No. 04-587
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 20
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 MOTANA; DEPARTMENT OF COMMERCE;
DEPARTMENT OF LABOR AND INDUSTRY; and
BOARD OF DENTISTRY,
Defendants and Respondents.
APPEAL FROM: The District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV 2001-647,
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
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)
Submitted on Briefs: June 21, 2005
Decided: January 31,
2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶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?
BACKGROUND
¶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
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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.
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Unfortunately for the denturists, the BOD agreed with the dentists, and promulgated Rule
8.17.800, ARM (now Rule 24.138.416, ARM), interpreting § 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.
STANDARD OF REVIEW
¶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
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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.
DISCUSSION
Issue 1: Does the Board of Dentistry’s Partial Denture Rule impermissibly infringe upon
the state constitutional privacy right of denture patients?
¶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
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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.
Armstrong, ¶ 62.
¶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
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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. Under such a rule, regulation of health care
professions necessary for the public’s protection would become very difficult, if not
impossible, for the State to undertake.
¶19 It is clear that the State of Montana has a police power by which it can regulate for
the health and safety of its citizens. State v. Skurdal (1988), 235 Mont. 291, 294, 767 P.2d
304, 306. Furthermore, this Court has recognized that the State’s exercise of its police
powers often implicates individual rights. State v. Rathbone (1940), 110 Mont. 225, 241,
100 P.2d 86, 92. However, when the rights affected are not fundamental, we do not utilize
strict scrutiny review, requiring a compelling state interest. Peterson v. Great Falls Sch.
1
We are not the only court to reject Andrews on this point. See Mitchell v. Clayton
(7th Cir. 1993), 995 F.2d 772, 775-76 (holding no fundamental right to acupuncture
where the government reasonably prohibited that type of treatment or provider); Sammon
v. New Jersey Bd. of Medical Examiners (3rd Cir. 1995), 66 F.3d 639, 644-45, n.9
(rejecting proposition that regulation of midwifery infringed fundamental rights);
Connecticut v. Menillo (1975), 423 U.S. 9, 10-11, 96 S.Ct. 170, 171-72, 46 L.Ed.2d 152,
154-55 (restricting abortions by non-physicians does not implicate fundamental right to
privacy); Carnohan v. United States (9th Cir. 1980), 616 F.2d 1120, 1122 (no right to use
medical drugs free of government police power).
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Dist. No. 1 & A (1989), 237 Mont. 376, 380, 773 P.2d 316, 318. Instead, the State need only
demonstrate a rational basis for the regulation. Peterson, 237 Mont. at 380, 773 P.2d at 318.
¶20 Here, Appellants argue that the right to obtain medical care free of regulation is a
fundamental right, and that the State’s regulation of that right must be supported by a
compelling state interest. As noted above, we disagree with Appellants’ contention that the
fundamental right extends that broadly, and therefore, Appellants’ argument must fail.
Furthermore, because Appellants did not argue, and the District Court did not decide, if the
Partial Denture Rule was rationally related to a legitimate state interest, we decline to reach
that issue today.
Issue 2: Does the Board of Dentistry’s Partial Denture Rule impermissibly infringe upon
denturists’ state constitutional right to pursue employment?
¶21 Article II, Section 3 of the Montana Constitution guarantees to Montanans the right
to pursue, “life’s basic necessities . . . in all lawful ways.” Art. II, Sec. 3, Mont. Const. This
Court has held that this section provides a fundamental right to the citizen to pursue
employment. Wadsworth v. State (1996), 275 Mont. 287, 299, 911 P.2d 1165, 1172.
Relying on Wadsworth, Appellant denturists argue that they have a fundamental right to
practice denturity free of regulation.
¶22 Although Wadsworth demonstrates that Appellants have a fundamental right to
“pursue” denturity as a profession, it does not follow thereafter that denturists have a
fundamental right to practice denturity free of all regulation. The regulatory purpose in
promulgating the Partial Denture Rule was stated by the BOD as follows:
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The Board has considered all the comments, both written and oral. Giving
great weight to its obligation to protect the public, the Board concludes that it
is in the best interests of the Montana public to require by rule that prior to the
preparation or fitting or [sic] partial dentures, denturists shall refer all partial
denture patients to a dentist for examination, evaluation and/or treatment that
the dentist may deem necessary prior to the insertion of the partials. The
consequences of insertion of partials into an inadequately prepared, or
compromised, mouth may be serious dental problems for the patient.
