author: BARBOUR, District Judge.

text:
    W.L. RAYBORN, Ralph W. Pinto, Nevel B. Collier, James A. Ross and Edwin Greer, Plaintiffs, v. MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS, Lee Hasseltine, William P. Edgar, Herman K. Smith, James H. Stribling, Clyde Sprayberry and Robert Holifield individually and as members of the Mississippi State Board of Dental Examiners, Defendants.
    Civ. A. No. J81-0488(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Jan. 15, 1985.

      James W. Kitchens, Kitchens & Pickard, Hazlehurst, Miss., Sheldon Gardner, Foss, Schuman & Drake, Chicago, 111., for plaintiffs.
    Bill Allain, Atty. Gen., William Larry Latham, Jackson, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

In this civil action, Plaintiffs, Denturists and dental laboratory technicians allegedly studying to be denturists, seek damages and injunctive and declaratory relief against the Mississippi State Board of Dental Examiners (hereinafter “Dental Board”) and its individual members. In the five count Amended Complaint, the Plaintiffs attack the constitutionality of the Mississippi Dental Practice Act (hereinafter “Dental Act”) — Sections 73-9-1 through 73-9-65 of Mississippi Code Annotated of 1972. — and seek damages and injunctive relief against the members of the Dental Board for alleged violations of the Plaintiffs’ civil rights pursuant to 42 U.S.C. §§ 1983 and 1985.

The Defendants have filed a Motion to Dismiss for failure to state a claim and a Motion for Summary Judgment. Since the parties have presented, and this Court has considered, matters outside the pleadings, the Rule 12(b)(6) Motion will be treated as one for summary judgment. The Defendants thus must show that there is no genuine issue as to any material fact, and that they are entitled to judgment as a matter of law.

In the Amended Complaint, Plaintiffs present five numbered counts. However, the arguments presented by Plaintiffs’ counsel and the claims presented in the Amended Complaint merge and reduce the legal issues. This Opinion will examine the Plaintiffs’ basic claims in, and the arguments addressed to defeat and support, the Amended Complaint to determine the propriety of Defendants’ Motion for Summary Judgment.

The constitutionality of Mississippi’s Dental Act is attacked in two ways by Plaintiffs. First, Plaintiffs allege that the selection process for members of the Dental Board set forth in Section 73-9-7 of the Mississippi Code Annotated of 1972 (both before and after its 1983 amendment) creates a dental board which is comprised of dentists who are publicly opposed to the public practice of denturism, and, as such, the Dental Board cannot be fair and impartial to denturists, thereby denying Plaintiffs’ rights to due process. Second, Plaintiffs challenge the constitutionality of Mississippi’s Dental Act on other “due process” and “equal protection” grounds which are discussed below.

In their “Brief In Opposition Of Defendants’ Motion For Summary Judgment And For Dismissal For Failure To State A Claim Upon Which Relief May Be Granted” Plaintiffs agree that the delegation of the power to appoint members of a state board to the members of the regulated profession is not unconstitutional per se. Plaintiffs’ brief at page 13. However, Plaintiffs rely on certain language in Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), to support their contention that the Dental Board, although constitutionally selected, cannot fulfill the constitutional requisites of “acting fairly and properly when prosecuting plaintiffs or other denturists.” Plaintiffs’ brief at pages 12-13. Plaintiffs rely on affidavits to demonstrate that the Dental Board has acted unfairly. Thus, Plaintiffs contend that the Dental Board has denied, or may deny, them their right to due process of the law.

A close look at the Friedman decision cited by both parties shows that, as a matter of law, Defendants are entitled to a judgment on Count I of the Amended Complaint. The Friedman Court states:

Although Rogers has no constitutional right to be regulated by a Board that is sympathetic to the commercial practice of optometry, he does have a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Board____

Friedman v. Rogers, 440 U.S. at 18, 99 S.Ct. at 898. There are absolutely no facts which indicate that the Mississippi Dental Board has conducted any disciplinary proceedings against any plaintiff. The absence of such facts is required because none of the Plaintiffs are licensed dentists or licensed dental hygienists. The disciplinary powers of the Dental Board are restricted to those two groups, and the Dental Board is statutorily without power to conduct any hearing in any disciplinary proceeding against any of the Plaintiffs. While the language in Friedman requires a professional regulatory board to be fair and impartial to those subject to its regulation and disciplinary proceedings so as to accord due process to those it disciplines, Friedman defeats the legal position taken by Plaintiffs with respect to Count I of the Amended Complaint. The Friedman court found that since the complaining party’s challenge to the fairness of the composition of the professional regulatory board in that case did not arise from any disciplinary proceeding against him, the challenge was meritless. Friedman v. Rogers, 440 U.S. at 18-19, 99 S.Ct. at 898-899. The possibility that the Mississippi Dental Board would not, if it could, conduct a fair and impartial hearing in a disciplinary proceeding which it might undertake against persons similarly situated with Plaintiffs is a meritless “what if” constitutional argument, and this Court finds that there are no discernible circumstances which can support the contentions of Plaintiffs under Count I of the Amended Complaint.

Next, Plaintiffs undertake an argument to show that there is no rational basis for the prohibition of the practice of denturism for the public. In Count II of the Amended Complaint, Plaintiffs challenge the constitutionality of such prohibition which is necessarily inferred from the language of the Dental Practice Act. Plaintiffs embrace the “rational relation” test utilized by federal courts to review state statutory classifications, and do not urge that a stricter standard of review is appropriate. This Court agrees that the rational relation test is applicable.

The due process clause of the Constitution requires much less than legislative consideration of economic regulations which result in economic hardships and the imposition of restrictions on- vocational freedom of choice and enjoyment on some persons. The Plaintiffs’ due process challenge to the Dental Act is more appropriately to be addressed by the- Mississippi Legislature than by this Federal Court. As has been succinctly stated, business regulations are to be enacted and reexamined by state legislatures:

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought... “For protection against abuses by legislatures the people must resort to the polls, not to the courts.”

