Opposition — Brodie v. Board of Medical Examiners

82 e] S73 [ ov: a precne Cou

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MAY 12 198

|

IN THE

Supreme Court of the United Staton — er

Ocroser Term, 1982

MARVIN BRODIE, M.D., et al.,

Petitioners,

v.

BOARD OF MEDICAL EXAMINERS FOR THE

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OPPOSING PETITION FOR CERTIORARI ON

BEHALF OF RESPONDENT NEW JERSEY STATE

BOARD OF MEDICAL EXAMINERS

Inwoy I. KimmMe Man,

Attorney General of New Jersey,

Attorney for Respondent New Jersey

State Board of Medical Examiners,

Richard J. Hughes Justice Complex

CN 112,

Trenton, New Jersey 08625.

(201) 648-2436

James J. CIANCIA,

Assistant Attorney General,

Of Counsel.

Bertram P. Gotz, Jr.,

Deputy Attorney General,

n the Brief.

Adams Press Corp, 50 Park Place, Newark, New Jersey 07102—(201) 625-8611

TABLE OF CONTENTS

SORES CH DTIIOIITIII vocscticecctsensceccactitncsniacaaseneninaaananainn il

COUNTER-STATEMENT OF THE CASE ..c..ccccccccccsesseccccccccceee 1

ARGUMENT:

Point I—As the Court of Appeals found, the

Board of Medical Examiners rule forbidding

radiologists from discriminating against re-

ferrals from chiropractors does not violate the

Fourteenth Amendment in that it is supported

by the rational basis of assuring the avail-

ability of expert radiological services to all

patients needing it, and therefore certiorari

WOU BO GOUAIG cccecccccedeteeneion 4)

Point Il—The Court of Appeals properly

found both that “symbolic speech,” and there-

fore the First Amendment, are not involved

because the petitioners, upon receiving re-

ferrals from chiropractors, intended to do,

literally, nothing, and that, in any event, the

State and its agency are empowered to regu-

late activity which is conduct, and therefore

certiorari should be denied 20... ceseteeseeeeees 15

CRUORIIIIIET cccnnininnienctitinssiariatenttonadienmnaadlaaene 21

ii TABLE OF AUTHORITIES

PAGE

Table of Authorities

Cases Cited

Brodie v. N. J. Bd. of Medical Mxaminers, 177 N. J.

Super. 523 (App. Div. 1981), certif. den, S7.N. J.

I I oi atc saneaivietiptaebeneinensieneomnoesabaiennl 2, 4, 5, 12

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 91 S.Ct. 814, 28 L.d.2d 136 (1971) oe. 3

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.led,

BE eID ioisicniitsasassvnisiennineinntinssetaienivcetennitesdenteniehibin 11

Giboney v. Empire Storage & lee Co, 556 U.S, 490,

69 S.Ct. 684, 93 LATA. S84 (1949) ccc ccccccseecessseeseen 1s

Hamilton v. University of California, 293 U.S, 245,

55 S.Ct. 197, 79 L.Ed. 343 (1934) ee eeeceeeeeeees 14

Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 96 S.Ct. 2562, 49 L.Ed. 2d 520 (1976) ou... 10

McGowan v. Maryland, 366 U.S, 420, SL S.Ct. 1101,

ieee Oe Pe CRIED. prcttitesnsinrcscocnsnnsiionevoiesvensecrcensitvtcins 10

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 101 S.Ct. 715, 66 L.ed.2d 659 (19ST) 2. 10, 13

NAACP y. Claiborne Hardware Co,, —— U.S, ——,

103 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) ...............cce000 18,19

Ohralik v. Ohio State Bar Ass'n, 406 U.S. 447, 98

S.Ct. 1912, 56 L.ed.2d 444 (1978) ....0.. eae 18

Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727,

Be Re CURIE RIOD ccctescnvscessensnsitncnicvcncsiessinincccsnentiionint 16,17

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503, 89 S.Ct. 733, 21

RII UIIED socirccsitsnicodedhsiinbvnntetesnsntriceiiietaciasmetinadas 17

United States v. Carolene Products Co., 304 U.S. 144,

58 S.Ct. 778, 82 L.Ed. 1234 (1938) .............cccccersseeee 13

TABLE OF AUTHORITIES iii

PAGE

United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999,

GP MGR ROUNOY CRIED | ccvecccnccccinschasiemanicbcuiebcaienainesabenss 13

United States v. O’Brien, 391 U.S. 367, 88 S.Ct.

Ey ee Maen Ge EROS csr accemeitsececensinn 16

United States ex rel, Radich v. Criminal Court of

New York, 385 F.Supp. 165 (S.D.N.Y. 1974) 0... 18

Williams vy. Illinois, 399 U.S. 235, 90 S.Ct. 2018,

De RAPS BOO CEG OD ciccrmiiccecneciatpiraincnie 13

Williamson vy. Lee Optical of Oklahoma, 348 U.S.