Although we do not address in this case the validity or rationality of the Board’s expressed
reason for the rule, we cite to the BOD’s reason to illustrate that the rule does not bar
denturity, and that Appellants remain free to pursue the profession. With regard to partial
denture work, § 37-29-403, MCA, authorizes denturists to see patients as long as they obtain
a dentist’s referral first. These conditions render this case distinguishable from Wadsworth.
¶23 In Wadsworth, this Court evaluated a Department of Revenue (DOR) rule forbidding
state real estate appraisers from doing appraisal work in their free time. Wadsworth, 275
Mont. at 292, 911 P.2d at 1168. State appraisers challenged the rule as violating their
constitutional right to pursue employment. This Court agreed, holding that the state
appraisers had a fundamental right to pursue employment, and further holding that the state
rule forbidding independent employment violated that right. Wadsworth, 275 Mont. at 306,
911 P.2d at 1176. However, the DOR employees in Wadsworth were completely proscribed
from independently appraising, barred from pursuing employment in their free time by the
DOR rule. Here, denturists remain free to pursue denture work generally, and further, are
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not completely proscribed from performing partial denture work. The Partial Denture Rule
merely2 requires a dentist’s referral.
¶24 As mentioned in the above discussion concerning privacy rights, the State of Montana
holds police power to regulate for the health and welfare of its citizens. Skurdal, 235 Mont.
at 294, 767 P.2d at 306; see also State ex rel. Bennett v. Stow (1965), 144 Mont. 599, 620,
399 P.2d 221, 231. Furthermore, the idea that the right to pursue employment and life’s
other “basic necessities” is limited by the State’s police power is imbedded in the plain
language of the Constitution. Article II, Section 3 states that citizens have the right to pursue
“life’s basic necessities . . . in all lawful ways.” Art. II, Sec. 3, Mont. Const. (emphasis
added). The Constitution is clear. While it granted the fundamental right to pursue
employment, it also circumscribed that right by subjecting it to the State’s police power to
protect the public’s health and welfare. “[L]iberty is necessarily subordinate to reasonable
restraint and regulation by the state in the exercise of its sovereign prerogative—police
power.” State v. Safeway Stores (1938), 106 Mont. 182, 203, 76 P.2d 81, 86. Accordingly,
while one does have the fundamental right to pursue employment, one does not have the
fundamental right to practice his or her profession free of state regulation promulgated to
protect the public’s welfare.
¶25 Appellants argued to both the District Court and to this Court that their right to pursue
denturity free of regulation was a fundamental right, and that infringement upon that right
2
We do not mean to minimize the impediment to their business which denturists
see in the Rule’s application. We mean only to illustrate the distinction between this rule
and the rule struck down in Wadsworth.
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had to be reviewed with strict scrutiny. For the reasons above, we disagree. Furthermore,
because Appellants did not argue, and the District Court did not decide, that the Partial
Denture Rule failed minimal or rational basis review, we decline to take up that issue today.
Issue 3: Do Board of Dentistry policies, membership, and restrictions on denturity violate
denturists’ federal due process and § 1983 rights?
¶26 Appellant denturists argue that the BOD regulations, policies, and membership violate
their federal due process rights. Furthermore, the denturists attempt to state a claim under
§ 1983. For the following reasons, Appellants’ arguments fail.
¶27 First, Appellants challenge the placement of denturists under the regulatory control
of the BOD. Specifically, Appellants argue that because of BOD bias against denturity,
BOD regulation of denturity violates denturist’s federal due process rights. Appellants argue
BOD bias against them because (1) the BOD is composed of mostly dentists, and (2) the
American Dental Association, a group to which BOD member dentists belong, is on record
as opposing denturists and the denturity profession.
¶28 Similar claims were made and rejected in Friedman v. Rogers (1979), 440 U.S. 1, 99
S.Ct. 887, 59 L.Ed.2d 100. In Friedman the United States Supreme Court noted that due
process did not require the Legislature to create regulatory boards that are equally
represented by all professions subject to its regulations. Friedman, 440 U.S. at 18, 99 S.Ct.
at 898, 59 L.Ed.2d at 115. Further, the Court, presented with a claim that commercial
optometrists were not fairly regulated by the Texas Board of Optometry, held that
commercial optometrists had “no constitutional right to be regulated by a Board that is
sympathetic to the commercial practice of optometry.” Friedman, 440 U.S. at 18, 99 S.Ct.
11
at 898, 59 L.Ed.2d at 115. The same rationale applies here. While denturists can challenge
specific action of the BOD as violating due process, that the BOD regulates the profession
of denturity does not in itself violate due process, despite the under representation of
denturists thereon. See also Rayborn v. Mississippi State Bd. of Dental Examiners (S.D.