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955) (citations omitted) quoting Munn v. Illinois, 4 Otto 113, 94 U.S. 113, 134, 24 L.Ed. 77 (1876). Instructions requiring studied reluctance by federal courts in actions seeking Constitutional examination of state economic regulations and legislation were further collated by the Supreme Court as follows:

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are im: perfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ... “Problems of government are practical ones and may justify, if they do not require, rough accommodation — illogical, it may be, and unscientific.” ... “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” ... “[I]t is a standard that is true to the principal that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.”

Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970) (citations and footnote omitted).

This Court’s analysis of Plaintiffs’ constitutional challenges to the de facto prohibition of the public practice of denturism under the auspices of Mississippi’s Dental Act is thus limited to consideration of whether the Dental Act, and the subject prohibition, is rationally related to a legitimate state purpose.

Of particular guidance in the area of the regulatory power of states over the practice of dentistry is Graves v. Minnesota, 272 U.S. 425, 427-29, 47 S.Ct. 122, 122-23, 71 L.Ed. 331 (1926) wherein the following is stated:

It is well settled that a State may, consistently with the Fourteenth Amendment, prescribe that only persons possessing the reasonably necessary qualifications of learning and skill shall practise [sic] medicine or dentistry ... By enacting the present statute the State has determined, through its legislative body, that to safeguard properly the public health it is necessary that no one be licensed to practice dentistry who does not hold a diploma from a dental college of good standing. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute ... And the case is to be considered in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare, and its police statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise the authority vested in it in the public interest ... Clearly the fact that an applicant for a license holds a diploma from a reputable dental college has a direct and substantial relation to his qualification to practice dentistry. We cannot say that the state is acting arbitrarily or unreasonably when, in the exercise of its judgment, it determines that the holding of such a diploma is a necessary qualification for the practice of dentistry; or that the distinction made in the granting of licenses between applicants who hold such diplomas and those who do not, is a classification which has no real or substantial basis. And the constitutionality of the statute must be sustained.

The Graves court quoted the following be language from Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1899):

The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity.

It is manifest that Mississippi has a legitimate and lawful interest in the regulation of the practice of dentistry within its borders. The Plaintiffs attempt to draw a line between denturism and dentistry. The Plaintiffs assert that denturists have a basic familiarity with the subject prosthetic devices (e.g. artificial teeth or dentures, crowns and bridges) and usually have the skills to fabricate the devices, and, in addition, they have the skills to fit and adjust the devices directly to the user. Plaintiffs further assert that dentists are medically trained persons who have only a peripheral relationship, if any, with the fabrication of the prosthetic devices and frequently are unable to fabricate the device. The Mississippi Legislature, however, defines “dentists” as follows:

Any person shall be regarded as practicing dentistry within the meaning of [the Mississippi Dental Practice Act] who shall ... correct malposition or irregularities of the teeth or jaws ... or construct, repair or mend artificial teeth, crowns or bridges____

Miss.Code Ann. § 73-9-3 (Supp.1983). Furthermore, the Mississippi Legislature apparently addressed the issue being urged to this Court and enacted, and in 1983 reenacted without change, the following:

A person not licensed to practice dentistry under the laws of this state shall not, (1) take impressions or casts of the human mouth or teeth, (2) construct or supply dentures without the authorization or prescription of a person licensed under the laws of this state to practice dentistry, and (3) construct or supply dentures from impressions or casts without the authorization or prescription of a person licensed under the laws of this state to practice dentistry.

Miss.Code Ann. § 73-9-41 (Supp.1983) (in part).

What the Plaintiffs assert that they must and can prove to prevail on their argument that the prohibition of the public practice of denturism is unconstitutional and should be statutorily permitted (and regulated) are the following facts: (1) the Mississippi Dental Practice Act harms the public by limiting the supply of dentures in Mississippi and by artificially maintaining high prices for dentures. (2) The limited supply and high price of the dentures in Mississippi effectively excludes many elderly and edentulous persons from purchasing dentures. (3) Denturists are capable of providing dentures without harm to the public at lower than current costs. However, even if the above “facts” are taken to be true, they do not make the state’s regulatory scheme regarding the public practice of dentistry unconstitutional. These facts do, perhaps, make a good case for legislative action. Nevertheless, these facts do not negate every possible reason supporting the validity of the subject statutes. Such a negation is necessary in this case because the challenged economic regulations do not unreasonably entangle fundamentally personal rights, and there is no contention that the classification is drawn upon inherently suspect distinctions.

The right to practice the profession which Plaintiffs call denturism, which practice is inherently and inexorably connected to the field of public health and welfare— being a sub-profession to dentistry which itself is a sub-profession in the field of medicine — is subjugated to the state's greater right and duty to provide for the general welfare of its people and to protect society. This subjugation, of course, is limited, and the state in its regulations may not arbitrarily take from these denturist plaintiffs their estate in the practice of denturism. This principle has been enunciated by the Supreme Court as follows:

It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to everyone on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society.

Dent v. West Virginia, 129 U.S. at 121-22, 9 S.Ct. at 233-34.

That the state legislature has recognized and regulated other sub-professions within the broad category of medical health care is an insufficient argument to justify a federal court to do that which the state’s legislature is uniquely qualified, empowered and entrusted, but has chosen not, to do. The weighing of the relative evils created and prevented by the Mississippi Dental Act is a function for the state legislature. This Court, perceiving no discernible circumstances supporting any constitutionally impermissible prohibition or classification on the facts alleged by Plaintiffs does not, and should not, sit as a super-legislature on these economic, professional, and health care regulations.

Plaintiffs’ argument that denturists own the same qualifications as dentists with regard to the measurement, construction and placement of dentures for the human mouth does not defeat the apparent reasons for the state’s requirement that a person licensed in Mississippi to practice dentistry be responsible to the individual patients and to the public for the observance of the oral cavity, the technical specifications of the denture to be manufactured, and the placement and adjustment of that prosthetic device in the human mouth. In the state’s judgment, the qualifications required to obtain a dentist license are necessary for the protection of its citizens both with regard to the supply of dentures and other traditional services performed by dentists. The detection, diagnosis and treatment of medical diseases of the mouth and related areas is notably absent from the Plaintiffs’ description and definition of their and other denturists’ qualifications and ability.

