Petition — Illinois State Dental Society v. Schiller
Supreme Court brief1981
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MAR 23 198
No. ALEXANDER 4
In the
Supreme Court of the United States
Ocroser Term, 1980
THE ILLINOIS STATE DENTAL SOCIETY, ET AL.,
Peititioners,
vs.
HELEN SCHILLER, ET AL.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Russert M. Perron,
Counsel of Record
Mary Patricia CHapiIn
Craia A. Varca
Peterson, Ross, ScHiorrs & Semex
200 East Randolph Drive, Suite 7300
Chicago, Illinois 60601
(312) 861-1400
Attorneys for Petitioners.
The Scheffer Press, Inc.—(312) 263-6850
QUESTIONS PRESENTED FOR REVIEW
I. Whether the decision of the Court of Appeals con-
flicts with this Court’s dismissal of an appeal in an
earlier case presenting the same issues as those in
the imstant case.
Il. Whether in assessing the effect that this Court’s
dismissal of a state court appeal in an earlier case
had upon the instant case, the Court of Appeals
departed from decisions of this Court by not giving
proper consideration to the opinion of the state court.
The parties to this proceeding are as follows:
Plaintiffs-Respondents :
Helen Schiller, Walter Coleman, Uptown Peoples Com-
munity Service Center, an Illinois not-for-profit corpora-
tion; Uptown Peoples Community Health Services Board
of Directors, Inc., an L[llinois not-for-profit corporation;
Samuel Abernathy and other individuals listed on Exhibit
“$7” of the Complaint: and Gary Hinton, Walter Dausch,
Sam <Amenta, Jesse Gaudard, Donald Martin, Arthur
Potts, Nick DeAngelis, Mark Knper, Robert Schmitt,
Klmer KE. Higgerson, Caroline Basony, Edward Umbright,
Thomas Gaura, Robert Kopfer, lra Jordan, Robert <A.
Martin, William Norris, Irving Weiss, Robert Yonkee,
Hamazasb Mkrdichian, Joseph E. Hoch, Jerome Getsla,
Joseph Vinci, Edward Davisson, Eli Sutker, Wilson G.
Sargeant, Bruno Alonzo, George Bartmanowski, Ray An-
drews, John Bane, Adelor Guiliano, Miteh Bronner and
Anthony Carbone
Defendants-Petitioners:
The Illinois State Dental Society, an Illinois not-for-profit
corporation, The Chicago Dental Society, an Illinois not-
for-profit corporation; Julius W. Ulaneck, Dr. Louis V.
Fourie, Dr. Frank A. Schroeder, Dr. Dominic J. Catram-
bone, Dr. Bert W. Gilbert, Dr. Grant A. Maclean, Dr.
Lewis L. Weil, Dr. Robert H. Griffiths, Dr. Raffaele
Suriano, Dr. John Madonia, Dr. Thomas Quinn, Dr.
Edward Troutt, Dr. David Valentine, Dr. Thomas Wallen,
Dr. George Kelly and Dr. Raymond P. Kotz.
TABLE OF CONTENTS
PAGE
I I orsctetceeie ete basen, il
Citation to Opinions Below ....ccccccssscsssssssscssscessssscssseee 1
Jurisdictional Statement ..........ccccccssscsscsssecosscsssssssecescsssececs 2
Statutory Provisions Involved oocecccccscscssssssessssesssseeee 2
ROROMOS GE TR oa ascnssesecescceressoversssereavecscsvndssonecoveees 2
Reasons for Granting the Writ ......c.ccccccccscscscscscssscesese, 6
1. The Decision and Order of Judgment of the
Seventh Circuit Court of Appeals is in Direct
Conflict with this Court’s Dismissal of an
Appeal, for Want of a Substantial Federal
Question, in 44A Dental Laboratories, Inc.
v. Illinois Ex Rel Chicago Dental Society,
ee ee ND oa ce 6
2. In Assessing the 'Tffect of this Court’s Dis-
missal of the A44A Appeal Upon the Instant
Case, the Court Below Departed from Pre-
vious Decisions of this Court By Not Giving
Proper Consideration to the State Court
Opinion and Judgment Appealed from in
WAAR re tia i eee eee, 13
SSRN CO ARO ALARMS es BRUCE COPAY la
Per curiam order and judgment; United States
Court of Appeals for the Seventh Circuit,
filed December 3, 1980, rehearing denied
nn mens I ch Jae la
Denial of Petition for Rehearing, dated January
Fee nN een NA APIO i AORN EAS cate pct oes Ratan RU 9a
Memorandum opinion and order, United States
District Court, Northern District of Illinois,
Eastern District, The Honorable John Powers
Crowley, filed April 6, 1979 ......ccccccccoccossssecesss 10a
PAGE
Judginent Order, United States District Court,
Northern District of Illinois, Eastern Divi-
sion, The Honorable John Powers Crowley,
SE PRE: RR dco ctacneernccenssndcremncensenne 34a
Conversion Table re: Renumbering of Illinois
Ce Ee |, SRny Nae mane ane Ree 36a
Relevant Sections of the Illinois Dental Prac-
es cthccereecoas eta hatga denoanc cesar eaentennnss 37a
Pleadings in AAA Dental Laboratories, Inc. v.
IUmois ex rel Chicago Dental Society, 352
Be i ED ctr apectin sussncseavimnscesiblaetonamiolsnass 47a
Appellant’s Statement as to Jurisdiction: .... 47a
Appendix (including Opinion of Illinois
Supreme Court in People v. AAA Den-
tal Laboratories, Inc., 8 Ml.2d 330, 134
TERE UP CIPD 5 eaeninas dataset nencoanctaspanvorionees 71a
Motion by Appellees To Dismiss Appeal or
Ue a rN iiscectinscxeaticerersicanrcersaormeecs llla
Brief Opposing Motion to Dismiss or affirm ..133a
UR UNN: TO IE evs siccenacsienecnsessacaxsasncvers 149a
TaBLE oF AUTHORITIES
Cases:
AAA Dental Laboratories, Inc. v. Illinois ex rel
Chicago Dental Society, 352 U.S. 863 (1956) ..5, 6, 9. 12
Canfield v. Wisc. Bd. of Attys Professional Comp.,
490 F.Supp. 1286 (W.D. Wis. 1980) wow. 1d
Chicago Sheraton Corp. v. Zaban, 593 F.2d 808 (7th
Cir.), cert. dismissed, 444 U.S. 911 (1979) occ.
Colorado Springs Amusement, Ltd. v. Rizzo, 524
F.2d 571 (8d Cir. 1975), cert.denied, 428 U.S. 913
PS SES Se, Se ot RSE Soa OF her, A eR 1
Wi
PAGE
Cordak v. Reuben H. Donnelley Corp., 363 U.S.
RIE ida ate drciceasa miesioeakseccnsecasccondnica akan 12
Doe v. Hodgson, 478 F.2d 537 (3d.Cir.), cert.
dented, 414 U.S. 1096 (1973) occcccsssecesesceeeeess 12
Duncan v. Ward, 225 F.Supp. 195 (N.D.II. 1963)..11, 12
Elections Bd. v. Socialist Workers Party, 440 U.S.
RE IIIT scsstistrvnsssccireninisscitisndckucmibchacinscdevscetacneioanen Sen 12
Govt. of Virgin Is. v. 19.623 Acres of Land, 536 F.2d
vc a het a eT! 15
Hawauan Tel. Co. v. State of Hawaii, 614 F.2d
1197 (9th Cir.) cert.denied, ........ fear: 100
Me SO CRD) cesicssccccecnsesececesececssecovesesneeseinvivanesanes 12
Hicks v. Miranda, 422 U.S. 332 (1975) coe. 6, 7,15
Lees v. Oster, 8 U.2d 141, 329 P.2d 648 (1958) ... 7
Mandel v. Bradley, 432 U.S. 173 (1977) ........ 12, 14, 15, 16
McKeesport Area School Dist. v. Pa. Dept. of Educ.
aeons US. 2... 64 L.Ed.2d 831 (1980) oo.cc..12, 15
People v. AAA Dental Laboratories, 8 Tll.2d 230,
134 N.E.2d 285 (1956) oc ccceeceeseeeeseseeeesneeeeen 8, 14
People ex rel Illinois State Dental Society v. Vinci,
39 Tll. App.8d 474, 342 N.E. 206 (1976) coc. 6
State v. Clark, 252 Ta. 578, 107 N.W.2d 726, cert.
denied, 366 US. 949 (1961) coocccccccccccccsccsesecssecseeeeeees 7
Whitlow v. Hodges, 539 F.2d 582 (6th Cir.), cert.
denied, 429 U.S. 1029 (1976) ccccccccccsecescecsteesees 13
Statutes:
Sec. la, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977,
GR. TLD, 200. 2IOZ) ......ecccccccccccosccccccscascscscccersccecsesscscsececsere Bp
iv
PAGE
Sec. 3, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977, ch.
Neen iss ccnentchonssebescieosdeseeseonses +
Sec. 5, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977., ch.
Nee scnddesnenacceod, wine 4,9
Sec. 5a, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977,
I sec ceacacssasasicasanseoouenss 4,8,9
Sec. 5b, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977,
I IE EI cs cctucosoesboisnonsacasasscnsonsevsdecsseonsees +
Sec. 16, Ill. Dental Prac. Act (Ill.Rev.Stat., 1977, ch.
no. ccs cebemseedesssgnurseraceneseveses 4
-=-
Sec. 17a, Ill. Dental Prae. Act (Ill.Rey.Stat., 1977,
NE I cscs cocsoncnassosvaseoscdcecarseseacsssceseceses 6
In THE
SUPREME COURT OF THE UNITED STATES
OctroBer TERM, 1980
No.
THE ILLINOIS STATE DENTAL SOCIETY, ET AL.,
Petitioners,
US.
HELEN SCHILLER, ET AL...
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
SSuEEEEEEEeee
To: THe Honoraste Corer Justice
Or Ter Unrrep States
Anp Tur Associate JUSTICES
Or Tur Supreme Court
Or THe Unitrep States
Petitioner respectfully prays that a Writ of Certiorari
issue to review the judgment and order of the United
States Court of Appeals for the Seventh Circuit entered
in this proceeding on December 3, 1980, which reversed
and remanded the decision of the District Court.
OPINIONS BELOW
Neither the District Court’s memorandum opinion nor
the Seventh Cireuit Court of Appeals’ per curiam opinion
a
=
have been published. These opinions are set out in the
Appendix, p. la and 10a, respectively, imfra.
JURISDICTION
The judgment of the Court of Appeals for the Seventh
Circuit was entered on December 3, 1980. A timely petition
for rehearing was denied on January 27, 1981, and this
petition for certiorari was filed within ninety days of
that date. This Court’s jurisdiction is invoked under
28 U.S.C. See. 1254(1).
STATUTORY PROVISIONS INVOLVED*
_* These statutes are printed in the Appendix, p. 37a
infra.
Sec. la, Ll. Dental Prac. Act (Ll Rev. Stat., 1977, ch.
111, see. 2202)
See. 3, Ill. Dental Prac. Act (Ill. Rev. Stat., 1977, ch.
111, see. 2206)
Sec. 5, Ill. Dental Prac. Act (Ill Rev. Stat., 1977, ch.
111, see. 2217)
See. 5a, Ll. Dental Prac. Act (Ill. Rev. Stat., 1977, ch.
111, see. 2218)
See. Sb, Ill. Dental Prac. Act (Ill. Rev. Stat., 1977, ch.
111, see. 2219)
Sec. 16, Ill. Dental Prac. Act (Ill. Rev. Stat.. 1977, ch.
111, see. 2242)
See. 17a, [ll]. Dental Prac. Act (Ill. Rev. Stat., 1977, ch.
I11, see. 2244)
STATEMENT OF THE CASE
On October 4, 1978, plaintiffs in this action, various
dental technicians (“denturists”) and various non-den-
turist community organizations and other individuals,
—
brought suit! against the Illinois State Dental Society
and its program director, the Chicago Dental Society,
the [linois Dental Laboratory Association? and various
individual dentists’. Plaintiffs, none of whom are licensed
dentists, challenged the constitutionality and legality of
the [llinois Dental Practice Act, [lLRev.Stat. 1977, Ch.
I11, See. 2202, et seq. and the methods used to enforce if,
As noted by the District Court:
The Illinois Dental Practice Act, ILRev.Stat. Ch.
IN1, See. 2202 et seq. is a comprehensive statutory
scheme regulating dentistry and various aspects of
dental health care in Hlinois. The act prohibits the
practice of dentistry without a license. Among: acts
Which constitute the practice of dentistry are taking
of impressions, replacing teeth, and making and _re-
pairing dental protheses. However, the Act exempts,
from that definition, the extraoral construction or
repair of dentures and bridges, or replacement. of
teeth when those services are requested by a licensed
dentist, and that request is made on a written work
order. Soliciting or providing those services without
first supplying or obtaining a written work order
constitutes a misdemeanor. In addition, the act pro-
‘The court below incorrectly noted that the instant
action was brought as a “class action”, which it was not.
Schiller v. Illinois State Dental Society, No. 79-1529, slip
op. (7th Cir. Dec. 3, 1980) [hereinafter cited as Op.,
Ct. of App.| (Appendix, p. la)
‘The Illinois Dental Laboratory Association was not
named as a defendant in the case caption, but was so
named in several counts of the Complaint.
“As noted by the court below, “the jurisdictional basis
for this action has been imprecisely stated in the eom-
plaint’’. Op., Ct. of App. (Appendix, p. 2a). It appears,
however, that jurisdiction is asserted under 28 U.S.C.
Sec. 1343 and 28 U.S.C. See. 1331. Id.
may We
hibits public advertisement of the products or ser-
vices of firms performing extraoral work for licensed
dentists.
Schiller v. Illinois State Dental Society, No. 78 C 3936,
slip.op. (N.D. Ill. April 6, 1979) [hereinafter Op., Dist.
Ct.] (Appendix, p. 12a-16a) (footnotes to Sections la, 3,
0, da, Sb, and 16 omitted).
The denturist plaintiffs’ constitutional challenges were
that the Dental Practice Act violates denturists’ equal
protection and due process rights by precluding them
from practicing their alleged profession directly with
the public. Both the denturist and non-denturist plain-
tiffs raised a number of other federal and state claims
as well,’ all of which were found untenable by the District
Court,’ and none of which were addressed by the Seventh
Circuit.
Defendants moved to dismiss the complaint on a variety
of grounds, their principal contention being that all sub-
stantive elements of the complaint had been previously
raised and decided adversely to plaintiffs on a number
of occasions by both the federal and state courts. Defen.
dants also argued that the non-dentnrist plaintiffs lacked
standing to sue.
On motion, the District Court dismissed Plaintiffs’
complaint in its entirety and entered judgment for de.
* See Op., Dist.Ct. (Appendix, p. 18a) for recitation of
other claims raised. The non-denturist plaintiffs’ claims
went only to alleged federal antitrust violations.
*See Op., Dist.Ct. (Appendix, p. 32a). Having found
no substantial federal claim anywhere in the complaint,
the District Court declined to exercise pendent juris-
diction over plaintiffs’ state law claims. Id. at 1.18
(Appendix, p. 32a)
—
fendants, the court holding that since it was “unable
to find a tenable claim for violation of the Constitution
or any law of the United States’. no “substantial federal
question’’ had been presented. Op., Dist.Ct. (Appen-
dix, p. 32a). In addition, the court specifically found
that the Dental Practice Act's provisions regarding den-
tists’ and denturists’ relative roles in the provision of
dental services inct the due process and equal protection
tests of rationality.
On appeal, the Seventh Cireuit, after examining those
eases in which the Dental Practice Act had been chal-
lenged in previous litigation, held that this Court’s dis-
mussal of an appeal for want of a substantial federal
question in Ad.1l Dental Laboratories, Inc. v. Illinois ex
rel Chicago Dental Sociely, 352 U.S. 863 (1956). was not
dispositive of the instant case, even though 144 had
involved a denturist attack on the Act premised on due
process and equal protection grounds. The Seventh Circuit
also held that the District Court had erred in disinissing
the complaint without first making some evidentiary in-
quiry to determine whether the challenged sections of
the Act were “rational” for equal protection and due
process purposes. On that basis, the Seventh Circuit
reversed and remanded the case for an evidentiary in-
quiry. The court did not address any matters beyond
the denturist plaintiffs’ due process and equal protection
challenges to the Act's prohibitions on their providing
denture care directly to the public. Therefore, the court
did not disturb the District Court’s dismissal of the
balance of plaintiffs’ complaint.
_—
REASONS FOR GRANTING WRIT
I
THE DECISION AND ORDER OF JUDGMENT OF
THE SEVENTH CIRCUIT COURT OF APPEALS IS
IN DIRECT CONFLICT WITH THIS COURT'S DIS.
MISSAL OF AN APPEAL, FOR WANT OF A SUB.
STANTIAL FEDERAL QUESTION, IN AAA DENTAL
LABORATORIES, INC. V. ILLINOIS EX REL CHICA-
GO DENTAL SOCIETY, 352 U.S. 863 (1956).
In concluding that this Court’s dismissal of an appeal
in AAA was not dispositive of the instant case, the
Seventh Circuit decided a question squarely in confict
with this Court’s previous decision in 144A. The issues
in the instant case being precisely those raised in AAA,
the Seventh Circuit should have aceorded this Court's
dismissal in AAA proper precedential effect. and dis-
missed the instant case under Hicks v. Miranda, 422 U.S.
332 (1975). By failing to do so, the Seventh Cireuit has
left open to re-litigation matters clearly and unquestion-
ably resolved by this Court in 444A, by a lower federal
court,” and by the courts of the State of Illinois.’
The practical effect of this decision is to afford certain
plaintiff-denturists, whose “profession” has been deemed
to constitute a “public nuisance’® and fully one-third of
whom have been found to have practiced dentistry without
* See notes 13 and 14 and accompanying text, infra.
* See. e.g., People ex rel Illinois State Dental Society
v. Vinci, 35 Ill.App.3d 474, 342 N.E.2d 206 (1976).
* See Sec. 17a of the Illinois Dental Practice Act. (TI.
Rev.Stat., 1977, Ch. 111, Sec. 2244) (Appendix, p. 46a).
oat at
a license in Illinois, an opportunity to further ply their
trade upon an unsuspecting public under an ill-conceived
cloak of legitimacy.
Yet another disturbing consequence of the lower court’s
decision is its potential impact on the dental practice
acts of other states. Both the Lllinois act and the AAA
decision have long been given considerable accord by
the courts of other states. See State v. Clark, 252 Ia.
