Hodsen v. Jackson

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Horton Hodsen, as agent for Nutriphysiology
(previously known as Nutribionics and Biochem Research Services)
and for himself, personally, as Horton E. Tatarian; and Gail Anderson,
Plaintiffs and Appellants,

v.

Craig Jackson, Director of the Division of Occupational
and Professional Licensing, Department of Commerce,
State of Utah, in his official capacity,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981554-CA

F I L E D
November 4, 1999
  1999 UT App 321

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Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Matthew Hilton, Springville, for Appellants
Jan Graham and Jeffrey C. Hunt, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Davis.

BENCH, Judge:

Appellants argue at length(1) that their "fundamental rights of personal, religious, and commercial speech, formulation of religious belief, and exercise of religiously motivated conduct" have been violated by the Utah Medical Practice Act. We disagree.

Despite appellants' urging to the contrary, Utah case law is dispositive of this appeal. The Utah Supreme Court has twice affirmed the power of the State to regulate the practice of medicine in the face of First Amendment challenges. See State v. Hoffman, 558 P.2d 602 (Utah 1976) (Hoffman I); State v. Hoffman, 733 P.2d 502 (Utah 1987) (Hoffman II). We are not persuaded by appellants' attempt to distinguish the instant case from the Hoffman cases, given that: The right to practice medicine, to diagnose maladies, and to prescribe for their treatment is not constitutionally superior to the state's power to impose comprehensive and rigid regulations on the practice. [Appellants have] not shown and cannot show that a criminal violation of the Act by the unlicensed prescription of treatments and cures . . . rises to the level of a constitutionally protected activity. Hoffman II, 733 P.2d at 505 (emphasis added); see also id. (citing People v. Jeffers, 690 P.2d 194, 198 (Colo. 1984) ("The practice of medicine itself is not protected by the first amendment. Therefore, reasonable regulation of medical practice does not conflict with first amendment protections.")). The practice of medicine is a privilege, not a right, and is subject to governmental regulation. See Hoffman I, 558 P.2d at 605; see also State Dep't of Health v. Hinze, 441 N.W.2d 593, 596-97 (Neb. 1989) ("There exists no vested right to practice medicine; rather, it is a conditional right subordinate to the police power of the State to protect and preserve the public health."). Moreover, the legislature is "not only authorized to regulate the healing arts but a failure to do so could be a direct derogation of the implied power of the State to promote the health, safety, comfort, morals and welfare of the people." Hoffman I, 558 P.2d at 605.

Appellants also mention select provisions of the Utah Constitution and assert that these provisions demonstrate "a basis for inferring an intent to provide maximum protection" to them. (Emphasis added.) Appellants must make "an argument for different analysis under the state and federal constitutions." State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988). Appellants' effort to demonstrate that additional or different protection is afforded under the Utah Constitution is unpersuasive.

Regulating the practice of medicine is a valid exercise of the police power, and is not subject to First Amendment scrutiny. Accordingly, we affirm the trial court's decision.
 
 
 
 

_____________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 
 
 

_____________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

_____________________________
James Z. Davis, Judge

1. We share the disapproval expressed earlier this year by the Utah Supreme Court concerning the length, form, and content of counsel's briefs. See Springville Citizens v. City of Springville, 979 P.2d 332, 334 n.1 (Utah 1999) (disapproving counsel's circumvention of fifty-page limit and his cursory and incomplete discussion of central points). Counsel is again reminded to comply with the rules of appellate procedure when submitting briefs.