Notwithstanding the apparently rational basis for the state’s requirement that dentists licensed by it be directly involved and ultimately responsible for the public’s acquisition of dentures, Plaintiffs assert that their challenge to the statutory prohibition of public denturism entitles them to a day in court. To support this contention, Plaintiffs rely upon the decisions in the case of England v. Louisiana State Board of Health, 259 F.2d 626 (5th Cir.1958) Pet. for reh. den. with written opinion, 263 F.2d 661 (5th Cir.1959). The England per curium decisions overruled the district court’s granting of a summary judgment in favor of the state defendant whereby the lower court had, in determining the motion, upheld the state’s interpretation and administration of its statutory requirements for obtaining a license to practice medicine, which application effectively excluded all non-medically trained chiropractors from engaging in the practice of chiropractic.

An analysis of the England decisions reveals to this Court a dramatic distinction between the case before the Fifth Circuit over 24 years ago and the case sub judice. The majority opinion of the court in its decision denying the state defendant’s petition for rehearing was careful to explain their prior reasoning as follows:

The Louisiana State Board of Medical Examiners certainly cannot be required [by a federal court] to issue to a chiropractor a license to practice medicine unless he complies with all of the statutory prerequisites ... As we understand, the plaintiffs can claim no right to practice medicine as that practice is engaged in by medical doctors and surgeons. The question is whether they can be constitutionally excluded from the practice of chiropractic in Louisiana.

England, 263 F.2d at 664-65.

In this case, the denturist Plaintiffs do claim the right, by virtue of education, experience and skill, to practice the denture supplying portion of dentistry as that practice is engaged in by licensed, medically trained dentists. The question here is whether denturists can be constitutionally excluded from the practice of dentistry (or a portion thereof) in Mississippi. The Plaintiffs do not allege or argue that the statutory prohibition of the public practice of denturism prevents denturists from earning a living. What Mississippi’s Dental Act is designed to do is to restrict denturists and dental lab technicians from measuring, constructing, fitting and repairing dental prosthetic devices directly for the public without the participation, direction, supervision and ultimate responsibility of persons licensed by the Dental Board to practice dentistry in Mississippi.

In the instant case, the dissents of Circuit Judge Wisdom to the England majority decisions are poignantly apposite. As Judge Wisdom noted in one of his dissents, it is so here:

There is no discrimination in statutory standards applied to all candidates for a medical [(dentistry)] license. We cannot say that the state is acting arbitrarily or unreasonably if it finds a rational connection between the medical [ (dental) ] training at a reputable medical [(dental)] school and the practice of medicine [ (dentistry) ] ... If an exception is to be made for certain practitioners, such as for nurses or chiropodists or dentists, special legislation is necessary to protect the public.

England, 263 F.2d at 675 & 677, (Wisdom, J. dissenting).

Moreover, recent Fifth Circuit decisions have apparently eroded the “day in court” rationale of the England decisions. For example, in Finch v. Mississippi State Medical Association, Inc., 594 F.2d 163 (5th Cir.1979), the United States District Court for the Southern District of Mississippi, Walter L. Nixon, Jr., United States District Judge, found lack of case or controversy and dismissed, inter alia, plaintiffs’ fourteenth amendment challenge to the statutory nomination and selection procedure for membership on the Mississippi State Board of Health wherein, inter alia, it was alleged that the Health Act, as administered, excluded licensed, black physicians on racial grounds. The Fifth Circuit upheld the lower court’s summary dismissal of the constitutional challenge to the statutory selection process and, for authority, cited Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979).

This Court finds the following statement appropriate:

The plaintiffs are in the wrong forum asking for the wrong relief from the wrong lawmaker. The plaintiffs' real complaint is that the legislature has not passed a law making a special exception for their benefit. Exceptions are a matter of legislative grace. It is not for us to supply the omission. The question before us is the limited one of the constitutionality of a particular statute: the reasonableness of educational requirements and other safeguards in light of the purpose of the statute. I do not see a federal court as having any right to challenge the purpose of a state law, if the purpose is lawful... It is not for us to say that the purpose should be broader ... [t]hat was not the law the Louisiana legislature passed.

England, 263 F.2d at 676 (Wisdom, J., dissenting).

Accordingly, this Court is of the opinion that even assuming the evidence Plaintiffs state they can prove is true, there are nevertheless no discernible circumstances upon which Plaintiffs can prevail on their constitutional challenges to the Mississippi Dental Act as pled in Count II of the Amended Complaint. In other words, this Court finds that it has no legislative power, as a part of the least democratic branch of government in the United States, to recognize and regulate the occupation called denturism. Neither does this Court have the power to grant to denturists a license to practice denturism which, as Plaintiffs argue, consists of a part of the practice of dentistry as that practice is legislatively defined and engaged in by medically trained and statutorily licensed and regulated dentists in Mississippi. If the denturists desire an exception to the Dental Act, then it is to the legislature that they have recourse — not to the federal courts.

In absence of any federal case or controversy for this Court to resolve respecting the Mississippi Dental Act, Counts I and II of the Amended Complaint should be dismissed, and the energy of this Court now is to be focused on the remaining counts of the Amended Complaint.

Plaintiffs characterize their claims in Counts III and IV of the Amended Complaint as presenting causes of action under 42 U.S.C. § 1983. The Court notes, however, that Counts III, IV and V of the Amended Complaint allege conspiratory actions by the various Defendants to deprive one or more of the Plaintiffs of their rights to equal protection of the laws, or of equal privileges and immunities under the laws. To the extent that Counts III, IV and V of the Amended Complaint may require analysis of the provisions of 42 U.S.C. § 1985(3), the following discussion is appropriate.

The United States Supreme Court recently addressed conspiracies formed for the purposes of depriving persons of equal protection of the laws of or equal privileges and immunities under the laws in violation of § 1985(3) in United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). The Court noted that to state a cause for violation of § 1985, the plaintiffs must allege and prove: “(1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Id.., 463 U.S. at-, 103 S.Ct. at 3355, 77 L.Ed.2d at 1054. Citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971).