483, 75 S.Ct. 461, 99 L.Ed. 563 (1954) .............cceeeee 10

Woods v. Holy Cross Hospital, 591 F.2d 1164 (Sth

RIN I adoskcroccecaccusnceicsrarmmcianaaiaeeaendaccuadimaleardamaadgain 1]

United States Constitution Cited

First Amendment ....000.00...0..-+.. sshaadecovinindecnciamaoiiany eae

TITOUOIRTES FATUNOIOI oii veces ccctccnssvenssaccotncgniocbumarssvec 9,10, 16

Statutes Cited

N.JS.A. 1035-1 et seq. (New Jersey Law Against

PON INI oii ia cas ca ccthdabecaemadentnscendeeeecctncaea teres 1]

N.S.A. 52:14B-1, et seq. (New Jersey Administra-

Ce: FID RED oa iinsvcmasenccsecniescctincoenieccoeeresnens 13

De eee a A COC) cers snes esediascpeintnanareceiaiousinteeons 13

42 ULS.C.A. (Civil Rights Act of 1964):

Sec. 1981, et seq. ..... sited geeatmemerendauionsnesder ous 1]

Regulation Cited

NJ.A.C. 13:35-G.18 occ ee res mE 1,2, 11

iv TABLE OF AUTHORITIES

PAGE

Other Authorities Cited

Fuchs, “Further Steps Toward a General Theory of

Freedom of Expression,” 18 Win. & Mary L. Rev.

(1976):

Ey POET. cccuahenvédncenmpinciionsintacciinetineaemgeainnied 19

Nimmer, “The Meaning of Syimbolie Speech Under

the First Amendment,” 21 U.C.LAA, L. Rev. (1973):

| GP sess iceradaesvsssaasaecrnsenso coe eeseieniand aaa secs erin eneemanase 17

“Symbolic Conduct,” 68 Colum. L. Rey. (1968):

Ng” BEET |. cocsdeseesecensusennegneceatinenteannansahinenkcomasceincalnn 17

“Symbolie Speech and Compelled IXxpression: Wool-

ly v. Maynard,” 1977 Utah L. Rev. (1977):

NS re ae Ee ee 17

NO.

IN THE

Supreme Court of the United States

Octoser ‘Term, 1982

MARVIN BRODIE, M.D., e¢ al.,

Petitioners,

Vv.

BOARD OF MEDICAL EXAMINERS FOR THE

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

»s

a

——

BRIEF OPPOSING PETITION FOR CERTIORARI ON

BEHALF OF RESPONDENT NEW JERSEY STATE

BOARD OF MEDICAL EXAMINERS

Counter-Statement of the Case

This case has come to this Court only after the peti-

tioners have been rebuffed, twice in State court and twice

in federal court, in their attack upon a rule of the New

Jersey State Board of Medical Examiners, N.J.A.C. 13 :35-

6.18, which requires physicians specializing in radiology to

provide diagnostic radiological services to chiropractic

physicians without discrimination on the basis of license

classification.* Though the petitioners have mentioned in

their petition for certiorari the adverse decisions of the

United States District Court for the District of New Jer-

sey and the United States Court of Appeals for the Third

Cireuit, they have not mentioned that the Appellate Divi-

sion of the Superior Court of New Jersey two years ago

found the rule sustained by a legitimate regulatory pur-

pose and that the Supreme Court of New Jersey subse-

quently refused further review. Brodie v. N. J. Bd. of

Medical Fxaminers, 177 N. J. Super. 528 (App. Div. 1981),

certif, den. 87 N. J. 886 (1981). For little wonder did both

federal courts thereafter find the Board rule entirely ap-

propriate under all pertinent constitutional standards. The

petitioners’ contentions are no less spurious now, and con-

sequently this Court should deny their application for

certiorari.

*In pertinent part N.J.A.C. 13:35-6.18 provides:

(b) A physician possessing a plenary license to prac-

tice medicine and surgery who provides diagnostic radio-

logical services for other physicians possessing a_ plenary

license to practice medicine and surgery shall, upon the

request of a chiropractic physician, provide diagnostic radio-

logical services to such chiropractic physician without dis-

crimination on the basis of classification of license, provided

the diagnostic radiological services rendered pertain to skeletal

areas of a body.

(c) Denial of professional diagnostic radiological ser-

vices, as set forth herein, shall constitute purposeful and

intentional discrimination and may subject the licensee to

appropriate disciplinary action by the Board of Medical

Examiners.

