Campbell v. Henderson

403 P.2d 902, 241 Or. 75, 1965 Ore. LEXIS 366

Opinions

LUSK, J.

This is a proceeding under the “Uniform Declaratory Judgments Act,” ORS 28.010-28.160, brought by a duly licensed dentist to obtain a judicial declaration that certain regulations of advertising by dentists adopted and promulgated by the defendant, Oregon State Board of Dental Examiners, are invalid. The defendant, in its answer, joined in the request for a declaration, and the court entered a decree sustaining some of the regulations and holding others invalid. Both sides have appealed.

The regulations were adopted by the board on November 2, 1962, and purport to be interpretations of OKS 679.140, as it read at that time. This section then provided that a dentist may have his license revoked or suspended for unprofessional conduct, and that “Unprofessional conduct means” (among other acts not now pertinent) five particularly described forms of advertising.

Footnotes

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①

In 1963 the definition of unprofessional conduct was changed by Oregon Laws 1963, eh 284, § 8, so as to read: “Unprofessional conduct as used in this chapter includes but is not limited to the following” (italics added). The remainder of the section was left substantially unchanged.

Although this suit was commenced on December 10, 1962, it was not tried until March 11, 1964. In the meantime, on October 30, 1963, after the amendment above referred to became effective, the parties entered into a stipulation in writing which recites:

“Said rules and regulations purport to interpret and construe OKS 679.140, which reads in material part as follows:”.

The stipulation then quotes the statute relating to unprofessional conduct by advertising as it read prior to the amendment. The stipulation further -stated that “defendant has notified plaintiff of its intention to institute proceedings in due course for suspension or revocation of his license upon the grounds that his past and current advertising result [sic] in a violation of said basic statutes, as interpreted by the defendants in the rules and regulations in controversy,” and that “[t]o the extent to which plaintiff is required to modify his existing advertising policy in -order to conform to said rules and regulations, plaintiff will suffer damage * * *.” (Italics -added.)

The briefs do not mention the 1963 amendment changing the definition of unprofessional conduct and the only reference to it at the oral -argument occurred when, in answer to a question from the bench, counsel for the board stated that the amendment did not increase the authority of the board to regulate the practice of dentistry “with respect to advertising,” and that “the legislative history made very clear before the legislative committees that it was not intended to broaden the authority of the board with respect to advertising regulations — -it related to other things as gouging, overcharging and so forth.” Counsel for the board is also its executive secretary. The minutes of the Senate Committee on Health and Welfare which reported out the 1963 amendment disclose that in advocating before the committee the adoption of the amendment counsel for the board took a similar position as to its meaning.

Although the parties join in asking the court to exercise its authority under the declaratory judgments act, we are constrained to hold that we should not do so for the reasons now to be stated.

The case presents the question whether the statute as it read prior to its amendment has been violated by the plaintiff. Bnt more is involved. This is not a private lawsuit between the plaintiff and the board, but a public controversy in the decision of which the entire dental profession and the public itself have a vital interest. Such a decision, however, would necessarily be upon the construction of the dental advertising statute, not as it reads today, but as it read prior to its amendment in 1963.

The opinion of the attorney for the board that this amendment did not increase the authority of the board to regulate the practice of dentistry with respect to advertising, but related only to other subjects, such as gouging and overcharging, while entitled to respectful consideration by the court, can scarcely be regarded as conclusive. It is certainly arguable that today unprofessional conduct by a dentist, within the meaning of the amended statute, includes not only the forms of advertising expressly mentioned, but others which the board may determine, not by way of interpretation of that statute, but under its powers “[t]o make and enforce rules and regulations for the * * * practice of dentistry, * * *” (ORS 679.250 (7)), should be prohibited. We express no opinion upon these matters, as they have not been argued and are now involved only insofar as they have a bearing upon the question whether the court, in the exercise of its discretion, should accept jurisdiction and issue a declaratory judgment.

Although the declaratory judgment act should be liberally construed and the remedy liberally applied to the end that relief may be obtained from “uncertainty and doubt” (Recall Bennett Com. v. Bennett et al, 196 Or 299, 322, 249 P2d 479); yet, as stated in Borchard on Declaratory Judgments (2d ed) 304 (quoted with approval in the Bennett case, 196 Or at 323):

“The declaration will be refused where in the court’s opinion it is inexpedient, for some reason outside the record, such as public policy, or where the question might be raised again in some other way or where it would be embarrassing in the operations of government. * * *”

In our opinion it is in the public interest that the question of the limitations upon the right of a dentist to advertise, if it is to be determined in a declaratory judgment proceeding, should be determined in the light of the law as it is today, not as it was more than two years ago when this suit was instituted. It is entirely possible that advertising practices of the plaintiff, permissible under the former statute, might be forbidden by the existing statute when supplemented by regulations adopted by the board.② Doubt and uncertainty which a declaratory judgment proceeding is intended to dispel, might still remain as to the validity of some or all of the regulations here in issue. The plaintiff, moreover, is not seeking merely guidance for his future conduct, for he concedes, in effect, that even during the pendency of this case he was advertising in violation of the regulations. He has already “acted on his own view of his rights:” Borehard, op. cit. 58, and in his case the declaratory judgment would not serve one of its principal purposes. The board, on the other hand, intends to institute proceedings for suspension or revocation of his license for such alleged violations. We may recognize that the existence of another remedy is not necessarily adequate ground for refusing declaratory relief: Borehard, op. cit. 317; yet the availability of other relief is a factor to be considered in determining whether declaratory relief should be granted: Witschner v. City of Atchison, 154 Kan 212, 214,117 P2d 570; 26 CJS 84, Declaratory Judgments § 17.

For the foregoing reasons the decree of the circuit court is reversed and this suit is dismissed.

ORS 679.140: “* * * * *

«(2) ❖ * # ❖ &

“(e) Making use of any advertising statements of a character tending to deceive or mislead the public.

“(f) Advertising professional superiority or the performance of professional services in a superior manner.

“(g) Advertising prices for professional service.

“(h) Advertising by means of large display, glaring light signs, or containing as a part thereof the representation of a tooth, teeth, bridgework or any portion of the human head.

<<& ‡ ‡ :¡i

“(j) Advertising any free dental work or free examination.

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The circuit court held eleven of the regulations invalid in whole or in part.