The Court has interpreted § 1985 to apply to deprivations of equal protection or equal privileges and immunities provided there is some racial or other “class-based” invidiously discriminatory animus behind the conspirators’ actions. Griffin v. Breckenridge, 403 U.S. at 102, 91 S.Ct. at 1798. In Carpenters the plaintiffs were non-union employees who were beaten by union employees. The plaintiffs sued the various unions for conspiring to deny them their First Amendment rights. The United States Court of Appeals for the Fifth Circuit held that § 1985 reached conspiracies either motivated by political or racial bias. The Supreme Court reversed and stated

In the first place, it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans____ The predominate purpose of § 1985(3) was to combat the prevalent animus against Negroes and their supporters. The latter included Republicans generally, as well as others, such as Northerners who came South with sympathetic views toward the Negro. Although we have examined with some care the legislative history that has been marshalled in support of the position that Congress meant to forbid wholly non-racial, but politically motivated conspiracies, we find difficult the question whether § 1985(3) provided a remedy for every concerted effort by one political group to nullify the influence of or do other injury to a competing group by use of otherwise unlawful means. To accede to that view would go far toward making the federal courts, by virtue of § 1985(3), the monitors of campaign tactics in both state and federal elections, a role that the court should not be quick to assume. If respondents’ submission were accepted, the proscription of § 1985(3) would arguably reach the claim that a political party has interfered with the freedom of speech of another political party by encouraging the heckling of his rival’s speakers and the disruption of the rival’s meeting.

United Brotherhood of Carpenters and Joiners v. Scott, 463 U.S. at —, 103 S.Ct. at 3359, 77 L.Ed.2d at 1059.

The court concluded that Section 1985 did not reach conspiracies motivated by economic or commercial animus. Said the Court:

We thus cannot construe § 1985(3) to reach conspiracies motivated by economic or commercial animus... Moreover, if anti-union, and anti-nonunion, or anti-employer biases represent the kinds of animus that trigger § 1985(3), there would be little basis for concluding that the statute did not provide a cause of action in a variety of other situations where one economic group is pitted against another, each having the intent of injuring or destroying the economic health of the other. We think that such a construction of the statute, which is at best only arguable and surely not compelled by either its language or legislative history, should be eschewed and that group actions generally resting on economic motivations should be deemed beyond the reach of § 1985(3). Economic and commercial conflicts, we think, are best dealt with by statutes, federal or state, specifically addressed to such problems, as well as by the general law proscribing injuries to persons and property.

Id., 463 U.S. at---, 103 S.Ct. at 3360-61, 77 L.Ed.2d at 1060-61.

The Plaintiffs, Denturists and dental laboratory technicians, are analogous to the nonunion employees in Carpenter. They simply have no § 1985 cause of action.

Finally, as Plaintiffs admit in their written arguments, “[i]n large part, Plaintiffs allegations in Counts III and IV rest upon this Court's decision regarding Count II of Plaintiffs’ [Amended] Complaint.” This Court has determined that Count II of the Amended Complaint states no claim cognizable by federal courts, and that Plaintiffs’ constitutional challenge to the prohibition of the public practice of denturism cannot be sustained under any set of circumstances discernible from the pleadings or other matters submitted to the Court by Plaintiffs in this regard. There is no allegation of any overt act on the part of the Dental Board or of any other named Defendant which constitutes an act both under color of state law and which deprived any of the Defendants of equal protection of the laws or of equal privileges and immunities. All that is alleged and competently shown by Plaintiffs’ affidavits and exhibits is that the Dental Board and some of its members lawfully and with probable cause to suspect illegal activity on the part of the complaining Plaintiffs investigated violations of, and sought to enforce compliance with, the provisions of the Dental Act. With regard to Counts III and IV of the Amended Complaint, there are no allegations of any specific activity by any Defendant which has allegedly deprived any Plaintiff of any constitutionally or otherwise federally protected right or guaranteed freedom or right. However, each Plaintiff submitted his affidavit in opposition to Defendants’ Motion for Summary Judgment. This Court’s analysis of those affidavits and exhibits is set forth in the margin. In Count V, Plaintiff Rayborn alleges certain other activities directed against him in violation of 42 U.S.C. § 1985. Such alleged activities include the investigation of Plaintiff Rayborn by the Defendants resulting in the issuance of an injunction against Plaintiff Rayborn from illegally practicing dentistry and a proceeding whereby Senator Ray-born was held in contempt of said injunction. This Court has previously stated that Plaintiffs have no Section 1985 cause of action. Nevertheless, the actions of the various named Defendants which are either alleged or sworn to in Plaintiffs affidavits, were actions required of the various Defendants by State law.

Since this Court has determined that the statutory prohibition of the public practice of denturism as contained in the Dental Act does no violence to the Plaintiffs’ constitutionally guaranteed and protected rights, the lawful enforcement of the statutory enactment likewise presents no cause of action cognizable under 42 U.S.C. § 1983 or 42 U.S.C. § 1985(3). This Court is of the opinion, based upon the pleadings, evidence presented by the parties in support of, and in opposition to, the Defendants’ Rule 56 Motion, and the numerous, extensive written arguments of counsel for both sides in this conflict, that there are no discernible circumstances upon which any of the Plaintiffs may prevail against any of the Defendants for any of the relief sought in the Amended Complaint. Accordingly, there being no case or controversy presented by the Amended Complaint which is cognizable in federal courts, judgment should be granted in favor of all Defendants against all Plaintiffs on all legal theories and claims for relief advanced in the Amended Complaint.

A separate judgment for the Defendants is being entered in this action as required by Rule 58 of the Federal Rules of Civil Procedure to reflect the opinion with this Court.

      . Plaintiffs define the term denturist as follows: “a person other than a dentist (usually a technician), who engages in the practice of the denture phase of prosthodontics." Plaintiff's brief at page 2.

      . During the pendency of this lawsuit Plaintiff Rayborn has been an elected and sitting Senator in the Mississippi State Senate, and the Mississippi Dental Act has been re-enacted, with certain amendments which amendments are not relevant to any issue in this action. See 1983 Miss.Laws, Ch. 488.