O78, LOT N.W.2d 726, cert. denied 366 U.S. 949 (1961);
Lees v. Oster, 8 Utah 2d 141, 329 P.2d 648 (1958). In
audition, the Illinois State Dental Society, a defendant
here, has long been a national leader in advocating that
interests of public health demand that the provision
of dental prostheses (dentures) not be divorced from
the provision of clinical dental care. The relationship
which this case bears to that ongoing national effort
offers yet another reason why this Court should grant
the writ of certiorari requested.
Under Hicks v. Miranda, supra, dismissals of appeals
for want of a substantial federal question are dispositions
on the merits, and are binding on lower federal courts.
Applicability of the //icks doctrine requires a finding that
issues in a later case are the same as those presented
to this Court in an earlier action ending in either a sum-
mary affirmance or dismissal for want of a substantial
federal question. Had the Seventh ireuit properly ex-
amined the issues in AAA and applied the Hicks doctrine
here, it would have agreed with the Distriet Court’s
dismissal of this action.
The court below concluded that:
In the instant case the issue is whether due process
and equal protection are violated because denturists
see eae
are prevented from providing denture care and ad-
vertising directly to the public.
Op., Ct. of App., at m2 (Appendix, p. Ta).
The court also stated that, in .L.LA,
The due process issue was whether the statute was
rationally related to its purpose where the right
of a dental technician to practice his occupation
depended solely on whether he was employed by a
dentist, without there being any statutory qualifica-
tions for teehnicians or requirement that a dentist
supervise their work. The equal protection issue also
concerned the lack of statutory qualifications for
dental technicians, allegedly resulting in’ arbitrary
decisions by dentists as to which technicians would
be employed.
Id. at m2. (Appendix, p. 7a).
Given those characterizations, the Seventh Circuit con-
cluded that the issues in the respective cases were some-
how “dilferent™. Defendants submit, however, that the
court Mmisapprehended the true nature of the issues. in
Adel, and that the purported difference between the cases
isa “difference without a distinetion.”
It is evident from the opinion of the [linois Supreme
Court in Act that the equal protection and due process
issues there were whether prohibiting those persons not
trained in dentistry from dealing direetly with the public
or from advertising to the public was reasonably related
to preserving the public health.’ In its opinion, 8 THh2d
at S01, the [lnois court stated that: “The controversy
centers primarily upon Section 5(a) and paragraphs 8
*See the court’s discussion in People v. .LAA Dental
Laboratories, Ine., at S Uh 2d 357-38, 134 N.K.2d 287
(Appendix, p. 104a).
=
and 9 of Sec. 5,” which sections deal respectively with
prohibiting dental technicians from advertising to the
public, from taking impressions for dentures directly for
the public, and from constructing or repairing dentures
directly for the public. See, respectively, Ill. Rev. Stat.
1977, Ch. 111, See, 2218, 2217(8) and 2217(9)."" Since
the Illinois Supreme Court decided in favor of the .14-1
plaintiffs (the principal one of which was the Chicago
Dental Society, a defendant in the instant case), it fol-
lows necessarily that the state court’s decision upheld
the constitutionality of the aforementioned sections. The
jurisdictional statement filed on appeal to this Court
by the AAA defendants (dental technicians) acknowledged
as much, for it stated that “the basie sections assailed
are subparagraphs 8 and 9 of See. 5 and separate section
X(a).’’ Juris, Statement in People v. AAA Dental Labora-
tories, OT. 1956, No. 311, p. 3. (Appendix, p. 53a). Hence,
the same Dental Practice Act prohibitions against direct
dealing which were upheld in the face of due process
and equal protection challenges by the Illinois Supreme
Court in AAA were before this Court on appeal in that
case.
Great effort was made in the “Questions Presented”
section of the dental technicians’ Jurisdictional Statement
in AAA to characterize the Dental Practice Act as
establishing dentists as only perfunctory intermediaries
between technicians and the public. Not surprisingly,
'The f[linois Dental Practice Act has remained un-
changed in all relevant respects from the time the 444
case was brought until the present time. Its sections,
however, were renumbered in 1977. For the Court’s ease
of reference, a conversion table is attached. (Appendix,
p. 36a).
a 10
therefore, the technicians’ questions were sclf-servingly
and argumnentatively phrased in terms of employment
or non-employment by a dentist being the arbiter of
compliance with the Act. Despite the biased phraseology
of those questions, they nevertheless stand for the propo-
sition that, under the Act, technicians may not deal
directly with, or advertise to, the public. Technicians
are limited by the Dental Practice Act, for reasons of
public health, to working only with those whom the
legislature has decided have sutlicient training to deal
with the public—lentists. That the formulation of the
questions presented attempted to obscure this faet did
not limit the actual scope of the challenge made in A444,
one which included all those provisions noted both by
the Hlimois Supreme Court and by the technicians as
being at issue. In short, the Jurisdictional Statement’s
“Questions Presented” section cannot be construed as
including anything less than a challenge to the basic
relationship between technician, dentist, and the public
under the Aet. Even a cursory reading of plaintiffs’
Motion to Dismiss or Affirm in Ld reveals as much —-
we, that the issues in wtf went to the reasonability
of the state’s exereise of its police power vis-a-vis the
Dental Practice Act's prohibitions against direct dealing
by non-dentists with the public.’ To conclude that any-
thing less was in issue is to take, as the court below has.
an unduly strained and ineorrect view of the AAA case.
"See e.g., Appellee’s Motion to Dismiss Appeal or to
Affirm Judgment in People v. 1AA Dental Laboratories,
OT, 1956, No. 331, p. 9 (Appendix, p. 123a) (‘*Since the
[Hlinois Statute prohibits dental laboratories from dealing
directly with public ...’’), and p. 10 (Appendix, p. 124a)
(Section entitled “The Federal Question Herein Ts Not
a Substantial One.)
|, eee
The due process and equal protection challenges pre-
sented in the instant case raise exactly the same issues
as those in 1AA. There is nothing encompassed by the
provision of “denture care,” in the instant ease, that
was not included within the technician’s argument in Au4A4
that subparagraphs 8 and 9 of See. 5 and See. 5(a) of
the Dental Practice Act kept them from practicing their
“occupation”. Only in the court below’s ‘ailure to eompre-
hend the nature of the AAA issues does any “difference”
arise between the two cases.
One lower court has correctly perceived the nature of
the issues raised in AAA and has given effect to this
Court’s dismissal of the AAA appeal. In Duncan vy. Ward,
225 F.Supp. 195 (N.D.DL 1963), the plaintiff dental tech-
nicians brought a class action suit challenging the Dental
Practice Act on due process and equal protection
yrounds.'* In granting the defendants’ motions for dis-
mussal there, the court stated that:
As defendants point out, the want of substantiality
of a federal question is here proved ‘because its un-
soundness so clearly results from the previous decei-
sions of the Federal Supreme Court as to foreclose
* Op., Ct. of App., at n.2 (Appendix, p. 7a).
“The court in Duncan, 225 F.Supp. at 201, noted that:
“It is apparent to the Court that the plaintiffs are at-
tempting to use the same identical arguments to over-
throw legislation . .. which has heretofore been univer-
sally upheld as constitutional, both under the Federal and
state constitutions.”
The Illinois State Dental Society, a defendant in the
instant action, intervened as a defendant in Duncan and
filed a motion for dismissal, relying on this Court’s dis-
missal of the Af appeal. See Duncan, 225 F.Supp. at
196, n.1 and accompanying text.
a
the subject and leave no room for the inference that
the question sought to be raised can be the subject
of controversy.’ (Citation omitted)
Since it has heretofore been determined that there
was a want of a ‘substantial federal question’ in both
the AAA Dental Laboratories, Inc. and the Corduk
v. Reuben H. Donnelley Corp. cases. supra, the court
concludes that there is no legal basis advanced by
plaintiffs which differentiates this controversy from
those cases, and such ‘substantial federal question’
is also absent here.
225 F.Supp. at 201.
Application of this Court’s dismissal in 444A to the
instant case does not require the strained extrapolation
that sometimes vexes lower courts when the facts sup-
porting a holding subsequently accorded a summary
adjudication by this Court differ from the facts in the
ease to which that holding is later raised as a bar.
Compare Elections Bd. v. Socialist Workers Party, 440
U.S. 173 (1979) (facts divergent) and Mandel v. Bradley,
432 U.S. 173 (1977) (facts divergent) with Meck eesport
Area School Dist. v. Pa. Dept. of Educ., ........ if . ’
64 L.Md.2d 831 (1980) (facts similar); Hawaiian Tel. Co.
v. State of Hawaii, 614 F.2d 1197 (9th Cir.), cert. denied
inate US. wy LOO S.Ct. 2965 (1980) (facts similar) ;
Colorado Springs Amusement, Ltd. v. Rizzo, 524 F.2d
O7L (3d Cir. 1975), cert. denied 428 U.S. 913 (1976)
(facts similar) and Doe v. Hodgson, 478 F.2d 537, (3d
Cir.) cert. denied 414 U.S. 1096 (1973) (facts similar).
On the contrary, in the instant case the factual cireun-
stances are such that the nature of the parties, relevant
statutes, bases of constitutional challenge, and standard
of review are identical to those in the 4.14 case? Even
‘* And to those in Duncan v. Ward, supra.
—_ oo
the manner of proof called for to sustain the rationality
of the Dental Practice Act by the Seventh Cireuit is
identical to that offered in AAA. The Seventh Cireuit
has remanded this case for an evidentiary inquiry into
whether the Dental Practice Act’s prohibitions are ration-
ally related to its asserted purpose of protecting the
public health. In 4.44, the Illinois Supreme Court focused
on precisely that same question, stating that:
Voluminous testimony establishes beyond doubt that
the furnishing of artificial dentures is intimately
related to the general health of the patient... this
relationship justifies legislative regulation of dentis-
try, including prosthetic dentistry... .
S Hl. 2nd at 533-84, 134 N.K. 2nd at 228
In view of the foregoing, it is diffieult to imagine an
instance in which application of this Court’s dismissal
in “L441 could be any more appropriate than in the instant
case. Indeed, the present action seems to be “on all fours”
With the issues raised in ALA. See Whitlow v. Hodges,
N98, F.2d 582 (6th Cir.), cert. denied. 429 U.S. 1029
(1976). That the court below reached a contrary decision
offers a compelling reason for this Court to grant the
Writ of Certiorari requested.
i
IN ASSESSING THE EFFECT OF THIS COURT'S
DISMISSAL OF THE AAA APPEAL UPON THEE IN.
STANT CASE, THE COURT BELOW DEPARTED
FROM FREVIOUS DECISIONS OF THIS COURT BY
NOT GIVING PROPER CONSIDERATION TO THE
STATE COURT OPINION AND JUDGMENT AP.
PEALED FROM IN AAA.
The court below, at u.2 (Appendix, p. Ga-7a), assessed
the effect that two previous dismissals of appeals by
=" oo
this Court had upon the present action. In concluding
that those decisions were not controlling on the instant
ease, the Seventh Circuit stated that:
We have examined the jurisdictional statements and
pleadings submitted on appeal to the Supreme Court
in those cases, and we conclude that the issues on
which the court based its dismissals are not disposi-
tive of the instant case.
Op., Ct. of App. at n.2 (Appendix, p. 7a).
and that:
The rationale of a summary adjudication may not
be gleaned from the opinion below.
Id.
The above statements establish beyond doubt that the
Seventh Circuit omitted from its consideration the judg-
ment and opinion of the Illinois Supreme Court in People
v. AAA Dental Laboratories, 8 Ul.2nd 330, 134 N.E. 2nd
28) (1956). This omission was both contrary to estab-
lished caselaw and very likely responsible for the Seventh
Circuit’s erroneous conclusion that this Court’s dismissal
of the appeal in AAA was not controlling on the issues
in the instant case.
To state, as the court below did, that “the rationale
of a summary adjudication may not be gleaned from the
opinion below” is a misquotation and misconstruction
of the case cited by the court, Mandel v. Bradley, 432
U.S. 173 (1977). The actual wording of the cited passage
is as follows: “Because a summary affirmance is an
affirmance of the judgment only, the rationale of the
affirmance may not be gleaned solely from the opinion
below.” 432 U.S. at 176 (emphasis supplied).
pam, | pure
This passage from Mand+l clearly indicates that the
opinion of a court below, while not the only matter
appropriate for consideration in assessing a summary
adjudication, must certainly be considered, a proposition
clearly the obverse of that conveyed by the lower court's
onussion of the word “solely” in its opinion. Applied
to the instant facts, then, the Seventh Cireuit’s failure
to properly consider the [linois Supreme Court’s opinion
in 14.14 amounted to a renunciation of this Courts deci-
sion in Mandel, rather than adherence to it.
Both this Court and lower federal courts have stated,
either explicily or implicitly, that consideration of mat-
ters beyond an appellant’s jurisdictional statement is
necessary and proper in assessing the true import of a
summary adjudication of this Court. Most recently, in
McKeesport Area School Dist. v. Pa. Dept. of Educ., 64
L.Ed. 2d 831 (1980), Mr. Justices Blackmun and Brennan.
in a concurring opinion, went to great lengths in attempt-
ing to determine precisely what issues were before this
Court in an appeal which the Court dismissed for want
of a substantial federal question. Their inquiry went not
only to the jurisdictional statement and pleadings filed
with this Court, or to the opinion of the court below,
but also to the holdings of previous state court cases
cited in the state court decision appealed from. That
this Court considers such matters relevant to the nature
of issues before the Court in a Hicks situation implies
that lower courts should likewise expand their inquiries
in trying to resolve the difficult question of the “reach
and content” of summary affirmances or dismissals of
appeals by this Court. See also Govt. of Virgin Is. v.
19.623 Acres of Land, 536 F.2d 566, 571 (3d Cir. 1976)
and Canfield v. Wis. Bd. of Attys Professional Comp., 490
—
a oe
F.Supp. 1286, 1290-91 (W.D. Wis. 1980), both of which
reflect searching inquiries by lower federal courts to
ascertain the issues decided in a summary adjudication
of the U.S. Supreme Court.
The Seventh Circuit itself, in a recent case, had occasion
to consider the specifie point raised here. In Chicago
Sheraton Corp. v. Zaban, 593 F.2d 808 (7th Cir.), cert.
dismissed, 444 U.S. 911 (1979), the Seventh Cireuit did
not feel compelled to limit its consideration to only the
jurisdictional statement and pleadings submitted to che
U.S. Supreme Court, but looked as well to “the opinion
of the Illinois Supreme Court, and the briefs filed by the
parties before that court.’’ 593 F.2d at 809.
Had the Seventh Circuit correctly applied Mandel and
given proper consideration to the opinion of the state
court in .L44, much less to the briefs submitted to that
court, it would have recognized that the issues in .1.44
were precisely the same as those at hand in the instant
case — whether the Dental Practice <Act’s prohibitions
against direct dealing by non-dentists with the public, or
advertising by non-dentists to the public, are violative
of due process and equal protection rights. That the
Seventh Cireuit strayed from established principles of
this Court and other federal courts is an additional reason
for granting the Writ of Certiorari requested.
=
CONCLUSION
ee
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Seventh Cireuit.
Respectfully submitted,
Russet. M. Prvron
Counsel of Record
Mary Parricia CHAPIN
Craig A. VARGA
Pererson, Ross, ScHLOERB & SEIDEL
200 Kast Randolph Drive, Suite 7300
Chicago, Llinois 60601
(312) 861-1400
Attorneys for Petitioners,
Marcu 20, 198]
APPENDIX
—la—
APPENDIX
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
Arened October 31, 1979
December 3, 1980
Before
Hon. THomas KE. Fatreuinp, Chief Judge
Hon. Luraen M. Swycerr, Cineuit Judge
Hon. Roperr A, Granr, Sentor District Judqe*
No. 79-1529
HELEN SCHILLER, et al.
Plaintiff s-.1pnellants,
ILLINOIS STATE DENTAL SOCIETY, et al.
Defendants Appellees,
Appeal from the United States District Court for the
Northern District of Tllinois Eastern Division.
No. 78 C 3986
JoHN Powers Crow ey, Judge.
ORDER
At issue is the constitutionality of the Tlinois Dental
Practice Act, Ill. Rev. Stat. ch. 111, §§ 2202 et seq. The
district court dismissed the class action complaint for
lack of a substantial federal question. Because we eon-
elude that a substantial federal claim has been stated, we
reverse and remand for further proceedings.
* Sitting by designation,
—
I
At the outset we note that the jurisdictional basis for
this action has heen imprecisely stated in the complaint.
Section 1983 jurisdiction is alleged but no “state action”
is specified and no state official is a party defendant. The
complaint docs allege, however, that the defendants TIli-
nois Dental Society, its oficers, and Julius W. Ulaneck
are ‘‘prosecuting actions’’ against plaintiff denturists. See-
tion 2244 of the Illinois Dental Practice Act, Ill. Rev.
Stat. ch. 111, § 2244, (“the Act”), provides:
The Attorney General for the State of Tllinois. the
State’s Attorney for any county in the State. or any
resident citizen may maintain an action in the name
of the people of the State of Tllinois to perpetually
enjoin any person from so unlawfully praeticine den-
tistry and from doing, committing or continuing of
such unlawful act.
(emphasis added.)
We infer that nlaintiffs are assertine jurisdiction under
section, 1343. 28 U.S.C. & 1342, on the basis that the le.
fendants hy erforeing the Act under section 2244 are
acting under color of state law.
In addition. a basis for jurisdiction under section 1331.
28 U.S.C. § 1331. though seemingly present in licht of
plaintiffs’ allegation that they have suffered more than
$1,000,000 in damages. is not set out in the complaint.
On remand, plaintiffs must amend their complaint. to
state more clearly the jurisdictional bases for this action,
II
Plaintiffs contend that the Tlinois Dental Practice Act
is unconstitutional as violative of hoth equal proteetion
and due process. According to section 2218 of the Act,
denturists may construct and repair dentures, bridees, or
replacements “exclusively, directly and solely for licensed
members of the dental profession, and not for the public
¢2 any part thereof.” In addition, denturists may not ad-
ae yee
vertise to the public “in any manner” the appliances eon-
structed and repaired or the serviees rendered but may
advertise only in dental trade journals and professional
publications, [Il Rev. Stat. ech. 111, ¢ 2218. Violations of
the Act are Class A misdemeanors, Hl. Rev. Stat. eh. 111,
§ 2242.
Plaintiffs argue that permitting dentists but net den-
turists to provide denture care and advertise directly to
the public is a violation of equal protection. Our first task
is to determine the proper standard of review. The right
to practice the profession for which one is trained, plain-
tiffs argue, is a fundamental right, making strict judicial
scrutiny the appropriate standard. We do not agree. In
Massachusetts Board of Retirement yv. Murgia, 427 US.
307 (1976), the Supreme Court held that there was no
fundamental right to government emplovment. Although
our ease involves private rather than public employment,
we agree with the trial judge that MWiurgia forecloses our
deciding that plaintiffs have a fundamental right to prac-
tice denturism. Therefore we must apply the traditional
rational basis test rather than strict serutiny in examining
the challenged statute.
Plaintiffs also allege that the statute violates due pro-
cess. Because we hold that the denturists have not been
denied a fundamental right, the due process challenge
must be decided on the basis of whether there is a rational
relationship between the prohibitions in the statute and
the legitimate state interests, if any, the statute was
enacted to serve. Although the due process and equal pro-
tection issues are conceptually different, for practical pur-
poses, they are here indistinguishable. If the statute is
rational, it must be upheld.
The express purposes of the Act are to protect the
publie health, safety and welfare and to further public
trust in the dental profession. Tll. Rev. Stat. ch. 111, §
2202. Those state interests are unquestionably legitimate
and if they are furthered by the statute, then it is consti-
—
a he
tutional even if the classifications contained therein are
imperfect, Dandridge v. Williams, 397 U.S. 471 (1970),
and even if the law is not ‘‘in every respect logically con-
sistent with its aims... .’? Williamson v. Lee Optical Co.,
348 U.S. 488, 487 (1954).
The problem we face is that there is simply no basis in
the record for deciding whether there is a rational rela-
tion between the statutory prohibitions and objectives.
Because the case was dismissed on the basis of the plead-
ings, we are presented with no facts on which to judge
the issues or apply the law. Plaintiffs allege that by pro-
hibiting denturists from providing denture care directly
to the public, the Act results in no or inadequate denture
care for a large segment of our elderly and edentulous
population. Simply stated, plaintiffs assert that the pub-
lic health, safety and welfare is only harmed by this stat-
ute. If that is true, the statute is not rationally related
to its goal. We believe that some evidentiary inquiry is
necessary to decide that issue fairly. In addition, it is not
clear from the pleadings that the statute’s other stated
purpose—to further respect for the dental profession—is
rationally related to prohibiting denturists from practicing
denturism. The State’s requirements for the licensing of
dentists are not challenged; nor do plaintiffs claim that
denturists are qualified to practice dentistry. In a similar
fact situation, the Fifth Circuit held that plaintiff chiro-
practors, who challenged the constitutionality of prohibit-
ing the practice of chiropractic in Louisiana, could not
be denied the opportunity to demonstrate that outlawing
the practice of chiropractic had no rational basis:
As we understand, the plaintiffs can claim no right
to practice medicine as that practice is engaged in by
medical doctors and surgeons. The question is whether
they can be constitutionally excluded from the prac-
tice of chiropractic. .. .
England v. Lowisiana State Board of Medical Exam., 263
¥.2d 661, 665 (5th Cir. 1959). As here, that case had been
dismissed by the district judge on the basis of the plead-
“ss
yt
—
ings for lack of a substantial federal question. The Fifth
Cireuit, while acknowledging that the plaintiffs’ burden
was great, reversed and remanded for a determination on
the basis of an evidentiary inquiry.
In Gault v. Garrison, 569 F.2d 993 (7th Cir. 1977), this
court faced an action by a public school teacher who al-
leged that mandatory retirement at age 65 violated her
equal protection and due process rights. We noted that in
light of Massachusetts Board of Retirement v. Murgia, 427
U.S. 307 (1976), our inquiry was limited to ascertaining
whether the requirement was rationally related to a legiti-
mate state interest. But although we recognized that the
requirement had to be assessed according to the relaxed
rational basis standard, we reversed the district court’s
dismissal on the basis of the pleadings:
It is no answer to say that a state ‘‘does not violate
the Equal Protection Clause merely because the clas-
sification made by its law are imperfect,’’? when these
classifications cannot be shown even to be rationally
related to the objective the state is attempting to
achieve... .
069 F.2d at 996 (citation omitted).
The decision in Murgia, we noted, was based on an evi-
dentiary record showing how the challenged levislation
related to a legitimate state purpose. In the absence of
any such factual showing, this court refused in Gault to
uphold the constitutionality of the state’s action.
We hold that soime evidentiary inquiry is required to
decide whether the challenged sections of this statute have
a rational basis.‘ In each of the cases relied on by the
district court, the decision that the state action was con-
stitutional was based not on the pleadings but on an evi-
* Although the plaintiffs’ burden is admittedly great,
we do not agree with appellees that this a case where the
rationality issue can be resolved on the basis of judicial
notice.
—
dentiary record. Vance v. Bradley, 440 U.S. 93 (1979);
Massachusetts Board of Retirement v. Murgia, 427 US.
307 (1976); Welliamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483 (1955); Trafelet v. Thompson, 594 F.2d 623
(7th Cir. 1979).*
Circuit Rule 18 shall apply on remand,
REVERSED and REMANDED
* Although the constitutionality of this statute has been
challenged in previous litigation, see, e.g., Duncan v. Ward,
225 KF. Supp. 195 (N.D. Ill. 1963), those adjudications
are not binding on this court. In People v. AAA Dental
Laboratories, 8 Ill. 2d 330, 134 N.1.2d 285 (1956), the Il-
linois Supreme Court upheld the statute as constitutional,
reversing in part and affirming in part a decision by the
Illinois trial court that it was unconstitutional to prohibit
dental technicians from selling dentures directly to the
public but constitutional to permit only licensed dentists
to take the necessary impressions, give the order or pre-
scription and fit the dentures in the patient’s mouth. We
would be bound on this question onty by a decision of the
Supreme Court of United States. Hlowever, on appeal to
the United States Supreme Court, the case was dismissed
‘for want of a substantial federal question.’ 352. U.S.
863. Similarly, in tay v. Reuben H. Donnelly Corp., 20
Ul. 2d 153, 169 N.E 2d 321 (1960), the constitutionality
of a certain melee restriction in the statute was up-
held by the [linois Supreme Court. The United States
Supreme Court also dismissed that appeal for want of a
substantial federal question. 365 U.S. 299 (1961).
Those summary adjudications by the United States Su-
preme Court are decisions on the merits and if the issues
there decided are the same as those raised here, they are
controlling precedent. [Hicks v. Miranda, 422 U.S. 33 39, 345
(1975); Chicago Sheraton Corp. v. Zaban, 593 F.2d 808
(7th Cir. 1979). Summary adjudications by the Supreme
Court, however, have less precedential value than an opin-
ion on the merits and ‘*the precedential effect of a sum-
mary affirmanee ean extend no farther than ‘the precise
issues presented and necessarily decided by those ac-
tions.’’’ Illinois State Board of Elections yv. Socialist
anes TQ ame
* (Continued )
Workers Party, 440 U.S. 173, 182 (1979), quoting Mandel
v. Bradley, 432 U.S. 173, 176 (1977). The rationale of a
suinmary adjudication may not be gleaned from the opin-
ion below. Mandel v. Bradley, 432 U.S. at 176.
We have examined the jurisdictional statements and
pleadings submitted on appeal to the Supreme Court in
those cases, and we conclude that the issues on which the
Court based its dismissals are not dispositive of the in-
stant case. In AAA Dental Laboratories, Inc. vy. Illinois
ex rel. Chicago Dental Society, 352 U.S. 863 (1956), the
due process issue was whether the statute was rationally
related to its purpose where the right of a dental techni-
cian to practice his occupation depended solely on whether
he was employed by a dentist, without there being any
statutory qualifications for technicians or requirement that
a dentist supervise their work. The equal protection issue
also concerned the lack of statutory qualifications for
dental technicians, allegedly resulting in arbitrary deci-
sions by dentist as to which technicians would be employed.
The due process and equal protection issues before the
Court in Cordak vy. Reuben H. Donnelly Corp., 365 US.
299 (1961), involved the Act’s restriction of advertising
by dental technicians in business and telephone directories
to name, address, and telephone number listings. Not dis-
puting the legitimacy of preventing technicians from ad-
vertising to the public, appellants argued that the law was
irrational because it prevented technicians from adver-
tising important information to dentists as well.
In the instant case the issue is whether due process and
equal protection are violated because denturists are pre-
vented from providing denture care and advertising di-
rectly to the public. That issue is different from those
before the United States Supreme Court in the 444 Den-
tal Laboratories and Cordak cases and therefore those
decisions are not controlling.
—
Unpublished Per Curiam Order
JUDGMENT—ORAL ARGUMENT
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
December 3, 1980
Before
Hon. Thomas IK. Fatrcuinp, Chief Judge
Hon. Luraer M. Swycerr, Circuit Judge
Hon. Roperrt A. Grant, Senior District Judge*
No. 79-1529
HELEN SCHILLER, et al.,
Plaintiffs-Appellants,
vs.
THE ILLINOIS STATE DENTAL SOCIETY, an
Illinois not-for-profit corporation, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 78-C-3936
Judge Jounx Powers Crow rey
This cause was heard on the reeord from United States
District Court for the Northern District of Tlinois, East-
ern Division, and was argued by counsel.
On consideration whereof, IT IS ORDERED AND AD-
JUDGED by this Court that the judgment of the said
District Court in this cause appealed from be, and the
same is hereby REVERSED, with costs, and RE-
MANDED, in accordance with the provisions of the order
of this court entered this date.
* The Honorable Robert A. Grant, Senior District Judge
for the Northern District of Indiana, is sitting by desig-
nation.
—
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
January 27, 1981
Before
Hon. Tuomas EK. Fatrcuiip, Chief Judge
Hon. Lutuer M. Swycert, Circuit Judge
Hon. Roserr A. Grant, Senior Judge*
No. 79-1529
HELEN SCHILLER, et al.,
Plaintiffs-Appellants,
VS.
THE ILLINOIS STATE DENTAL SOCIETY, an
linois not-for-profit corporation, et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of [llinois, Eastern Divison.
No. 78-C-3936
JoHn Powers Crow sey, Judge.
On consideration of the petition for rehearing and mo-
tion for clarification filed in the above-entitled cause by
defendants-appellees, all of the judges on the original
panel having voted to deny the saine,
IT IS HEREBY ORDERED that the aforesaid petition
for rehearing be, and the same is hereby DENIED.
IT IS HEREBY FURTHER ORDERED that the mo-
tion for clarification be, and the same is hereby DENIED.
*The Honorable Robert A. Grant, Senior Judge from
the Northern District of Indiana, is sitting by designation.
— 10a —
In THE
UNITED STATES DISTRICT COURT
For Tue Nortuern District Or ILuinors
EASTERN Drvision
HELEN SCHILLER, WALTER COLEMAN, UPTOWN
PEOPLES COMMUNITY SERVICE CENTER, an IIl-
nois not-for-profit corporation; UPTOWN PEOPLES
COMMUNITY HEALTH SERVICES BOARD OF DI-
RECTORS, INC., an Illinois not-for-profit corporation;
SAMUEL ABERNATHY and other individuals listed on
Exhibit ‘‘47’’ of the Complaint; and GARY HINTON,
WALTER DAUSCH, SAM AMENTA, JESSE GAU-
DARD, DONALD MARTIN, ARTHUR POTTS, NICK
DeANGELIS, MARK KUPER,. ROBERT SCHMITT,
ELMER E. HIGGERSON, CAROLINE BASONY, ED-
WARD UMBRICHT, THOMAS GAURA, ROBERT KOP-
FER, IRA JORDAN, ROBERT A. MARTIN, WILLIAM
NORRIS, IRVING WEISS, ROBERT YONKER, HAMA-
ZASB MKRDICHIAN, JOSEPH E. HOCH, JEROME
GETSLA, JOSEPH VINCI, EDWARD DAVISSON, ELI
SUTKER, WILSON G. SARGEANT, BRUNO ALONZO,
GEORGE HARTMANOWSKI, RAY ANDREWS, JOHN
BANE, ADELOR GIULIANO, MITCH BRONNER and
ANTHONY CARBONE,
Plaintiffs,
vs,
THE ILLINOIS STATE DENTAL SOCIETY, an IIli-
nois not-for-profit corporation, THE CHICAGO DENTAL
SOCIETY, an Illinois not-for-profiit corporation; JULIUS
W. ULANECK, DR. LOUIS V. FOURIE, DR. FRANK
A. SCHROEDER, DR. DOMINIC J. CATRAMBONE,
DR. BERT W. GILBERT, DR. GRANT A. MACLEAN,
DR. LEWIS L. WEIL, DR. ROBERT H. GRIFFITHS,
DR. RAFFAELE SURIANO, DR. JOHN MADONIA,
DR. THOMAS QUINN, DR. EDWARD TROUTT, DR.
DAVID VALENTINE, DR. THOMAS WALLEN, DR.
GEORGE KELLY and DR. RAYMOND. P. KOTZ,
Defendants.
No. 78 C 3936
—lla—
MEMORANDUM OPINION AND ORDER
JoHn Powers Crow ey, District Judge
This case involves the constitutionality and legality of
the Illinois Dental Practice Act, Ill. Rev. Stat., Ch. 111,
$2202, et seq., and the meehods used to enforce that Act.
The plaintiffs are two individual residents and two not-
for-profit Uptown community organizations that are either
‘*concerned’’, ‘*devoted’’ or have as their ‘‘ principal pur-
pose’’ the dental health care needs of the poor of that
area,’ and several hundred individuals whose names are
enumerated in Exhibit 47 and who are ‘‘present and po-
tential consumers of dentures and denture services.’’? In
addition, various denturists*? are plaintiffs, and the ma-
jority of the alleged wrongful acts of defendants pertain
solely to this group.
Defendants are the Illinois State Dental Society and
the Chicago Dental Society,’ the Illinois Dental Labora-
tory Association,’ and various individual defendants who
are 1) all present or former officers of the Illinois State
Dental Society; 2) the program director of the Illinois
State Dental Society; and 3) presumably various other
‘The organizations are Uptown People’s Community
Service Center and Uptown People’s Community Health
Service Board of Directors.
* Denturists are allegedly persons who are trained to
make, fit and repair dentures,
“Both of these organizations are dentists’ trade asso-
clations.
‘Plaintiffs have failed to name the [linois Dental Labo-
ratory Association as a defendant in the caption of the
complaint, although that organization is mentioned as a
defendant in paragraph 3. The Tllinois Dental Laboratory
Association has moved to dismiss the cause against it on
the ground that plaintiffs have failed to comply with Fed.
R. Civ. P. 10(a). In light of the conelusion we reach in
this case, it is unnecessary to decide this issue.
—
dentists whom the complaint depicts merely as residents
and citizens of Illinois.
Defendants have moved to dismiss the complaint on a
variety of grounds. They challenged this Court’s juris-
diction, claiming that plaintiffs have failed to establish
a substantial federal question. Defendants also assert that
the non-denturist plaintiffs lack standing to bring this
action; that the action is barred by the equitable doctrine
of unclean hands, the federal anti-injunction statute, 28
U.S.C. §2283, the statute of limitations and the doctrines
of res judicata and abstention. In addition, defendants
contend that the complaint should be dismissed, because
it violates Fed. R. Civ. P. 8.
The complaint, which is hardly the short, concise state-
ment intended by Rule 8, lists not only the purported
wrongful acts of these defendants, but also sets forth a
comprehensive history of the dental profession and the
sociologicial and economic impact of the Illinois statute.
This Court, however. is concerned only with the factual
allegations relevant to the causes of action set forth and
the legal issues that arise from them.
The Illinois Dental Practice Act, Ill. Rev. Stat. Ch. 111,
$2202 et seq., is a comprehensive statutory scheme regu-
lating dentistry and various aspects of dental health care
in Illinois. The Act prohibits the practice of dentistry
without a license.’ Among acts which constitute the prac-
tice of dentistry are taking of impressions, replacing
Til. Rev. Stat. Ch. 111, §2242:
PENALTY FOR UNLAWFUL PRACTICE
Any person who practices or offers to practice den-
testry m this State without being licensed for that
purpose, or whose license has been suspended or re-
voked, or who violates any of the provisions of this
Act, for which no specific penalty has been provided
herein, is guilty of a Class A misdemeanor.
— 13a —
teeth, and making and repairing dental prostheses.’ How-
ever, the Act exempts, from that definition, the extraoral
construction or repair of dentures and bridges, or replace-
ment of teeth when those services are requested by a
*Tll. Rev. Stat., Ch. 111, 2217:
PRACTICE OF DENTISTRY — ACTS CONSTI-
TUTING — PRIMA FACIE EVIDENCE — EX-
EMPTIONS
A person practices dentistry, within the meaning of
this Act:
* * *
(8) Who takes impressions of the human tooth,
teeth, or jaws or performs any phase of any Op-
eration incident to the replacement of a part of
a tooth, a tooth, teeth or associated tissues by
means of a filling, crown, a bridge, a denture or
other appliance; or
(9) Who furnishes, supplies, constructs, re-
produces or repairs, or offers to furnish, supply,
construct, reproduce or repair prosthetic dentures
(sometimes known as ‘‘plates’’), bridges or other
substitutes for natural teeth, to the user or pro-
spective user thereof;
* * *
The following practices, acts, and operations,
however, are exempt from the operation of this
Act:
* * *
(f) The performance of any dental service by
an appropriately trained dental assistant, if such
service is performed under the direction and im-
mediate supervision and full responsibility of a
dentist licensed under this Act, provided, however,
that such persons shall rot be allowed to perform
or attempt to perform any of the following ser-
vices:
* * *
6) Any and all taking of impressions for the
fabrication of orthodontic appliances, prosthetic
appliances, space maintainers, crowns, bridges,
splints, inlays, onlays, or other restorative or re-
placement dentistry.
— lda —
licensed dentist’, and that request is made on a written
work order.’ Soliciting or providing those services with-
"Tl. Rev. Stat. Ch. 111, $2218:
MANUIPPACTURE OF DENTURES, BRIDGES OR
REPLACEMENTS FOR LICENSED DENTISTS —
ADVERTISEMENTS
Licensed dentists may employ or engage the services
of any person, firm or corporation to construct or re-
pair, extraorally, prosthetic dentures, bridges, or
other replacements for a part of a tooth, a tooth, or
teeth. A person, firm or corporation, so employed or
engaged, when constructing or repairing such dentures,
bridges or replacements, exclusively, directly and
solely for licensed members of the dental profession,
and not for the public or any part thereof, shall not
be deemed or considered to be practicing dentistry as
defined m this Act.
