Prosch v. Baxley
| Decision Date | 28 June 1972 |
| Docket Number | Civ. A. No. 3657-N. |
| Citation | 345 F. Supp. 1063 |
| Parties | Gus J. PROSCH, Jr., M.D., Plaintiff, v. William J. BAXLEY et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Herbert W. Stone, Ensley, Ala., for plaintiff.
Bernard F. Sykes and Don C. Dickert, Asst. Attys. Gen., Montgomery, Ala., for defendants.
This cause is now submitted upon the Plaintiff's application for a three-judge court to hear and determine his petition to have this Court declare unconstitutional Code of Alabama, Title 46, §§ 257(2), 257(20) and 257(21) (4), in application of such statutes to Plaintiff and other persons similarly situated in that it denies Plaintiff and members of his class the equal protection of the laws in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States. In support of his motion, the Plaintiff cites 28 U.S.C. § 2281, which reads, in pertinent part, as follows:
"An * * * injunction restraining the enforcement, operation or execution of any State statute * * * shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."
The cause is also submitted on Defendants' Motion to Dismiss the proceedings. Since it is proper to deny a hearing by a three-judge court and to dismiss the proceeding if the proceeding lacks necessary substance, Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, it is not improper to consider the two motions jointly.
The Plaintiff is a physician holding a license to practice medicine issued by the Alabama State Licensing Board for the Healing Arts under Title 46, § 257(1) et seq., Code of Alabama, and a certificate of qualification to practice his profession by the Board of Medical Examiners under the provisions of Title 46, § 270. He was convicted of a felony prohibited by 26 U.S.C. § 5861(d) () on December 11, 1971, and has been summoned to appear before the Alabama State Licensing Board for the Healing Arts on May 5, 1972, to show cause why his license to practice medicine should not be revoked according to the provisions of Title 46, § 257(4), Code of Alabama. That Board has consented to a postponement of that hearing pending this proceeding so no question of temporary relief is before the Court.
As pointed out by the Plaintiff, the various statutes concerning revocation or suspension of licenses to practice medicine, of certificates of qualification to practice medicine, and of licenses to practice dentistry vary somewhat by their terms. Title 46, § 257(21) (4), provides that a license to practice medicine issued by the State Licensing Board for the Healing Arts may be revoked for conviction of any felony, whether or not the same involves moral turpitude. Section 270 of the same title provides that the Board of Medical Examiners may revoke a certificate of qualification to practice medicine for conviction of any offense involving moral turpitude whether or not the same is a felony, and Section 120(22) (11) provides that the license of a dentist may be revoked for conviction "of a felony or a misdemeanor involving moral turpitude." The Plaintiff insists that, because there are differences in the statutes for revocation of the license issued by the State Licensing Board for the Healing Arts (§ 257(21) (4)), for revocation of the certificate of qualification issued by the Board of Medical Examiners (§ 270), and for revocation of the license to practice dentistry (§ 120(22) (11)), doctors are not being provided equal protection of the laws and that, therefore, Title 46, § 257(21) (4), violates the right to equal protection of the Plaintiff and members of the class to which he belongs.
By the provisions of § 257(20), the State Licensing Board for the Healing Arts is vested with all authority given by law to other administrative bodies in regard to enforcing the provisions of regulatory laws and preventing unlawful practices in relation to persons engaged in the healing arts as defined in § 257(2). They share concurrent jurisdiction with the Board of Medical Examiners to revoke a certificate of qualification to practice medicine under the provisions of §§ 270 and 257(20).
By the terms of § 257(2), the profession of dentistry and other professions which might otherwise be considered within the lay definition of the words "healing arts" are excluded from the jurisdiction of, and the terms of the article devoted to, the State Licensing Board for the Healing Arts. This Court sees nothing in §§ 257(2), 257(20) or otherwise which indicates that dentistry is a healing art as defined in Code of Alabama, Title 46, Chapter 13, Article 1, relating to the healing arts, and this Court finds that, under the law of Alabama, dentistry is not a healing art as contemplated by said Article of the Code of Alabama.
Plaintiff says that, under § 257(21) (4), a physician's license may be revoked or suspended for his conviction of any felony, regardless of whether or not it involves moral turpitude, while under § 120(22) (11) a dentist may have his license suspended or revoked for conviction of a felony or a misdemeanor only if such crime involves moral turpitude. He says, since the physician is subject to having his license revoked for any felony while a dentist may have his license revoked for a felony only if it involves moral turpitude, that the physician is, therefore, subject to unequal treatment under the laws and that, therefore, the physician is subject to losing his license in violation of the constitutional guarantee of equal protection of the laws.
We have been cited no authority showing how the courts of the State of Alabama have construed the clause of Code of Alabama, Title...
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