# Petition — Illinois State Dental Society v. Schiller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1521%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 1010 ## Text aa - P wrt e? (} = ¢ ke ) 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 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. 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. PREVIOUS PAGE WAS BLANK 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 grading of the prac- tical work, shall be deemed public documents, and pre- served for a period of not less than two years after the department shall have made and published its decisions thereon. All examinations provided for in this Act shall be conducted by the department under fair and wholly impartial methods. As amended by act approved July 13, 1939. 1.1939, p. 713. d8a. Powers and duties of department.) § 3-a. The Department of Registration and Education shall exercise, but subject to the provisions of this Act, the following functions, powers and duties: (1) Conduct examinations to ascertain the quali- fications and fitness of applicants for dental licenses, pass upon the qualifications of applicants for recipro- eal licenses, and issue licenses to such as are found to be fit and qualified. (2) Preseribe rules and regulations for a method of examination of candidates. (3) Prescribe rules and regulations defining what shall constitute a school, college or university or de- partment of a university, or other institution, repu- table and in good standing, and to determine the repu- tability and good standing of a school, college or other institution reputable and in good standing, by refer- ence to a compliance with such rules and regulations; provided that no school, college or university, or de- parment of a university or other institution that re- fuses admittance to applicants solely on account of race, color or creed shall be considered reputable and in good standing. (4) Establish a standard of preliminary education deemed requisite to admission to a pre-professional school, college or university, for eligibility to dental — 74a — 24 licensure in the State of Illinois, and to require satis- factory proof of the enforcement of such standard by said pre-professional schools, colleges and universi- ties. (5) Conduct hearings on proceedings to revoke, suspend, or on objection to the issuance of licenses of persons applying for licenses or licensed under the provisions of this Act and to refuse to issue, revoke or suspend such licenses. (6) Formulate rules and regulations required for the administration of this Act. None of the foregoing functions, powers or duties enumerated shall be exercised by the Department of Registration and Education except upon the action and report in writing of the examining committee which shall be composed of persons designated from time to time by the Director of Registration and Edu- cation to take such action and to make such report for the profession involved herein, as follows: Five (5) persons, each of whom has been a licensed practitioner of dentistry, or dental surgery in this State for a period of five years or more, and no on of whom is in any way connected with or interested in any dental college, or dental department of any institution of learning. The action or report in writing of a majority of the Committee designated shall be sufficient authority upon which the Director of Registration and Educa- tion may act. Whenever the Director is satisfied that substantia! justice has not been done either in an examination or in the revocation, suspension or refusal to issue a license, he may order a re-examination or rehearing by the same or other examiners. The department shall demand that every applicant for a license to practice dentistry shall: 1. Be a citizen of the United States or have first papers for naturalization. 2. Be a graduate or have fifteen units of high school work in acceptable subjects from a high or an eS... 25 other secondary school approved by the Department of Registration and Education. 3. Present satisfactory evidence of completion of pre-dental and dental education under one of the fol- lowing plans: (a) Completion of a minimum of thirty (380) se- mester hours of collegiate credit in acceptable subjects from a college or university approved the depart- ment, and graduation from a dental college, school or dental department of an institution requiring four courses of instruction of at least eight months each, approved by the department. (b) Completion of a minimum of sixty (60) semes- ter hours of collegiate credit in acceptable subjects from a college or university approved by the depart- nent, and graduation from a dental college, school, or dental department of an institution requiring three courses of at least eight months each, approved by the department. (¢) For appheants who completed their dental ed- acation prior to July 7, 1933, and have engaged in the practice or the teaching of dentistry since com pleting their education, graduation from a dental col- lege, school or dental department of a university considered reputable by the Illinois State Board of Dental Examiners or approved by the Department of Registration and Edueation at the time of such appleant’s graduation. (d) For applieants who completed their dental education after January 1, 1944, completion of a minimum of sixty (60) semester hours of collegiate eredit in acceptable subjects from a college or univer- sity approved by the department, and graduation froin a dental college, school, or dental department of an institution requiring four courses of instruction of at least eight months each, approved by the department. 