instant case, the Board’s finding of

‘misleading and deceptive’’ is, itself, misleading and

deceptive. Nowhere on the record below is it alleged or

even stated that the issue hinged on truth or falsity of

the advertisement in question (supra.) At all times, the

operative issue was whether the Petitioner might

advertise at all under Michigan law. The Hearing

Examiner’s findings and opinion, in the light of that

law, said the advertising did not constitute a violation.

The Board reversed that position and said the

advertising was a violation.

There is, nowhere below, an allegation of deception

or fraud; until the Final Order of the Board. Only here

is the intent of the advertisement raised; and not as a

question to be adjudicated, but as a declarative

statement preparatory to imposition of sentence.

Petitioner welcomes a forum, in a genuine court

conducted within the rules and decorum of American

jurisprudence, in which the question of truth or falsity

of his claims may be addressed. It is a fair deduction

that if the Board or its unseen mentor, the ADA,

considered those claims to be vulnerable, the record

below would not be silent concerning this aspect.

Indeed, Petitioner stands ready given any opportu-

nity to defend his claims because he believes no less

than the oral health of this nation and its future public

lies in balance. His advertisement said: ‘‘Oramedics —

for pecple with teeth who want to keep them.”’

The MDA, the ADA and/or the State Board have

never questioned, publicly, whether that advertisement

is false, misleading, deceptive (or just maybe)

fraudulent.

19

Nor is that the question before this Court; since the

record below only goes to whether the advertisement

was permissible at law—veracity aside— a question

which was answered ‘‘yes’’ by the Department’s

trained legal Hearing Examiner, and ‘‘no’’ by the

board which brought the charge, tried the facts,

reversed the Examiner, acted as jury, found the

Petitioner guilty and imposed punishment.

Granting this writ, Petitioner believes, will repair the

incongruity of a state law openly and continuously able

to contravene decisions recently made by this Court and

to scoff at this Court’s order to the ADA, the agency

with an obvious influence upon, and interest in, state

dental laws.

20

3. GRANTING THIS WRIT PROVIDES OPPORTU-

NITY FOR THIS COURT TO WEIGH WHETHER A

STATE MAY DEPEND UPON AMENDMENT X OF

THE U.S. CONSTITUTION—BY MISAPPLICA-

TION—TO DISENFRANCHISE CLASSES OF

PEOPLE OF SEVERAL SPECIFIC CONSTITUTION-

AL RIGHTS.

It has been proposed, below and elsewhere, that the

several states have a right, by interpretation of

Amendment X of the U.S. Constitution, the so-called

‘‘states’ rights’’ amendment, to establish regulation of

professional practices within the state(s) without

interference from the Federal government or this

Court. The interpretation, here emphasized, would be:

‘‘The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to

the people.’’ Petitioner would ask this Court to view

this Amendment from a slightly altered frame of

reference, being:

‘‘The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to

the people.’’

This is not idle semantics: The State of Michigan has

based its dental law upon the apparent assumption that

in order to practice dentistry within the state, a licensee

must forego these protections, at minimum:

1. In all criminal prosecutions, the accused shall enjoy

a speedy and public trial, by an impartial jury * * *.

2. * * * nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

The Constitution is specific: ‘‘No State shall make or

enforce any law which shall abridge the privileges or

—_

21

immunities of citizens of the United States * * *.’’

Indeed, Amendment [X seems to speak to the ‘‘frame

oi reference’’ mentioned earlier, as a perspective to

Amendment X concerning ‘‘states’ rights,’’ when it

says, ‘‘The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.”’

Michigan law would have this Court facing the

state’s apparent conclusion that dentists practicing

within that state are neither ‘‘people’’ nor ‘‘citizens of

the United States’’ with respect to the personal rights

and immunities held out by the Constitution.

Petitioner believes granting of this writ would

provide a focus through which this Court might clarify

the position of the United States regarding the right of

states to utilize Amendment X to enforce professional

regulation; while yet retaining, for individual practi-

tioners, access to fundamental security of personal

citizenship rights.

