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NATIONAL DENTAL COUNCIL v. PENNSYLVANIA

September 23, 1987

National Dental Council, R. Thomas Tipton, D.M.D., and Sheldon Lynne, D.D.S., Plaintiffs,
v.
Commonwealth of Pennsylvania, State Board of Dentistry, et al., Defendants



The opinion of the court was delivered by: CALDWELL

 William W. Caldwell, U.S.D.J.

 Pending for disposition is the defendants' motion to dismiss the amended complaint, plaintiffs' motion for a preliminary injunction, and plaintiffs' motion for entry of an order. The latter motion essentially duplicates plaintiffs' request for an injunction.

 The original complaint, filed on April 17, 1987, by plaintiff, R. Thomas Tipton, D.M.D., and the National Dental Council (Council), attacked the constitutionality of section 3(f) of Pennsylvania's Dental Law, Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 122(f) (Purdon Pamphlet 1987-88) under the fourteenth amendment, U.S. Const. amend XIV and 42 U.S.C. § 1983, on due process and equal protection grounds. A commerce clause claim was also set forth. U.S. Const. art I, § 8,, cl.3. The complaint sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, and an injunction. The amended complaint, filed on June 16, 1987, set forth the same legal claims but added Sheldon Lynne, D.D.S. as a plaintiff. The defendants are the State Board of Dentistry (Board) and its individual members. *fn1"

 Plaintiffs allege that the Dental Law provides two alternative ways of being licensed to practice dentistry in Pennsylvania: (1) by passing the examination provided by 63 P.S. § 122(e); or (2) by proof of having been licensed in a state having standards for admission to practice equal to those of Pennsylvania, provided that the state of original licensing would reciprocate by accepting as valid, licenses issued by Pennsylvania. Plaintiffs object to the reciprocity requirement on due process, equal protection and commerce clause grounds. They assert that when a dentist has met the qualifications of a state having the same standards as Pennsylvania, it would be unconstitutional for Pennsylvania to refuse to issue a license simply because the issuing state would not extend the same courtesy to dentists licensed by Pennsylvania.

 Dr. Tipton was a licensed dentist in Utah but has now moved to Pennsylvania. Dr. Lynne is a Louisiana dentist who, while he has no plans to practice in Pennsylvania, desires a license from Pennsylvania. He is also the President of the plaintiff Council, a national organization of dentists located in Washington, D.C., established to eliminate barriers to licensure such as the Pennsylvania reciprocity requirement.

 Since the initiation of this lawsuit, questions of justiciability and ripeness have arisen. Dr. Tipton has taken and passed the North East Regional dental examination, an approved examination for licensure in Pennsylvania, and was licensed to practice dentistry on July 14, 1987. The parties agree that the action as to Dr. Tipton is therefore moot. Defendants contend that the remaining plaintiffs, the Council and Dr. Lynne, lack standing as well. Defendants argue that Dr. Lynne's lack of good faith in prosecuting this action is fatal to his standing. They suggest that Dr. Lynne expressed an interest in obtaining a Pennsylvania license, and joined this suit some two months after the original complaint was filed, only after it appeared that Dr. Tipton's claims would be mooted when he passed the North East Regional examination. Dr. Lynne has expressed no interest in practicing dentistry in Pennsylvania. Accordingly, with no real stake in the outcome of this suit, and merely litigating his interest in a legal issue of great significance to him, Dr. Lynne cannot continue to prosecute this action. Additionally, since the Council can only derive its standing from Dr. Lynne's standing, see International Union, UAW v. Brock, 477 U.S. 274, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986), it follows that the Council lacks standing as well and that this case must be dismissed for lack of justiciability.

 Plaintiffs counter that Dr. Lynne's motivation in joining this lawsuit is irrelevant. Pennsylvania does not require dentists to actually practice in the state as a condition for licensure. Since plaintiff has established he would be denied a license because of the reciprocity condition, he has suffered legal injury and has standing. Citing Brock, plaintiff argues that it follows that the Council also has standing.

 An association may have standing based upon injury to itself, Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975), but no such claim has been alleged in the complaint. Accordingly, the Council's standing in the instant case must be derived solely from its ability to assert representational standing on behalf of injured members. Id. That requires, in part, that "its members would otherwise have standing to sue in their own right." Brock, supra, 477 U.S. at , 106 S. Ct. at 2529, 91 L. Ed. 2d at 238 (quoting Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383, 394 (1977)). Therefore, we must look to Dr. Lynne's standing to determine if this action is still justiciable.

 Standing to assert a claim is not affected by a plaintiff's motivation in challenging a law or in setting himself up as a test plaintiff for the purposes of challenging the law. In Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894 (3d Cir. 1977), the plaintiff made two applications to the defendant association to place him upon a waiting list for a home. When it refused to do so, plaintiff filed suit under 42 U.S.C. § 1982 and the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. The district court dismissed the complaint, in part, because plaintiff was a "tester" whose lack of good faith was a complete defense to his claims. Reversing, the court of appeals stated:

 
The gist of the district court's holding that Meyers' status as a "tester" bars him from relief under sections 1981 and 1982 is, as we understand it, that Meyers lacks the personal interest or stake in Pennypack's policies which is required to give him standing to sue. See, e.g., Tileston v. Ullman, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943). In appealing from this aspect of the district court's decision, Meyers asserts that the court's finding that he was a "tester" is clearly erroneous but we need not review the court's finding of fact. Even assuming arguendo that Meyers' application to Pennypack was in fact motivated solely by his desire to test the legality of Pennypack's policies, such a purpose is sufficient to confer standing. See e.g., Smith v. YMCA of Montgomery, 462 F.2d 634, 645-46 (5th Cir. 1972). In Evers v. Dwyer, 358 U.S. 202, 79 S. Ct. 178, 3 L. Ed. 2d 222 (1958) (per curiam), the Supreme Court held that a black plaintiff had standing to maintain a civil rights action even though his purpose in sitting in the white section of a segregated bus was to test the legality of the segregation. The Court reiterated the same principle nine years later in Pierson v. Ray, 386 U.S. 547, 558, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967). A group of clergymen from various Northern states, Pierson v. Ray, 352 F.2d 213, 215-16 (5th Cir. 1965), travelled to Jackson, Mississippi, and entered that city's bus terminal "for the sole purpose of testing their rights to unsegregated public accommodations." The Court held that
 
The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under § 1983.
 
386 U.S. at 558, 87 S. Ct. at 1220 (footnote omitted). We therefore hold that Meyers had standing to ...

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