3

The Board determined to promulgate the rule after re-

ceiving 49 complaints from chiropractors and their patients

stating that the patients had been denied examination by

radiologists solely because they had been referred by chiro-

practors. As examples, the patient of one chiropractic

physician who suspected atelectasis—incomplete lung ex-

pansion—was kept waiting while suffering a pneumothorax

for over a half hour because the radiological group flatly

refused to take x-rays, while another chiropractic patient

in a great deal of pain referred for x-rays based upon a

history of spinal fusion was similarly refused.

As other examples, in a number of cases Medicaid or

Medicare patients were refused radiological services. In

one case the chiropractor nade a total of five unsuccessful

attempts to have x-rays taken in different hospitals, and

in another a Medicaid patient had to travel from Lone

Branch to Asbury Park to obtain x-rays after the local

radiological group had refused to accept the chiropractor’s

referral. Often Medicaid payment for x-rays requested by

a chiropractor could be had only through the circuitous

route of obtaining an added referral by a plenary physi-

cian at public expense. This matter was therefore of con-

siderable concern to the State Division of Medical Agsist-

ance and Health Services, which complained to the Board

on three separate occasions.

Although the Board initially took the position in 1976

that it would not require radiologists to accept chiroprac-

tic referrals, the problem was of such dimension that the

agency reconsidered the matter and, after an appearance

hefore it by petitioner Marvin Brodie, proposed the rule

on June 5, 1980. In response to the opportunity to submit

comments contained in its notice the Board received 276

letters from patients and 14 letters from chiropractors

favoring the rule. Only 11 letters and telegrams opposed

4

it, and only four contained anything more than conclusory

statements of opposition. Those four letters, from the

Radiological Society of New Jersey, the Medical Society

of New Jersey, the American College of Radiology and

the Morristown Radiology Associates, objected that the

rule exceeded the legal authority of the Board and asserted

that because chiropractic was based upon a different phil-

osophy of treatment the chiropractic patient would some-

how be better served by being altogether denied the

expert services of the radiologist. No examples or even

hypothetical situations in which this outeome would be

apparent were furnished. Deciding, therefore, that the

comments received did not warrant public hearing, the

soard adopted the rule on August 5, 1980.

Later that month Marvin Brodie and others filed a notice

of appeal with the Appellate Division of the Superior Court

of New Jersey, seeking injunctive relief from that court.

Upon being denied that relief they then filed a complaint

with the United States District Court, but that court too

denied a preliminary injunction while abstaining in order

that issues of State law might be decided in the State

appeal. On February 27, 1981 the Appellate Division unani-

mously affirmed the challenged rule, Brodie v. N. J. Bd. of

Medical Examiners, supra. Wolding that the Board pos-

sessed the statutory authority to adopt the regulation, 177

N. J. Super. at 530, the Appellate Division quoted at

length a March 28, 1980 letter from Dr. Edwin H. Albano,

President of the Board of Medical Examiners, to counsel

for petitioner Brodie:

[I]t is clear that a responsible chiropractor may

need expert radiology services to determine whether

chiropractic adjustment is appropriate and/or safe

for a given patient and it is an exercise of respon-

sible judgment for that chiropractor or for a podia-

5

trist to request such expert radiological procedures

before proceeding with independent patient manage-

ment. Where [radiologists] have made their serv-

ices available to all other competent physicians but

have selectively discriminated against chiropractors

and podiatrists as an entire class of limited licensees,

such conduet is found by the Board not to be in the

best interest of the people of this State.

So stating the rationale for the rule, the court found no

merit in the petitioners’ contentions that it interfered with

their right to exercise an independent professional judg-

ment or abridged any other rights. 7d, at 526. On June 3,

1981 the Supreme Court of New Jersey denied the peti-

tioners’ petition for certification.

The State litigation thus having been concluded, the

petitioners in August 1981 filed with the District Court

notices of motion to reopen the federal proceedings and to

take discovery from the Board members, seeking to have

the Board members, for example, “[ijdentify each and

every document referred to, examined, studied, read, dis-

cussed or which in any manner was connected with the

Board’s determination that the regulation should he

adopted.” With the Attorney General on behalf of the

Board moving for summary judgment, the District Judge,

Honorable H. Curtis Meanor, on February 22, 1982 de-

tailed at length his reasons for affirming the validity of

the rule. After noting that the regulation had been affirmed

by the Appellate Division and that the Supreme Court of

New Jersey had denied further review (PaB-2) and after

pointing out as well that no First Amendment nor other

fundamental right was implicated (Pab-5, 6), the judge

recognized that the appropriate standard of constitutional

review was to identify a rational basis for the rule and

said:

We had pointed out in oral argument that in some

circumstances physical conditions may exist that

would render the utilization of chiropractic adjust-

ments inadvisable and unsafe for a patient. I don’t

have exhaustive medical imagination, but in discus-

sions with Counsel we had the example of a patient

who has posterior broken ribs. . .,

If broken ribs appear, | would rather doubt that

manipulating those broken ribs and letting them fly

loose would be appropriate under the practice of

chiropractic. They could puncture a lung and cause

serious difficulty, [PaB-8]

