Rhode Island Ophthalmological Soc. v. Cannon

• Citation: 113 R.I. 16,317 A.2d 124
• Decision Date: 27 March 1974
• Docket Number: No. 73-146-A,73-146-A
• Parties: RHODE ISLAND OPHTHALMOLOGLCAL SOCIETY et al. v. Joseph E. CANNON, M.D., Director of Health, State of Rhode Island et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 124

317 A.2d 124

113 R.I. 16

RHODE ISLAND OPHTHALMOLOGLCAL SOCIETY et al. v. Joseph E. CANNON, M.D., Director of Health, State of Rhode Island et al.

No. 73-146-Appeal.

Supreme Court of Rhode Island.

March 27, 1974.

Reargument Denied May 3, 1974.

Abedon, Michaelson, Stanzler & Biener, Milton Stanzler, Julius C. Michaelson, Providence, for plaintiffs

Richard J. Israel, Atty. Gen., W. Slater Allen, Jr., Asst. Atty. Gen., for Joseph E. Cannon, M.D., Mary Ellen McCabe.

Letts, Quinn & Licht, Frank Licht, Jerome B. Spunt, Providence, for Rhode Island Optometric Association and others Intervenors.

OPINION

KELLEHER, Justice.

This civil suit is essentially a dispute between the state's licensed ophthalmologists and its licensed optometrists. ¹ The controversy had its inception in the passage and enactment of P.L.1971, ch. 229. This statute amended the definition of optometry as found in G.L.1956, § 5-35-1, so that any duly qualified optometrists would be permitted to use certain drugs as they evaluate a patient's vision during the examination of his eyes. The drugs are contained in eyedrop solutions, and when applied to the eye's surface, dilate or contract the pupil or act as a local anesthetic to the eye.

The plaintiffs are the Rhode Island Ophthalmological Society, whose purposes are the 'study of advancement of Ophthalmology,' and over 20 ophthalmologists who practice in this state. Hereinafter, we shall refer to plaintiffs as 'ophthalmologists.' The defendants are the state's Director of Health, members of the state Board of Examiners in Optometry and the Chief of Pharmacy of the state's Department of Health. This action began on February 9, 1972. Shortly thereafter the Superior Court permitted the Rhode Island Optometric Association and seven licensed optometrists to intervene as party defendants.

The original complaint alleged that the 1971 legislation encroached on the ophthalmologists' rights and privileges; that it had no reasonable relationship to the health and general welfare of the public; that the use of the drugs by optometrists would endanger the public's health; and that by the implementation of the amendment the advancement of ophthalmology 'will be seriously retarded.' The ophthalmologists sought injunctive relief and a judicial declaration that P.L.1971, ch. 229, was unconstitutional. The Presiding Justice of the Superior Court heard defendants' motion calling for dismissal of the complaint because it failed to state a claim upon which relief can be granted in accordance with Super.R. Civ.P. 12(b)(6). He granted the motion to dismiss without prejudice, and the ophthalmologists filed an amended complaint. The optometrists filed another motion to dismiss. This motion was heard by another Superior Court justice, who granted the motion. The ophthalmologists have appealed. They raise two issues deserving of some extended discussion. They are, The Law of the Case doctrine and the ophthalmologists' standing to bring suit.

The Law of the Case

The initial theory of the ophthalmologists' suit was that it was a class action brought on behalf of all ophthalmologists similarly situated, as well as their present and future patients who might seek the assistance of an optometrist who has been allowed to administer the drugs referred to in the 1971 amendment. In dismissing the original complaint, the Presiding Justice ruled that the ophthalmologists had no standing to challenge the legislation in respect to themselves. He also alluded to the long-standing rule relative to the presumption of constitutionality that attaches to an enactment of the General Assembly. The dismissal was without prejudice, and in so doing, the Presiding Justice made the following remarks:

'Where the physicians assert a right on behalf of their patients to protection against side effects, death and other adverse effects of the practice of this segment of the healing art, and particularly the use of topical drugs, the Court feels that the plaintiffs have a much more serious position. In the light of Griswold v. Connecticut and other cases which have been decided in this general area, the Court feels that it is not forbidden, at least in recent times, for a professional group to raise as a class, the rights of its patients or those in a sense whom it represents in the practice of its profesion; and that therefore, if a case could be made out that the patients of the ophthalmologists are to be subjected to undue risks of death, danger, blindness and other side effects of the use of drugs, that the plaintiffs would have standing to assert these rights on behalf of their patients; and that in the light of the overwhelming public interest the Court should properly take jurisdiction at the instance of these plaintiffs.'

