Fields v. District of Columbia

• Decision Date: 02 February 1968
• Docket Number: No. 21185.,21185.
• Citation: 404 F.2d 1323,131 US App. DC 346
• Parties: Norman FIELDS, Petitioner, v. DISTRICT OF COLUMBIA, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 346, 404 F.2d 1323 (1968)

Norman FIELDS, Petitioner, v. DISTRICT OF COLUMBIA, Respondent.

No. 21185.

United States Court of Appeals District of Columbia Circuit.

Decided February 2, 1968.

Mr. George Greenberg, Washington, D. C., was on the petition for petitioner.

Messrs. Charles T. Duncan, Corporation Counsel for the District of Columbia, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton and John R. Hess, Asst. Corporation Counsel, were on the opposition to the petition for respondent.

Mr. Warren E. Magee, Washington, D. C., filed a memorandum on behalf of the Medical Society of the District of Columbia as amicus curiae in support of petition for reconsideration.

Mr. Robert W. Burton, Washington, D. C., filed memoranda on behalf of Contact Lens Society of America, Inc. and Guild of Prescription Opticians of Washington, D. C., Inc., as amici curiae in support of petition for reconsideration.

Mr. M. Joseph Stoutenburgh, Washington, D. C., filed a memorandum on behalf of the Guild of Prescription Opticians of America, Inc., as amicus curiae in support of petition for reconsideration.

Before DANAHER, LEVENTHAL and ROBINSON, Circuit Judges.

PER CURIAM:

This is a petition for allowance of an appeal from the District of Columbia Court of Appeals. The District of Columbia Court of General Sessions found that petitioner, an optician, had practiced optometry without a license¹ by his unsupervised fitting of contact lenses. Since this was obviously prosecuted as a test case, no sentence was imposed on petitioner; imposition of sentence was suspended upon his giving of personal bond not to repeat the offense. On appeal, the District of Columbia Court of Appeals affirmed, construing the District optometry statute to make any fitting of contact lenses the practice of optometry. Petitioner and several amici² have asked this court to review the court of appeals' decision, pointing out its impact on contact lens work and on opticians, optometrists, and ophthalmologists generally in the District of Columbia.

This court exercises a type of certiorari jurisdiction over the District of Columbia Court of Appeals.³ Rule 1 of our rules governing appeals from that court, which is based on present Sup. Ct.R. 19, emphasizes that appeal is "not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor."⁴ The fact that a number of individuals will be affected by the local court's decision is not enough of itself to require an exercise of that discretion. The nature of the question presented and the soundness of the court's decision are proper considerations.

The District of Columbia Court of Appeals is the highest purely local court of the District. Regulatory laws, such as those governing the practice of optometry, are obviously local in application. Questions may be decisively determined by that court, and need not be settled by this court, when what is involved is interpretation of a local statute, regulation, or ordinance; the interpretation given is within the zone of what is reasonable; the prosecution is for an offense malum prohibitum that is brought by the District of Columbia and not by the United States; and the case does not involve overtones of fundamental rights or substantial allegations of executive action as ultra vires or over-reaching.

In this case, the District of Columbia Court of Appeals undertook a careful review of the applicable statutes, their purpose, the testimony in the trial court, and cases in other jurisdictions. We think its decision is within the zone of the permissible, although we do not consider whether it was required under the act, or best effectuates the legislative intent, or is the conclusion that we would have reached if we had been deciding the matter.

We do not think it requisite that the question be settled by this court. However, we think it in the interest of justice to make it expressly clear that the denial of petition for leave to appeal is without prejudice to the filing of a petition for rehearing with the District of Columbia Court of Appeals, and presentation of amicus curiae memoranda⁵ to that court, and our order shall in this case be taken as holding the case open for the purpose of providing leave therefor.

Petition denied.

SPOTTSWOOD W. ROBINSON III, Circuit Judge (dissenting):

The eminence of the District of Columbia Court of Appeals in the judiciary is underscored both by the statute conferring our jurisdiction to reexamine its judgments¹ and by our rules indicating the conditions under which we will undertake to exercise it.² We conduct such reviews only as a "matter * * * of sound judicial discretion" for "special and important reasons."³ Our many refusals to grant appeals from the court's decisions attest our recognition of the authority which normally should attach to its pronouncements on matters of purely local law.