STll. Rev. Stat. Ch. 111, $2219:
MANUFACTURE OF DENTURES, BRIDGES OR
REPLACEMENTS FOR LICENSED DENTISTS -
WORK ORDER — SUB-WORK ORDER — PEN-
ALTIES
(1) Any licensed dentist who employs or engages
the services of any person, firm or corporation to-
construct or repair, extraorally, prosthetic dentures,
bridges, or other replacements for a part of a tooth,
a tooth, or teeth, shall furnish such person, firm or
corporation with a written work order on forms pre-
scribed by the Department of Registration and Edu-
cation which shall contain: (a) the name and address
of the person, firm or corporation to which the work
order is directed. (b) The patient’s name or identifi-
cation number. If a number is used, the patient’s name
shall be written upon the duplicate copy of the work
order retained by the dentist. (c) The date on which
the work order was written. (d) A description of the
work to be done, including diagrams if necessary.
(e) A specification of the type and quality of mate rials
to be used. (f) The siqnature of the dentist and the
number of his license to practice dentistry.
— l5a —
out first supplying or obtaining a written work order con-
stitutes a misdemeanor.’ In addition, the Act prohibits
. (Continued)
(2) The person, firm or corporation receivmg a
work order from a licensed dentist shall retain the
original work order and the dentist shall retain a du-
plicate copy thereo/ for inspection at any reasonable
time by the Department of Registration and Educa-
tion or its duly authorized agents, for a period of 3
years in both cases.
(3) If the person, firm or corporation receiving a
written work order from a licensed dentist engages
another person, jirm or corporation (hereinafter re-
ferred to as ‘‘sub-contractor’’) to perform some of
the services relative to such work order, he or it shall
furnish a written sub-work order with respect there-
to on forms prescribed by the Department of Reqis-
tration and Education which shall contain: ( a) The
name and address of the sub-contractor. (b) A num-
ber identifying the sub-work order with the original
work order, which number shall be endorsed on the
work order received from the licensed dentist. (c) The
date on which the sub-work order was written. (d)
A description of the work to be done by the sub-
contractor, incliding diagrams if necessary. (e) A
specification of the type and quality of materials to
be used. (f) The siqnature of the person, firm or
corporation issuing the sub.work order. The sub-
contractor shall retain the sub-work order and the is-
suer thereof shall retain a duplicate copy, attached
to the work order received from the licensed dentist,
for inspection by the Department of Registration and
Education or its duly authorized agents, for a period
of 3 years in both cases,
°Tll. Rev. Stat. Ch. 111, §2219:
(4) Any licensed dentist who: (a) employs or en-
gages the services of any person, firm or corporation
to construct or repair, extraorally, prosthetic dentures,
bridges, or other dental appliances without first pro-
viding such person, firm, or corporation with a writ-
ten work order; or (b) fails to retain a duplicate copy
_
— l6a —
public advertisement of the products or services of firms
performing extraoral work for licensed dentists."
* (Continued )
of the work order for 3 years; or (c) refuses to al-
low the Department of Registration and Education or
its duly authorized agents, to inspect his files of work
orders, is guilty of a Class A misdemeanor and the
Department of Registration and Education may re-
voke or suspend his license therefor.
(5) Any such person, firm or corporation, who: (a)
furnishes such services to any licensed dentist with-
out first obtaining a written work order therefor from
such dentist; or (b) acting as a sub-contractor as de-
scribed in (3) above, furnishes such services to anu
person, firm or corporation, without first obtaining a
written sub-work order from such person, firm or cor-
poration; or (c) fails to retain the original work order
or sub-work order, as the case may be, for 3 years;
or (ad) refuses to allow the Department of Registra-
tion and Education or its duly authorized agents, to
inspect his or its files or work orders or sub-work
orders, is guilty of a Class A misdemeanor.
Tll. Rev. Stat. Ch. 111, $2218:
However, it is unlawful for persons, firms or corpo-
rations so employed or engaged [rendering services
under licensed dentist work order], to advertise in
any manner the appliances constructed or repaired,
or the services rendered in the construction, repair
or alteration thereof, except, that persons, firms or
corporations so employed may announce in trade jour-
nals and professional publications which circulate
among members of the dental profession. their names,
the locations or places of their business, their office
hours, telephone numbers, and the fact that they are
engaged in the construction, reproduction or repair
of such appliances, together with such display adver-
tisements as disclose the character and application of
their work, and persons, firms or corporation so em-
ployed or engaged may furnish to licensed dentists
information regarding their products, materials, uses
and prices therefor. Announcement may also be made
by business card, in business and telephone direc-
—1fa—
The complaint is filled with faets and statistics about
the need for low cost dental health care. In essence, those
claims are that persons in need of dentures are coneen-
trated among the poor and elderly, and that the inflated
prices charged by dentists place the cost of dental jiealth
care beyond their means, The complaint avers that a
large majority of dentists do not construct dentures for
their patients; they send orders to dental technicians who
are trained to make and fit dentures. Plaintiffs assert
that denturism is a profession independent. of dentistry ;
that as uniquely trained professionals, denturists are Cap
able of direetly rendering their services to. the publie
without endangering the public health, and with the ef-
feet of providing services comparable to those given by
dentists at a fraction of the cost.
Generally, the complaint is divided among allegations
relating to the denturist plaintiffs and the consumer
plaintiffs and antitrust and constitutional violations. The
antitrust allegations pertaining to the denturist plain-
tiffs are that the defendants exercise a monopoly over,
and thus. are able to charge monopoly prices for, den-
tures and the services required for fitting dentures in
*° (Continued)
tories, and by signs located upon the premises where-
im the place of business is situated, but announce-
ments made by business card or in business and tele-
phone directories and signs shall not contain any
amount as a price or fee for the services rendered, or
to be rendered, or for any material or materials used
or to be used, or any picture or other reproduction
of a human head, mouth, denture or specimen of den-
tal work or any other media calling attention of the
public to their business. Announcements in business
and telephone directories shall he limited to name. ad-
dress and telephone number, and shall not occupy
more than the number of lines necessary to disclose
such information, The lettering on siqus shall be no
more than 7 inches in height and no illaminated or
glaring light signs shall be used,
— 18a —
violation of §2 of the Sherman Act," and that defendants
have entered into a contract, combination and conspiracy
in restraint of trade,"
The constitutional challenges are that the Illinois Den-
tal Practice Act violates denturists’ equal protection and
due process rights because it prevents them from prac-
ticing their profession directly with the public; that the
statute violates their rights to be free from involuntary
servitude as guaranteed by the thirteenth amendment as
their ability to engage in their profession is subrogated
to control by dentists; that the Act infringes on den-
turists’ First Amendment right to disseminate useful eom-
mercial information about their products and services:
that this infringement of their constitutional rights in
turn causes a violation of their equal protection and due
process rights; that defendants have entered into a eon-
spiracy to deprive denturists of equal protection and
privileges under the laws and their First Amendment
rights to speak and petition the legislature in violation of
42 U.S.C. §1985(3). Plaintiffs also charge defendants
with violation of their right to equal privileges and im-
munities under the law, 42 U.S.C. §1983."
In addition, the complaint avers that defendants have
engaged in acts that constitute unlawful business prac-
tices, unlawful competition and interference with eon-
tractual relationships contrary to Tllinois law.
115 U.S.C. 62.
215 U.S.C. 61.
“Count VIL of the complaint purports to state a claim
under 42 U.S.C. §1983(3). The allegations, however,
state that defendants have entered into a conspiracy
to deprive plaintiffs of equal privileges and immuni-
ties under the laws. Section 1983 does not. eontain
any subsections, nor does that statute provide a
‘ause of action for conspiracy. Thus, it is impossible
to determine on which civil rights statute the claim
is based.
— 19a —
Only Counts NIP and NIIP pertain to the consumer
plaintiffs, the Uptown organizations and concerned resi-
dents, Mssentially they charge defendants with violation
of the federal anti-trust laws, alleging that consumers
are foreed to pay monopolistic prices for dentures and
dental services,
As one of the grounds presented in defendants’ motion
to dismiss is a challenge to this Court’s jurisdietion, and
this contention bears on the inherent power of the court
to entertain the controversy, if is imperative to resolve
this issue,
It is undisputed that diversity of citizenship is not an
alternate basis for jurisdietion ino this case sinee all
parties are citizens of Tlinois. Plaintiffs claim that our
jurisdiction is founded on various federal statutes and
the doetrine of pendant and aneillars juriydietion.
Defendants answer that since all of plaintiffs’ elaims are
Without merit, there is no substantial federal question
and therefore, the cause should be dismissed,
The authority to hear claims arising under various
federal statutes and the Constitution presupposes that
those claims be of a substantial nature. Thus, although
“tlhe test for dismissal is a rigorous one and if there
is any foundation of plausibility to the claim federal juris-
diction exists.” 13> Wrieht & Miller, Fed. Prae. & Proe.
§3564, at 428, if the claim is frivolous and wholly without
merit, Southpark Square Ltd. vy. City of Jackson, 565 ¥,
2d 338 (5th Cir., 1977), cert. denied. con. epee . 98
S. Ct. 2849 (1978), or if prior decisions of the Supreme
Court clearly foreclose the federal claim. MWeLucas vy.
DeChamplain, 421 U.S. 21 (1975) the Court lacks sui jeet
inatter jurisdiction.
The Antitrust Allegations
Defendants argue that plaintiffs are barred from bring-
ing any action under the antitrust laws since the regula-
tion of denturists in the form of the Act falls within the
perimeters of the state action exception to the federal
— 20a —
antitrust laws. Plaintiffs have failed to support their
position regarding the sufficiency of their complaint in
light of the state action exemption. However, that doe-
trine should not be applied in a mechanical fashion, Kurek
v. Pleasure Driveway & Park District, 557 F. 2d 580, 589
(7th Cir., 1977), vacated on other grounds, 487 U.S. 992
(1978), and the allegations must be examined against the
breadth of the exemption.
In Parker v. Brown, 317 U.S. 341, 352 (1948), the
Supreme Court held that the Sherman Act did not apply
to a state’s anticompetitive regulation when the state im-
posed such regulations “as an act of covernment.” Since
that decision the Court has had occasion to refine the
holding in Parker. See City of Lafayette, Louisiana v.
Lousiana Power & Light Company, 485 U.S. 398 (1978),
Cantor v. Detroit Edison Company, 428 U.S. 579 (1975):
Goldbarb v. Virginia State Bar, 421 U.S. 773 (1975).
While the result of those decisions has heen to narrow
the scope of the exemption, it is clear that when a state
attempts to regulate a profession, in exercise of its police
power, those acts are not susceptible to attack under
federal antitrust statutes. Bates v. State Bar of Arizona
433 U.S. 350, 362, n. 16 (1977).
Accordingly, the task here is to determine whether
the Illinois Act and its enforcement by defendants is an
action by the state acting as sovereign and thus immune
from federal antitrust restrictions.
In Bates v. State Bar of Arizona, 483 U.S. 350 (1977),
the Supreme Court held that plaintiff's claims under the
Sherman Act were barred since the Arizona attorney dis-
ciplinary rule in question fell within the Parker v. Brown
exemption. The Bates decision provides several sign‘ fi-
cant factors that aid in the determination of the question
here. In order that the exemption be applicable it must be
determined 1) whether the regulation is truly the action
of the State; 2) whether the plaintiffs’ claims are ulti-
mately directed at the State; and 3) whether the regula-
tion furthers some policy by the State in order to avoid
bd
=
unnecessary and inappropriate subordination of the fed-
eral policy underlying the antitrust laws.
The Illinois Dental Practice Act is a statute enacted
by the Illinois legislature. As such, it is a direct and
affirmative command by the State concerning a_ vital
aspect of the health and safety of its citizens. There is
no question that in enacting the legislation the State was
acting as sovereign.
It does not apear that plaintiffs take issue with this
finding. However, they claim that in attempting to en-
foree the Act defendants are acting for their private
interests and that it is this activity that runs contrary to
antitrust prohibitions. Whatever defendants’ motivations
in seeking enforcement are, it is clear that plaintiffs’
claims are really direeted at the State.
The Illinois Aet permits the Attorney General, the
State’s Attorney, or “any resident citizen” to bring suit
against any person from unlawfully practicing dentistry.
Ill. Rey. Stat. Ch. ITT 42244. As Tllinois residents, defend-
ants, whether they he Illinois corporations or individual
citizens. are empowered to uphold the statute’s provi-
sions. In so doing, they are acting in a sense not as
individual citizens, hut as vindieators of the publie policy
embodied in the Act. Consequently, even thoueh the
statutes prohibitions buttress defendants’ pecuniary or
professional interests, plaintiffs’ claims against them are
actually directed against the State of Illinois. The fact
that the statutory scheme may sanction some private
restraint on trade is not sufficient to remove the legisla-
tion from the exemption. See New Motor Vehicle Board
of California v. Orrin W. For Company, 47 U.S.L.W.
4017 (Dee. 5, 1978).
There is further support for this eonclusion in Rates
v. State Bar of Arizona, 433 U.S. 350 (1977). In that
ease, although the State Bar of Arizona was named as
defendant, the Court found that the Arizona Supreme
Court was “the real party in interest,” 433 U.S. at 361. as
it was the latter body that had adopted the disciplinary
— 22a —
rule and was charged with its enforcement. Similarly, in
this ease, the Tlinois legislature is responsible for the
enactment of the statute in question, As the Arizona
Supreme Court delegated some enforeement authority to
the State Bar, the Mlinois Legislature depends on both
public officials and private citizens to aid in the enforee-
ment of the [linois Dental Practice Aet. Aceordingly,
plaintiffs’ claims are ultimately directed at the State of
Tllinois.
The health and welfare of its citizens is of primary
concern to a State. Indeed, the express purpose of the
act is to permit only qualified persons to practice den-
tistry in order to promote the public safety and welfare.
Hl. Rev. Stat. Ch. 111 $2202. Like the rule involved in
Rates, the legislation can be eontinuously reviewed and
amended as the legislature sees fit. Thus, “fo]ur eoneern
that federal poliey is being unnecessarily and inappropri-
ately subordinated to state poliev is redueed in sueh a
situation.” Bates v. State Rar of Arizona, 4883 U.S, 350
862 (1977).
The Dental Practice Act is precisely the type of legis-
lation that the Supreme Court contemplated ino carving
out a state action exemption to the federal antitrust laws.
Tt is a regulation designed to protect some general publhie
good or state interest. New Motor Vehicle Board of Cali-
fornia v. Orrin W. For Company, 47 USAW. 4017 (Dee.
9, 1978); Parker ve Brown, 317 U.S. 841 (1948). More-
over, federal interference is partienlarly disfavored when
the profession is one that has been traditionally regulated
by the state."
" Bates ve State Bar of Arizona, 433 US. 350, 362 &
n. 16 (1976),
Indeed, our decision today on the Sherman Aet
issue was presaged in Virginia Pharmacy Loard vy.
Virginia Consumer Council, 425 U.S. 738, 770 (1976),
We noted there: “Virginia is free to require what
ever professional standards it wishes of its phar-
mnacists; if may subsidize them or protect them from
competition in other ways. Cf. Parker vy, Brown, 317
U.S. 341 (19438).
— 23a —
The conclusion that the Act falls within the state ac-
tion exemption to the federal antitrust laws also forecloses
plaintiff denturists’ cause of action under $1 of the Sher-
man Act, 15 U.S.C. §1. Plaintiffs’ claims that defendants
threatened boycotts, retaliation and otherwise interfered
with contracts and business relationships of dental labor-
atories that dealth with plaintiffs amount to no more than
attempts to enforce the Act. Similarly, the allegations per-
taining to the numerous civil and criminal actions
brought against plaintiff denturists are without merit;
such activity is specifically authorized. Ill. Rev. Stat. Ch.
111, $2244. In addition, plaintiffs’ assertions that they
have been deprived of their right to petition the Jegisla-
ture is beyond the reach of the Sherman Act. Eastern
Railroad Presidents Conference vy. Noerr Motor Freight,
Inc., 365 U.S. 127 (1961).
Therefore, because the Dental Practice Act and efforts
to enforce it fall outside both the Sherman and Clayton
Acts, plaintiffs have failed to show that their claims are
meritorious since they are preeluded by prior Supreme
Court decisions. MeLucas vy. DeChamplain, 421 U.S. 21
(1975). Consequently, plaintiffs may not invoke this
Court’s jurisdiction under those statutes.
Equal Protection and Due Process Claims
The allegations of the complaint that refer to a violation
of the equal protection and due process rights of plaintiff
denturists are based on the initial premise that denturism
is a separate and independent profession. Plaintiff
denturists claim that allowing them to practice their pro-
fession by directly dealing with the publie would not en-
danger the health, safety and welfare of Tllinois citizens.
Therefore, the argument continues, because the Tllinois
Dental Practice Act subrogates denturists’ ability to prac-
tice their profession to the control of dentists, the Act
exceeds the constitutional limits of the state’s police
power.
Plaintiffs are correct in that the grant of authority con-
tained in the Tenth Amendment is limited hy the equal
protection and due process clauses of the Fourteenth
—
Amendmeut. Towever it is clear that “[t]he day is gone
when [a] Court uses the Due Process Clause of the Four-
teenth Amendment to strike down state laws, regulatory
of business and industrial conditions, because they may
be unwise, improvident, or out of harmony with a par-
ticular school of thought.” Williamson vy. Lee Optical of
Oklahoma, Inc., 348 U.S, 483, 488 (1955). Similarly in the
context of equal protection, unless a statute unnecessarily
affects a suspect class or impinges on a fundamental
right, a showing that the statute is rationally related to
the legislative objective is sufficient to pass constitutional
muster. See Vanee vy. Bradley, 47 U.S.1..W. 4176, 4177
(Feb. 22, 1979): Massachusetts Bd. of Retirement vy.
Murgia, 427 U.S. 307 (1976): San Antonio Independent
School District v. Williams, 411 U.S. 1 (1978).
Plaintiff denturists do not, nor could they refute that
standard. Rather, they arene that the right to practice
one’s profession is a fundamental right. Consequently,
they contend that the compelling state interest rather
than merely the rational relationship test is the appro-
priate standard,
We cannot agree that there is a fundamental right to
practice a profession free of any legislative prohibitions.
Tt is now firmly established in due process and equal pro-
tection jurisprudence that the fundamental nature of a
right does not depend on “comparisons of fits] relative
societal signifieance,” but rather whether it is “explicitly
or implicitly guaranteed by the Constitution.” San An-
tonio Independent School District y. Rodriquez, 411 U.S.
1. 33-34 (1973).
Plaintiffs have cited innumerable eases to support their
theory that this case involves a fundamental right en-
titled to strict judicial scrutiny. To the extent that those
decisions, e.g., People vy. Weiner, 271 Tl. 74. 110 N.E. 870
(1975), emerge from an era in which courts eustomarily
replaced the legislature’s judgment with their own. they
are obsolete, Williamson y. Lee Optical of Oklahoma,
Inc., 348 U.S. 483 (1955): Lasdon v. Hallahan, 377 Til. 187,
36 N.E. 2d 227 (1941). To the extent that they deal with
rights that have been deemed fundamental, e.g., Sherbert
— 5a —
v. Verner, 374 U.S. 398 (1963) (religion) : Shapiro vy.
Thompson, 394 U.S. 618 (1969) (interstate travel) ;
Fisenstadt v. Biard, 405 U.S. 488 (1972) (privacy), they
are inapposite.
We believe that our determination as to whether a
fundamental right is present here is controlled by Massa-
chusetts Board of Retirement y. Murgia, 427 U.S. 307
(1976). In that ease the Supreme Court held mandatory
retirement at age 50 did not violate a state police officer’s
equal protection rights, noting:
This Court’s decisions give no support to the
proposition that a right of eovernmental employment
per se is fundamental. [citations omitted]. Aceord-
ingly, we have expressly stated that a standard less
than strict serutiny “has consistently been applied to
state legislation restricting the availability of em-
ployment opportunities.” Massachuselts Board of
Retirement v. Murqia, 427 U.S. 807. 313 (1976), quot-
mg, Dandridge y. Williams, 897 U.S. 471, 485 (1970).
The faet that Murgia involved publie employment
rather than the pursuit of a private profession does not
detract from the conclusion that plaintiff denturists do
not have a fundamental right to practice their profession
free of any reasonable restraints. Indeed, in light of the
fact that in certain instances public employment gives
rise to greater Constitutional] euarantees, ef. Perry v.
Sindermann, 408 U.S. 593 (1972). that aspect of Murgia
buttresses the determination here. Thus. since plaintiff
denturists do not have a fundamental right to practice
their profession, all that is required is that the provisions
of the [linois Dental Practice Act he rationally related to
its purpose.
In this regard plaintiff denturists areue that the Court
should not imagine statutory objectives, They elaim that
in the very least they are entitled to a hearing which
would require the state to articulate the wrongs at which
the Act is aimed, and affirmatively establish that its terms
bear a rational relation to those ends.
— 26a —
A court should not fabricate legislative designs. How-
ever, once the statute’s objective is articulated, unless
the means chosen are wholly irrational, the legislature is
given a very wide latitude in fashioning ways to combat
the problem at which the statute is directed.
Recently, the Supreme Court has instructed that “those
challenging the legislative judgment must convinee the
eourt that the legislative facts on which the classification
is apparently based could not reasonably be conceived to
be true by the governmental decisionmaker.” Vance v.
Bradley. 47 U.S.L.W. 4176. 4181 (Feb. 22, 1979) (em-
phasis supplied). Plaintiffs have submitted an over-
whelming amount of data supposedly in an attempt to
show that there is no factual basis justifying the Act’s
treatment of denturists.
The plainiffs have misconstrued the scope of review.
Rather than examining all viable alternatives and render-
ing a decision on our eyaluataion of the wiser approach,
the review must focus solely on the alternative chosen by
the legislature and to determine whether there is any
rational basis for that choice,
The express purpose of the Dental Practice Aet is to
protect the public health and welfare. In addition, the
Aet purports to further publie trust in the dental profes-
sions and to ensure that only qualified persons practice
dentistry in I]linois.'
Tl. Rev. Stat. Ch. 111, §2202:
LEGISLATIVE DECLARATION—LIBERAL CON-
STRUCTION
The practice of dentistry in the State of Tllinois is
hereby declared to affeet the publie health, safety
and welfare and to he subject to regulation and econ-
trol in the public interest. It is further declared to
be a matter of publie interest and concern that the
dental profession merit and receive the eonfidence of
the publie and that only qualified persons be per-
mitted to practice dentistry in the State of Tllinois.
This Aet shall be liberally construed to ‘arry out
these objects and purposes.
— Zia —
The means selected to achieve those ends are to require
that any services rendered directly to a patient be per-
formed by a licensed dentist. The legislature has devised
standards to insure that those persons licensed have re-
ceived adequate edueation and training to perform those
funetions. Tl. Rev. Stat. Ch. 111, §2206.
The legislature could have coneluded that sinee the
dentist is charged with the overall dental health eare of
his patients, he is hest qualified to prescribe the most
beneficial type of oral prosthesis. The logislature may
have deeided that the training required of dentists makes
them most eapable to take impressions, ensure that the
necessary extraoral work is done in compliance with the
dentist’s professional standards and euarantee that the
dental fixtures fit properly.
In addition, the Hlinois legislature could have found
that trust in the dental profession would be promoted
only if all work was performed or, in the least. supervised
hy the dentist, making the dentist ultimately responsible
for the adequacy of the services. Many licensing require-
ments are enumerated in the Act. Tl. Rev. Stat. Ch. 111,
52206. The legislature mieht have feared that by permit-
ting non-licensed dental teehnicians to render direct serv-
lees to the publie. some technicians mieht have attempted
to perform funetions whieh only licensed dentists are
qualified to discharge. Moreover, the legislature may
have considered that such unlawful activities would be
more difficult to police were dental technicians permitted
fo treat patients independently. That the legislature
might have more effectively accomplished its purposes by
using less restrictive means is simply immaterial.
Plaintiffs’ argument that some dental health care
services do not require supervision of a licensed dentist
and that denturists are qualified to perform some services
which the statute delegates solely to dentists. is merely
another way of saying that the statute is both over- and
under-inelusive. It is elementary that when the standard
is the rational relationship test imperfect rationally is not
— 289 —
constitutionally fatal. Vance vy. Bradley, 47 U.S.L.W.
4176, 4180 (Feb. 22, 1979); Massachusets Board of
Retirement v. Murgia, 427 U.S. 307, 316 (1975), quoting,
Dandridge v. Williams, 397 U.S. 471, 485 (1970); Walliam-
son vy. Lee Optical of Oklaahoma, Inc., 348 U.S. 483, 487-
88 (1955); Trafelet v. Thompson, No. 78-1941, slip. Op.
at 8 (7th Cir., March 16, 1979),
There is nothing presented in the complaint that could
establish that the state was acting beyond the limits of
its police power. The abundant information concerning
the laws in Canada and other states that permit den-
turists to render their services directly to the public,
while interesting, is not sufficient to alter the conclusion
that plaintiffs’ claims under the due process and equal
protection clause are unmeritorious. It merely reinforees
the determination that state legislatures are better
equipped to make judgments about controversial matters
affecting the health and welfare of their constituents."
‘This ease does not present the first challenge to the
Illinois Act. See Duncan v. Ward, 925 F. Supp. 195
(N.D. TIL, 1963); People ex rel. Chicago Dental
Society v. A.AwA, Dental Laboratories, Inc., 8 Tl. 2d
330, 184 N.E. 2d 285 (1956): Lasdon v. Hallihan, 377
[ll]. 187, 36 N.E. 2d 227 (1941); People ex rel. Watson
v. Spinka, 58 Ill. App. 3d 729, 374 N.B. 9d (87
(1978); People ex rel. Illinois Dental Society v. Vinei,
35 Tl. App. 3d 474, 342 N.E. 2d 206 (1976).
In each of those cases the Illinois Dental Practice
Act was alleged to violate denturists’ equal protee-
tion and due process rights. Although Federe’
Courts are not bound by Illinois Courts’ decisions on
the United States Constitution, the rationale of these
opinions further demonstrates that there is no basis
for a claim that the legislative means are not ration-
ally related to the statute’s purpose,
In People ex rel. Chicaago Dental Society v. A.A.A,
Dental Laboratories, Inc. 8 Tl]. 2d 330, 333-35, 134
N.E. 2d 285, 288-89 (1956), the Illinois Supreme
Court, addressing arguments similar to those pre-
sented here, stated:
eee ee
—
Vance v. Bradley, 47 U.S.L.W. 4177, 4181 (Feb. 22, 1979) ;
Trafelet v. Thompson, No. 78-1941, slip. op. at 7 (7th
Cir.. March 16, 1979).
First Amendment Claim
Plaintiff denturists challenge the Illinois Dental Prac-
tice Act, Ill. Rev. Stat. Ch. 111, $2218, on the ground
that, by prohibiting public advertising ahout denturists’
products and services, it infringes on their right of free
speech. Extended discussion of this issue is unnecessary
since this claim is clearly without merit.
While commercial speech has been afforded some First
Amendment protection, Bates v. State Bar of Arizona,
*® (Continued)
The aim of the statute is to restrict the practice of
dentistry to licensed dentists with the exception that
extra-oral work on dental appliances may be done by
non-dentists who are employed, or employed by den-
tists who are to do it. To that end, dental technicians
are prohibited to do work on dental appliances direct-
ly for the publie. The evidence establishes that the
knowledge and skill of the dentist is necessary in the
diagnosis of the case, the taking of impressions, the
issuance of instructions of a prosthetic denture.
In our opinion the power of the legislature is not
exhausted when it has provided that there shall be
professional supervision at the ineeption and the eon-
clusion of what is essentially a single process. It
may, if it sees fit, go further and insure that respon-
sibility to the patient shall not be fragmented, and
it may foeus that responsibility upon a member of
the profession which it regulates. By that means,
compliance with the requirement that the dentist
shall fit the applianee in place and make the neces-
sary adjustments may he enhanced, proteetion
against inferior workmanship and materials and ex-
orbitant prices may be ensured, and the dentist can
be certain that the work for his patients is done by!
those in whose integrity, competence and skill he has
confidence.
— 30a —
433 U.S. 350 (1977): Virginia State Board of Pharmaacy
v. Viraimia Citizens Consumer Council, Inc., 425 U.S. 748
(1976), the Supreme Court has explicitly stated that
First Amendment guarantees are not applicable when the
underlying activity which is the subject of the advertise-
ment is illegal. Bates vy. State Bar of Arizona, 483 U.S.
390, 384, (1977). See also Pittsburg Press Company x.
Pittsburg Commission on Human Relations, 413 U.S. 376
(1973).
Under the THinois Act plaintiff denturists are not free
to perform their services directly on patients. In fact,
should they fail to obtain a written work order issued by
a licensed dentist they are subject to criminal charges for
a misdemeanor. Tl]. Rey. Stat. Ch. 111, £2219. Plaintiff
denturists do not claim that they are barred from pub-
lishing articles about the usefulness and benefits of their
profession in newspapers, magazines and professional
journals. Indeed, the exhibits attached to their eom-
plaint indicate that a plethora of articles has emereed on
that subject. Their sole contention is that they are
restricted from advertising serviees that the Aet. ex-
rlicitly forbids them from performing. First Amendment
protection of commercial simply does not extend that
far, and therefore plaintiffs’ assertion that they have
heen denied their rieht to free speech must fail.
Thirteenth Amendment Claim.
Plaintiff deturists’ claims that the Illinois Aet deprives
them of their right under the thirteenth amendment to be
free from involuntary servitude are frivolous. To estab-
lish a violation of the thirteenth amendinent. a showing
of compulsion is necessary. Flood v. Kuhn. 316 F. Supp.
271, 281 (S.D.N.Y., 1970), aff'd, 443 F. 2d 264 (2nd cn.
1971).
Plaintiffs have made no allegation that they are eom-
pelled to practice denturism: they are free to engage in
any other profession. Also the fact that their work is
subjected to the control and scrutiny of a licensed dentist
— 3la —
is insufficient to establish that they are unwillingly bound
to pursue a particular livelihood. All that is necessary to
enable denturists to perform their services directly on
their patients is to complete the education and training
required by he statute.’ Therefore, there is absolutely no
plausibility to plaintiffs’ thirteenth amendment allega-
tions, and consequently, no basis upon which to invoke
this Court’s jurisdiction.
Other Constitutional Clims
Plaintiffs purport to state claims for violation of 42
U.S.C. §§1983 and i985(3). To support their cause ot
action under §1983, plaintiffs claim that defendants have
continuously initiated civil and criminal actions against
them knowing the statute to be unconstitutional. These
allegations are spurious,
The Dental Practice Act expressly authorizes actions
against persons who practice dentistry without a license.
Ill. Rev. Stat. Ch. 111, $2244. Although plaintiffs allege
that the suits were knowingly brought in bad faith, there
is no support in fact for their position. Indeed, numerous
decisions have upheld the constitutionality of the Aet.
People ex rel. Chicago Dental Society v. A.A.A. Dental
Laboratories, Inc., 8 Ill. 330, 184 N.E, 2d 285 (1956);
Lasdon vy. Hallihan, 377 Ill. 187, 36 N.E. 2d 227 (1941);
People ex rel. Watson v. Spinka, 58 Ill. App. 3d 729, 374
Plaintiffs have alleged that two defendants, Suriano
and Madonia, have pressured and coereed educators
not to provide dental training for plaintiffs. While
this type of conduct cannot be sanetioned by the
Court, we think that the prohibitions of the thirteenth
amendment do not extend to those acts of defendants.
See, Flood vy, Kuhn, 316 F. Supp. 271 (S.D.N-Y.,
1979), aff'd, 443 I. 2d 264 (2d Cir., 1971) (require-
ment that baseball player play only for a particular
team or not at all does not violate thirteenth amend-
ment rights since he is free to pursue another liveli-
hood).
— 32a —
N.E, 2d 787 (1978); People ex rel. Illinois Dental Society
v. Vinci, 35 Ill. App. 3d 474, 342 N.B. 2d 206 (1976). One
would be hard pressed to imagine a situation in which the
validity of a statute was more clearly defined and ac-
cordingly, there is no merit to plaintiffs’ assertion that
by bringing lawsuits to enforce a valid statute, defen-
dants have infringed their constitutional rights.
With regard to the §1985(3) claim, the complaint avers
that defendants and others have conspired to ‘harass’’
laboratory technicians and denturists who profess to be
able to safely render their services directly to the public
as well as those who have attempted to influence and
inform the legislature about defendants’ practices. These
acts, plaintiffs claim, constitute a violation of their right
to free speech and to petition the legislature,
Insofar as the conspiracy to deprive plaintiffs of their
right of free speech, their claims are unmeritorious. A
similar conclusion concerning the conspiracy to deprive
plaintiffs of their right to petition the legislature is com-
pelled.
The complaint contains no facts pertaining to specific
tactics used by defendants to bar plaintiffs from obtain-
ing the legislature’s attention. Nevertheless, we can in-
fer, from other portions of the complaint, that defen-
dants’ lobbying techniques have been more effective.
These inferences, however, absent some articulated in-
stances of unlawful conduct, do not establish a violation
of §1985(3).
After a careful review of each claim of the complaint,"®
the Court is unable to find a tenable claim for violation
of the Constitution or any law of the United States. Aec-
cordingly, because no substantial federal question has
Plaintiffs have also alleged violations under Tllinois
law. Having found that there is no federal question
jurisdiction, and this being the initial stages of the law-
suit, we decline to exercise pendant jurisdiction over the
state law claims.
— 33a —
been presented, this Court is without jurisdiction to en-
tertain this action. The motion to dismiss is granted.
/s/ John Powers Crowley
John Powers Crowley
United States District Judge
Dated: April 6, 1979.
COUNSEL OF RECORD
FOSS, SCHUMAN & DRAKE
Sheldon Gardner, George C. Pontikes, Richard S,
Kuhlman
11 South LaSalle Street
Chicago, [llinois 60608
Attorneys for Plaintiffs
PETERSON, ROSS, SCHLOERB & SEIDEL
Russell M. Pelton, Pat Chapin
Suite 7300
200 East Randolph Drive
Chicago, Llinois 60601
Attorneys for Illinois State Dental Society, Chicago Den-
tal Society and Individual Defendants
MAX J. SATIN
One North LaSalle Street
Room 1015
Chicago, Illinois 60602
Attorney for Defendant, Illinois Dental Laboratory As-
sociation
=~ 94a —
In The
UNITED STATES DISTRICT COURT
For The Northern District Of Illinois
Eastern Division
HELEN SCHILLER, WALTER COLEMAN, UPTOWN
PEOPLES COMMUNITY SERVICE CENTER, an II-
linois not-for-profit corporation; UPTOWN PEOPLES
COMMUNITY HEALTH SERVICES BOARD OF DI-
RECTORS, INC., an Illinois not-for-profit corporation ;
SAMUEL ABERNATHY and other individuals listed
on Exhibit ‘‘47’’ of the Complaint; and GARY HINTON,
WALTER DAUSCH, SAM AMENTA, JESSE GAU-
DARD, DONALD MARTIN, ARTHUR POTTS, NICK
DeANGELIS, MARK KUPER, ROBERT SCHMITT,
ELMER E. HIGGERSON, CAROLINE BASONY, ED-
WARD UMBRICHT, THOMAS GAURA, ROBERT
KOPFER, IRA JORDAN, ROBERT A. MARTIN, WIL-
LIAM NORRIS, IRVING WEISS, ROBERT YONKEE,
HAMAZASB MKRDICHIAN, JOSEPH KE. HOCH,
JEROME GETSLA, JOSEPH VINCI, EDWARD DA.
VISSON, ELI SUTKER, WILSON 4G. SARGEANT,
BRUNO ALONZO, GEORGE HARTMANOWSKI, RAY
ANDREWS, JOHN BANE, ADELOR GIULIANO,
MITCH BRONNER and ANTHONY CARBONE,
Plaintiffs,
vs.
THE ILLINOIS STATE DENTAL SOCIETY, an II-
linois not-for-profit corporation, THE CHICAGO DEN-
TAL SOCIETY, an Illinois not-for-profit corporation;
JULIUS W. ULANECK, DR. LOUIS V. FOURIE, DR.
FRANK A. SCHROEDER, DR. DOMINIC J. CATRAM-
BONE, DR. BERT W. GILBERT, DR. GRANT A.
MACLEAN, DR. LEWIS L. WEIL, DR. ROBERT H.
GRIFFITHS, DR. RAFFAELE SURIANO, DR. JOHN
MADONTA, DR. THOMAS QUINN, DR. EDWARD
TROUTT, DR. DAVID VALENTINE, DR. THOMAS
WALLEN, DR. GEORGE KELLY and DR. RAYMOND
P. KOTZ,
Defendants.
— 35a —
No. 78 © 3936
JUDGMENT ORDER
John Powers Crowley, District Judge
In accordance with the memorandum opinion and order
entered in this cause, judgment is entered in favor of
the defendants, The Tllinois State Dental Society, an [l-
linois not-for-profit corporation, The Chicago Dental
Society, an Tllinois not-for-profit corporation; Juhus W.
Ulaneck, Dr. Louis V. Fourie. Dr. Frank A. Schroeder,
Dr. Dominie J. Catrambone, Dr. Bert W. Gilbert, Dr.
Grant A. Maclean, Dr. Lewis L. Weil, Dr. Robert H.
Griffiths, Dr. Raffaele Suriano, Dr. John Madonia, Dr.
Thomas Quinn, Dr. Edward Troutt, Dr. David Valen-
tine, Dr. Thomas Wallen, Dr. George Kelly and Dr. Ray-
mond P. Kotz, and against the plaintiffs, Helen Schiller,
Walter Coleman, Uptown Peoples Community Service
Center, an Illinois not-for-profit corporation; Uptown
Peoples Community Health Services Board of Directors,
Ine, an [llinois not-for-profit corporation; Samuel Aber-
nathy and other individuals listed on Exhibit ‘*47’? of
the Complaint; and Gary Hinton, Walter Dausch, Sam
Amenta. Jesse Gandard, Donald Martin, Arthur Potts,
Nick DeAngelis, Mark Kuper, Robert Schmitt, Elmer FE.
Higgerson, Caroline Basony, Mdward Uibricht, Thomas
Gaura, Robert Kopfer, Ira Jordan, Robert A. Martin,
William Norris. Irving Weiss, Robert Yonukee, Hamazasb
Mkrdichian, Joseph EF. Hoch, Jerome Getsla, Joseph Vinei,
Edward Davisson, fli Sutker, Wilson G. Sargeant, Bru-
no Alonzo, George Hartmanowski, Ray Andrews, John
Bane, Adelor Giuliano, Mitch Bronner and Anthony Car-
bone.
/s/ John Powers Crowley
John Powers Crowley
United States District Judge
Dated: April 6, 1979.
— 36a —
ILLINOIS REVISED STATUTES
CHAPTER 111-PROFESSIONS AND OCCUPATIONS
Conversion Table From Chapter 91
(Illinois Dental Practice Act)
Tll.Rev.Stat. Ill.Rev.Stat. Tll.Rev.Stat. Ill.Rev.Stat.
1975 1977 1975 1977
Ch. 91 Ch. 111 Ch. 91 Ch, 111
Sec See. See See
SUNNE cculsedsiaekesscocicameeuan 2202 Rae i OR Rianne eee 2233
MU seascsanensadcstecccnsanierenaaces 2203 ___ERGRNGPERS NERS rant eee Rie toe 2234
SEN: ‘score ioastdncabasancananensainl 2204 Raa Aan oe 2235
MNT -sudesieinceechaneeddassateae 2205 elec cg etre ee eo 2236
MEF aixesseabieestnonsosndtveneinteit 2206 _ Bae OTN any emir p oN Ore 2237
___ PR eee Neon 2207 CO Seen Tene 9238
SO. <cscitelsorioedsteataneonncven nts 2208 Be Paarl le rete ree ten? 2239
SIU - seasvesianonecubouneascaninatues 2209 | Easel ce Ne eee 9940
GN: shack caastnseceenaenctaeneind 2210 ents SONOS 2a ee 9941
EP cou baatncisabiemalnenaniens 2211 “ee eer ae 9949
RR eivisereceeinssansinsannciesthn A (ee ees 9243
PUM. svcnsastonsisserncneianiessiies | a. 2244
SED acniasdnicondeutigsvcoacesss 2214 Ee ee a5 9945
I ssscncersetenpecxncaressnecinitis de [eee 2246
OE senvexsscaticassicavanronnnsie ne eee 2247
NUUP givisaseinsatisconesae-eesemererind 2217 ANNE Drs nescrs esr 9248
GAM crcenssincerisonsinmectentesaas ee On ee 2249
TE Ie uP nDRNe = SOE 2219 MEP ASE NSS USS 9950
GOO crcccrssesssrsssesenscnceessones gS, CURSRER CE eae 2251
a eae INE! 2221 | RpAn esate tier eaN eAMe 9959
OEP as sriatlentua cesadetcuceepevenada 2222 ETE Es 9953
2: RR Oe oe NO neY 2223 Fee RE ren: 9254
Seren Se ae 2224 RANE E AR Cenk ER Gree 9955
NY v ecisnicacicsaeacateconcut 2225
RID cvnsdcstsakitesn aiudiscatatl 2226
Ree: 2227
ROR eee 2228
RE none 2229
Sanaa es 2230
_ er 2231
— ) eo
§ 2202. Legislative declaration—Liberal construction
The practice of dentistry in the State of Illinois is
hereby declared to affect the public health, safety and
welfare and to be subject to regulation and control in
the public interest. It is further declared to be a matter
of public interest and concern that the dental profession
merit and receive the confidence of the public and that
only qualified persons be permitted to practice dentistry
in the State of Illinois. This Act shall be liberally con-
strued to carry out these objects and purposes.
Laws 1909, p. 277, § la, added by Laws 1945, p. 977, § 1,
eff. May 24, 1945.
§ 2206. Necessity of license—Application—Fee—Eligibil-
ity—Examination
No person, unless previously registered or licensed to
practice dentistry in this State at the time this Act shall
become operative, shall begin the practice of dentistry or
dentistry or dental surgery, or any branches thereof,
without first applying for an obtaining a license for such
purpose from the Department of Registration and Educa-
tion, hereinafter referred to as the ‘‘department.’’ Ap-
plication shall be made to the department in writing,
and shall, in every instance, be accompanied by the exam-
ination fee of $50, together with satisfactory proof that
the applicant is of good moral character, is a citizen of
the United States or has made a declaration of intention
to become a citizen or, having made such declaration of
intention, has filed a petition for naturalization within
30 days after becoming eligible to do so and is 21 years
of age or over at the time of making the application.
Subject to the provisions of Section 3a,’ an application
from a candidate who desires to secure a license from
the department to practice dentistry or dental surgery
in this State shall be accompanied by satisfactory proof
that the applicant so applying for a license has been en-
gaged in the actual, legal and lawful practice of dentistry
* Chapter 111, § 2207.
—
or dental surgery in some other state or territory for
5 consecutive years immediately prior to such applica.
tion; or is a graduate of, and either has a diploma from,
the facility of a reputable dental college, school or dental
department of a reputable university, or has completed
all of the requirements for graduation from such dental
college, school or university and has delivered to the
department a certificate executed under the seal institu-
tion by the dean, registrar or other duly authorized officer
thereof, certifying to such completion and specifying the
date upon which such applicant will receive his diploma;
provided that in no event shall the department issue or
cause to be issued to such applicant any license until he
has actually obtained such diploma and exhibited same
to the department. When such application and the accom-
panying proof are found satisfactory, the department
shall notify the applicant to appear before it for exam-
ination at a time and place to be fixed by the department.
Examination shall be made in writing in all theoretic sub-
jects, both theoretic and practical examinations shall be
of a character to give a fair test of the qualifications of
the applicant to practice dentistry or dental surgery. The
examination papers and all grading thereon, and the
grading of the practical work, shall be deemed public
documents, and preserved for a period of not less than
2 years after the department shall have made and pub-
lished its decisions thereon. All examinations provided
for in this Act shall be conducted by the department under
fair and wholly impartial methods. A fee of $25) shall
be charged for each subsequent examination.
If an applicant neglects, fails or refuses to take an
examination for registration under this Act within 3
years alter filing his application, the fee paid by the
applicant shall be forfeited to the department and = the
application denied. However, such applicant may there-
after make a new application for examination, aecom-
panied by the required fee.
Laws 1909, p. 277, § 3. eff. June 11, 1909. Amended by
Laws, 1915, p. 497, § 1, eff. June 25, 1915; Laws 1935,
— 39a —
p. 965, § 1, eff. July 10, 1935; Laws 1939, p. 713, § 1,
eff. July 13, 1939; Laws 1963, p. 1512, § 1, eff. July 15,
1963; P.A. 76-78, § 1, eff. July 1, 1969; P.A. 79-291, § 1,
eff. Aug. 4, 1975.
§ 2217. Practice of dentistry—Acts constituting—Prima
facie evidence—Exemptions
A person practices dentistry, within the meaning of
this Act:
(1) Who uses a dental degree, or designation, or eard,
device, directory, sign, or other media whereby he re-
presents himself as being able to diagnose, treat, prescribe,
or operate for any disease, pain, deformity, deficiency,
injury, or physical condition of the human tooth, teeth,
alveolar process, gums or jaw; or
(2) Who is a manager, proprietor, operator or con-
ductor of a place where dental operations are performed;
or
(3) Who performs dental operations of any kind gra-
tuitously, or for a fee, gift, compensation or reward,
paid, either to himself or to another person or agency; or
(4) Who uses a roentgen or X-Ray machine for dental
treatment, roentgenograms or for dental diagnostic pur-
poses; or
(5) Who extracts a human tooth or teeth or corrects or
attempts to correct malpositions of the Human teeth or
jaws; or
(6) Who offers and undertakes, by any means or
method, to diagnose, treat or remove stains or concretions
(accretions) from human teeth or jaws; or
(7) Who uses or administers local or general anesthe-
tics in the treatment of dental or oral diseases or in any
preparation incident to a dental operation of any kind
of' character; or
(8) Who takes impressions of the human tooth, teeth,
or jaws or performs any phase of any operation incident
"So in enrolled bill. Probably should read ‘‘or’’,
— 4a —
to the replacement of a part of a tooth, a tooth, teeth
or associated tissues by means of a filling, crown, a bridge,
a denture or other appliance; or
(9) Who furnishes, supplies, constructs, reproduces or
repairs, or offers to furnish, supply, construct, reproduce
or repair prosthetic dentures (sometimes known as
‘*plates’’), bridges or other substitutes for natural teeth,
to the user or prospective user thereof; or
(10) Who performs any clinical operation included in
the curricula of reeognized dental schools and colleges.
‘he fact that any person engages in or performs, or
offers to engage in or perform, any of the practices, acts,
or operations set forth in this Section, shall be prima
facie evidence that such person is engaged in the practice
of dentistry.
The following practices, acts, and operations, however,
are exempt from the operation of this Act:
(a) The rendering of dental relief in emergency cases
in the practice of his profession by a physician or sur-
geon, licensed as such and registered under the laws of
this State, unless he undertakes to reproduce or reproduces
lost parts of the human teeth in the mouth or to restore
or replace lost or inissing teeth in the mouth; or
(b) The practice of dentistry in the discharge of their
Official duties by dentists in any branch of the Armed
Services of the United States, the United States Public
Health Service, or the United States Veterans Bureau; or
(c) Dental schools or colleges as now conducted and
approved, or as may be approved, by the Department of
Registration and Edueation, and the practice of dentistry
by students or clinical instructors in the course of their
teaching duties in dental schools or colleges approved by
the Department, when acting under the direction and
supervision of registered and licensed dentists acting as
instructors; or
(d) The practice of dentistry by licensed dentists of
other states or countries at meetings of the Illinois State
Dental Society or component parts thereof, alumni meet-
— 4la —
ings of dental colleges, or any other like dental organiza-
tions, while appearing as clinicians; or
(e) The use of roentgen or other rays for making roent-
genorgrams or similar records of dental or oral tissues
provided, that such service shall not be offered to the
public by any name whatsoever, as an aid or inducement
to secure dental patronage; or
(f) The performance of any dental service by an ap-
propriately trained dental assistant, if such service is
performed under the direction and immediate supervision
and full responsibility of a dentist licensed under this
Act, provided, however, that such persons shall not be
allowed to perform or attempt to perform any of the
following services:
1) Any and all diagnosis of or prescription for treat-
ment of disease, pain, deformity, deficiency, injury or
physical condition of the human teeth or jaws, or adjacent
structures.
2) Any and all removal of or restoration or addition
to the hard or soft tissues of the oral cavity.
3) Any and all correction of malformation of teeth or
of the jaws.
4) Administration of anesthetics (other than topical),
except that said person may assist the dentist with this
procedure.
D) Any removal of concretions (accretions) from human
teeth.
6) Any and all taking of impressions for the fabrica-
tion of orthodontic appliances, prosthetic appliances,
space maintainers, crowns, bridges, splints, inlays, on-
lays, or other restorative or replacement dentistry.
7) For the purpose of this subsection (f), ‘‘dental
service’’ is defined to mean any intra-oral act which is
included within the definitions of dentistry in Section
5, Paragraphs (1) through (10) of the Act but shall not
include:
i. Any intra-oral service specifically forbidden by
this subsection (f) or
— 42a —
ii. Any intra-oral procedure specifically granted to
registered dental hygienists by Section 4(c) of this
Act.? In addition, a dental hygienist may perform
all services which may be performed by any appro-
priately trained dental assistant.
Laws 1909, p. 277, § 5, eff. June 11, 1909. Amended by
Laws 1929, p. 551. § 1, eff. June 18, 1929; Laws 1933, p.
708, § 1, eff. July 7, 1933; Laws 1939, p. 714, § 1, eff.
July 26, 1939; Laws 1945, p. 977, §1, eff. May 24, 1945;
Laws 1963, p. 2686, § 1, eff. Aug. 9, 1963; P.A. 79-290,
§ 1, eff. Oct. 1, 1975; P.A. 79-555, § 1, eff. Oct. 1975;
P.A. 79-1454, § 40, eff. Aug. 31, 1976.
§ 2218. Manufacture of dentures, bridges, or replace-
ments for licensed dentists—Advertisements
Licensed dentists may employ or engage the services
of any person, firm or corporation to construct or repair,
extraorally, prosthetic dentures, bridges, or other replace-
ments for a part of a tooth, a tooth, or teeth. A person,
firm or corporation, so employed or engaged, when con-
structing or repairing such dentures, bridges or replace-
ments, exclusively, directly and solely for licensed mem-
bers of the dental profession, and not for the public or
any part thereof, shall not be deemed or considered to
be practicing dentistry as defined in this Act. However,
it is unlawful to persons, firms or corporations so em-
ployed or engaged, to advertise in any manner the ap-
pliances constructed or repaired, or the services rendered
in the construction, repair or alteration thereof, except.
that persons, firms or corporations so employed may an-
nounce in trade journals and_ professional publications
which circulate among members of the dental profession,
their names, the locations or places of their business,
their office hours, telephone numbers, and the fact that
they are engaged in the construction, reproduction or re-
pair of such appliances, together with such display ad-
vertisements as disclose the character and application of
* Chapter 111, § 2215.
— 43a —
their work, and persons, firms or corporations so em-
ployed or engaged may furnish to licensed dentists in-
formation regarding their products, materials, uses and
prices therefor. Announcement may also be made _ by
business card, in business and telephone directories, and
by signs located upon the premises wherein the place of
business is situated, but announcements made by busi-
ness card or in business and telephone directories and
signs shall not contain any amount as a price or fee for
the services rendered, or to be rendered, or for any
materials used or to be used, or any picture or other
reproduction of a human head, mouth, denture or . veci-
ment of dental work or any other media ealling attention
of the public to their business. Announcements in busi-
ness and telephone directories shall be limited to name,
address and telephone number, and shall not occupy more
than the number of lines necessary to disclose such in-
formation. The lettering on signs shall be no more than
7 inches in height and no illuminated or glaring light
signs shall be used.
Laws 1909, p. 277, § 5a, added by Laws 1945, p. 977, § 1,
eff. May 24, 1945. Amended by Laws 1959, p. 1461, § 1
eff. July 17, 1959.
§ 2219. Manufacture of dentures, bridges or replace
ments for licensed dentists—Work order—Sub-
work order-Penalties
(1) Any licensed dentist who employs or engages the
services of any person, firm or corporation to construct
or repair, extraorally, prosthetic dentures, bridges, or
other replacements for a part of a tooth, a tooth, or
teeth, shall furnish such person, firm or corporation with
a written work order on forms prescribed by the De-
partment of Registration and Education which shall con-
tain: (a) the name and address of the person, firm or
corporation to which the work order is directed. (b)
The patient’s name or identification number. If a number
is used, the patient’s name shall be written upon the
dupheate copy of the work order retained by the dentist.
— 44a —
(c) The date on which the work order was written. (d) A
description of the work to be done, including diagrams if
necessary. (e) A specification of the type and quality of
materials to be used. (f) The signature of the dentist
and the number of his license to practice dentistry.
(2) The person, firm or corporation receiving a work
order from a licensed dentist shall retain the original
work and the dentist shall retain a duplicate copy there-
of for inspection at any reasonable time by the Depart-
ment of Registration and Education or its duly authorized
agents, for a period of 3 years in both cases.
(3) If the person, firm or corporation receiving a
written work order from a licensed dentist engages
another person, firm or corporation (hereinafter referred
to as ‘‘sub-contractor’’) to perform some of the services
relative to such work order, he or it shall furnish a
written .ub-work order with respect thereto on forms
prescribed by the Department of Registration and Eduea-
tion which shall contain: (a) The name and address of
the sub-contrator. (b) a number identifying the sub-
work order with the original work order, which number
shall be endorsed on the work order received from the
licensed dentist. (c) The date on which the sub-work
order was written. (d) A description of the work to be
done by the sub-contractor, including diagrams if neces-
sary. (e) A specification of the type and quality of
materials to be used. (f) The signature of the person,
firm or corporation issuing the sub-work order. The
sub-contractor shall retain the sub-work order and the
issuer thereof shall retain a duplicate copy, attached to
the work received from the licensed dentist, for inspeet-
tion by the Department of Registration and Education or
its duly authorized agents, for a period of 3 years in
both cases.
(4) Any licensed dentist who: (a) employs or engages
the services of any person, firm or corporation to con-
struct or repair, extraorally, prosthetic dentures, bridges,
or other dental appliances without first providing such
person, firm or corporation with a written work order;
— 45a —
or (b) fails to retain a duplicate copy of the work order
for 3 years; or (c) refuses to allow the Department of
Registration and Education or its duly authorized agents,
0 inspect his files of work orders, is guilty of a Class A
misdemeznor and the Department of Registration and
Education may revoke or suspend his license therefor.
(5) Any such person, firm or corporation, who: (a)
furnishes such services to any licensed dentist without
first obtaining a written work order therefor from such
dentist; or (b) acting as a sub-contractor as described
in (3) above, furnishes such services to any person, firm
or corporation, without first obtaining a written sub-
work order from such person, firm or corporation; or
(c) fails to retain the original work order or sub-work
order, as the case may be, for 3 years; or (d) refuses
to allow the Department of Registration and Education
or its duly authorized agents, to inspect his or its files of
work orders or sub-work orders, is guilty of a Class A
misdemeanor.
Laws 1909, p. 277, § 5b, added by Laws 1959, p. 1461,
§ 1, eff. July 17, 1959. Amended by P.A. 77-2830, Art.
68, § 1, eff. Jan. 1, 1973.
§ 2242. Penalty for unlawful practice
Any person who practices or offers to practice dentistry
in this State without being licensed for that purpose,
or whose license has been suspended or revoked, or who
violates any of the provisions of this Act, for which no
specific penalty has been provided herein, is guilty of a
Class A misdemeanor.
Laws 1909, p. 277, § 16, eff. June 11, 1909. Amended
by Laws 1933, p. 708, § 1, eff. July 7, 1933; Laws 1945,
p. 977, § 1, eff. May 24, 1945; Laws 1963, p. 2772, § 1,
eff. Aug. 13, 1963; P.A. 77-2713, § 1, eff. Jan. 1, 1973.
— 46a —
§ 2244. Unlawful practice as public nuisance—Injunction
The practice of dentistry by any person who has not
been duly licensed so te pratice or whose license has
been suspended or revoked, or the doing, committing or
continuing of any of the acts enumerated in Sections 5a,
18, 18a and 18b' by any person or persons, whether licensed
dentists or not, is hereby declared to be inimical to public
health and welfare and to constitute a public nuisance.
The Attorney General for State of Lllinois, the State’s
Attorney for any county in the State, or any resident
citizen may maintain an action in the name of the people
of the State of Illinois to perpetually enjoin any person
from so unlawfully practicing dentistry and from the
doing, committing or continuing of such unlawful act.
In all proceedings hereunder the court, in its discretion,
may apportion the costs among the parties interested in
the suit, including cost of filing complaint, service of
process, witness fees and expenses, court reporter charges,
reasonable attorneys fees. This proceeding shall be in
addition to and not in lieu of criminal prosecutions or
proceedings to revoke or suspend licenses as authorized
by this Act.
Laws 1909, p. 277, § 17a, added by Laws 1945, p. 977, §
1, eff. May 24, 1945. Amended by Laws 1963, p. 2773, §
1, eff. Aug. 13, 1963; Laws 1965, p. 3597, § 1, eff. Aug.
24, 1965.
‘Chapter 111, $4 2218, 2247, 2248.
— 47a —
In the
Supreme Court of the Anited States
OcroBer Term, 1956
No. 311
THE PEOPLE OF THE STATE OF ILLINOIS, ex rev.
CHICAGO DENTAL SOCIETY, erc., er ax..
Appellees,
vs.
A A A DENTAL LABORATORIES, ING., ETC., ET AL.,
(Defendants),
A-l DENTAL PLATE LABORATORY COMPANY,
INC.,
AN ILLINOIS CORPORATION, ET AL.,
AND
MARTIN DORNER, porne susiness as CAPITOL
DENTAL LABORATORIES, erc., er oe
Appellants.
APPEAL FROM THE SupreME Court or THE STATE OF
ILLINOIs.
STATEMENT AS TO JURISDICTION
Werner W. Scuroeper and
Ouiver C. Heywoon,
One N. La Salle Street,
Chicago 2, Illinois,
Attorneys for Appellants.
Dated, August 10, 1956.
— 49a —
INDEX
PAGE
re en i ae ee 1
The Grounds on Which the Jurisdiction of This Court
Se IN Shas cidhiccanssecuavescexucotaacensees MeN aR Vem etey Baa 2
Nature of the Proceedings ....0..........ccccccsscsssssssssssecesee
Date of Judgment and of Notice of Appeal ........
The Statutory Provisions Believed to Confer Ju-
risdiction of the Appeal ...........cccsssrsccsssssccsssssssees H)
Cases Believed to Sustain the Jurisdiction 0.0.0.0... dD
BM POUMCMGS TRVOEV OR oc ccccssescccesesscsescossnsssosvecscssoseccedsores 6
Questions Presented by This Appeal ues 6
The Facts Material to Consideration of the Questions
Si 4 ETT TILE INCRE EOE RAT TREO Cie D 7
Reasons Why the Questions Presented Are so Sub-
stantial as to Require Plenary Consideration. ........ 10
APPENDIX.
Illinois Dental Practice Act o...cccscscscsessssssssssessesssssees 21
Opinion of Supreme Court of Illinois co.ccccccccceccseeeee. 48
Judgment of Supreme Court of Tlinois voce. 58
Order of Supreme Court of Illinois, Denying Petition
I aptece ats 60
TABLE OF Cases AND Srarures Crrep.
Cases Crren.
Adams v. Tanner, 244 U. S. 590 wocccccccccccccccoseoseoccoseess, 6
Amsel v. Brooks, 141 Conn. 288, 106 A. 2d 152, 348
RI I Seder als acc cucisiel caiteca Onn IC 8 lie 12
PREVIOUS PAGE WAS BLANK
il
PAGE
Berry v. Summers, 283 P. 2d 1093, 1094 wuss 10
Doud v. Hodge, ........ | a . ee (100 L. ed. 398) 1... 5
RUOO TW. EPMO, BIG T, B, G ernccscccessesnsessmevvessensoveres 5
Emedom V. > Eialiihem, B77 TE, UBF oseisccosscscssovesesssososoceseee 13
Liggett Co. v. Baldrige, 278 U. S. 105 wuss )
Lincoln Fed. L. U. v. Northwestern I. & M. Co., 335
ica ME -shiss ans tara rrsnsie egsaiasuneacatostance vawiaedacd cae 5
McLean v. Arkansas, 211 U. S. 589 vuccccccssscccccscscoseseees 5
Meyer v. Nebraska, 262 U. S. 390 cn.ccccccccscsssscsssssssvees )
New State Ice Co. v. Liebmann, 285 U. S. 262 (dis-
ace BR og. OT TT RNASE OLE LRA LTR DER ARON ESET 4)
People v. Brown, 407 II]. 565. ....c.ccccccsccssssscseseee. 13, 14, 17
Powell v. Pennsylvania, 127 U. S. 678 coccccccccccccccsscee. )
Royster Guano Co. v. Virginia, 253 U.S. 412 ............ O
Schroeder v. Binks, 415 Ill. 192 coocccccccccccccccccscesee. 13, 14, 17
Skinner v. Oklahoma, 316 U.S. 535 cocccccccccccosececcsccscecese., 5
Travelers Health Asso. v. Virginia, 339 U. S. 643... 5
Williamson v. Lee Optical of Okla., 348 U. S. 483... 11
Comstitution and Statutes Cited.
Fifth Amendment to the Constitution of the United
ce pon, Me ERS UREN IDEA A Ee 7,8
Fourteenth Amendment to the Constitution of the
United States sansavsenrecesrsoseseroassevseneesesessvesscnassssevecssesnsvoemeDy Ty &
Ill. Rev. Stat., 1955, Chapter 91, Sections O6a, 58, 60,
60a, 71a, 72, 72a and 72b (Vol. IT, pp. 90-98) ....3, 5, 14
Title 28 U. S, C. A. Seetion 1257 (2)
a) |
eee ee ee eee eee eer eee)
— dla —
IN THE
SUPREME COURT OF THE UNITED STATES
Ocroper Term, 1056.
No. 311
THE PEOPLE OF THE STATE OF ILLINOIS, ex rer.
CHICAGO DENTAL SOCIETY, erc., er ar,
Appellees,
US.
A A A DENTAL LABORATORIES, INC... erc., er at.
(Defendants),
A-L DENTAL PLATE LABORATORY COMPANY.
INC.,
AN ILLINOIS CORPORATION, ET AL..
AND
MARTIN DORNER, poinc Business as CAPITOL
DENTAL LABORATORIES, erc., et AL...
Appellants.
APPEAL FROM THE SUPREME Covurr oF THE STATE OF
ILLINOIS.
STATEMENT AS TO JURISDICTION
(a) THE OPINION BELOW.
The opinion of the Supreme Court of the State of Illi-
nois is reported in 8 Ll. 2d 330, 184 N. KE. 2d 285. A eopy
is appended,
— 52a —
2
(b) THE GROUNDS ON WHICH THE JURISDICTION
OF THIS COURT IS INVOKED.
(i) Nature Of The Proceedings.
This suit, praying the issuance of permanent injune-
tions against appellants here, was instituted in the Supe-
rior Court of Cook County, Illinois, in the name of the
People of the State of Illinois on the relation of Chicago
Dental Society and certain dentists, individually and as
officers and directors of said Society. and as members of
its Committee on Legislation and Law Enforcement. The
defendants are certain individuals and _ corporations
charged with having violated the Dental Practice Act of
Illinois in furnishing, selling, supplying, constructing,
reproducing or repairing prosthetic dentures, sometimes
called “plates” and sometimes “false teeth.”
The gravamen of the offense charged is that such act
or acts were done directly for the user rather than on
the basis of employment brokered through licensed den-
tists, the substance of the Illinois statute being that if
employment alone (not prescription or supervision) is by
a dentist, the doing of the work is legal,—if the employ-
ment is not so made the same work is illegal.
The action was tried on the amended complaint to
which motions to strike were made, challenging the con-
stitutionality of the sections of the Act involved as being
in violation of both the Federal and State Constitutions.
After such motions were overruled as to the substantial
matters, the defendants filed answers, and throughout the
proceedings, in their answers and thereafter in the pro-
ceedings in the Superior Court and later in the Illinois
Supreme Court, insisted upon the unconstitutionality
both under the Federal and State Constitutions of those
parts of the Dental Practice Act upon which plaintiffs
relied.
— §3a —
3
It will be noted from the opinion sought to be reviewed
that the due process and equal protection objections under
the Fourteenth Amendment were preserved in the record,
urged before the highest court of Illinois, considered by
that Court and mentioned in the opinion.
The amended complaint specifically relied upon Sec-
tions Ja, 3, Section 5 (Subparagraphs (2), (3), (8). (9)
and (10)), Sections 5a, 17a, 18, 18a and 18b of the Dental
Practice Act (Illinois Revised Statutes, 1955, Chapter 91,
Sections 56a, 58, 60, 60a, 71a, 72, 72a and 72b, Vol. IT,
pp. 90-98). (See Appendix hereto.)
The basic sections assailed are Subparagraphs (8) and
(9) of Section 5 and separate Section 5a.** The other sec-
tions* are incidentally involved but come into operation
only if the basic sections, mentioned in this paragraph,
are constitutional.
The ease was decided by the trial court on the theory:
(a) That any person, fm or corporation furnish-
ing, constructing, reproducing, relining or repairing
false teeth was engaged in the practice of dentistry
if such work was done “directly for the user or pros-
pective user” thereof:
(b) That any person, firm or corporation, that did
the same work directly and solely on employment by
licensed dentists was not practicing dentistry and
therefore not violating the law;
(c) That if any defendant did part of his work
for a licensed dentist, but part directly for the user
or prospective user, he was practicing dentistry and
violating the law; and that even that part done on
employment by a dentist was unlawful.
It was not the theory of the decree that the doing of
such work with reference to false teeth was, per sé, the
** Marked ** in copy of statute in appendix.
* Marked * in copy of statute in appendix,
— 54a —
4
practice of dentistry. Whether it was or was not turns
solely on who employed the person, firm or corporation to
do it.
The lower court held with certain defendants, when the
work was in aaceordance with an impression made by a
licensed dentist, who gives an order or prescription there-
for and who makes the fitting thereof in the oral eavity.
The Supreme Court of Illinois sustained the decree ot
the lower court in holding that any work done by defen-
dants when the employment was not made by a lieensed
dentist was unlawful. It reversed the part holding that
the work was lawful when the impression was made by
such a dentist who gave an order or prescription there-
for and made the fitting in the oral eavity.
The issue presented in the trial court and in the Su-
preme Court of Illinois was whether the statute, which
confers power upon a deutist or dentists, by mere em-
ployment, to make legal or, by non-employment. to make
illegal, the work of a laboratory technician, is a constitu-
tional grant of power,
(ii) Date Of Judgment And Of Notice Of Appeal.
The final judgment of the Supreme Court of Tlinois
sustaining the deeree of the Superior Court of Cook
County, Illinois, in part and reversing it in part, which
judgment of the Supreme Court of Tllinois is here sought
to be reversed, was entered on Mareh 22, 1956 (Petition
for Rehearing was filed April 5, 1956: order denying the
Petition for Rehearing was entered on May 22, 1956).
The Notice of Appeal was filed on June 15, 1956, in the
Supreme Court of Illinois,
— 55a —
9)
(iii) The Statutory Provisions Believed To Confer Juris-
diction Of The Appeal.
This Court has jurisdiction of this appeal under U.S.
C.A., Title 28, Section 1257(2).
(iv) Cases Believed To Sustain The Jurisdiction.
The following cases are believed to sustain the juris-
diction of this appeal:
New State Ice Co. vy. Inebmann, 285 U. S. 262
(see also dissent, p. 302).
Powell v. Pennsylvania, 127 U. S. 678.
Adams v. Tanner, 244 U. S. 590.
Meyer vy. Nebraska, 262 U. S. 390,
McLean v. Arkansas, 211 U .S. 539.
Liggett Co. v. Baldrige, 278 U. S. 105.
Travelers Health Asso. v. Virginia, 339 U. S. 643.
Lincoln Fed. L. U. vy. Northwestern I. &: M. Co.,
335 U. S. 525.
Hood v. DuMond, 336 U. S. 525.
On the objection that the statute violates the equal
protection clause of the Fourteenth Amendment to the
United States Constitution, the jurisdiction of the Court
is sustained by:
Skinner v. Oklahoma, 316 U. S. 035.
Royster Guano Co. vy. Virginia, 253 U. S. 412.
Doud v. Hodge, ........ Ric NOs sienniic AO As odd, 398).
(v) The Statute Involved.
This case involves the validity of Section 5a and Sub-
sections 8 and 9 of Section 5 of the Dental Practice Act
(and the other sections relied on by plaintiffs, namely,
Sections la, 3, 17a, 18, 18a and 18b, insofar as they are
dependent upon, or brought into operation by, said Sec-
— 56a —
6
tion 5a and Subsections (8) and (9) of Section 5 of the
Dental Practice Act): said Act being “An Act to regu-
late the practice of dental surgery and dentistry in the
State of Illinois and to repeal certain acts therein named,”
approved June 11, 1909, as amended by an Act of 1945
(fll. Rev. Stat. 1955. Chapter 91, Seetions 56a, 58, 60,
60a, Tla, 72, 72a and 72b, Vol. TT pp. 90-98).
The statutory provisions involved are lengthy, and the
text of the entire statute is set forth in the Appendix.
Only the validity of the sections referred to in the last
paragraph ts involved. The objectional features of those
sections were added by the 1945 amendment.
(c) QUESTIONS PRESENTED BY THIS APPEAL.
The following questions are presented as stated in the
Notice of Appeal:
(1) Whether the seetions of the Tlinois Dental Prae-
tice Act, insofar as they apply to laboratory technicians
(being those who, in accordance with the eustom through-
out the Umted States, design, supply, construct, repro-
duce or repair prosthetic dentures, sometimes known as
“plates” or “false teeth”), are a violation of the due
process clause of the Federal Constitution (Fourteenth
Amendment), in that the right of such technicians to
carry on their oeeupation is dependent entirely upon the
uneontrolled and unregulated whim of licensed dentists.
who, by mere employment of a technician, make his activ-
ity lawful, or by failure to employ, make the technician’s
activity unlawful and eriminal.
(2) Whether since the statute does not prescribe any
qualifications that a teehnician must have, and since it
requires no supervision, direction or prescription by the
dentist of the work to he done, and since the right of the
technician to carry on his occupation depends solely on
—5va —
7
whether he is or is not employed by a dentist, the statute
is unreasonable, arbitrary and capricious or without real
or substantial relation to the objects sought to be attained
and therefore lacking in due process.
(3) As the statute provides no qualifications, either
educational, or in experience or otherwise, of dental
technicians, provides for no licensing of them by any
State agency or department and allows the technician to
engage or not engage in his occupation, dependent solely
on the uncontrolled and unregulated will of a dentist or
dentists, and permits the dentists to /erminate the right
to carry on the occupation upon any ground or upon any
whim, with no judicial review of either the law or facts,
whether the statute has provided due process, in other
words, whether no process of law is due process of law.
(4) Whether, since the laboratory technician’s right
to earry on his oceupation is dependent solely on the auto-
eratie and unregulated action of a dentist, and since a
technician of great ability may never be employed and
another of far less or no ability may be employed, the
statute violates the equal protection clause of the Four-
teenth Amendment to the Federal Constitution.
(d) THE FACTS MATERIAL TO CONSIDERATION
OF THE QUESTIONS PRESENTED.
The Federal questions raised and considered below were
as follows (references to that portion of the reeord econ-
tained in Appellants’ Abstract (attached te Record page
5) will be referred to as ‘Appts.’ Abst. p.
Defendants’ motions to strike the amended complaint,
among other constitutional objections, alleged that the
Illinois Dental Practice Act violated the Fifth and Four-
teenth Amendments to the United States Constitution
(Appts.’ Abst. p .27).
i oe
8
The lower court’s order on the motions to strike held
that Section 5a of the Illinois Dental Practice Act in cer-
tain respects violated the Fifth and Fourteenth Amend-
ments to the United States Constitution, but that those
portions were severable from the rest of the Act ( Appts.’
Abst. pp. 34-35), but this holding of unconstitutionality
was later reversed by the Illinois Supreme Court. See, for
example, Appts.’ Abst. p. 279, par. 99(a); also, opinion of
Illinois Supreme Court, Record pp. 12, 19, and Judgment
of Illinois Supreme Court, Record p. 20. (Said opinion
and order are also in the appendix hereto. )
Defendants’ answers realleged the constitutional objec-
tions under the Fifth and Fourteenth Amendments to the
Constitution of the United States (paragraphs 8(e) and
(f) and 12, Appts.’ Abst. pp. 42, 43). Defendants’ excep-
tions to the Master’s Final Report objected on the ground
of the Fifth and Fourteenth Amendments to the Consti-
tution of the United States (Appts.’ Abst. p. 217).
The constitutional objections under the Fourteenth
Amendment to the Constitution of the United States were
also properly raised in defendants’ brief in the Supreme
Court of Illinois and were considered by the Court as
shown in its opinion, Record pp. 138, 19.
The evidence of plaintiffs and defendants in this record
shows the extensiveness of the work of dental laboratories.
The individuals doing the work are sometimes ealled den-
tal technicians.
The work of dental technicians has become an oecupa-
tion and independent ealling separate and apart from the
dental profession. The profits of both parties demonstrate
without question that the major part of the work of mak-
ing, reproduction or repair of dentures (false teeth), that
is, at least 90%, is done by dental technicians who are not
dentists and who work in dental laboratories.
— 59a —
9
The dental schools have on their staff laboratory tech-
nicians who are not dentists to whom the laboratory pro-
cedures are turned over. The senior students in dental
schools work on possibly two to four plates. Any other
laboratory work is done by the school’s laboratory tech-
nicians. Several of the dentists who testified for plaintiffs
testified that they send out all of their laboratory work
to dental technicians. It was also established that there
was no such thing as a prescription for a dental plate,
although, at most, some dentists issue what are ealled work
orders. A few dentists have a laboratory in their own
offices with technicians who are not licensed dentists.