The ophthalmologists argue that these remarks give legitimacy to their right to challenge the optometrists' new activities. They therefore contend that the second trial justice violated the rule of the case when he ruled that the ophthalmologists had no right to invoke the judicial processes of the Superior Court.

When used in the context of this action, the rule of the case refers to the principle that, generally speaking, where, after one justice has decided an interlocutory matter in a pending suit, the same question is presented in the identical manner to another justice of the same court considering another phase of the suit, the second justice should not reverse the ruling of the first justice. Goldstein v. Rhode Island Hosp. Trust Nat'l Bank, 110 R.I. 580, 296 A.2d 112 (1972); Columbus Ornamental Iron Works, Inc. v. Martin, 103 R.I. 620, 240 A.2d 405 (1968); Payne v. Superior Court, 78 R.I. 177, 80 A.2d 159 (1951). No one can quarrel with this rule. However, before its invocation is in order, there has to be a ruling made by the first justice. Here, the Presiding Justice at no time ever decided that the ophthalmologists were proper parties to bring a class action in behalf of their present and future patients.

The Presiding Justice, as he referred to Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), was merely waxing philosophical. He did not rule that the ophthalmologists had the requisite status. In fact, almost immediately after referring to the possible rights of a professional group to bring a class action to protect their patients, he went on to say that '* * * assuming this standing to assert the constitutional rights of their patients, we must examine the statute itself.' The Presiding Justice thereupon stressed that the statute limits permission to apply the topical drugs to only those optometrists who have studied at an accredited institution and then passed an examination conducted by the proper state officials.

There being no ruling by the Presiding Justice, there was no ruling as to the ophthalmologists' standing that would bar a determination of this question by the justice who considered the second motion to dismiss.

The Ophthalmologists' Standing

In this jurisdiction we find a paucity of cases dealing with the issue of standing. Until recently, it seems that suit had to be initiated in the name of the person whose legal right had been affected. United Master Plumbers Ass'n v. Bookbinder Plumbing & Heating Co., 99 R.I. 683, 210 A.2d 573 (1965). In taking this position, the court cited 1 Chitty, Pleading ch. 1 at 2 (7th Eng. ed. 1876); Puterbaugh, Common Law Pleading & Practice § 12 at 8 (10th ed. 1926).

The area of standing in the federal system of adjudication has been in a state of flux. However, it appears that our interpretation of standing to bring suit is consistent with the early federal approach to this doctrine.

Prior to 1970, the federal test for standing had been phrased a number of ways, ² but, in essence, for a plaintiff to be able to maintain suit, some 'legal interest' or 'property right' of his must have been violated or have been in imminent danger of harm.

The United States Supreme Court, in seeking to dispel the confusion regarding the doctrine of standing, completely rewrote the law in two 1970 decisions, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and its companion case of Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

The Court in Data Processing discarded the old concepts of 'legal interest' ³ and special statutory protection as found in Hardin v. Kentucky Utilities Co., 390 U.S. 1, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), ⁴ and the other cases and formulated a twopronged test. The two aspects of the standard laid down are (1) '* * * whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise,' and (2) '* * * whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' Association of Data Processing Service Organizations, Inc., supra, 397 U.S. at 152, 153, 90 S.Ct. at 829, 830, 25 L.Ed.2d at 187, 188. An analysis of Data Processing indicates that it has its genesis in the case law developed through the years as the Court determined who was adversely aggrieved for the purposes of seeking judicial review under the Administrative Procedure Act, 5 U.S.C. § 702 (1964 ed. Supp. IV).

The Data Processing bi-partite formula is not binding on us and has been severely criticized by those favoring the single 'injury in fact' test. New Hampshire Bankers Ass'n v. Nelson, N.H., 302 A.2d 810 (1973); Davis, Administrative Law Treatise § 22-00-1 (1970 Supp.). In fact, shortly after the beginning of 1974, the Supreme Court, in rejecting a class action brought against several Illinois officials for alleged deprivation of civil rights, stressed that 'Abstract injury is not enough. It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining...