Wiser v. State, Dept. of Commerce
| Decision Date | 31 January 2006 |
| Docket Number | No. 04-587.,04-587. |
| Citation | 2006 MT 20,331 Mont. 28,129 P.3d 133 |
| Parties | Lee WISER; R. Brent Kandarian; Cliff Christenot; Dave Comer; Douglas Crumb; Everett Vandeneeden; Allen Casteel; Frank Brisendine; Rob Carnahan; Ken Macpehrson; Chas Conlan; Aaron Hansemann; Grant Olson; John Mateskon; Mark Rittenhouse; and John Doe Plaintiffs 1-24, Plaintiffs and Appellants, v. STATE of Montana; DEPARTMENT OF COMMERCE; Department of Labor and Industry; and Board of Dentistry, Defendants and Respondents. |
| Court | Montana Supreme Court |
For Appellants: Jonathan R. Motl, David K.W. Wilson, Jr., and Brenda Lindlief-Hall, Reynolds, Motl & Sherwood, P.L.L.P., Helena, Montana.
For Respondents: Honorable Mike McGrath, Attorney General; Chris D. Tweeten, Assistant Attorney General, Helena, Montana, John Atkins and James Santoro, Special Assistant Attorneys General, Department of Labor and Industry, Helena, Montana.
For Amicus Curiae: Holly Franz, Franz & Driscoll, Helena, Montana (Montana Senior Citizens Association).
¶ 1 Lee Wiser and the other named plaintiffs (Appellants) appeal from the order of the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of Respondents State of Montana, Department of Commerce, Department of Labor and Industry, and Board of Dentistry (Respondents) on all of Appellants' claims. We affirm.
¶ 2 In determining whether the District Court erred in granting summary judgment to Respondents, we undertake consideration of the following issues:
¶ 3 (1) Does the Board of Dentistry's Partial Denture Rule impermissibly infringe upon the state constitutional privacy right of denture patients?
¶ 4 (2) Does the Board of Dentistry's Partial Denture Rule impermissibly infringe upon denturists' state constitutional right to pursue employment?
¶ 5 (3) Do Board of Dentistry policies, membership, and restrictions on denturity violate denturists' federal due process and § 1983 rights?
¶ 6 (4) Do Board of Dentistry restrictions on denturity constitute unlawful restraint on trade?
¶ 7 The long struggle between denturists and dentists is well documented in the annals of the legislative, executive, and judicial branches of Montana government. This Court has adjudicated disputes between these two professions no less than three times. Raging since the mid-1980s, the battle at its core is the regulation of the denturity profession by the State Board of Dentistry, which, in the eyes of denturists, is dominated by dentists who actively oppose denturity.
¶ 8 Authorized for licensure by the Montana Legislature in 1984, denturists were originally regulated by a Board of Denturity created by the Freedom of Choice in Denture Services Act of 1984. See §§ 37-29-101 and -201, MCA (1985). However, in 1987, the Legislature dissolved the Board of Denturity, placing denturists under the licensing and regulatory authority of the Board of Dentistry (BOD). See compiler's comments, § 37-29-102, MCA (1987). Regulatory conflicts between denturists and dentists ensued thereafter.
¶ 9 Between 1987 and 1991, the BOD restricted denturists by (a) requiring dentist referrals, (b) restricting when denturists can insert dentures, (c) requiring three-part certificate of work forms from dentists before certain denturity procedures could be performed, and (d) by bringing suit against denturists engaging in bite-examination work with patients. Denturists, fearing the systematic erosion of their profession and livelihoods, challenged all of these actions, and at times prevailed. See Board of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d 409. At times the BOD prevailed. See Christenot v. State (1995), 272 Mont. 396, 901 P.2d 545.
¶ 10 The roots of the present controversy run to 1985, when the Legislature passed § 37-29-403, MCA, requiring denturists to refer partial denture patients to dentists "as needed." Not surprising, the "as needed" language was disputed almost immediately. Dentists claimed that all partial denture patients had to be referred to a dentist before denturists could proceed with treatment, while denturists claimed referrals were in the discretion of the denturist. Unfortunately for the denturists, the BOD agreed with the dentists, and promulgated Rule 8.17.800, ARM (now Rule 24.138.416, ARM), § 37-29-403, MCA, as requiring that denturists refer all partial denture patients to dentists before providing partial denture services (the Partial Denture Rule). Litigation ensued.