22

CONCLUSION

In bringing this issue pro per, petitioner pleads that

this Court will recognize not so much his ineptitude as

an attorney, as the sincerity of his bringing this matter

to this point. The Court is asked to consider personal

motive: Why are these issues believed, by Petitioner, of

import grave enough to take this (for him) extraordi-

nary step?

It has been suggested below and elsewhere that the

restoration of Petitioner’s license will predate this

Court’s consideration, thereby making the matter

moot

Petitioner holds that his license—a valuable property

— was unlawfully suspended, for a term and under such

circumstances as would bring any reasoning person to

question whether he had suffered an excessive fine;

had been subjected to an unusual punishment.

Restoration of that license signifies nothing more or

less than the passage of the term imposed: The

sentence has been served. The record below contains

language damning to a doctor’s reputation, his future:

‘Misleading and deceptive, if not fraudulent.’’ The

record below nowhere establishes that other than

through quasi-judicial fiat. This final gross perversion

of Petitioner’s birthright to even-handed and fair

justice is but the punctuation of a star-chamber

proceeding which Michigan has simply allowed to stand

by refusing right of appeal. The State has implied that

the machinery for appeal exists but that Petitioner’s

use of that machinery is a privilege, not a right: A

posture your Petitioner views, as a simple citizen, as an

offence against common decency; it is repugnant to

anyone who holds, as does this native son of immigrant

parenthood, an abiding conviction that there is no

duplicity in the words, ‘‘O’er the land of the brave, and

the home of the free.”’

23

Nor are the issues as simple as one doctor’s right to

continue a 20 year honorable practice. All dentists in

Michigan are disqualified as citizens by the extant laws

and their administration. Where will the finger next

point?

Which dentist, in that state, may advertise—and

which may not? Using, if he may advertise, which

words? Is this state to continue enforcing law based on

an ethics code (ADA) which this Court has ordered

stricken?

Petitioner asks this Court to consider the manifest

purpose of Michigan’s dental law, however defective:

Is it not intended to protect the public against dentists

who are a nuisance at best and dangerous at worst?

Gentlemen, at no point in the record below, or

elsewhere, will this Court discover one single complaint

brought by any of the thousands of patients who believe

in your Petitioner, as he believes in them.

The complainant below—and in actions brought

elsewhere by the dental association—were ever

dentists; members of the same profession and Board

which subsequently tried him.

Petitioner’s advertisement, the cause of a one-year

suspension, sought to guide the public (if they so

elected) to a dentist whose preoccupation now and for

many years has been prevention of disease and

protection of people’s teeth and oral health. This Court

is advised that neither ADA nor the State of Michigan,

recognize any form of specialty in preventive dentistry.

At present, any dentist who wished to inform the public

of his stated intention of protecting their health would

be instantly in jeopardy identical to that lately

experienced by your Petitioner.

The relationship of the ADA to the dental laws and

administration of the State of Michigan should be

obvious on its face but can be fairly proved in any

24

reasoned debate in the decorum of a court. Petitioner

asks this Court’s indulgence in permitting here, by way

of illustration, a partial quotation from the transcript of

one of the hearings before the dental association, by

way of which Petitioner’s membership was voided.

Petitioner believes this direct quotation, an inter-

change between attorney for the association and

Petitioner’s attorney, to be an accurate representation

of the arrogance of organized dentistry toward any law

which seeks to restrain that organization’s police-state

power over the profession.

This exchange between Petitioner’s attorney, Mr.

Charles R. Goodwin, Esq., and the Michigan Dental

Association’s attorney, Mr. William Butler, Esq., took

place on the transcript of a September 8, 1977, appeal

hearing before the Michigan Dental Association Board

of Trustees, Lansing, Michigan.

MR. GOODMAN: Thank you. I guess now we are to the

heart of what we have all gathered

here for. I just want to talk about the

Supreme Court decisions based on

this issue and my feelings as to what

this Board is about to decide and the

ability or their legality in deciding it.

MR. BUTLER: Mr. Chairman, I wonder if I might

make one suggestion. We are here

before a group of dentists...I think

rather than trying to make legal

arguments, I would suggest that you

(discuss possible error below) so that

our record will be complete and

these gentlemen can deliberate. I

don’t want to tell you how to try your

case, but they are not judges and

lawyers and they really are here to

MR. GOODMAN:

25

give Dr. Nara full and complete

opportunity and you as his represen-

tative of specifically pointing out

where, as a dentist, he was mis-

treated by dentists or where there

was error in finding what they did. I

don’t want to tell you how to try your

case, but I don’t really think we’re

going to be too impressed with

decisions of the United States Su-

preme Court.

I don’t know why not. Everybody

else is. I sure am. I would hate to tell

Justice Burger I wasn’t impressed

by his opinions.

I would like to tell you, before you

get to the merits, I really think you

should have the benefit of the law. If

a person brings another person on

trial for witch burning and the guy

says, ‘‘We’re not concerned with

why you can’t bring people in for

trial for witch burning anymore, but

we're concerned with the fact of

whether or not you burned a witch,”’

I think there are some gross things

missing from that type of hearing,

and I think everybody should, before

they proceed, should have the

benefit of knowing what the current

stetus of the law is so you know what

kind of environment you are pro-

ceeding under.

If you don’t want that and want to

go full force into it—

26

MR. BUTLER: __I would suggest it. Let’s go full force

into it. * * *

Petitioner finally believes that perhaps the most

cogent purpose of this writ may appear nowhere below

but may be of lasting, vital significance to the People of

the United States. Nowhere below is Petitioner’s

advertising discussed as to substance. ‘‘For people

with teeth who want to keep them.”’ The implication, if

true, is awesome: Is there a means at hand to prevent

dental disease for tens of thousands? Nowhere below is

the term ‘‘Oramedics’’ defined or discussed; nor

probably can it be amplified before this Court.

Organized dentistry, enforcing its ban on advertising

through the terrible power of a sovereign state, has

prevented ‘‘trial’’ of this larger issue in any public

forum. Petitioner could provide this Court with

persuasive evidence that there lies within our reach,

today, the effective elimination of dental disease for all

who want it, far more safely and less expensively than

anything the public now enjoys.

Nowhere below is the question fairly and simply

asked, ‘‘Is this the truth?’’ That question is not asked,

before this Court, in this petition. Petitioner asks

instead a rhetorical question:

‘*‘What if it is true?’’

Can the law of any state within this Union so function

as to prevent the advancement of any healing science?

This Court will recognize the incredible opposition

faced by others, in past, seeking to change the

professions: Lister, Pasteur and Morton to name but

three; the latter nearly defeated by colleagues who

would have prevented him from bringing us anesthesia

for surgery. Dr. Morton’s profession, incidentally, was

dentistry.

27

Petitioner recognizes the power and judicial scope of

this Court. Herein, a petition for certiorari is asked. The

Court has other powers. It may be that the most

expedient and effective remedy is to simply direct that

the State of Michigan hear this matter on appeal, in the

forum where it should have properly first appeared.

Petitioner rests before this Court secure in his belief

that this Court will not simply add a fourth and final

stamp of ‘‘no appeal.’’ There must remain in this

nation that one stronghold of simple justice where any

citizen—even a dentist—can expect the equal protec-

tion of the laws.

Respectfully,

Robert O. Nara

Exhibits:

28

APPENDIX

OPINION and FINDINGS OF FACT, State of

Michigan, Department of Licensing and

Regulation, Administrative Law Services

Office, in the matter of ROBERT O. NARA,

D.D.S., H.O. No. 77-32 & 77-68.

EXCERPT from 1-30-78 draft MINUTES of

the MICHIGAN STATE BOARD of DENTIS-

TRY, meeting January 25, 1978.

FINAL ORDER of the State of Michigan

DEPARTMENT OF LICENSING AND REG-

ULATION in re: ROBERT O. NARA, D.D.S.,

H.O. No. 77-32.

FINAL ORDER of the State of Michigan

DEPARTMENT OF LICENSING AND REG-

ULATION in re: ROBERT O. NARA, D.D.S.,

H.O. No. 77-68.