Saying that the same conclusion would be drawn regard-

ing a possible herniated dise, Judge Meanor indicated that

such example would “serve to illustrate the type of infor-

mation that this regulation is trying to get to the chiro-

practor so the chiropractor can make his own judginent as

to whether the practice of his branch of the healing is safe

and proper under the circumstances” (PaB-8). As he

stated, “[I]t seems to me that this regulation has a legiti-

mate and rational goal” (PaB-9),

In affirming this judgment the United States Court of

Appeals pointed out that, under well-established principle,

social and economie regulation does not offend the due pro-

cess clause if the regulation is rationally related to a legi-

timate state purpose and that in this case “there is no dis-

pute that the New Jersey Board of Medical Examiners

had a legitimate purpose for promulgating the regulation

in question”—that of “insur[ing] that chiropractors have

access to information indicating whether a patient’s physi-

cal condition makes chiropractic treatment unwise or even

dangerous” (PaA-5), To survive the motion for summary

judgment, the petitioners would have had to allege some set

of facts which, taken as true, would suggest the absence of

a rational basis. The petitioners had not done so, for, even

assuming that radiologists would not be able to practice

in the manner in which they are accustomed, “{n]othing in

[their] affidavits undercuts the presumption that the regu-

lation will further the state’s interest in providing better

and safer medical care for the patients of chiropractors”

(PaA-5, 6).

With respect to the First Amendment claim, the Court

of Appeals observed that the petitioners had presented an

affidavit indicating that at least one radiologist intended

to communicate his disapproval of the chiropractic disei-

pline by refusing to accept referrals from chiropractors

(PaA-6, 7), but the court pointed out as well the proposi-

tion that a limitless variety of conduct cannot be labeled

“speech” whenever the person engaging in the conduct in-

tends to express an idea (PaA-7), Here the proposed con-

duet simply was not speech, for “there is nothing in the

record that suggests any likelihood that the actions of the

radiologists would be understood to communicate the in-

tended disapproval” (PaA-S). In any event, a government

regulation is justified if it is constitutionally authorized, if

it promotes a substantial governmental interest, if that

interest is unrelated to the suppression of free expression

and if the incidental restriction on alleged First Amend-

ment freedom is no greater than is essential to furthering

that interest (PaA-8), The court concluded:

[We are convinced that [the petitioners] could ad-

vance no evidence sufficient to warrant the invalida-

tion of the regulation, There is no question that the

Board is empowered to promulgate the regulation

and that the regulation furthers the important gov-

ernmental interest in safe health care—an interest

8

that is totally unrelated to the suppression of free

expression. And, although we find it diflieult to

believe that this regulation will have any impact

whatsoever on the right of radiologists to express

their individual or collective opinion of chiropractic,

any such impact will certainly be de minimis.

[PaA-8]

Radiologists remained free, moreover, to recommend that

patients consult with medieal doctors, to express their

views, orally or in writing, regarding any supposed evils

of chiropractic and to lobby the Board, the State Legisla-

ture or the Governor to modify or repeal the rule (PaA-8,

9). In the words of the Court of Appeals, “[{I]t would of-

fend reason to hold that this regulation is prohibited by

the first amendment” (PaA-),

A pair of State courts and a pair of federal courts have

thus determined that the petitioners’ challenge to the Board

of Medical Examiners regulation is unfounded, All of those

courts coneur that the rule is a legitimate exercise of State

authority to protect the publie welfare, Manifestly the

case offers no justification whatever for review by this

Court, and therefore the Attorney General on behalf of the

Board opposes the petition for certiorari,

ARGUMENT

POINT I

As the Court of Appeals found, the Board of Medical

Examiners rule forbidding radiologists from diserimin-

ating against referrals from chiropractors does not

violate the Fourteenth Amendment in that it is sup-

ported by the rational basis of assuring the availability

of expert radiological services to all patients needing

it, and therefore certiorari should be denied.

The insubstantiality of the petitioners’ contentions may

best be judged by the notable lack of enthusiam with which

they have been greeted by the four courts that have already

heard them. Despite the petitioners’ insistence upon at-

tacking the Board of Medical Examiners rule in forum

after forum in both the State and the federal domain, the

regulation is, self-evidently, nothing more than an entirely

conventional regulatory measure which is designed to pro-

hibit discrimination by one class of health care providers

against the patients of another and which is grounded upon

the indisputable authority of the State, here delegated to

an administrative agency, to protect the public health and

welfare. Two years ago the New Jersey courts concluded

both that the Board of Medical Examiners possessed the

legislative power to promulgate the rule and that it had

done so upon a plainly legitimate public purpose, infring-

ing upon no constitutional prerogative, while the United

States District Court and the United States Court of Ap-

peals have now concluded, similarly, that a rational basis

for the regulation exists and that no constitutional right

has been violated. As in the other tribunals, the petitioners

have presented to this Court not the slighest warrant for

the granting of certiorari, and therefore their petition in

that regard should be denied.