      . In Friedman, a 3-judge panel convened and decided, without any indication in the recorded decisions — 438 F.Supp. 428 (E.D.Tex.1977) and 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979)— of an evidentiary hearing on the merits, that the statutorily required make-up of the Texas Optometry Board and the prohibition of certain advertising of commercial optometry were neither violative of the First or Fourteenth Amendments nor otherwise unconstitutional.

      . 42 U.S.C.A. § 1985(3).

      . Excluding from the affidavits submitted by the various Plaintiffs such opinion, hearsay, speculation, and otherwise incompetent or inadmissible statements, the Plaintiffs’ affidavits establish only the following:
      Affidavit of Plaintiff Rayborn: While Defendant Stribling was a licensed Mississippi dentist but prior to the time that he became a member of the Dental Board, he hired a person to obtain a set of dentures directly from Rayborn. The Dental Board reimbursed Stribling for the cost of the dentures which Rayborn had illegally manufactured and delivered to the person. Stribling later told Rayborn to leave the state and that Rayborn was being boycotted. The Dental Board charged Rayborn’s wife (not a party to this action) with illegal practice of dentistry, and Stribling told Rayborn that "they were going to teach me how to play.” A private investigator observed Rayborn while Rayborn was in the State Capital Building. Stribling told Rayborn that if certain dental regulations were enacted then "they would take care of’ Ray-born.
      Affidavit of Plaintiff Ross: A private investigator hired by the Dental Board discovered that Plaintiff, James A. Ross, and his father were associated with a licensed dentist and were dealing directly with patients, but the Dental Board took no action. Plaintiff Ross, after his father's retirement, moved his business to another city, worked as a denturist directly for the public, disassociating himself from supervision by licensed dentists, and experienced difficulties in attracting dental supply salesmen to call on him. Thereafter, the Dental Board again investigated him and "attempted to prosecute" him by notifying a prosecuting officer of the illegal activity.
      Affidavit of Plaintiff Pinto: Pinto, after opening his doors directly to the public as a denturist, was investigated by a hireling of the Dental Board "who threatened” Pinto.
      Affidavit of Plaintiff Collier: Collier worked as a dental laboratory technician for Plaintiff Ray-born. When Rayborn closed his denturist business, Collier lost his job.
      Affidavit of Plaintiff Greer: Greer, a dental laboratory technician, joined certain denturists associations. Greer lost a dental laboratory job near McComb, and he later lost referral work from a dentist.

      . Miss.Code Ann. § 73-9-45 (Supp.1983), provides as follows:
      Each member of the board and each licensed and practicing dentist and dental hygenist is constituted an agent who shall investigate all complaints and all alleged cases of noncompliance with, or violation of the provisions of this chapter and shall bring all such matters to the notice of the proper prosecuting officers, where it appears probable that an offense has been committed.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Edward F. KRULL, Plaintiff, v. KEENE CORPORATION, et al., Defendants.
    No. 83 C 9635.
    United States District Court, N.D. Illinois, E.D.
    Jan. 15, 1985.

      Terrence M. Johnson, Chicago, 111., for plaintiff.
    Joanna C. New, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Edward Krull (“Krull”) has sued Keene Corporation (“Keene”), Owens-Corning Fiberglas Corporation (“Owens-Corning”) and a number of other asbestos manufacturers in connection with injuries Krull claims resulted from his exposure to asbestos while employed by other companies as an asbestos worker. Owens-Corning has moved under Fed.R.Civ.P. (“Rule”) 12(b)(6) to dismiss Count III of Krull’s Complaint (the “Complaint”). For the reasons stated briefly in this memorandum opinion and order, the motion is granted.

Complaint Count III

Complaint Count I sounds in strict liability. Count II alleges negligence and invokes the duty of ordinary care. Count III — which is styled “Negligence-Ultrahazardous Product” — also alleges negligence, but it asserts asbestos is an “ultrahazardous product” such that (Complaint 1123, emphasis added):

The defendants owed the plaintiff a duty greater than that of ordinary care. Owens-Corning argues Count III is defective for two reasons:

1. Illinois courts have adopted strict liability for ultrahazardous activities, but no special standards for ultrahazardous products.
2. Negligence theory is incompatible with the strict liability concept inherent in the “ultrahazardous product” language.

Krull responds that Illinois law recognizes a product may be so inherently dangerous as to require a manufacturer to take special precautions against injury. Krull Mem. 4-5 argues:

[Count III] seeks only ... to allow testimony and evidence to be presented at trial on the issue of the inherently dangerous and ultrahazardous nature of asbestos and asbestos products so as to ■require under Illinois law the imposition of “special precautions” and the corresponding duty which is greater than ordinary care.

Duty of Care

Krull’s counsel appears simply to misunderstand the duty of ordinary care. That concept — and therefore Count II — encompasses precisely the type of evidence and argument Krull seeks to introduce under Count III. “Ordinary care” is by definition a reasonableness standard whose application varies with the circumstances.

As Prosser and Keeton on the Law of Torts § 34, at 209 (5th ed. 1984) puts it:

What is required is merely the conduct of the reasonable person of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care.

That statement of hornbook law (literally) necessarily carries with it a requirement of different conduct in differing circumstances (id. at 208, footnotes omitted and emphasis added):

The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.

Thus the duty is always one of ordinary care, but ordinary care requires a greater exercise of caution where there are greater risks of injury.

Two of the Illinois cases on which Krull places heavy reliance actually confirm the just-stated principles. Neither applies a standard somehow “greater than that of ordinary care.” Dabrowski v. Illinois Central Railroad Co., 303 Ill.App. 31, 41, 24 N.E.2d 382, 387 (1st Dist.1939) stated simply (citations omitted):

The rule of law undoubtedly is that when an article is inherently dangerous the owner of it must use the degree of care commensurate with the dangerous character of the article.