Miss. 1985), 601 F.Supp. 537, 539-40 (holding that denturists failed to state a claim in
arguing that the Mississippi Dental Board’s regulation of denturity in and of itself violated
denturists due process rights).
¶29 Second, Appellants challenge BOD’s promulgation of Rule 24.138.416, ARM (the
Partial Denture Rule). In support, Appellants cite Stivers v. Pierce (9th Cir. 1995), 71 F.3d
732, for the proposition that a party is denied due process when it is deprived of an honest
and independent decision maker. Appellants are correct; they have the right to be regulated
by an honest and independent decision maker. However, even assuming a deprivation of a
constitutionally protected interest in “life, liberty, or property,” in the procedural due process
context, the “deprivation . . . is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.” Zinermon v. Burch (1990), 494
U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100, 114. “Therefore, to determine whether
a constitutional violation has occurred, it is necessary to ask what process the State provided,
and whether it was constitutionally adequate.” Zinermon, 494 U.S. at 126, 110 S.Ct. at 983,
108 L.Ed.2d at 114.
¶30 Here, Appellants have not shown that the procedures afforded them are inadequate.
In fact, based on the record before us, it is clear that Appellants have not even sought the
12
process to which they are entitled. Montana’s Administrative Procedure Act (MAPA)
addresses the issue of bias. Section 2-4-611(4), MCA, allows a party to challenge the bias
or independence of an agency member, and in such cases, requires the agency to include its
determination as part of the record. Furthermore, § 2-4-702, MCA, allows for judicial
review of such bias decisions. Appellants, however, have not utilized those administrative
remedies. While this Court has stated that statutes providing judicial review of orders by
biased commissioners satisfy due process, Schneeman v. Dep’t of Labor & Industry (1993),
257 Mont. 254, 259, 848 P.2d 504, 507, we have also stated that “it is a general principle
that if an administrative remedy is provided by statute, that relief must be sought from the
administrative body and the statutory remedy exhausted before relief can be obtained by
judicial review.” State ex rel. Jones v. Giles (1975), 168 Mont. 130, 132, 541 P.2d 355, 357.
Here, not only do the available procedures appear fair, but Appellants have failed to use
them. For those reasons, their due process claims must fail.
¶31 Finally, there can be no § 1983 claim if there has not been a deprivation of a
constitutional right. Since we hold that Appellants were not deprived of due process, their
§ 1983 claim fails.
Issue 4: Do Board of Dentistry restrictions on denturity constitute unlawful restraint on
trade?
¶32 The fourth challenge to the BOD is that its restrictions on denturity violate § 30-14-
205(2), MCA, of the Montana Unfair Trade Practices and Consumer Protection Act
(MUTPA). That statute states that,
It is unlawful for a person or group of persons, directly or indirectly:
13
(2) for the purpose of creating or carrying out any restriction in trade, to: . .
. (c) prevent competition in the distribution or sale of merchandise or
commodities.
Section 30-14-205(2)(c), MCA. Before we can evaluate the purported violation of § 30-14-
205(2)(c), MCA, however, we must address the threshold question of whether the BOD is
a “person” subject to restriction under MUTPA.
¶33 We addressed the question of whether state agencies were “persons” under MUTPA
in Montana Vending Co. v. Coca-Cola Bottling, Inc., 2003 MT 282, 318 Mont. 1, 78 P.3d
499. There we stated that, “the plain and ordinary interpretation of this language is that
MUTPA was created to apply to businesses, not government.” Montana Vending Co., ¶ 34
(emphasis in original). As such, we held in Montana Vending Co. that school districts were
not “persons” under MUTPA. Montana Vending Co., ¶ 37. The same reasoning is
applicable here. Furthermore, as a matter of common sense, it is clear that the Legislature,
in designing the regulatory structure for denturists and dentists, did not envision the BOD’s
regulatory function could somehow constitute the unlawful restraint of trade. Thus, we hold
that the BOD, like school districts, is not subject to MUTPA. Accordingly, Appellants have
not stated a claim of unfair trade practices as a matter of law.
CONCLUSION
¶34 This case is before us on a grant of summary judgment. After review, we conclude
the District Court correctly held that Appellants’ constitutional rights were not infringed.
Furthermore, we hold that Appellants’ claim under MUTPA fails as a matter of law. As
such, the District Court properly granted summary judgment to Respondents.
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¶35 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
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