228 F.3d 1043 (9th Cir. 2000), 99-15243, Advancement Psychoanalysis v. Ca. Psychology

Docket Nº:99-15243
Citation:228 F.3d 1043
Party Name:NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF PSYCHOANALYSIS, a Delaware corporation; CEDRUS MONTE; ALLAN D. SOWERS; LIONEL CORBETT, Plaintiffs-Appellants, v. CALIFORNIA BOARD OF PSYCHOLOGY, a state board (Board); BILL LOCKYER, California State Attorney General; STATE OF CALIFORNIA; THOMAS O'CONNOR, the Board's executive officer Page 1044 in his of
Case Date:September 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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228 F.3d 1043 (9th Cir. 2000)



CALIFORNIA BOARD OF PSYCHOLOGY, a state board (Board); BILL LOCKYER, California State Attorney General; STATE OF CALIFORNIA; THOMAS O'CONNOR, the Board's executive officer

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No. 99-15243

United States Court of Appeals, Ninth Circuit

September 29, 2000

Argued and Submitted April 13, 2000

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[Copyrighted Material Omitted]

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Jeffrey S. Love, Lane Powell Spears Lubersky LLP, Portland, Oregon, for the plaintiffs-appellants.

Kerry Weisel, Deputy Attorney General, Oakland, California, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; William H. Orrick, District Judge, Presiding. D.C. No. CV 97-3913 WHO.

Before: A. Wallace Tashima and Susan P. Graber, Circuit Judges, and Robert J. Kelleher,[*] Senior district Judge.

TASHIMA, Circuit Judge:

Plaintiff psychoanalysts Lionel Corbett, Cedrus Monte, and Allan Sowers, and the National Association for the Advancement of Psychoanalysis ("NAAP") (collectively "plaintiffs") sued defendants, members of the California Board of Psychology ("Board"), and the Attorney General of California, for declaratory and injunctive relief under 42 U.S.C. § 1983. Plaintiffs allege that California's mental health licensing laws, which regulate the practice of psychology and other professions, restrict their First and Fourteenth Amendment rights. Specifically, they assert that the licensing scheme prohibits them from practicing psychoanalysis in California. The district court held that plaintiffs failed to state a claim under Federal Rule of Civil Procedure 12(b)(6), and dismissed their complaint and the action. We affirm.


A. Psychoanalysis and Psychology

Psychoanalysis and Psychology "Psychoanalysis" is defined in Stedman's Medical Dictionary (25th ed. 1990) as:

[A] method of psychotherapy, originated by Freud, designed to bring preconscious and unconscious material to consciousness primarily though the analysis of transference and resistance. . . . A method of investigating the human mind and psychological functioning, especially through free association and dream analysis in the psychoanalytic situation.

Id. at 1284; see also American Medical Association Encyclopedia of Medicine 831 (1989) ("The psychoanalyst is usually a doctor of medicine.").1

"Psychology" has been defined as:

The scientific study of mental processes. Psychology deals with all internal aspects of the mind, such as memory, feelings, thought, and perception, as well as

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external manifestations, such as speech and behavior. It also addresses intelligence, learning and the development of personality. Methods employed in psychology include direct experiments, observations, surveys, study of personal histories, and special tests (such as intelligence tests and personality tests).

Id. at 832 (emphasis omitted). Psychology includes various approaches, including "psychoanalytic psychology, " which "stresses the role of the unconscious and childhood experiences." Id.

B. Licensing Scheme

The profession of psychology has been regulated in California since 1958, when the Legislature enacted the Psychology Certification Act, Cal. Bus. & Prof. Code ' § 2900-2980 (1958), which "served only to protect the title `psychologist,' " but did not define the practice of psychology. Executive Summary, California Board of Psychology, Sunset Review Report , at 1 (October 1, 1997) ("Sunset Report"). In 1967, the Legislature "recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology" and enacted the Psychology Licensing Law, Cal. Bus. & Prof. Code ' § 2900 2996.6 (1968). Sunset Report at 1. That law includes a legislative finding that the "practice of psychology in California affects the public health, safety, and welfare and is to be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of psychology." Cal. Bus. & Prof. Code § 2900.