29

STATE OF MICHIGAN

DEPARTMENT OF LICENSING AND REGULATION

ADMINISTRATIVE LAW SERVICES OFFICE

IN THE MATTER OF

ROBERT O. NARA, D.D.S.

License No. 7700

0. 77-32

o. 77-68

x=

oo

ZZ

OPINION

This matter was heard on July 26, 1977 and

September 27, 1977 at the offices of the Department of

Licensing and Regulation (hereafter called the ‘Depart-

ment’), at 1033 South Washington and 808 South

Washington, Lansing, Michigan, respectively. Wayne

C. Lusk presided as Hearing Examiner.

William G. Osgood, D.D.S., a member, and Mrs.

Thomas Blandford, a public member, of the Michigan

State Board of Dentistry (hereafter called ‘Board’),

were present on July 26, 1977.

APPEARANCES:

Howard C. Marderosian, Assistant Attorney Gener-

al, on behalf of the Board.

Charles R. Goodman, Attorney at Law, of the firm of

Goodman & Jaaskelainen, on behalf of Robert O.

Nara, the Licensee, who was present on July 26,

1977.

James G. Jaaskelainen, Attorney at Law, of the firm

of Goodman and Jaaskelainen, on behalf of Robert

O. Nara, the Licensee, who was present on

September 27, 1977.

Licensee and his attorney were not present for the

entire proceedings on September 27, 1977.

30

SUMMARY OF PROCEEDINGS: |

These proceedings involve two complaints issued by

the Board under Act No. 122 of the Public Acts of 1939,

as amended (hereafter called ‘Act’), H.O. (Hearing

Office) No. 77-32 and 77-68.

H.O. No. 77-68 ‘Complaint’ and ‘Notice of Opportu-

nity to Show Compliance’ were issued by the Board on

October 28, 1976. Notice of Hearing issued on

December 28, 1976 specified March 11, 1977 as the

date of hearing on such complaint.

H.O. No. 77-68 ‘Complaint’ and ‘Notice of Opportu-

nity to Show Compliance’ were issued by the Board on

January 5, 1977. Notice of Hearing issued on February

14, 1977 specified April 18, 1977 as the date of hearing

such complaint.

On February 11, 1977, the Board consolidated H.O.

No. 77-32 and 77-68 and notified Licensee with respect

thereto that the hearing in both matters was scheduled

for April 18, 1977.

By Notice of Adjournment issued on February 14,

1977, April 14, 1977 and May 2, 1977, the hearing on

H.O. 77-32 and 77-68 was adjourned to April 18, 1977,

May 4, 1977 and without date, respectively. By Notice

of Rescheduling issued on July 1, 1977, the hearing of

this matter was rescheduled to July 26, 1977.

By letter dated July 13, 1977 and sent to the

Department Administrative Hearing Officer, the Licen-

see acknowledged notice of the July 26, 1977

rescheduled hearing date and requested selection of a

date sometime in September or October. The Adminis-

trative Hearing Officer by letter dated July 18, 1977,

advised Licensee his request had been referred to the

Board for its determination of whether or not an

adjournment could be granted. The Board did not

adjourn the hearing pursuant to Licensee’s request.

Pursuant to stipulation of the parties, a Separate

31

Record was made of part of the proceedings held on

July 26, 1977. Based upon claims and argument made

therein, the Licensee moved for dismissal of the

proceedings. The Hearing Examiner denied such

motion for reasons stated therein.

In the course of the proceedings held on July 27,

1977, the hearing was adjourned without date.

On July 27, 1977, the Board Administrative Secretary

scheduled an informal compliance conference to be

held on August 22, 1977. Such conference was held on

August 22, 1977.

By ‘Notice of Hearing after Informal Conference’

issued on August 26, 1977, the hearing of this matter

was rescheduled to September 27, 1977. In the Notice,

it is stated, in part:

‘‘YOU ARE HEREBY NOTIFIED that it is the

decision of the Board’s authorized conferee that you

failed to show compliance with licensing require-

ments at the informal conference.

The licensee filed a Motion to Dismiss this

proceeding. The Motion is dated September 14, 1977

and was received by the Board on September 19, 1977.