10

The standard which this Court has articulated for the

evaluation of allegations that State legislation violates the

Fourteenth Amendment is well-established and need be

only briefly repeated. State regulations will not be invali-

dated as violating due process “because they may be un-

wise, improvident, or out of harmony with a particular

school of thought.” Williamson v, Lee Optical of Oklahoma,

348 U.S. 483, 488, 75 S. Ct. 461, 99 L. Ed. 563 (1954).

Rather, “[i]t is enough that there is an evil at hand for

correction, and that it might be thought that the particu-

lar legislative measure was a rational way to correct it.”

Krom the equal protection standpoint, furthermore, “[t]he

constitutional safeguard is offended only if the classifica-

tion rests on grounds wholly irrelevant to the achievement

of the State’s objective. ... A statutory discrimination

will not be set aside if any state of facts reasonably may

be conceived to justify it.’ McGowan yv. Maryland, 3066

U.S, 420, 425-426, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1961). The

question is not whether the provision will actually fur-

ther a rational goal, but only whether a theoretical rela-

tionship exists between provision and purpose. Minnesota

vy. Clover Leaf Creamery Co., 449 U.S. 456, 463-464, 101

S. Ct. 715, 66 L.Ed. 2d 659 (1981).*

*This Court has departed from this deferential attitude only

with respect to the narrowest categories of classification. Strict

scrutiny will be applied “only when the classification impermissibly

interferes with the exercise of a fundamental right or operates to

the peculiar disadvantage of a suspect class.” Massachusetts Bd.

of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.

2d 520 (1976), with fundamental rights including matters such

as voting interstate travel and uniquely private activities, 427

U.S. at 312, n. 3, and suspect classes including only race, ancestry

and alienage. /d., n. 4. Only then is a court to demand a com-

(Footnote continued on following page)

11

These principles unquestionably apply to this Board of

Medical Examiners rule. Far from constituting “misap-

plied broad dicta” (Pb10), they constitute the essence of

due process/equal protection adjudication, affording the

appropriate reconciliation of the relationship between indi-

viduals and their government, and they unerringly demon-

strate the validity of this regulation. Both on its face and

in light of the background material drawn up by the Ap-

pellate Division, the rule clearly has an underlying reason-

able basis, for it is an anti-discrimination provision, re-

quiring a radiologist to “provide diagnostic radiological

services to [a] chiropractic physician without discrimina-

tion on the basis of classification of license,” N.J.A.C. 13:

35-6.18, and in no way distinguishable from the varous fed-

eral and State statutes forbidding discrimination on the

basis of circumstances legislatively deemed irrelevant. See

e.g. Civil Rights Act of 1964, 42 U.S.C.A. §1981 et seq.;

New Jersey Law Against Discrimination, N.J.S.A. 105-1

et seq. The provision is, then, an entirely reasonable and

appropriate regulatory measure designed to assure the

availability of radiological services to all in need of them.

However much the language of the rule may speak for

itself regarding its rational regulatory purpose, further il-

lumination has been provided by the Appellate Division.

That court quoted in its entirety a March 28, 1980 letter

from Dr. Edwin H, Albano, President of the Board of

(Footnote continued from preceding page)

pelling reason for a classification, and a “fair and substantia! re-

lationship” with a legitimate State end is demanded only regard-

ing a gender-based classification. Craig v. Boren; 429 U.S. 190,

197, 97 S.Ct. 451, 50 LuEd, 2d 397 (1976). The pursuit of a

medical practice does not involve a fundamental right. Ioods

v. Holy Cross Hospital, 591 F.2d 1164, 1173 n. 16 (5th Cir.

1979).

12

Medical Exminers, to counsel for Marvin Brodie, a plain-

tiff in the State litigation, Brodie v. N. J. Board of Medi-

cal Examiners, supra, 177 N. J. Super. at 527-528, and a

petitioner in this Court. Observing that “a responsible

chiropractor may need expert radiology services to deter-

mine whether chiropractic adjustment is appropriate and/

or safe for a given patient” and that it is “an exercise of

responsible judgment for that chiropractor . .. to request

such expert radiological procedures before proceeding with

independent patient management,” Dr, Albano stated the

Board finding that such selective discrimination is “not...

in the best interest of the people of this State.” /d. at 528.