The California Business and Professions Code defines a "psychologist" as a person so representing himself or herself "to the public by any title or description," including "psychoanalysis" and "psychoanalyst." Cal. Bus. & Prof. Code § 2902(c). The practice of psychology in California requires a license and is defined as rendering any psychological ser vice to the public "for a fee." Id. § 2903 (stating that "[n]o person may engage in the practice of psychology, or represent himself to be a psychologist, without a license" unless other wise specified by statute).

To qualify for a license to practice psychology in California, an applicant must possess a doctorate, or a degree deemed 12505 equivalent, in psychology or a related field such as education psychology. See id. § 2914(b). An applicant must have at least two years of supervised professional experience under the direction of a licensed psychologist. See id. § 2914 (c). In addition, an applicant must pass the Board's examination, complete training in substance dependency, and fulfill course work requirements in partner abuse and human sexuality. See id. § 2914 (d)-(f). Any violation of the laws regulating psychologists can be punished as a misdemeanor.

Section 2529 of the Business and Professions Code, relating to research psychoanalysts, is the only part of the statute that specifically addresses the qualifications of psychoanalysts. Under § 2529, graduates of four, specific, California psychoanalytic institutes, or institutes deemed equivalent, "may engage in psychoanalysis as an adjunct to teaching, training, or research and hold themselves out to the public as psychoanalysts . . . ." Id. § 2529. Under the regulations, a research psychoanalyst may render psychoanalytic services for a fee for only a third (or less) of his or her professional time. See Cal. Code Regs. ("C.C.R."), tit. 16 § 1371. If they register with the state, students and graduates also "may engage in psychoanalysis under supervision, provided " that they do not imply in any way that they are licensed to practice psychology. Cal. Bus. & Prof. Code § 2529."Physicians and surgeons, psychologists, clinical social workers, and marriage, family and child counselors, licensed in this state " need not register to engage in research psychoanalysis. See 16 C.C.R. § 1369.

The licensing laws do not prevent "qualified members of other recognized professional groups," including physicians, clinical social workers, family and child

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counselors, attorneys and ordained members of recognized clergy, from doing work of a psychological nature consistent with the laws governing their respective professions, provided that they do not hold themselves out to the public as psychologists or use terms that 12506 imply they are licensed to practice psychology. Cal. Bus. & Prof. Code § 2908.

C. Plaintiffs

The NAAP is a membership association of professional psychoanalysts dedicated to encouraging the study of, and improving the practice of, psychoanalysis in the United States and other countries. Its membership includes more than 1,000 certified psychoanalysts and more than 400 psychoanalyst candidates-in-training. The NAAP alleges that it has lost income from membership dues as a result of California's licensing scheme. According to the complaint, the NAAP filed suit "on its own behalf, as a representative of its members whose practice of psychoanalysis in California allegedly has been unreasonably restricted by California law, and on behalf of California residents who are prevented from retaining those NAAP members for professional psychoanalysis."

Plaintiff Corbett is a physician licensed to practice in three states and England, but not in California, because he lacks a one-year medical residency in the United States or Canada. He has been certified as a Diplomate Jungian Analyst by the C.G. Jung Institute of Chicago, which does not award a doctorate degree.2 Dr. Corbett is currently a professor at the Pacifica Graduate Institute in Santa Barbara, California, where he trains psychology Ph.D. candidates in the theory and practice of psychoanalytic psychotherapy. He has held academic appointments in departments of psychiatry at four United States medical schools.

Plaintiff Monte, who lives in California, has a master's degree in psychology from California State University at Sonoma and a diploma in analytical psychology from the C.G. Jung Institute in Zurich, Switzerland. Monte undertook clinical training in psychoanalysis in Switzerland, where she paid her supervisors and saw clients at a different site from her supervisors. Monte has been ordained as a Diplomate Jungian Analyst by the Association for the Integration of the Whole Person, a religious organization chartered in California. Monte would be eligible for a psychology license in California only if she completed additional courses and acquired supervised professional experience.

Plaintiff Sowers holds a master's degree in divinity and a certificate in psychoanalysis from the National Psychological Association for Psychoanalysis in New York City. Sowers is certified as a pastoral counselor in the Presbyterian Church and certified as a psychoanalyst in the State of Vermont. He is a resident of New York, but...

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