¶ 11 In 1995, the question of whether Rule 8.17.800, ARM, was a valid interpretation of § 37-29-403, MCA, was presented to this Court. We held that the rule was not inconsistent with § 37-29-403, MCA, and upheld the BOD's restriction on denturity. See Christenot, 272 Mont. 396, 901 P.2d 545. However, this Court specifically declined to rule on the constitutionality of the rule. See Christenot, 272 Mont. at 402, 901 P.2d at 549. Today, that question, among others, has returned.
¶ 12 Appellant denturists and denture patients challenge the constitutionality of both the Partial Denture Rule and the statutory framework which places the profession of denturity under the regulatory thumb of the BOD. The District Court rejected both challenges, upholding both the constitutionality of the Partial Denture Rule, and the placement of denturity under the control of the Board of Dentistry.
¶ 13 This case is before us on a grant of summary judgment in favor of the Respondents. As stated in Rule 56(c), M.R.Civ.P., summary judgment is only proper when no genuine issues of material fact exist such that the moving party is entitled to judgment as a matter of law. "The initial burden is on the moving party to demonstrate `a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment.'" Schmidt v. Washington Contractors Group, Inc., 1998 MT 194, ¶ 7, 290 Mont. 276, ¶ 7, 964 P.2d 34, ¶ 7; citing Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869. If the moving party meets this burden, "the burden shifts to the non-moving party to establish otherwise." Schmidt, ¶ 7. On appeal, we review grants of summary judgment de novo, determining whether the grant of summary judgment was correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. Finally, we review a District Court's conclusions of law de novo, determining their correctness. Steer, Inc., 245 Mont. at 474-75, 803 P.2d at 603.
¶ 14 Appellants assert that BOD restrictions on denturity, specifically the Partial Denture Rule set forth in Rule 24.138.416, ARM, requiring dentist referrals before denturists may perform partial denture work, infringe upon the right of patients to seek the medical professional of their choice. Citing Armstrong v. State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364, Appellants argue that the restrictions violate their right to privacy guaranteed in Article II, Section 10 of the Montana Constitution.
¶ 15 The right to privacy is a fundamental right guaranteed by the Montana Constitution. Armstrong, ¶¶ 29-34. However, it does not necessarily follow from the existence of the right to privacy that every restriction on medical care impermissibly infringes that right. Armstrong described the right to health care as a
fundamental privacy right to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so.
¶ 16 Thus, while recognizing that the right to privacy was implicated in health care choices, Armstrong nonetheless specifically defined the right as guaranteeing access to a chosen health care provider who has been determined "competent" by the medical community and "licensed" to perform the procedure desired. Armstrong, ¶ 62. Armstrong did not hold that there is a right to see a health care provider who is not licensed to provide the services desired.
¶ 17 Appellants rely heavily on Andrews v. Ballard (S.D.Tex.1980), 498 F.Supp. 1038, a case which held that patients have a broad right to health care which includes the fundamental right to seek treatment from acupuncturists who have not been licensed or approved by the relevant licensing or medical board. Andrews, 498 F.Supp. at 1057. The court in Andrews struck down the statute at issue there, which limited the practice of acupuncture to licensed doctors, because it did not serve a "compelling" state interest. Andrews, 498 F.Supp. at 1055-57. Appellants correctly note that we cited Andrews favorably in Armstrong. Armstrong, ¶¶ 54-56, n. 8. However, we cited Andrews for the general proposition that individuals have the right to obtain and reject medical treatment, a holding we do not disturb today, and not for the proposition that patients have a fundamental right to obtain medical care from professionals who have not been determined by the regulating authority to be qualified to provide the desired service.1
¶ 18 A conclusion that Montanans have a fundamental right to seek medical care from un-licensed professionals would force the State and its licensing boards to demonstrate a compelling state interest in order to license and regulate health care professionals. The State would, in effect, "shoulder the burden of demonstrating that no less restrictive set of qualifications for a license could serve the state's interest in protecting the health of its citizens." Sammon, 66 F.3d at 645, n. 9....
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