It was shown that a busy dentist finds it preferable to
send more and more of his work to a laboratory hecause
of its experience. In some cases impressions or easts are
sent to the laboratory but in some not.
In the University of Mlinois College of Dentistry, stu-
dents do work on dentures, but they have two trained
dental technicians (not dentists) who supervise the labora-
tory procedures,
At the present time there are 300 and possibly more
dental laboratories in the City of Chieago alone. These
businesses, with few exceptions, are owned and operated
by non-dentists and are independent of a dental office, al-
though a few do their work in connection with a dental
office.
The making of dentures by dentists themselves has be-
come a lost art.
The findings of the deeree in the lower court were based
largely on the premise that the defendants do not work ex-
elusively for dentists.
— 60a —
10
(e) REASONS WHY THE QUESTIONS PRESENTED
ARE SO SUBSTANTIAL AS TO REQUIRE PLE-
NARY CONSIDERATION.
Due Process.
The sections of the statute here involved go farther
than any similar regulatory statute that has been con-
sidered by this or other courts, except perhaps one, which
was held unconstitutional by the Supreme Court of Idaho
in *Berry v. Summers, 283 P. 2d 1093. Even that was not
as extreme as the Illinois Code here involved.
Defendants have eoneeded that the making and fitting
of false teeth is a matter affecting public health and could
* In that case the constitutional objections of the dental
technicians were well summarized by the court as follows
(283 P.2d 1094):
“Appellants contend inter alia that they engage in
an ordinarily useful, independent occupation or eall-
ing, Which has been for a loye time past and now is
legislatively recognized as an independent calling and
as having an independent occupational nature of. its
own, Wholly disconnected from the practice of den-
tistry as such as ordinarily and customarily under-
stood and regarded; that they perform merely me-
chanical work upon inert matter in their dental labor-
atories. They assert that the regulation attempted to
he imposed by the 1953 amendment is designed and
intended for the benefit of a class, i.e., the dentists:
that it is an arbitrary, unreasonable and discrim.
natory regulation; that if it is permitted to be en-
foreed such would deprive them of their large sums of
‘apital invested in their dental laboratories, and of
their means of livelihood, and thereby would deprive
them of. liberty and property without due process of
law, in contravention of Article I, §§ 1 and 13 of the
Constitution of the State of Idaho, and of the Four-
teenth Amendment of the Constitution of the United
States.”
These contentions were sustained by the Idaho court.
— 6la —
1]
be regulated by constitutional methods, as are the oceupa-
tions of pharmacists, optometrists, opticians, and others
who though not members of the medical profession deal
with matters affecting public health. The vice of the Tlli-
nois Act can best be illustrated by comparison with the
situation found in a recent case decided by this. Court:
Williamson v. Lee Optical of Okla., 348 U. S. 483. That
ease upheld an Oklahoma Act regulating opticians, and it
contains a concise description of the occupations relating
to the prescribing and making of eyeglasses.
Neither an optometrist nor an optician is a medical
doctor. Nor are they captives of the related medical doe-
tor—the ophthalmologist. A person may go to an oph-
thalmologist and have glasses prescribed. He is then free
to go to any optometrist or optician of his choice to have
the glasses made and fitted (or he may go directly to an
optometrist without consulting a medical doctor at all).
An optician or optometrist. whether or not he is regulated
by statute, is free to go into business and deal with the
general public.
The situation of the dental patient and the dental tech-
nician in Illinois is far removed from this pattern. In
Illinois a person who goes to a dentist and has false teeth
prescribed is not free to go to a dental technician of his
own choosing to have his false teeth made. In Illinois a
dental technician cannot take a designated course of train-
ing, qualify and become licensed by the State and then
go into business and deal with members of the general
public. The means of becoming eligible to deal with the
public is not available. The making of false teeth, which
is a parallel situation to the making of eyeglasses, is con-
trolled throughout by the dentist. So is the maker of false
teeth. Neither the maker nor the making of eyeglasses
—_ 620 —
12
is controlled by the ophthalmologist. Nor is the pharma-
cist or the making of a medical prescription controlled
by the medical doctor. In each of the latter two cases, the
patient of the medical doctor is free to go to an artisan
of his own choosing and the publie can be protected by
comprehensive requirements for qualification and licensing
of such artisans.
The vice of the Illinois Act is further illustrated by an-
other case which came before this Court: Amsel vy. Brooks,
141 Conn. 288, 106 A. 2d 152 (348 U.S. S80). That was a
case involving the Connectieut statute regulating dental
technicians. This Court dismissed the appeal for want
of substantial Federal question. But before the case came
to this Court, the Supreme Court of Connecticut held un-
constitutional a portion of the statute on the very ground
urged here; namely, that it made the technicians ‘de-
pendent exclusively upon the customers a licensed dentist
nay send to them,’’ saying:
‘The connection between such a drastic and unreason.-
able regulation and the public welfare is so tenuous
that, upon the principles hereinbefore stated, the por-
tion of the statute relating to advertising cannot be
legally justified. We hold this portion to be uncon-
stitutional.’’
The Illinois statute aims to do exactly what the Supreme
Court of Connecticut held was unconstitutional when in-
ferentially accomplished by the statute.
The following elements are absent in this Illinois
statute—elements which historically have been considered
indispensable to due process in the regulation of oceupa-
tions or professions: (a) The rules for admission to the
occupation—citizenship, character, education. experience —
are usually definitely prescribed by the legislature—but not
here; (b) An executive department is given power to ad-
— 63a —
13
minister the rules—by examination or otherwise to de-
termine compliance with them—but not in this statute:
(¢) Ouster from the occupation is according to usual ad-
ministrative practice, and follows only after a hearing—
no such procedure is provided here; (d) Misapplication
of the rules or manifest disregard of evidence is controlled
by the courts through administrative review—but not in
this instance.
The presence of those parts of a regulatory scheme is
due process as Illinois and other states have usually prac-
ticed it. Here, however, every one of those elements is
missing in the statute. This statute is a radical departure
from due process as usually understood. Under the parts
of the statute here assailed, a favored class, having a fi-
nancial interest, is given all of the powers usually exer-
cised by government without rules to guide its action,
without intervention or impartial action by a state agency
and without possibility of resort to the courts.
The decision of the Supreme Court of Illinois creates
a new doctrine—that a certain class—on account of its
college training or on account of some other merit—may
be endowed with the absolute powers of government,
without restraint or review—powers that have heretofore
been exercised by three departments of government, with
each empowered to inhibit errors or excesses on the part
of others.
The Supreme Court of Illinois has held in People v.
Brown, 407 Ill. 565, and Schroeder v. Binks, 415 Til. 192,
that master plumbers cannot in accordance with due pro-
cess he given sole power to employ apprentice and journey-
men plumbers and thus become their exclusive educators.
But as to dentists, that Court has now held that dentists
may be given even greater power: that is, the power arbi-
— 64a —
14
trarily to make one a dental technician without regard
to his education, training or experience, and by the same
power prevent a person from becoming a technician, even
though his prior education, training, and experience have
equipped him with great ability. The effect of the opinion
of the Illinois Court is to hold that no process is due pro-
cess—when control is given to a favored few.
The [linois Supreme Court in its opinion in the ease
at bar relied on an earlier case. Lasdon vy. Hallihan, 377
Ill. 187. We contended that that case decided only the
specific question of the validity of prohibiting a dentist
from obtaining employment indirectly through advertising
done by a laboratory, and was not applicable, and that part
of the opinion dealing with dental technicians was dictum ;
that if the dictum were considered to be the law of Illinois.
it was necessarily overruled by the later cases of People v.
Brown, 407 Il. 565, and Schroeder vy. Binks, 415 ll. 192.
Also Lasdon vy. Hallihan, 377 Til. 187, was decided on a
prior version of the statute which did not go nearly as far
as the 1945 amendment. Even that version was probably
violative of the state and federal constitutions.
Two of the basic paragraphs of the statute, namely,
Section 5, Subparagraphs (8) and (9), now provide, in
effect, that one who furnishes, supplies, constructs, re-
produces or repairs plates, or offers to do so, is engaged
in the practice of ‘dentistry and must before he Inay do so
on his own initiative have all the qualifications for the ad-
mission to practice of a dentist: and must be so licensed.
However, Section 5a, which is particularly assailed, pro-
vides :
‘‘Licensed dentists may employ or engage the serv-
ices of any person, firm or corporation to construct
or repair, extra-orally, prosthetic dentures, bridges,
or other replacements for a part of a tooth, a tooth,
— 65a —
15
or teeth. A person, firm or corporation so employed
or engaged, when constructing or repairing such
dentures, bridges or replacements, exclusively, direct-
ly and solely for licensed members of the dental pro-
fession, and not for the public or any part thereof,
shall not be deemed or considered to be practicing
dentistry as defined in this Act.’’ (Italics supplied).
The effect of these provisions is to make it wiawful
for a laboratory technician to take impressions for false
teeth or make or repair them except when engaged or em-
ployed to do so by a licensed dentist. If however, any
person, firm or corporation is so engaged or employed,
his or its activity becomes lawful. This is the gist of the
extraordinary power granted by the statute.
The statute creates in this area of the government of
Illinois a government of men rather than a government of
law. It is a fundamental departure from due process as it
has been known in the United States.
Another strange aspect is that a corporation may not
under the statute practice dentistry or make or repair
dentures, but a licensed dentist may employ any corpora-
tion to do the work of a technician; with such employment,
the activity of that corporation becomes legal and ap-
proved, and that without regard to the powers given it
by the State in its charter.
The lack of due process in this Act may be summarized
in the following words:
(a) Whether a person, firm or corporation may
make dental plates depends completely on the whim of
a licensed nentist.
(b) The dentist is not required to order or pre-
seribe the plate or to make the impressions or to place
the plate in the oral cavity—the dentist is required
to do nothing in the way of prescribing or supervision
of the work.
(c) All that is required is that the dentist be the
broker between the member of the public and the
laboratory technician who makes the false teeth.
— 66a —
16
When the dentist is permitted to dominate the situa-
tion and to farm out the employment, the work of the
laboratory technician is made legal, even though the
dentist does no work or does not even touch the den-
ture. If, however, the member of the public does not
first hire a dentist who then doles out the work, the
same activity of the laboratory technician becomes
unlawful.
(d) The dentist is given no professional responsi-
bility; he is merely given commercial control of the
employment or non-employment.
(e) The Act contains no prescription of the educa-
tion, training, experience or qualification of the per-
son, firm or corporation whom, or which, the dentist
may employ. Under this statute, the dentists could
set up someone i: business who has had neither train-
ing nor experience. On the other hand, a person may
be ever so able and experienced in this work, but un-
less he gains the favor—by some means or other—of
a dentist or dentists, he cannot earn his livelihood.
(f) Not only are there no rules governing who may
do the work (other than that the work must be
brokered through a dentist), but the entire decision
as to who may or may not do such work is delegated
by the general assembly to a licensed dentist or
dentists.
(g) The statute gives the dentists a complete mono-
poly, uninhibited by any rules of conduct as to who
may carry on the work of a laboratory technician. or
who, on the other hand, is going to be put out of
business.
(h) Obviously, there is a lack of uniformity, as
one dentist or group of dentists may use one standard
as to who is employed and another a different one.
The provisions of the statute here assailed are more
consistent with feudalism than with due process.
This statute represents the extreme in the lack of due
process,
— 67a —
17
EQUAL PROTECTION.
The objection that the provisions of the statute under
discussion violate the equal protection clause of the
Fourteenth Amendment has been made throughout the
proceeding in the lower courts and was rejected by the
Supreme Court of Illinois in its opinion.
It is obvious that under these statutory provisions, a
person’s training, character and ability in the making of
dentures will not entitle him to a right to do this work.
In effect, he may be heensed only by a dentist or dentists.
On the other hand. Section 5a provides specifically that
the dentist may employ any person, firm or corporation to
do this type of work. It is not provided that such person
must have any training or any experience or any ability.
He may be made into a laboratory technician by the ar-
bitrary and whinsical action of a dentist or dentists.
Thus, nen of great ability may be rejected, and those of
mediocre or no ability may be emploved to do the work.
Mere statement of the provisions of the statute indi-
cates that men of equal talent do not have equal opportu-
nity in this field of economic activity. The right of a
technician to carry on his occupation is dependent ex-
elusively upon the grace of the dentist or dentists. Thus,
people in equal circumstances, as respects their education,
training and capabilities, have no equal protection in the
law.
Moreover, the decisions of the Supreme Court of Illinois
have emphasized this lack of equal protection. As pointed
out, in the plumbers licensing cases statutes were involved
that gave to master plumbers the sole power to determine
who might get the apprentice training and who inight thus
work his way up to the status of a journeyman plumber
and eventually to that of a master plumber. On many
grounds that statute was held to violate the Illinois and
the Federal Constitutions, the court saying at p. 573 of
407 Ill.: ‘‘No matter how well qualified a person may be
by instruction or training he can never of his own free will
and choice become a certified registered plumber’s ap-
— 68a —
18
prentice, a journeyman plumber or master plumber, unless
a licensed master plumber so wills.’? These were the rul-
ings in People v. Brown, 407 Ill. 565, and Schroeder v.
Binks, 415 Ill. 192. Here, however, the dentists have more
extensive power. A person may have had all requisite pre-
paratory training and experience and yet his right to
work depends upon a whimsical decision by a dentist or
dentists—a decision that may be based on sound grounds,
or on economic advantage to the dentist brokering the
employment, or on personal likes or dislikes or as vehe-
mently stated by the Supreme Court of Illinois in the
Brown case, upon ‘‘the facts of race, creed or color.’’
(p. 574).
Thus, under the decisions of the Supreme Court of
Illinois on these two statutes—the one pertaining to ap-
prentice, journeymen and master plumbers; the other
pertaining to laboratory technicians—the State of Illinois,
through its Supreme Court, has denied equal protection
of the law by failing to apply a like principle to dentists
as to master plumbers.
The decision sought to be reviewed says (Record p. 16;
Appendix p. 54):
‘Any person is free to become a dental laboratory
technician. The statute places no artificial restraint
upon him. His success is determined by the normal
process of competition.’’
This emphasizes the point of objection that is made.
Any person is free to become a technician—if he is em-
ployed by a dentist. If not so employed, he is not free to
become one.
The statute does place an artificial restraint upon him
in that there is nothing in the statute which guarantees
him the right to carry on his occupation—nothing except
the favor he can gain by one means or another with those
who are licensed dentists.
— 69a —
19
It would seem that the statutory provisions under at-
tack are a clear denial of equal protection. They do not
even guarantee equal protection by the dentists. The lat-
ter are given greater powers than are given to the govern-
ment itself under State and Federal Constitutions.
It is urged that the jurisdiction of this Court is clear,
and that this appeal is substantial in that it submits con-
stitutional questions that are vital to the rights of these
appellants as well as to the rights of all citizens of the
United States.
Respectfully submitted,
WERNER W. ScHROEDER AND
Otiver C. Heywoop,
One N. LaSalle Street,
Chicago 2, Illinois,
Attorneys for Appellants.
—Tla—
21
APPENDIX.
a
COPY OF STATUTE HERE INVOLVED.*
Illinois Revised Statutes, 1955, Chapter 91, Sections 56
to 72h, inclusive. Vol. II pp. 90-98.
DENTAL SurGERY.
Aw act to regulate the practice of dental surgery and
dentistry in the State of Illinois, and to repeal cer-
tain acts therein named. [Approved June 11, 1909.
L. 1909, p. 277.]
Be it enacted by the People of the State of Illinois,
represented m the General Assembly:
96. § 1. Repealed. Act approved July 10, 1935.
L,.1935, p. 965.
d6a. Legislative declaration—Liberal construction. ]
*§ la. The practice of dentistry in the State of Ili-
nois is hereby declared to affect the public health,
safety and welfare and to be subject to regulation and
control in the public interest. It is further declared
to be a matter of public interest and concern that the
dental profession merit and receive the confidence of
the public and that only qualified persons be permitted
to practice dentistry in the State of Illinois. This Act
shall be liberally construed to carry out these objects
and purposes. Added by act approved May 24, 1945.
L.1945, p. 977.
o7. § 2. Repealed. Act approved July 10, 1935.
1.1935, p. 965.
ofa. Severability—Partial invalidity.| 4 2a. This
Act is declared to be severable, and should any word,
** The sections of the statute so marked are primarily
involved in this appeal.
* The sections of the statute so marked are incidentially
involved in this appeal.
Those sections not marked are not involved in this ap-
peal.
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a
22
phrase, sentence, provision or section hereo! be here-
after declared unconstitutional or otherwise invalid,
the remainder of this Act shall not thereby be affected,
but shall remain valid and in full force and effect for
all intents and purposes. Added by act approved May
24, 1945. 1.1945, p. 977.
"58. Dentistry or dental surgery—Who may prac-
tice — License — Application — Fee — Eligibility —
Examination.| § 3. No person, unless previously reg-
istered or licensed to practice dentistry in this State
at the time this Act shall hecome operative, shall be-
gin the practice of dentistry or denial surgery, or any
branches thereof, without first applving for and ob-
taining a license for such purpose from the Depart-
ment of Registration and Education, hereinafter
referred to as the ‘‘department.’’ Application shall
be made to the department in writing, and shall, in
every instance, be accompanied by the examination
fee of twenty dollars ($20.00), together with satis
factory proof that the applicant is of good moral char-
acter, is a citizen of the United States or has made
a declaration of intention to become a citizen or,
having made such declaration of intention, has filed
a petition for naturalization within thirty davs after
becoming eligible to do so and is twenty-one years of
age or over at the time of making the application. An
application from a candidate who desires to secure a
license from the department to practice dentistry or
dental surgery in this State shall be accompanied by
satisfactory proof that the applicant so applying for
a license has been engaged in the actual. legal and
lawful practice of dentistry or dental surgery in some
other state or territory for five consecutive vears im-
mediately prior to such application; or is a graduate
of, and has a diploma from, the faculty of a reputable
dental college, school or dental department of a rep-
utable university. When such application and the
accompanying proof are found satisfactory, the de-
partment shall notify the applicant to appear before
— 73a —
23
it for examination at a time and place to be fixed by
the department. Examination shall be made in writ-
ing in all theoretic subjects, both theoretic and practi-
cal exeminations shali ‘ve of a character to give a fair
test of the qualifications of the applicant to practice
dentistry or dental surgery. The examination papers
and all grading thereon, and the gradi
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