No more definitive statement of a rational purpose for a

legislative provision can be imagined, and it is thus not

surprising that both the District Court and the Court of

Appeals thereafter swiftly concurred by rejecting the peti-

tioners’ claim.

Only brief response is needed concerning the petitioners’

other contentions. They hypothesize that the Court of Ap-

peals has somehow “confus{ed]” the standards pertaining

to due process and equal protection challenges (Pb12), yet

that court made no such error. As the Ninth Circuit has

observed:

When conduct, either by virtue of its inadequate

foundation in the continuing traditions of our so-

ciety or for some other reason, such as lack of con-

nection with interests recognized as private and pro-

tected, is subject to some government regulation, then

analysis under the substantive due process clause

proceeds in much the same way as analysis under

the lowest tier of equal protection scrutiny. A ra-

tional relation to a legitimate government interest

will normally suffice to uphold the regulation, [Bel-

ler y. Middendorf, 632 F. 2d 788, S08 (9th Cir. 1980),

13

cert, den. sub nom. Beller vy. Lehman, 452 U.S. 905,

101 S. Ct. 3030, 69 L.led, 2d 405 (1981) }

It is only when the government seriously intrudes into

matters lying at the core of interests deserving due pro-

cess protection that strict scrutiny will be utilized. Jbid.

See Wiiliams vy. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26

L.Ed. 2d 586 (1970) (Harlan, J., concurring). Here, as

noted, the “interest” which these petitioners assert is in no

respect connected with any fundamental right and is there-

fore subject to any reasonable governmental control.

This most minimal of review standards most assuredly

does not authorize the sort of plenary trial which the peti-

tioners have always desired in this case. Such procedure

would be blatantly contradictory of the rational basis test,

given that proofs are to be allowed only when the exist-

ence of a rational purpose for the legislation is genuinely

in doubt; when, as here, there is no doubt whatever in this

regard, judgment validating the enactment must be granted

without more, Minnesota vy. Clover Leaf Creamery Co.,

supra; United States vy. Carolene Products Co., 304 U.S.

144, 153-154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). It would

be contradictory as well of the proposition that an admin-

istrative agency head may not be subjected to intensive

inquiry concerning the reasoning underlying a particular

decision whose rationale is evident from its language and

circumstantial context. United States v. Morgan, 313 U.S.

409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941); Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814,

298 L.Ed. 2d 136 (1971). Finally, it would ignore the fact

that under the New Jersey Administrative Procedure Act,

N.J.S.A. 52:14B-1 et seq., agency rulemaking of a non-emer-

gent character may proceed only after all interested per-

sons are afforded the reasonable opportunity for submit-

ting comments, N.J.S.A. 52:14B-4(a), an opportunity which

14

was provided here. Consequently, however much the peti-

tioners may wish to conduct an inquisition of the members

of the Board of Medical Examiners, both before and dur-

ing trial, the District Court and the Court of Appeals cor-

rectly concluded that their demand was wholly improper."

The agency regulation at issue in this case is indistin-

szuishable from the vast number of rules promulgated by a

multitude of administrative agencies in every state across

* The petitioners cannot escape this conclusion by seeking to

erect a distinction between a legislative requirement adopted by

the Legislature itself and a requirement adopted by one of the

Legislature’s designated administrative agencies. As this Court has

said:

It of course rests with each state to determine in what

form and by what agencies its legislative power may be

exerted. It may legislate little or much in its constitu-

tion, may permit the electorate to make laws by direct

vote, may entrust its legislature with wide law-making

functions and may delegate legislative authority to sub-

ordinate agencies, such as municipal councils and state com-

missions. [King Mfg. Co. v. Augusta, 277 U.S. 100, 103,

58 S.Ct. 489, 72 L.Ed. 801 (1928) ].

For purposes of federal judicial review, the concept “statute”

includes “every act legislative in character to which the State gives

sanction, no distinction being made between acts of the State Legis-

lature and other exertions of the state law-making power.” Hamil-

ton v. University of California, 293 U.S. 245, 258, 55 S.Ct. 197,

79 L.Ed. 343 (1934).

Again, however, the overriding point is that the Board of Medi-

cal Examiners rule is a self-evidently rational and legitimate pro-

vision designed to protect the public welfare. As four courts

have already found, its very language, not to mention the back-

ground information provided by the letter of Board President

Albano, demonstrates its purpose of making available radiological

services to patients who previously had been denied access to

them. No factual probing through discovery or trial could pos-

sibly undercut this rational basis.

15

the nation. All of them are designed, in one way or other,

to promote the publie good, All of them cause discomfort

to some private interest. None of them is invalid on that

account. Having had their due in both State and federal

court, the petitioners have shown not the slightest justifica-

tion for further consideration by this Court, and therefore

their petition for certiorari should be denied.