The Hearing Examiner denied such Motion for reasons

stated in the record.

FINDINGS OF FACT:

I. Robert O. Nara (hereafter called ‘Licensee’) was

heretofore issued a license to practice dentistry by the

Board pursuant to the Act and at all times herein

mentioned Licensee was and is now licensed as a

dentist in the State of Michigan. His license number is

7700.

II. By Rule 13 promulgated under the Act, at all

times herein mentioned, the Board recognized the

following branches of dentistry referred to as special-

ists: oral surgery, orthodontics, denture prosthesis,

periodontia, dentistry for children, and endodontics.

32

The Licensee has not been issued a dental specialist

license by the Board in any of such branches of

dentistry. Oramedics was not a recognized branch of

dentistry within the terminology of the Act or specified

within the rules promulgated under the Act and a

dental specialist license was not granted by the Board

in the area of ‘Oramedics’.

Ill. Debra Marshall Kilmer (hereafter ‘Marshall’),

formerly Debra Marshall, Kilmer being present name

by marriage, was employed by Licensee from August,

1975, through October, 1975. As of August 1, 1975, she

had completed the llth grade of high school. She

subsequently graduated from Hancock High Schooi in

June, 1976. He (sic) present address is Route 1, Box

59-C, Hancock, Michigan 49930. During her employ-

ment by Licensee, Marshall performed tasks of

phophylaxis and scaling upon the teeth of patients of

Licensee. The prophylaxis consisted of polishing

patients’ teeth with polishing paste and a rubber cup

by using a motorized instrument. Such scaling was

performed by scraping tartar off patients’ teeth with an

instrument. Marshall performed such tasks of poiishing

and scaling on the surface of the teeth of Licensee's

patients but Marshall did not scale or polish teeth

below the gum line. During such employment,

Marshall was not licensed as a dentist, dental hygienist

or in any other capacity by the Board. Occasionally, the

Licensee was in his dental office when Marshall

performed such prophylaxis and scaling services.

Marshall was trained to perform such services by

persons other than the Licensee. Marshall performed

prophylaxis on one Bonnie Johnson on at least three

occasions. The Licensee admitted the allegation that

Marshall worked for him as an employee and that she

polished and cleaned teeth of his patients. The Licensee

admitted that Marshall was not licensed under the Act

by the State.

33

IV. Bonnie Johnson (hereafter ‘Johnson’) residing at

112 Gold Street, Ontonagon, Michigan, was a dental

patient of Licensee in the latter part of August, 1975

and September, 1975. Johnson had a total of five or six

appointments with Licensee’s office and saw the

Licensee on the first and last appointments. On her first

appointment, the Licensee took Johnson's dental

history and X-Rays and explained an ‘Oramedics’

program to her as being ‘dental care so that eventually

you wouldn’t have to wear dentures—that you kept

your own teeth’. She was also shown a film, filled out a

questionnaire and informed by Licensee of instructional

aids as to brushing teeth properly, flossing teeth,

proper diet and regular dental check-ups. On at least

three appointments Johnson received prophylaxis

treatment by Marshall. Such treatment consisted of

applications of a red substance on her teeth to disclose

tartar and cleaning of her teeth with instruments.

V. On August 24, 1976, the Licensee placed with the

Michigan Bell Telephone Company the following listing

(hereinafter ‘listing’) in the Yellow Pages of the 1976-77

Michigan Bell Telephone Directory, for the Houghton-

Keweenaw Counties:

‘‘NARA ROBERT O

Specializing in Oramedics--For

People With Teeth Who Want To

Keep Them

200 E Montezuma Houghtn........ 482-3530

The listing appears on page 41 of such directory. The

Licensee admitted that he placed the listing.

VI. Thomas A. Vuchetich is licensed as a dentist by

the Board. He graduated from the University of Detroit

Dental School in 1973. He practiced dentistry in

Dearborn, Michigan for 8 months and since June, 1974,

has continuously practiced in East Lansing, Michigan.