Yet there are situations in which a sensitivity to our statutory responsibilities demands that we take a further look at litigation after it has progressed through the Court of Appeals. Included are cases involving "a question of substance not theretofore determined by this court,"⁴ or "a question of general importance,"⁵ or "a question of substance relating to the construction or application of statutes or municipal ordinances or regulations, * * * which has not been, but should be, settled by this court."⁶ Even as to the review of these our action is judgmental, of course, and it cannot be doubted that many falling within the narrowly circumscribed category defined in the court's opinion⁷ are unlikely to survive our evaluation in terms of the applicable criteria. Some may, however, although what is involved is the interpretation of a local regulatory law,⁸ and I feel that this is one that should. Accordingly, I respectfully dissent from the court's disallowance of this appeal.⁹

In the District of Columbia Court of General Sessions, the petitioner-optician¹⁰ was charged with the practice of optometry because, in the fabrication of contact lenses on an ophthalmologist's¹¹ prescription, he made the measurements and performed the fittings incidental to that process.¹² Whether that constituted optometric practice depended upon the meaning properly to be ascribed to legislation enacted in 1924,¹³ about two decades prior to the advent of contact lenses. We are told¹⁴ that, as a matter of standard practice over more than a century, persons requiring eyeglasses have been referred by physicians to opticians, who make and fit the glasses and then return the patient to the referring physician for final examination and approval. We are also informed that this general procedure has been in vogue for about 20 years where contact lenses rather than spectacles are the corrective device.¹⁵ Petitioner lays claim to a course of conduct conformable with these long standing customs in this branch of the medical profession.¹⁶

As the Court of General Sessions read the statute, "an optician may fit contact lenses only when supervised by a physician or an optometrist." In determining "the degree and quality of supervision that is required," it held that "a professional need not be physically present when an optician measures the curvatures of the eyes or fits contact lenses." But, it continued,

"* * * the actual physical presence of a professional during contact lens adaptation may be dispensed with only if there is a close and continuing relationship between professional and technician and an assurance of professional review as soon as the technical work is completed. * * * An optician who is not operating in the physical proximity of a professional may complete the fitting of contact lenses only after he has previously ascertained or arranged that the patient will be able to see a professional (either an ophthalmologist or an optometrist) as soon as that fitting has been completed."¹⁷

The Court of Appeals, however construed the statute differently.¹⁸ While not precluding "an optician from grinding, or fabricating contact lenses in accordance with a complete prescription furnished by a doctor, and delivering the lenses to the doctor for fitting,"¹⁹ it held "that the actual fitting of contact lenses is the adaptation of lenses within the meaning of our optometry statute"²⁰ whether or not the patient is re-referred to the prescribing professional.²¹

The Court of Appeals' decision affects a wide range of vocational interests which have not been, but which desire to be, heard before the curtain is finally rung down.²² It has a solid impact on ophthalmologists and opticians alike in the traditional division of functions relative to the fabrication of contact lenses, and possibly eyeglasses as well.²³ Largely because of the doubt it casts upon the legitimacy of other customary relationships, it may affect the medical profession more generally.²⁴ And I am left in the dark as to whether and in what degree these modifications may involve the visual health of the community.

The question whether and under what conditions the statute prohibits opticians from fitting contact lenses would be one of first impression with us.²⁵ Its substantiality is manifested not only by the circumstance that the two courts through which the case has journeyed reached significantly different conclusions, but also by the wide divergence in judicial decision in other jurisdictions.²⁶ Moreover, petitioner has imparted a constitutional dimension to the scope of his grievance by his challenge to the statute's specificity and his related claim that in the circumstances it did not give fair notice of the acts made punishable.²⁷ I do not say that the decision of the Court of Appeals is wrong, but only that we should be surer as to whether it is correct. I would allow this appeal in order that we may fully examine this perplexing problem and, for the benefit of all concerned,...