Colorado Soc. of Community and Institutional Psychologists, Inc. v. Lamm

Decision Date20 July 1987
Docket NumberNo. 85SA149,85SA149
PartiesCOLORADO SOCIETY OF COMMUNITY AND INSTITUTIONAL PSYCHOLOGISTS, INC., a Colorado nonprofit corporation; Richard Aldrich; Ernest L. Aragon; Leo Paul Arguello; Diane Glass Bails; Nancy K. Buckley; Brenda Kay Byers; John Regan Connor; Prudencio Aranbula Cosyleon; Robert M. Crowley; David T. Daniel; Irene M. Elmer; Anthony Raymond Gradisar; Michael Hnatiow, Jr., Ph.D.; David Dennis Holt; William Alexander Howard; Robert James; Leo John Keller II; Robert Gary Kepplinger; Frank C. Lee; Edward Joseph Lemonie, Jr., Ed.D.; Mike Mares, Jr.; Richard Allen Marr, Ed.D.; SeEtta R. Moss; William Chauncey Muse; Patricia Donice Neal; John S. Pickup; Nefeli H. Schneider; Larry Dean Seley; Wallace Ellis Smith, Ph.D.; Wayne Austin Smyer; Ingo Stange; Curtis Franklin Stensrude, Ph.D.; Janice E. Temple; Curtis B. Tuffin, Plaintiffs- Appellees, v. Richard D. LAMM, in his official capacity as Governor of Colorado; the Colorado Department of Regulatory Agencies; Wellington E. Webb, in his official capacity as Executive Director of the Department of Regulatory Agencies; and Colorado State Board of Psychologist Examiners, in its official capacity, Defendants-Appellants.
CourtColorado Supreme Court

Sheila H. Meer, P.C., Sheila H. Meer, Denver, for plaintiffs-appellees.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cathy H. Greer, Asst. Atty. Gen., Denver, for defendants-appellants.

ERICKSON, Justice.

The Governor of Colorado, the Colorado State Board of Psychologist Examiners, and the Colorado Department of Regulatory Agencies and its executive director (the defendants), appeal from a judgment of the Denver District Court holding that legislation eliminating certain exemptions to the licensing requirements imposed upon the practice of psychology violated the due process and equal protection guarantees of the United States and Colorado Constitutions. U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25. We reverse. In our view, the amendments to section 12-43-114, 5 C.R.S. (1985), bear a rational relationship to a legitimate governmental interest, and the plaintiffs do not have a constitutionally protected property right to practice psychology under repealed exemptions to the licensing act.

I.

Sections 12-43-101 to -120, 5 C.R.S. (1985) (the Act), regulate the practice of psychology in the State of Colorado. The Act provides for the licensing of psychologists practicing in Colorado, and makes it a misdemeanor for unlicensed persons to practice psychology or to represent themselves as psychologists. §§ 12-43-108, -109, -112, 5 C.R.S. (1985). The Act establishes a State Board of Psychologist Examiners (Board), which administers the Act, and authorizes the Board to examine applicants for licensure and to deny, withhold, or approve the issuance of a license to practice psychology. § 12-43-104, 5 C.R.S. (1985). The Board is empowered to conduct disciplinary proceedings, and, for cause, may revoke or suspend the license of any psychologist subject to the Act. §§ 12-43-104, -111, 5 C.R.S. (1985). The Act also provides a series of exemptions from its application. § 12-43-114, 5 C.R.S. (1985).

In 1981, the General Assembly enacted comprehensive amendments to the Act. The amendments replaced the concept of certification with one of licensure, and repealed certain exceptions to the requirements of the Act. See Ch. 141, sec. 19(2), *709s 12-43-114, 1981 Colo.Sess.Laws 786, 798. The repealed exemptions included:

1. An exception for the activities, services and use of an official title on the part of a person in the employ of a federal, state, county, or municipal agency, insofar as the activities, services, and use of an official title are a part of the duties of his position with the agency, institution, private agency or business, or a private agency or business in which the psychological services performed are required by a salaried position, if the private agency or business does not charge a fee for such services;

2. An exception for the employment of a person by a private nonprofit agency exempt from federal tax under section 501(c)(3) of the Internal Revenue Code of 1954;

3. An exception for the employment of a person certified according to the provisions of the Act by a person who is licensed to practice medicine and who has been certified by the American board of psychiatry and neurology; and

4. An exception for a person employed by a corporation, partnership or business association, if the psychological services performed are limited to the employees of the corporation, partnership or business association.