POINT II

The Court of Appeals properly found both that

“symbolic speech,” and therefore the First Amend-

ment, are not involved because the petitioners, upon

receiving referrals from chiropractors, intended to do,

literally, nothing, and that, in any event, the State and

its agency are empowered to regulate activity which

is conduct, and therefore certiorari should be denied.

If one were to entertain even the possibility of the peti-

tioners having set forth a cognizable cause of action, the

thought would be immediately dispelled by their singular

proposal that non-compliance with the Board of Medical

Examiners rule forbidding discrimination against chiro-

practic referrals constitutes “symbolic speech” which must

be shielded by the full panoply of First Amendment pro-

tections.* Notwithstanding that the regulation is in all re-

spects an entirely rational means of assuring the avail-

ability of radiological services and notwithstanding that a

federal court is not to interfere with the operation of such

* Although the petitioners have mentioned their First Amend-

ment argument in this Court as well as in the Court of Appeals

and the District Court, it may be pointed out that both their

original complaint and their amended complaint are bereft of any

such allegation.

16

a reasonably-based legislative measure, see Point I, supra,

the petitioners argue in essence that any and all individ-

uals subject to any sort of governmental regulation in the

public interest may avoid the regulatory requirements

through the verbal sleight of hand of sticking a Tirst

Amendment label upon their refusal to conform to the law.

Any physician not comprehending the wisdom of Food &

Drug Administration limitations on the use of unauthor-

ized drugs may dispense the substances, or at least have a

federal court serutinize closely the focus of the federal

agency rulemaking, because doing so constitutes his way of

“symbolically” expressing his own perception of proper

medical practice, Any owner of a public accommodation

operating in interstate commerce may circumvent the statu.

tory prohibition of racial discrimination because his ex-

clusion of particular persons is his “symbolic” way of ex-

pressing dissatisfaction with prevailing social values, The

proposition is absurd,

This Court has long recognized the obvious and neces-

sary distinction between speech, which is protected by the

First Amendment, and conduet, which is not, As this Court

has said, “We cannot accept the view that an apparently

limitless variety of conduct can be labeled ‘speech’ when-

ever the person engaging in the conduct intends thereby

to express an idea.” United States y, O'Brien, 391 US.

367, 376, 88 S.Ct. 1673, 20 L.d, 2d 672 (1968), Conse-

quently, in every instance in which the contention is

pressed the critical threshold question must be confronted

— ‘whether [the litigant’s] activity was sufliciently imbued

with elements of communication to fall within the scope

of the First and Fourteenth Amendments... .” Spence vy.

Washington, 418 U.S, 405, 409, 94 S.Ct. 2727, 41 Ld 2d

842 (1974). As one federal court has observed, in order

for conduct to be a surrogate of speech it must have char-

acteristics which readily identify it as such:

17

lirst, the conduct should be assertive in nature,

This will generally mean that the conduct is a de-

parture from the actor’s normal activity and cannot

adequately be explained unless a desire to communi-

cate is presumed. Second, the actor must have rea-

son to expect that his audience will recognize his

conduct as communication, .... [United States ex rel,

Radich y. Criminal Court of New York, 385 F.Supp.

165, 173 n, 33 (S.D.N.Y. 1974) ]

The Radich court quoted “Symbolic Conduct,” 68 Colum.

L. Rev, 1091, 1117 (1968), and other commentators have

also pointed out the wholly conventional proposition in-

volved, “Symbolic Speech and Compelled Expression:

Wooley v. Maynard,” 1977 Utah L, Rev, 797, 799 (1977) ;

Nimmer, “The Meaning of Symbolic Speech Under the

First Amendment,” 21 U.C.L.A. DL. Rev, 29, 36 (1973).

Plainly, the conduct in which these petitioners intend

to engage is not speech, symbolic or otherwise, As the

Court of Appeals found, “[T]here is nothing in the reeord

that suggests any likelihood that the actions of the radiolo-

gists would be understood to communicate the intended

disapproval” (PaA-S), They do not intend to aflix a peace

symbol to an American flag hanging outside an apartment

window shortly after a military invasion, Spence v, Wash-

ington, supra, and they do not intend to wear black arm

bands, an extraordinary mode of dress obviously designed

to he protest. Tinker y. Des Moines Independent Com-

munity School District, 393 U.S, 508, 89 8.Ct. 733, 21 L.Ed.

9d 731 (1969). Instead, they propose to do, literally, noth-

ing, for they will simply not aecept referrals from chiro-

practors supposedly to express their belief that the radio-

logical and medical professions and the government should

not condone or support chiropractic, They have no “reason

to expect that [their] audience will recognize [their] con-

1s

duct as communication.” United States ex rel. Radich vy.