In his dental education he took courses in dental

34

specialties of oral surgery, endodontics, periodontics,

prosthetics, both affixed and removable prosthetics. He

is a general practitioner and is not licensed in a dental

specialty by the Board. He has read material within the

trade regarding recent developments /n the dental

profession. Vuchetich does not know any specialty in

dentistry referred to as ‘Oramedics’ and the term

‘Oramedics’ has no significance to him.

CONCLUSIONS OF LAW:

PARTA

The Act, in pertinent part, provides:

‘Sec. 12. A person practices dentistry, within the

meaning of this act, when it is shown:

one

‘*(3) That he performs dental operations of any

kind gratuitously, or for a fee, gift, compensa-

tion, or reward, paid or to be paid to himself, to

another person, or agency.

‘‘#ee

‘‘(6) That he offers and undertakes, by any

means or method, to diagnose, treat, or remove

stains or accretions from human teeth or jaws.’’

‘Sec. 18. The board shall suspend for a limited

period or revoke the license of a licensed dentist ...

for any of the following reasons:

Terr

‘‘(e) For conducting the practice of dentistry so

as to permit directly or indirectly an unlicensed

person to perform work which under this act can

legally be done only by persons licensed under

this act.”’

The acts of Marshall of performing prophylaxis and

35

scaling upon teeth of Licensee’s patients as hereinbe-

fore described constitute an offering and undertaking to

remove stains or accretions from humanteeth within the

meaning of Section 12(6) of the Act for the following

reasons. The Licensee’s admission that Marshall

cleaned and polished his patient’s teeth coupled with

Marshall's testimony that she performed prophylaxis

by polishing such patients’ teeth and Johnson's

testimony that she received such prophylaxis by

Marshall substantiates that Marshall performed acts to

remove stains from human teeth of Licensee's patients.

Marshall’s testimony that she scaled teeth of Licen-

see’s patients by scraping tartar therefrom with an

instrument substantiates that she performed acts to

remove accretions from human teeth because the.

scaling, as described and performed by Marshall, is the

removal of accretions from human teeth.

Inasmuch as the above-described and undertaken

acts of prophylaxis and scaling were performed by

Marshall, such conduct constitutes performance of

dental operations within the meaning of Section 12(3) of

the Act.

Marshall's testimony and Licensee’s admission

substantiate that Marshall was not licensed in any

capacity under the Act from August through October,

1975. Licensee's admission that Marshall was employ-

ed by and worked for him and polished and cleaned his

patients’ teeth, coupled with Marshall's testimony that

Licensee was occasionally in the office when she

performed prophylaxis or scaling services on Licensee's

peagnis substantiates that Licensee permitted her to

perform such services. Therefore, Licensee's conduct

of permitting Marshall to perform work, consisting of

performing scaling and prophylaxis upon his patient's

teeth during the summer months of 1975, beginning in

August thereof, constitutes a violation of Section 18(e)

of the Act.

36

PART B

The Act, in pertinent part, provides:

‘‘Sec. 8. No dentist shall announce or hold himself

out to the public as limiting his practice to, or as

being especially qualified in, or as giving special

attention to, any branch of dentistry, without first

having obtained a license therefor from the board as

hereinafter provided. ...’’

‘“Sec. 17. Excepting as in this act provided, it is

unlawful for dentists to:

‘‘(1) Make use of any advertising statements of

a character tending to mislead or deceive the

public.

‘*(2) Circulate any statement as to the skill or

method of practicing dentistry of any dentist

through any media, means, agencies or devices

of an advertising nature.

‘*(3) Advertise professional superiority or the

performance of professional services in a super-

ior manner.”’

‘Sec. 18 The board shall suspend for a limited

period or revoke the license of a licensed dentist ...

for any of the following reasons:

‘6am

‘‘(m) For holding himself out as specially quali-

fied in, or limiting his practice to, or giving

special attention to, a branch of dentistry with-

out a special license therefor.

‘ae

‘‘(r) For violating or assisting in a violation of a

provision of this act.’’

