# Petition — Nara v. Michigan State Board of Dentistry

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 866

## Text

a Supreme ( om, U.% b
FILED
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| | 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0543%3A1. Public record. Not legal advice.