Norman Fields v. District of Columbia

404 F.2d 1323, 131 U.S. App. D.C. 346, 1968 U.S. App. LEXIS 8200

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 2, 1968
• Docket: 21185
• Status: Published

Opinions

PER CURIAM:

This is a petition for allowance of an appeal from the District of Columbia Court of Appeals. The District of Columbia Court of General Sessions found that petitioner, an optician, had practiced optometry without a license¹ by his unsupervised fitting of contact lenses. Since this was obviously prosecuted as a test case, no sentence was imposed on petitioner; imposition of sentence was suspended upon his giving of personal bond not to repeat the offense. On appeal, the District of Columbia Court of Appeals affirmed, construing the District optometry statute to make any fitting of contact lenses the practice of optometry. Petitioner and several amici2 have asked this court to review the court of appeals’ decision, pointing out its impact on contact lens work and on opticians, optometrists, and ophthalmologists generally in the District of Columbia.

This court exercises a type of certiorari jurisdiction over the District of Columbia Court of Appeals.³ Rule 1 of our rules governing appeals from that court, which is based on present Sup. Ct.R. 19, emphasizes that appeal is “not á matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor.”⁴ The fact that a number of individuals will be affected by the local court’s decision is not enough of itself to require an exercise of that discretion. The nature of the question presented and the soundness of the court’s decision are proper considerations.

The District of Columbia Court of Appeals is the highest purely local court of the District. Regulatory laws, such as those governing the practice of optometry, are obviously local in application. Questions may be decisively determined by that court, and need not be settled by this court, when what is involved is interpretation of a local statute, regulation, or ordinance; the interpretation given is within the zone of what is reasonable; the prosecution is for an offense malum prohibitum that is brought by the District of Columbia and not by the United States; and the case does not involve overtones of fundamental rights or substantial allegations of executive action as ultra vires or overreaching.

In this case, the District of Columbia Court of Appeals undertook a careful review of the applicable statutes, their purpose, the testimony in the trial court, and cases in other jurisdictions. We think its decision is within the zone of the permissible, although we do not consider whether it was required under the act, or best effectuates the legislative intent, or is the conclusion that we would have reached if we had been deciding the matter.

We do not think it requisite that the question be settled by this court. However, we think it in the interest of justice to make it expressly clear that the denial of petition for leave to appeal is without prejudice to the filing of a petition for rehearing with the District of Columbia Court of Appeals, and presentation of amicus curiae memoranda ⁵ to that court, and our order shall in this case be taken as holding the case open for the purpose of providing leave therefor.

Petition denied.

1 . D.C.Code Ann. § 2-501 (1967) defines the practice of optometry. Section 502 makes unlicensed practice of optometry a misdemeanor.

2 . They include the Guild of Prescription Opticians of America, Inc., the Guild of Prescription Opticians of Washington, D. C., Inc., the Contact Lens Society of America, Inc., and the Medical Society of the District of Columbia.

3 . See D.C.Code Ann. § 11-321 (b) (1967).

4 . The rule lists a number of considerations -which will guide this court’s discretion, including: “(c) Where a question of general importance, or a question of substance relating to the construction or application of statutes or municipal ordinances or regulations, may be involved which has not been, but should be, settled by this court.” However, the rule also describes these factors as “neither controlling nor fully measuring the court’s discretion.”

5 . Not until after the petition for reconsideration had here been filed was interposition sought by various amici, including memoranda referring to prevailing practice. It may be that they had not sought to submit their memoranda to the District of Columbia Court of Appeals since the parties apparently thought that their only remedy was to seek review in this court.

The memoranda would permit the D.C. Court of Appeals to restudy the issue of legislative intent in the light of further information as to the level of skill required for the fitting of contact lenses, and to give consideration to the contention that presumes a legislative policy, taking into account both expense and limited availability of highest skills, of disclaiming requirement of an ophthalmologist if the task proves to be one requiring lesser technical qualifications.