§ 12-43-114(1)(a), (3), 5 C.R.S. (1978). 1

In addition, the General Assembly in 1981 created new exemptions from the Act for (1) out-of-state licensed psychologists engaged in a limited Colorado practice, and (2) qualified out-of-state psychologists who are recruited by public agencies or nonprofit organizations, and who are approved for licensure within one year of establishing Colorado residency. § 12-43-114(7), (8), 5 C.R.S. (1985). 2 The 1981 amendments also provided exemptions for certain counselors, school psychologists, ministers, priests, or rabbis who do not hold themselves out as psychologists. § 12-43-114(9), (10), 5 C.R.S. (1985). 3

In 1982, the General Assembly again amended the Act, and reenacted a limited exemption for nonlicensed persons employed by a public agency as of June 1, 1982. See Ch. 53, sec. 1, § 12-43-114(11), 1982 Colo.Sess.Laws 264. The exemption provides:

The use of the title psychologist may be continued by a nonlicensed person who, as of July 1, 1982, is employed by a federal, state, county, or municipal agency or by other political subdivisions or any educational institution chartered by the state, but only so long as such person remains in the employment of the same institution or agency and only in the course of conducting duties for such agency or institution.

§ 12-43-114(11), 5 C.R.S. (1985).

In response to the 1981 and 1982 amendments to the Act, the Colorado Society of Community and Institutional Psychologists, Inc., and thirty-four individual plaintiffs brought suit in Denver District Court challenging the constitutionality of the amendments. Each individual plaintiff alleged an exemption from the provisions of the Act prior to its amendment in 1981 and claimed to have been injured by their current inability to hold themselves out as psychologists or to practice psychology. The plaintiffs sought an order enjoining enforcement of the amended Act, and declaring their right either to continue practicing psychology without a license, or to take the test for licensure without meeting the requirements of the Act.

After a seven-day trial, the court entered judgment in the plaintiffs' favor on March 7, 1984. The court found, as a matter of law, that the Act as amended was unconstitutional on its face and as applied to the plaintiffs. The court concluded: "There is no possible application of the amendments which will safeguard the life, health, or welfare for the public of Colorado and guarantee substantive and procedural due process and equal protection to plaintiffs and persons like them." The trial court entered an order enjoining enforcement of the 1981 and 1982 amendments against the plaintiffs and all others similarly situated, and requiring that the plaintiffs be restored to the jobs and employment status they enjoyed prior to the adoption of the amendments. The trial court also awarded attorney fees and costs to the plaintiffs pursuant to 42 U.S.C. §§ 1983, 1988 (1982).

The defendants appealed, see section 13-4-102(1)(b), 6 C.R.S. (1973), and asserted: (1) that the Act, as amended, is constitutional on its face and as applied; (2) that the trial court exceeded its jurisdiction by granting relief to "similarly situated" persons not parties to the suit; (3) that the relief granted was too broad; and (4) that the state-employed plaintiffs failed to exhaust their administrative remedies. 4 Because we conclude that the Act, as amended, is constitutional, we do not consider the defendants' remaining contentions.

II.

The substantive guarantees of the due process clauses of the United States and Colorado Constitutions require that legislation bear a rational relationship to a legitimate end of government. Chiappe v. State Personnel Board, 622 P.2d 527 (Colo.1981); People ex rel. Losavio v. J.L., 195 Colo. 494, 580 P.2d 23 (1978); J. Nowak, R. Rotunda, & J. Young, Constitutional Law 443 (2d ed. 1983). Similarly, where a legislative classification neither draws a distinction based on a suspect class, nor impinges upon a fundamental right, the Equal Protection Clause of the fourteenth amendment to the United States Constitution requires only that the court determine whether the classification bears a rational relationship to a permissible governmental purpose. 5 See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Branson v. City of Denver, 707 P.2d 338, 340 (Colo.1985); Torres v. Portillos, 638 P.2d 274, 276 (Colo.1981); J. Nowak, R. Rotunda, & J. Young, Constitutional Law 591 (2d ed. 1983). A presumption exists that statutes are constitutional, and the party challenging a statute must prove its unconstitutionality beyond a reasonable doubt. Kibler v. State, 718 P.2d 531, 534 (Colo.1986); Palmer v. A.H. Robins Co., 684 P.2d 187, 214 (Colo.1984); People ex rel. City of Arvada v. Nissen, 650 P.2d 547, 550 (Colo.1982).

The due process and equal protection guarantees of the United States Constitution do not pose significant restraints on the government's ability to act in areas of economic or social welfare. J. Nowak, R. Rotunda, & J. Young, Constitutional Law 448 (2d ed. 1983). A challenged governmental act involving economic or social matters will be struck down only if no reasonably conceivable set of facts...

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