4. Submit, for the files of the department, a re- cent picture dulv identified and attested. 5. Pass an examination given by the Department of Registration and Mducation in the theory and praec- tice of the science of dentistry; provided, that the de- a 26 partment may recognize a certificate granted by the National Board of Dental Examiners in lieu of, or subject to, such examination as may be required. Pro- vided, however, that nothing in this Act shall be con- strued to prevent any dental school which may de sire to do so from establishing for admission a higher standard of preliminary education than specified in this Act. As amended by act approved May 24, 1945. L. 1945, p. 977. 8b. Qualifications of applicants.) § 3b. The de- partment shall demand that every applicant for a cer- tificate of registration as a dental hygienist shall: 1. Be a citizen of the United States or have first papers for naturalization. 2. Be a graduate of or have fifteen units of high school work from a high school or other secondary school approved by the department. 3. Present satisfactory evidence of having received two years of credit in a college of dental hygiene, each year’s work to consist of at least thirty-two weeks in a college reputable and in good standing by reference to a compliance with rules established by the depart- ment. 4. Submit for the files of the department a recent picture duly identified and attested. 0. Pass an examination given by the department in the subjects usually taught in reputable colleges of dental hygiene approved by the department, which examination shall be such in the judgment of the de- partment as will determine the qualifications of ap- plicants to perform the operative procedure of denta! hygiene. Added by act approved July 25, 1945. L. 1945, p. 986. 09. § 4. Repealed. Act approved July 10, 1935. LL. 1935, p. 965. 99a. License, qualification for special practice.] § 4a. The department is hereby empowered to establish higher standards for and make additional requirements of any licensee who announces or holds himself out to the public as a specialist or as being specially quali- — 77a — 27 fied in any particular branch of dentistry; and it is provided, further, that the department may issue a certificate, authorizing practice as a specialist in any particular branch of dentistry, to any licensee who has complied with the requirements established for that particular branch of dentistry at the time of mak- ing application, upon payment of twenty-five dollars ($25.00). No licensee shall announce or hold himself out to the public as a specialist or as being specially quali- fied in any particular branch of dentistry, unless he has been in the practice of dentistry for five vears, or more, prior to making application for certificate to prac- tice as a specialist, and has complied with the addi- tional requirements, established by the Department, for practice in that specialty of dentistry. The fact that any licensee shall announced by card, letterhead, or any other printed matter using such terms as ‘‘Specialist,’’ ‘Practice Limited to”’ or ‘‘lim- ited to Specialty of’’ with the name of such branch of dentistry practiced as a specialty, or shall use equiv- alent words or phrases to announce the same, shali be prima facie evidence that such licensee is practic- ing as a specialist. [Added by act approved July 7, 1933. L. 1933, p. 708.] o9b. Certificate of registration.] § 4b. The depart- ment shall issue a certificate of registration to every applicant who passes the examination for registration as a dental hygienist, under which certificate he shall be entitled to perform the operative procedure of dental hygiene as a certified dental hygienists, unless and until such certificate shall be suspended, revoked or forfeited as provided in this Act. Added by act approved July 25, 1945. L. 1945, p. 986. d9e. Employment of dental hygienists by dentists— Permissible acts—Supervision—Display of certificate. ] § 4c. Licensed dentists may employ or engage the services of registered dental hygienists, hereinafter set forth in this act, to remove the stains or concre- tions (accretions) from the exposed surfaces of the — 78a — 28 teeth, such an operative procedure hereinafter referred to as dental hygiene, but shall not diagnose any con- dition of or perform any other operation on the hu- man teeth, or tissues of the mouth or jaws. However, it shall be unlawful for a person registered as a dental hygienist who is not also licensed to practice dentistry under the laws of this State to perform the operative procedure of dental hygiene exeept under the super- vision of a licensed dentist and in one of the following places: (a) The office of a licensed dentist. (b) A state or municipal institution. (ec)