German v. Illinois Power Co., 115 Ill.App.3d 977, 71 Ill.Dec. 749, 451 N.E.2d 903 (5th Dist.1983) discussed precisely the same misapprehension Krull displays here. German was a negligence action by a worker severely injured when his forklift came into contact with a utility’s high voltage electrical transmission lines. At trial the jury was instructed (id. at 984, 71 Ill.Dec. at 754, 451 N.E.2d at 908) the utility had a duty to use a “high degree of care” in protecting the plaintiff from the danger of the power line. That term was defined as “the degree of care commensurate with the known danger involved in the distribution of electricity which a reasonably careful person would use under circumstances similar to those shown by the evidence.”

On appeal Illinois Power contended the instruction was erroneous because the utility owed German only an ordinary duty of care. Though the court agreed in principle, it found the instruction consistent with the duty of ordinary care (id. at 985, 71 Ill.Dec. at 755, 451 N.E.2d at 909):

Considering the dangerous nature of electricity, the “circumstances” here present, reasonable care would seem to be the same as a high degree of care.

All this may seem a matter of mere semantics, but it nevertheless mandates dismissal of Count III. Krull has failed to show a legal basis for applying a standard to defendants greater than the duty of ordinary care asserted in Count II. Consistent with that standard, of course, he may attempt to show (as his Mem. 4-5 says) asbestos is an “inherently dangerous” product requiring manufacturers to take “special precautions” and otherwise exercise a high degree of care.

Conclusion

Complaint Count III is dismissed. For the reasons discussed in this opinion, that dismissal will not inhibit Krull’s proof on the issue of ordinary care.

      . Owens-Corning’s motion has been joined — unnecessarily — by defendants Eagle-Picher Industries, Inc., Standard Asbestos Manufacturing & Insulating Company and Celotex Corporation. This Court’s disposition of the motion would of course affect all defendants equally, whether or not they joined in seeking dismissal.

      . Krull's Memorandum also discusses Watts v. Bacon & Van Buskirk Glass Co., 20 Ill.App.2d 164, 155 N.E.2d 333 (3d Dist.1958) at some length. Watts is really inapposite. It deals not with standards of care as such, but rather with the special standard that must be met before a contractor, having turned over completed work to the building owner, remains liable for personal injuries occurring after the owner has accepted the work.


text:
    UNITED STATES of America, Plaintiff, v. Ronald ZILBERBRAND, et al., Defendants.
    No. 85C0028.
    United States District Court, N.D. Illinois, E.D.
    Jan. 15, 1985.

      See also, D.C., 586 F.Supp. 825.
    John L. Sullivan, Asst. U.S. Atty., Chicago, 111., for plaintiff.
    Ronald Zilberbrand, pro se.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Ronald Zilberbrand (“Zilberbrand”) has moved pro se under 28 U.S.C. § 2255 (“Section 2255”) to set aside the sentence of this Court imposed September 5, 1984 in Case No. 83 CR 764, on the asserted ground that (quoted verbatim):

The court failed to advise me of my right to see and challenge my P.S.I. report prior to sentencing as an issue of fudemental fairness.

For the reasons stated in this memorandum opinion and order, this Court finds “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief” (Section 2255). It therefore summarily dismisses the motion in accordance with Rule 4(b) following Section 2255.

Even before the 1983 amendment to Fed. R.Crim.P. 32 (and a fortiori before our Court of Appeals’ decision in United States v. Rone, 743 F.2d 1169 (7th Cir.1984)), this Court uniformly acted to assure, in every criminal case on its calendar in which a defendant had either pleaded or had been found guilty, that both defendant and his or her counsel were advised of and had the full opportunity to read and comment on the presentence investigation report (the “Report”) before sentencing. Its unvarying procedure involved three steps:

1. At the time the guilty plea was taken or immediately following a verdict of guilty, this Court followed the procedure outlined, and the locution employed, in Federal Judicial Center Bench Book § 1.06.1 (pages 1.06-15 and 1.06-16 of the May 1983 revision). It explained the function and importance of the Report to defendant, asked whether either defendant’s counsel or defendant saw any reason for not ordering a Report, and specifically informed defendant that he or she and his or her counsel had a right and would have an opportunity to examine the Report and comment on it at the time of sentencing.
2. Immediately after the completed Report was actually received in chambers, counsel for the United States and counsel for defendant were advised of its receipt and reminded that both they and defendant should read the Report in advance of sentencing.
3. At the time of sentencing, this Court once again called the attention of defendant and his or her counsel to their right to have read the Report and their specific right to comment on it during the lawyer’s statement and during the defendant’s exercise of his right of allocution before sentencing.

That procedure was in fact followed in Zilberbrand’s case. At the conclusion of its taking his change of plea July 9, 1984, this Court’s oral statement specifically referred to the presentence investigation report procedure and to the fact that such a report was always obtained except in “extraordinary” circumstances. It referred particularly to the importance of such a report in the sentencing decision. In response to this Court’s inquiry, both counsel and Zilberbrand said there was no reason not to order such a report. This Court then ordered one and stated that, though Zilberbrand would want to confer with his lawyer on the subject, this Court’s own view was that Zilberbrand’s cooperation with the probation officer in furnishing information for the Report was important to provide the maximum possible input for this Court’s decision in sentencing. This Court said specifically (its use of the plural was occasioned by the fact that Zilberbrand and two co-defendants were pleading guilty simultaneously):

As soon as it’s ready we’ll let your lawyers know. Each of you will have a right and an opportunity to look at the report and then comment on it at the time of sentencing.

When the report was completed and a copy was received in this Court’s chambers, Zilberbrand’s counsel was so advised (as was the Assistant United States Attorney). Zilberbrand’s lawyer was specifically asked to make arrangements for his own reading and that of his client before the sentencing.

At the time of sentencing this Court began the proceedings by referring to the earlier taking of guilty pleas, then said:

Since that time the Court has had the benefit of what is always from our Probation Office a comprehensive report giving full backgrounds on each of you. It’s a report that each of you as well as your respective lawyers has had the opportunity to review. And each of you has the opportunity at this time — you and your lawyers — to address the Court personally, to make any kind of statement that you might want to make, present any added information that you might want to present, either in mitigation of punishment, or regarding the presentence investigation report itself, or that you consider in any way relevant regarding what kind of a sentence ought to be imposed — what would be fair under all the circumstances.