Criminal Court of New York, supra. Vhose not participat-

ing in this non-transaction, if noticing at all, will merely

shrug; those turned away will be justifiably annoyed and

angry. The publie policy favoring freedom of expression

will not be advanced even slightly.

The First Amendment is not to be used to erase all gov-

ernment power to regulate in the interest of the public

health, safety and welfare, ven if “speech” be assumed to

he somehow involved in a particular case, “it has never

heen deemed an abridgment of freedom of speech or press

to make a course of conduet illegal merely because the eon-

duet was in part initiated, evidenced, or carried out by

means of language, either spoken, written, or printed,”

Ohralik vy. Ohio State Bar Ass'n, 436 US, 447, 456, 98 S.Ct.

1912, 56 Led. 2d 444 (1978), quoting Giboney v. Empire

Storage & Ice Co, 336 US, 490, 502, 69 S.Ct, 684, 99 Led,

834 (1949). It is one matter, certainly, if the governmental

regulation is directed against speech as such, but it is quite

another matter when the legislative measure is foeused

upon activities legitimately considered contrary to the pub-

lie good, As this Court said in the Giboney case concern-

ing an injunction against labor picketing, “It rarely has

heen suggested that the constitutional freedom for speech

and press extends its immunity to speech or writing used

as an integral part of conduct in violation of a valid erimi-

nal statute, We reject the contention now.” 336 U.S, at

498,*

* Although cited by the petitioners (Pb17), NAACP vy. Clai-

horne Hardware Co., ———- U.S, ———, 103 S.Ct. 3409, 73 L.Ed,

24 1215 (1982), hardly supports their contention, ‘There this

Court, while’ concluding that liability could not be imposed upon

participants in a generally non-violent and politically motivated

(Footnote continued on following page)

19

Both the District Court and the Court of Appeals under-

stood that whenever a litigant asserts a supposed right of

free expression in defense to some governmental restraint

upon his conduct, the reviewing court must consider the

claim upon a number of criteria. It must first evaluate the

contention upon the recognition that most human conduct

does not constitute “symbolic speech,” but is conduct pure

and simple and may he controlled under the police power.

The court must recognize further that, even assuming free

expression to be somehow involved, the boundaries of the

right to express oneself freely are delineated by the rights

of others not to be intruded upon and, of particular im-

portance to the present case, to enjoy the benefits afforded

them by legitimate governmental regulation. See gener-

ally, Fuchs, “Further Steps Toward a General Theory of

Freedom of expression,” 18 Wm. & Mary L. Rev. 347, 375-

377 (1976).

The Board of Medical Examiners rule in question here

plainly is an example of such legitimate governmental regu-

lation, It deals solely with conduct—the petitioners’ re-

fusal to offer their services to patients who have sinned

(Footnote continued from preceding page)

boycott, recognized nonetheless “the strong governmental interest

in certain forms of economic regulation, even though such regu-

lation may have an incidental effect on rights of speech and asso-

ciation.” 73 L.Ed. 2d at 1235. Unlike earlier cases in which the

First Amendment had not protected concerted efforts to control

the marketplace, the Claiborne Hardware petitioners had been seek-

ing to vindicate rights secured by the Fourteenth Amendment,

“not to destroy legitimate competition” in the face of government

attempts to preserve it. The decision thus restricts not at all the

legitimate power of government to enact a provision such as

the Board of Medical Examiners rule, whose purpose obviously

is not the suppression of speech, but the furtherance of the public

health and welfare.

20

only by being referred by a chiropractor, The petitioners

and all other radiologists remain free to expound at length

to all who will listen concerning their dissatisfaction with

the provision in particular and with chiropractic licensing

in general. Indeed, they are at liberty to persuade as

many as possible that the regulatory system should be dis-

mantled. The issue is not that of requiring “alternative

means of expression” (Pb17), for the petitioners’ refusal

to accept chiropractic referrals is not expressive at all and

is, in any event, obviously open to government control, The

issue is only whether the petitioners may impose upon the

public through their conduct their own personal views

rather than the quasi-legislative judgment of the Board

of Medica! Examiners and thereby deny the statutorily-

guaranteed right to chiropractic treatment. With the Court

of Appeals as well as the District Court having resolved

that question against them, the petitioners have shown no

justification for review by certiorari. Their petition in

that regard should be denied,

21

CONCLUSION

It is respectfully submitted that for these reasons

the petition for certiorari should be denied.

Respectfully submitted,

Irwin I. KiMMELMAN,

Attorney General of New Jersey,

Attorney for Respondent New Jersey

State Board of Medical Examiners,

By Berrram P. Gorrz, Jr.,

Deputy Attorney General.

Dated: May 10, 1983

James J. CIancta,

Assistant Attorney General,

Of Counsel.

Bertram P, Gourz, Jr.,

— Attorney General,

n the Brief.