GIBSON v. BERRYHILL

Argument of Richard A. Billups, Jr.

Chief Justice Warren E. Burger: 71-653, Gibson against Berryhill.

Mr. Billups?

Mr. Richard A. Billups, Jr.: Mr. Chief Justice and members of this Honorable Court.

This is a case where charges were pending against the plaintiff optometrists, charging them with having violated certain Sections of the optometry law.

Chief Justice Warren E. Burger: Would you raise your voice a little Mr. Billups.

Mr. Richard A. Billups, Jr.: This is a case where charges were pending against the plaintiff optometrists for having before the Alabama State Board of Optometry, after having scheduled them for a hearing before this Board of Optometry and before the hearing, this suit was filed to enjoin the Board from hearing the charges and the Board voluntarily agreed to withhold further action until this case has been finally disposed off.

The plaintiffs in their complaint allege a violation of the civil rights of the optometrists under Section 1983 of the Federal Civil Rights Act on the part of the defendant, Board members and later filed a second cause of action alleging that Sections 192 and 206 of the Alabama optometry law were unconstitutional and requested a hearing before a three-judged court which was granted.

The defendants assert that there was no misconduct on their part and so answered and also filed a motion to dismiss the case.

The issues were joined on a stipulation of facts and briefs presented to Court which granted an injunction against the State Board, its members and successors in office from hearing the charges and in addition, held Section 192 and 206 unconstitutional on the theory that said Section 192, that a Board member must be eligible for appointment, had to be a member in good standing of the Alabama Optometric Association.

And that Section 206 of the Optometry Law while providing the procedure for handling and hearing any charges filed before it was unconstitutional because even though it provided for an appeal from an adverse decision, it failed to spell out supersedeas pending on appeal.

The defendants answered that these two Sections of the Optometry Law had been held to be constitutional by the Alabama Supreme Court in a prior case of McCoy versus Wood and was not violative of the federal constitution.

The holding of the Court, of the trial court, if sustained, will destroy virtually every state created licensing Board.

Because in most instances, they have the same general provision such as Section 192 that Board Members must be members of the association to be eligible for appointment, and 206 of the Alabama law which provides for the handling of charges and in the Alabama law 206, it provides that from an adverse ruling, the optometrist can appeal to the Circuit Court of his home county.

Justice Byron R. White: This a case (Inaudible)

Mr. Richard A. Billups, Jr.: Yes sir, yes sir.

Now, it does not going to say how the supersedeas can be obtained, but in Alabama, the Courts have held that any court, including the Supreme Court can grant supersedeas and so this holding of the trial court would as to say where it limits the -- those who can serve on the Board to members of the association or as in some states where they are recommended by the association to the governor for appointment, if permitted to stand would virtually destroy every regulatory licensing Board created by statute.

Justice Byron R. White: Is the appeal -- the administrative hearing proceeding goes on then -- and the -- if there's an adverse decision, there is appeal to the Circuit Court, to the state Circuit Court, right?

Mr. Richard A. Billups, Jr.: Yes sir.

Justice Byron R. White: Is that on the record or is it de novo?

Mr. Richard A. Billups, Jr.: In Alabama, there is some question as to whether it’s on the record or de novo.

The only appeal with which I’m familiar was one de novo.

Justice Byron R. White: Well, there is a -- there are time limits set for the appeal?

Mr. Richard A. Billups, Jr.: No sir, no sir.

This has -- it will be appealed to the Circuit Court of the residence of the defendant or of the accused.

Justice Byron R. White: But if you waited two years, you could still appeal it in Alabama?

Mr. Richard A. Billups, Jr.: There’s no limit and the law itself as I read it and as I remember it.

Justice William H. Rehnquist: Would you be barred by the latches at some point?

Mr. Richard A. Billups, Jr.: I beg your pardon?

Justice William H. Rehnquist: Might you not be barred by latches at some point?

Mr. Richard A. Billups, Jr.: That’s -- that would be a good question, but there’s nothing in the optometry law that so holds or touches on that topic.

Justice Byron R. White: If you want a supersedeas or if you wanted -- if you want to practice while you appeal you better move.

I take it --

Mr. Richard A. Billups, Jr.: Well --

Justice Byron R. White: -- you better move faster -- unless you’re going to Court and get a supersedeas, you’re out of business?

Mr. Richard A. Billups, Jr.: Well, that is true sir except --

Justice Byron R. White: Well, isn’t it -- isn’t that true as in the -- isn’t the decision of the Board final unless he gets accepted and gets it set aside?

Mr. Richard A. Billups, Jr.: Unless it’s appealed, unless it's appealed.

Now, but during the course of the proceedings and I will get the -- and in order to cover that point that you have just raised, the state board adapted a regulation stating that any event of an adverse decision, the state board would take no action or hold the matter in abeyance until the appeal had been completed and determined.

So, that then would not even require a supersedeas because the regulation of course has the effect of law.

Justice Byron R. White: Well, they must have contemplated some time limit, wouldn’t they?

They wouldn’t say, we won’t take any action and then lets you not take any actions forever.

Mr. Richard A. Billups, Jr.: No sir.

There was no time limit in the regulation.

Now, these charges grow out of a series of events that have transpired over a number of years and while these dates are set out in the various pleadings, I believe it would be helpful for this Honorable Court to know the sequence because among other things, the Board is charged with harassment of the defendant optometrist because of the fact that these charges laid dormant for a long number of years.

But for many years and then from the adoption of the optometry law in 1990, Section 210 of the optometry law permitted a retailer or a store to maintain an optometric department wherein eyes were examined and glassed fitted, provided there was an optometrist in charge of it.

That’s what's sometimes referred to as corporate practice.

Now, on August 4th, 1965, Section 210 was repealed in its entirety, which we contend, lets it fall back on the general rule that’s well recognized that in the absence of statutory authority, a person cannot practice a profession through -- a corporation cannot practice a profession through the employment of a licensed professional.

And we’ve had optometrists and physicians involved in these cases.

In August of 1965, shortly after this repeal, the State Board notified all optometrists to comply and offer their assistance.

Then, on October 26, 1965, charges filed by the Alabama Association with the Board were filed which included charges against these plaintiffs below who were employed at that time by Lee Optical Company.

A short time later, the state board filed an injunction suit against Lee Optical Company and the employed optometrists, including one physician, alleging that the optometrists were aiding and abating Lee Optical in the unlawful practice of optometry and by so doing, they themselves were unlawfully practicing optometry.

Unfortunately, there was no precedent in Alabama for the filing of such an injunction suit in any of the professional fields perhaps because of the fact that the Section 210 which permitted corporations to function as they did discouraged others in filing any suits in any other field.

Now, then the defendants, all of them filed a motion to abate and this motion was sustained because as I say, there was no precedent for the filing of such an injunction suit.

Now, in other states, there is a statutory authority for filing of such suits.

Then the defendants filed a motion to abate and the Court sustained that motion to abate and an appeal was taken.

Now, then, in September of 1967, the Alabama legislature passed Act Number 509, giving all boards the right to bring an injunction suit against anyone unlawfully practicing in their field and made it retroactive.

Chief Justice Warren E. Burger: We’ll resume at that point in the morning Mr. Billups.

Mr. Richard A. Billups, Jr.: Yes sir.