The evidence does not substantiate that the ‘listing’

or its placement by the Licensee in the Yellow Pages

37

constitutes a violation of Section 18(m) of the Act for the

following reasons. The evidence substantiates that

‘oramedics’ was not a ‘recognized branch of dentistry’

in Michigan and no special license to practice

‘oramedics’ could then be issued. The testimony of

Marshall and Johnson does not establish the nature or

meaning of the term ‘oramedics’ as printed, because

their testimony related to events which preceded the

placement of the listing by at least 9 months.

Therefore, the evidence does not substantiate that

‘oramedics’, as listed, was a ‘branch of dentistry’

within the meaning of Section 18(m) of the Act.

The evidence does not substantiate that the listing or

its placement by Licensee constitutes a violation of

Section 17(2) of the Act because Licensee’s skill or

method of practicing dentistry is not propounded or

described in the listing.

The evidence does not substantiate that the listing or

its placement by Licensee constitutes a violation of

Section 17(3) of the Act because the listing does not

claim professional superiority by Licensee or perfor-

mance of his professional services in a superior manner

by comparison or otherwise.

The evidence does not substantiate that the listing or

its placement by Licensee constitutes a violation of

Section 17(1) of the Act for the following reasons.

Although the Licensee admitted placement of the

listing, he did not admit such listing was ‘misleading or

deceptive’. Board counsel conceded he had an

obligation to prove the listing was misleading or

deceptive. The evidence substantiates that ‘oramedics’

was not a recognized branch of dentistry in Michigan,

not taught as such in a Michigan dental! school and had

' no significant meaning. The term can mean nothing

more than stated or defined in the listing or as shown

by the proofs. The language ‘of the listing does not

38

establish the meaning of the term ‘oramedics’ as used

therein. It does not describe any act or program offered

by Licensee in his practice or otherwise. The extrinsic

evidence does not establish the meaning of the terms

‘oramedics’ or ‘specializing in oramedics’ or the listing

as a whole. The testimony of Marshall related to events

which occurred in the period from August, 1975

through October, 1975. The testimony of Johnson

related to events which occurred in the latter part of

August, 1975 and September, 1975. The listing was not

placed by Licensee until August 24, 1976. Thus, the

testimony of Marshall and Johnson is not sufficient to

establish the meaning of the term ‘oramedics,’

‘specializing in oramedics’ or the listing as a whole.

There being no other proofs offered as to such

meaning, it would only be speculation or conjecture to

determine what such terms or the listing meant on and

after August 24, 1976.

Because the evidence fails to establish a violation of

Sections 17(1), (2) or (3), the evidence fails to establish

a violation of Section 18(r) of the Act.

/s/ Wayne C. Lusk

Wayne C. Lusk, Hearing Examiner

Date: January 6, 1978

Lansing, Michigan

39

Excerpt from 1-30-78 ‘‘Unapproved Draft’’

MINUTES

of the

Department of Licensing and Regulation

MICHIGAN STATE BOARD OF DENTISTRY

January 25, 1978—320 N. Washington, Lansing,

Michigan

Note: Dr. Vernon K. Johnson and Mr. Marderosian,

named below, are respectively the President of the

State Board of Dentistry and (Howard C.) Marderosian,

Assistant Attorney General, State of Michigan, counsel

to the Board.

From Page Six:

DR. ROBERT O. NARA: Prior to discussion on this

matter, Dr. Vernon K. Johnson withdrew from the table

and did not participate in any discussion regarding the

matter. Mr. Marderosian also excused himself and left

the room during the entire discussion. The Board

Members had been forwarded a copy of the

Transcripts, Exhibits, Conclusion of Law, Finding of

Fact, and the Opinion of the Hearing Examiner. All

Board Members indicated they had studied the

material and were prepared to render a decision.

Page Seven:

DR. NARA, Cont.: On Motion of Dr. Cartwright and

Support of Mrs. Blandford, the Board unanimously

voted to accept Part A of the Hearing Examiners

Opinion, which deals with Dr. Nara’s use of unlicensed

40

personnel.

Also in response to Part A of the Hearing Examiners |

Opinion, it was Moved by Dr. Cartwright and

Supported by Dr. Osgood that Dr. Nara’s dental license

be suspended for a period of 90 days, commencing on

February 15, 1978, and that he be placed on probation,

following the suspension, for a period of 2 years and

that he be required to submit quarterly reports to the

Board regarding his use of auxiliary personnel.