Each of defendants and their respective counsel then proceeded as this Court had requested.

When it came time for Zilberbrand and his lawyer to address this Court, his lawyer (Stuart Goldberg, Esq., “Goldberg”) first exercised on Zilberbrand’s behalf the right to call several witnesses. Then Goldberg (this Court had made clear, as it always does, it was up to Zilberbrand and his lawyer to decide which of them should speak first) included in his statement his response to this Court’s specific request to address matters in the Report: see Tr. 22 (“a very thorough probation report”), 24 (referring to the Report’s saying it was a shame Zilberbrand had viewed the drug deal as a “business transaction,” “and I agree and Mr. Zilberbrand agrees”) and 25 (citing and quoting from the Report). When Zilberbrand exercised his right of allocution, he made a brief statement (Tr. 30) in which he did not advert to the Report — but that was not for lack of having been informed about his right to do so, or for lack of opportunity to do so.

Like all District Judges, this Court lacks a crystal ball to divine what our Court of Appeals may say in the future. Since Rone was handed down, this Court has altered its language somewhat to conform to the specific three-question procedure set out in 743 F.2d at 1174. But as the foregoing recital reflects, it has always provided a defendant the substance of what Rone dictates. As Rone itself said (id.):

The rules require only that the court make a record during the sentencing hearing, which reflects that the defendant has had a realistic opportunity to read and discuss the report and to raise objections.

This Court has always done exactly that, and it do so in Zilberbrand’s case. Under the circumstances involved here, this Court agrees with the portion of its colleague Judge Bua’s decision in United States v. Johnson, No. 84 C 1066, slip op. (N.D.Ill. Jan. 7, 1985) that holds no magic incantation is required to satisfy Section 2255.

There is no way in which this Court’s procedure in this case can be characterized — as Zilberbrand claims — as having “failed to advise [Zilberbrand] of [his] right to see and challenge [his] P.S.I. report prior to sentencing as an issue of fundamental fairness.” As Rule 4(b) following Section 2255 puts it:

It plainly appears from the face of the motion ... and the prior proceedings in the case that the movant is not entitled to relief in the district court____

This action is dismissed summarily.

      . This Court has listened to the tape transcriptions of the guilty plea and sentencing proceedings.

      . Rone was decided the day before Zilberbrand’s sentencing, but the slip opinion had not yet been distributed to this Court.

      . Because Zilberbrand's motion is not sustainable in any event, this Court has not dealt with any of the other legal grounds that might compel the same result (such as the absence of any showing of prejudice to Zilberbrand, see Johnson, slip op. at 6-7, and the possibility of waiver by failure to appeal, id. at 7-9).


author: TOM S. LEE, District Judge.

text:
    VIDEOPHILE, INC., a Mississippi Corporation, Plaintiff, v. CITY OF HATTIESBURG, a Mississippi Municipal Corporation, Defendant.
    Civ. A. No. H84-0237(L).
    United States District Court, S.D. Mississippi, Hattiesburg Division.
    Jan. 15, 1985.

      George F. Bloss, III, Gulfport, Miss., for plaintiff.
    S. Wayne Easterling, City Atty., Hattiesburg, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of the plaintiff, Videophile, Inc., to enjoin enforcement of the obscenity ordinance recently enacted by the defendant, the City of Hattiesburg (City), pending a trial on the merits. The court, having reviewed the memoranda with attachments submitted by the parties and having heard oral argument on the issues, is of the opinion that the plaintiff’s motion is well taken and should be granted.

The criteria for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must demonstrate:

1. A substantial likelihood that the movant will prevail on the merits;

2. A substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

3. That the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

4. That granting the preliminary injunction will not disserve the public interest.

Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). A preliminary injunction is extraordinary relief and should only be granted upon a clear showing by the plaintiff. Id.

To prevail on its motion for the preliminary injunction, the plaintiff must demonstrate a substantial likelihood of success on the merits of its claim. The plaintiff first argues that the City is not authorized to enact the obscenity ordinance. In Mississippi, a municipality is empowered to “enact ordinances for the purposes provided by law where same are not repugnant to the laws of the state.” Miss.Code Ann. § 21-17-5 (1972). A municipality’s powers, accordingly, are limited to those expressly delegated. See Hattiesburg Firefighters v. City of Hattiesburg, 263 So.2d 767, 769 (Miss.1972); City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120, 121 (1960). The parties have not identified any specific authorization enabling a municipality to enact an obscenity ordinance. Counsel for the City cited the municipality’s police power as the source of its authority. Under Mississippi law, however, express authorization is required, as “powers of a municipality are to be construed most strongly against an asserted right not clearly given and cannot be extended by mere implication.” Hattiesburg Firefighters v. City of Hattiesburg, 263 So.2d 767, 769 (Miss.1972). Accordingly, this court cannot infer the City’s authorization, especially since the state has enacted comprehensive obscenity legislation. Enforcement of the state statutes was preliminarily enjoined in Goldstein v. Allain, 568 F.Supp. 1377, 1387 (N.D.Miss.1983), but the legislation has not been held unconstitutional. Since the issuance of the preliminary injunction, the legislature has met, yet did not alter the statutes. The legislature’s action must be interpreted as preempting the field and, therefore, the City is without power to enact its obscenity ordinance.

Additionally, the City’s ordinance differs from the statutes enacted by the legislature. The changes were made, according to the City, to correct the possible constitutional flaws identified by the court’s opinion in Goldstein v. Allain. The result of the alterations is an ordinance that conflicts with the state statutes. Since the City’s power is limited to the enactment of ordinances “not repugnant to the laws of the state,” this court is of the opinion that the ordinance exceeds the defendant’s statutory authority. The plaintiff has, therefore, shown a substantial likelihood of success on the merits of its preemption claim.

The plaintiff has also raised claims regarding the constitutionality of the ordinance. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court established a tripartite test for determining whether material is obscene and, therefore, whether it can be regulated without violating the first amendment.

