Kelley v. Board of Registration in Optometry

• Decision Date: 20 June 1966
• Citation: 351 Mass. 187,218 N.E.2d 130
• Parties: Arthur S. KELLEY et al. v. BOARD OF REGISTRATION IN OPTOMETRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 130

218 N.E.2d 130

351 Mass. 187

Arthur S. KELLEY et al. v. BOARD OF REGISTRATION IN OPTOMETRY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1966.

Decided June 20, 1966.

David Berman, Asst. Atty. Gen., for the Board of Registration in Optometry (James D. St. Clair, Wellesley Hills, for the Massachusetts Society of Optometrists, amicus curiae, with him).

Joseph G. Crane, Boston, for plaintiffs.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

REARDON, Justice.

The plantiffs seek a declaratory decree under G.L. c. 231A. The defendant filed a plea in bar which was dismissed in an interlocutory decree. The defendant, having been given leave to file a demurrer, did so. The demurrer was overruled by a second interlocutory decree, whereupon the defendant filed an answer. Subsequent to trial a final decree was entered for the plaintiffs with a report of material facts and rulings of law. The case is here on appeals from the final and interlocutory decrees.

The problem which the case brings to us is whether the fitting of contact lenses should be performed only by physicians, surgeons and optometrists, trained as such (see G.L. c. 112, § 68), or whether such fittings may properly be performed also by opticians, who have substantially less and different training (see G.L. c. 112, § 73E). General Laws, c. 112, § 66, in a broad definition of what constitutes the practice of optometry, includes the activity of fitting contact lenses. Section 68 of the same chapter provides that only a licensed optometrist may practise optometry, and § 75A of that chapter sets out criminal penalties for the unlicensed practice of optometry. General Laws c. 112, § 73, however, says in effect that § 72A penalties are not applicable to opticians engaged in rendering their services. Section 73C (St. 1955, c. 688, § 2) enumerates those services in defining a 'dispensing optician' as 'a person who prepares and dispenses lenses, spectacles, eyeglasses and appliances thereto to the intended wearer thereof on written prescriptions from a duly registered physician or optometrist, and, in accordance with such prescriptions, interprets, measures, adapts, fits and adjusts such lenses, spectacles, eyeglasses or appliances thereto to the human face for the aid or correction of visual or ocular anomalies of the human eyes' (emphasis supplied).

The individual plaintiffs are representative members of the Massachusetts Association or Retail Dispensing Opticians, 'a voluntary association composed of members too numerous to be made parties, all of whom are registered opticians * * * licensed to practice as such under the laws of the Commonwealth of Massachusetts.' The corporate complainant has been 'operating as a prescription optician since 1870 and fitting contact lenses since prior to 1930.' On June 9, 1965, in answer to a request from the defendant Board of Registration in Optometry (the board), the Attorney General rendered an opinion that (1) the fitting of contact lenses to the human eye constituted the practice of optometry as defined by G.L. c. 112, § 66, and (2) persons who were neither registered optometrists, physicians or surgeons could not lawfully fit contact lenses to the human eye. Shortly thereafter this bill was brought alleging that 'opticians * * * have been fitting and adapting contact lenses for many years * * *' and that, as a result of the opinion of the Attorney General, 'a controversy has arisen as to whether a duly licensed optician * * * may properly fit and adapt contact lenses upon prescription. Reports of the aforesaid opinion * * * have been * * * published in newspapers having wide circulation in this Commonwealth; the * * * (board is) threatening further to advise the public, on the basis of the aforesaid opinion * * * that your complainants may not lawfully fit contact lenses to the human eye; and the * * * (board is) threatening to take action to obtain enforcement or implementation of * * * the aforesaid opinion * * *.' The defendant board's plea in bar alleged that it had neither taken action to enforce G.L. c. 112, §§ 66--75, as construed in the opinion nor threatened to do so. Evidence at the hearing on the plea in bar indicated merely that the board had 'voted * * * to release the * * * opinion * * * to the public' and to suggest to the Board of Registration of Dispensing Opticians that it 'had an obligation to notify its registrants of the contents and of the import of the opinion.' A letter making such a suggestion to the Board of Registration of Dispensing Opticians was put in evidence. There was an agreement between the parties that no action other than this was taken by the defendant. It does not appear that there was a release of the opinion, that there were notifications to the press, or that the board in any way encouraged the Attorney General to enforce the opinion.

The demurrer filed by the board alleged that the plaintiffs (1) lacked standing to bring the bill, (2) failed to state a claim upon which relief could be granted, (3) failed to state adequate facts, (4) failed to join all necessary parties, (5) failed to allege that they had exhausted their administrative remedies, (6) were proceeding against a party which had no power to enforce the Attorney General's opinion, (7) had brought their bill prematurely, and (8) were attempting to determine the validity of future acts of a public body. The demurrer was overruled.

The board then filed an answer containing a general denial of the essential allegations of the plaintiffs' bill and specifically denying that it was 'threatening to take action to obtain enforcement or implementation of G.L. c. 112, §§ 66--73, as construed in the opinion of the Attorney General * * *.'

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