Roll Call Vote follows:

Dr. Switzer—No Dr. Cartwright — Yes

Mrs. Blandford— Yes Dr. Hoplamazian— Yes

Dr. Chase— No

Dr. Smith— Yes

Dr. Osgood — Yes

MOTION CARRIED

(Dr. Chase requested that the record show his reason

for a ‘‘no’’ vote was because he would have voted for a

longer period of suspension).

On Part B, on Motion of Dr. Chase and Support of Dr.

Cartwright, the Board unanimously voted to reject the

Findings of the Hearing Examiner. After further

discussion, on Motion of Dr. Chase and Support of Mrs.

Blandford, the Board unanimously voted to reject the

Hearing Examiner’s Opinion, being that it is inconsis-

tent with the provisions of Section 8, Rule 12, Rule 13,

and Rule 21 of the Dental Law and the Board does

indeed find the advertising to be misleading and

deceptive, if not fradulent (sic.). Therefore, on Motion

of Dr. Chase and support of Dr. Cartwright, the Board

unanimously voted to suspend the dental license of Dr.

Nara for a period of 1 year, commencing on May 15,

1978.

After further discussion, on Motion of Dr. Osgood and

41

Support of Mrs. Blandford, the Board unanimously

voted not to use Mr. (Wayne C.) Lusk as a Hearing

Examiner in any future hearings before the Board.

Note: The Minutes of the State Board were lengthy,

covering Board discussions of numerous matters. The

excerpt above, being taken from pages six and seven of

those minutes, contain the complete Board action

related to the matter of Dr. Robert O. Nara.

42

STATE OF MICHIGAN

DEPARTMENT OF LICENSING AND REGULATION

IN THE MATTER OF:

ROBERT O. NARA, D.D.S. H.O. No. 77-32

License No. 7700

FINAL ORDER

The Board having fully considered the transcript and

evidence presented at the hearing in this matter, and

after considerstion of the Opinion filed herein on

January 6, 1978 said Opinion is hereby incorporated

and adopted by reference except that Part B of the

Conclusion of Law is inapplicable to this matter; and

IT IS ORDERED that pursuant to Part A of the

Conclusions of Law, and the Board's authority in

Sections 18(e) and 19(4) of the Act, License No. 7700

issued to Robert O. Nara, D.D.S. should be and is

hereby SUSPENDED for ninety (90) days effective

February 15, 1978; and

FURTHER, IT IS ORDERED that effective May 15,

1978 Robert O. Nara, D.D.S. shall be and is hereby

placed on probation for two (2) years during which time

he shall submit quarterly reports to the Board

regarding his use of auxiliary personnel.

Dated: February 6, 1978 /s/ Aris Hoplamazian D.D.

Lansing, Michigan Aris Hoplamazian, D.D

President

S.

S.

43

STATE OF MICHIGAN

DEPARTMENT OF LICENSING AND REGULATION

IN THE MATTER OF:

ROBERT O. NARA, D.D.S. H.O. No. 77-68

License No. 7700

FINAL ORDER

The Board having fully considered the transcript and

evidence presented at the hearing in this matter, and

after consideration of the Opinion filed herein on

January 6, 1978, said Opinion is hereby incorporated

and adopted by reference except that Part A of the

Conclusions of Law is inapplicable to this matter; and

Further, Part B of the Conclusions are rejected for

the reason that it is inconsistent with the provision of

Section 8, Section 17(1), and Rules 12, 13 and 21 of the

Act and the Board finds the subject advertising

misleading and deceptive, if not fraudulent; and

IT IS ORDERED that pursuant to the Board's

authority in Sections 18(m), 18(r), and 19(4) of the Act,

that License No. 7700 issued to Robert O. Nara, D.D.S.

should be and is hereby SUSPENDED for one (1) year

effective May 15, 1978.

Dated: February 6, 1978 /s/ Aris Hoplamazian D.D.S

Lansing, Michigan Aris Hoplamazian, D.D.S.

President