The National Association of Naturopathic Physicians, Etc. v. The California State Board of Chiropractic Examiners Etc.

Ninth Circuit

The National Association of Naturopathic Physicians, Etc. v. The California State Board of Chiropractic Examiners Etc.

442 F.2d 466

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 1, 1971

Docket24764

StatusPublished

Cited by1 cases

This text of 442 F.2d 466 (The National Association of Naturopathic Physicians, Etc. v. The California State Board of Chiropractic Examiners Etc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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The National Association of Naturopathic Physicians, Etc. v. The California State Board of Chiropractic Examiners Etc., 442 F.2d 466 (9th Cir. 1971).

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Opinion

PER CURIAM:

The appellant is an association of Na-turopathic Physicians. These physicians, in order to pursue their practice in California, are required to obtain licenses from California’s Board of Chiropractors and are thus limited to the chiropractic practice. Cal.Bus. & Prof.Code § 1000-7 (West 1962). The appellant filed suit in the District Court, challenging California’s licensing scheme and praying that a three-judge District Court be convened pursuant to 28 U.S.C. § 2281. The District Court dismissed the complaint.

In filing the suit the appellant apparently hoped that the District Court would invalidate the challenged California statutes and that this, in turn, would lead to the creation under the California Business and Professions Code of a separate board which would be concerned with the licensing of Naturopathic Phy- *467 sieians only. The appellant’s claim that California’s present procedure is constitutionally invalid is based primarily upon the decision of the Supreme Court of Idaho in State ex rel. State Bd. of Medicine v. Smith, 81 Idaho 103, 337 P.2d 938 (1959). We have reviewed that decision, and we have also considered England v. Louisiana State Bd. of Medical Examiners, 246 F.Supp. 993 (E.D.La.1965), aff’d mem., 384 U.S. 885, 86 S.Ct. 1924, 16 L. Ed.2d 998 (1966), and Hitchcock v. Collenberg, 140 F.Supp. 894 (D.Md.1956), aff’d mem., 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718 (1957). In both these latter cases, three-judge District Courts resolved contentions similar to those made by the appellant adversely to chiropractors and naturopaths, and both cases were summarily affirmed by the Supreme Court.

Despite the foregoing, we have concluded that we need not now express an opinion upon the merits of the appellant’s claim. During oral argument in our court, the appellant’s attorney conceded that the appellant has made no effort to challenge the validity of the pertinent California statutes in the courts of the State of California. At the same time, he urged that one recent opinion of a California appellate court strengthened the position of his client. This case is D’Amico v. Board of Medical Examiners, 6 Cal.App.3d 716, 86 Cal.Rptr. 245 (1970). In these circumstances, we think that the filing of the appellant’s suit in the District Court was premature, that it was in no position to seek the intervention of the federal court before undertaking to obtain relief in the California courts, and that the dismissal by the District Court should be affirmed for that reason. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

Affirmed.

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PER CURIAM:

The appellant is an association of Na-turopathic Physicians. These physicians, in order to pursue their practice in California, are required to obtain licenses from California’s Board of Chiropractors and are thus limited to the chiropractic practice. Cal.Bus. & Prof.Code § 1000-7 (West 1962). The appellant filed suit in the District Court, challenging California’s licensing scheme and praying that a three-judge District Court be convened pursuant to 28 U.S.C. § 2281. The District Court dismissed the complaint.

In filing the suit the appellant apparently hoped that the District Court would invalidate the challenged California statutes and that this, in turn, would lead to the creation under the California Business and Professions Code of a separate board which would be concerned with the licensing of Naturopathic Phy- *467 sieians only. The appellant’s claim that California’s present procedure is constitutionally invalid is based primarily upon the decision of the Supreme Court of Idaho in State ex rel. State Bd. of Medicine v. Smith, 81 Idaho 103, 337 P.2d 938 (1959). We have reviewed that decision, and we have also considered England v. Louisiana State Bd. of Medical Examiners, 246 F.Supp. 993 (E.D.La.1965), aff’d mem., 384 U.S. 885, 86 S.Ct. 1924, 16 L. Ed.2d 998 (1966), and Hitchcock v. Collenberg, 140 F.Supp. 894 (D.Md.1956), aff’d mem., 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d 718 (1957). In both these latter cases, three-judge District Courts resolved contentions similar to those made by the appellant adversely to chiropractors and naturopaths, and both cases were summarily affirmed by the Supreme Court.

Despite the foregoing, we have concluded that we need not now express an opinion upon the merits of the appellant’s claim. During oral argument in our court, the appellant’s attorney conceded that the appellant has made no effort to challenge the validity of the pertinent California statutes in the courts of the State of California. At the same time, he urged that one recent opinion of a California appellate court strengthened the position of his client. This case is D’Amico v. Board of Medical Examiners, 6 Cal.App.3d 716, 86 Cal.Rptr. 245 (1970). In these circumstances, we think that the filing of the appellant’s suit in the District Court was premature, that it was in no position to seek the intervention of the federal court before undertaking to obtain relief in the California courts, and that the dismissal by the District Court should be affirmed for that reason. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

Affirmed.

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