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted).

The City's ordinance adopts the Miller test in its definition of obscene material. The entire Miller test, however, is not applied in determining whether a performance is obscene. Performance is defined by the ordinance as “a play, motion picture, dance or other exhibition performed before an audience.” Plaintiff sells video tapes which, when shown to an audience, are potentially within the reach of the definition of performance in the ordinance. Motion pictures and video tapes are clearly entitled to the protection of Miller, see Jenkins v. Georgia, 418 U.S. 153, 157-58, 94 S.Ct. 2750, 2753-54, 41 L.Ed.2d 642 (1974), and the ordinance, in failing to provide those safeguards, does not satisfy the constitutional requirements.

In Mississippi, portions of an ordinance are severable “where the provisions of an ordinance are severable, and it may fairly be presumed that the municipal council would have enacted one part without the other.” Day v. Klein, 225 Miss. 191, 82 So.2d 831 (1955). The ordinance does not include a severability provision and the court cannot infer the City’s intent to delete portions in order to preserve the remainder of the ordinance. Accordingly, the plaintiff has also established a substantial likelihood of prevailing on the merits of its constitutional claim.

At the hearing, counsel for the defendant conceded the plaintiffs arguments on the final three prongs of the Canal Authority test. The court has reviewed the applicable law and is of the opinion that the threatened deprivation of first amendment rights clearly outweighs any harm the injunction may cause the City. See Goldstein v. Allain, 568 F.Supp. 1377, 1386 (N.D.Miss.1983). In addition, the public interest is best served by the “vigorous exercise of first amendment rights.” Goldstein, 568 F.Supp. 1386-87.

For the reasons expressed herein, it is ordered that the plaintiff’s motion to enjoin enforcement of the obscenity ordinance of the City of Hattiesburg is hereby granted.

APPENDIX 1

ORDINANCE NO. 2164 OF THE CITY OF HATTIESBURG, MISSISSIPPI AN ORDINANCE PROHIBITING AND MAKING UNLAWFUL THE DISTRIBUTION OR WHOLESALE DISTRIBUTION OF OBSCENE MATERIALS AND PERFORMANCES, AND DEFINING WHAT CONSTITUTES SAID OFFENSES AND PROVIDING FOR A FINE NOT EXCEEDING FIVE HUNDRED DOLLARS AND/OR CONFINEMENT NOT EXCEEDING NINETY DAYS

BE IT ORDAINED by the Mayor and Commissioners of the City of Hattiesburg, Mississippi:

SECTION I. It shall be unlawful for any person to commit the offense of distributing obscene materials or obscene performances. A person commits the offense of distributing obscene materials or obscene performances when he sells, rents, leases, advertises, publishes or exhibits to any person any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. A person commits the offense of wholesale distributing obscene materials of obscene performances when he distributes for the purpose of resale any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. The word “knowing” as used in this section means either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. The character and reputation of an individual charged with an offense under sections I through V of this ordinance and, if a commercial dissemination of obscene material or an obscene performance is involved, the character and reputation of the business establishment involved, may be placed in evidence by the defendant on the question of intent to violate sections I through V.

Any person, other than a city attorney, county prosecuting attorney or district attorney who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of five hundred dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

SECTION II.

(1) Material or performance is obscene if:

(a) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a shameful, or morbid interest in nudity, sex or excretion; and

(b) The material taken as a whole lacks serious literary, artistic, political or scientific value; and

(c) the material depicts or describes in a patently offensive way, sexual conduct specifically defined in subparagraphs (i) through (v) below:

(1) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;

(ii) Acts of masturbation;

(iii) Acts involving excretory functions or lewd exhibition of the genitals;

(iv) Acts of bestiality or the fondling of sex organs of animals; or

(v) Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.

(2) Undeveloped photographs, molds, printing plates and the like shall be deemed obscene material, notwithstanding that processing or other acts may be required to make the obscenity patent or to distribute it.

(3) “Performance” means a play, motion picture, dance or other exhibition performed before an audience.

(4) “Patently offensive” means so offensive on its face as to affront contemporary community standards.

(5) “Wholesale distributes” means to distribute for the purpose of resale.

(6) “Material” means any book, magazine, newspaper, advertisement, pamphlet, poster, print, picture, figure, image, drawing, description, motion picture film, phonographic record, recording tape, video tape, or other tangible thing producing, reproducing or capable of producing or reproducing an image, picture, sound or sensation through sight, sound or touch, but it does not include an actual three-dimensional sexual device as defined in Section III.

SECTION III. A person ■ commits the offense of distributing unlawful sexual devices when he knowing [sic] sells, advertises, publishes or exhibits to any person any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so. A person commits the offense of wholesale distributing unlawful sexual devices when he distributes for the purpose of resale any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so.

Any person, other than a city attorney, county prosecuting attorney or district attorney who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of Five Hundred Dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

SECTION IV. This ordinance shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:

(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device;

(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or care;

(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library of any public or private school, college or university in this state; or

(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the state of Mississippi.

(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether evidence exists to constitute an exemption from prosecution under the provision of this ordinance. If the motion is sustained, the case shall be dismissed; provided, however, if the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under this act any matter which could have been raised by the defendant in the motion to dismiss.

SECTION V. Penalty. Any person who violates this ordinance shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding Five Hundred Dollars ($500.00) and/or confinement not to exceed 90 days. Finally, this ordinance shall be in full force and effect 30 days after its date of passage.

The foregoing ordinance having been reduced to writing, the same was introduced and read, and a vote was taken thereon, first section by section and then upon the ordinance as a whole, with the following results:

Those present and voting “YEA” and in favor of the adoption of each section of the foregoing ordinance:

Mayor Bobby L. Chain
Commissioner W.U. (Bill) Sigler
Commissioner G.D. Williamson

Those present and voting “NAY” or against any section of the foregoing ordinance:

None

Those present and voting “YEA” and in favor of the adoption of the foregoing ordinance as a whole:

Mayor Bobby L. Chain
Commissioner W.U. (Bill) Sigler
Commissioner G.D. Williamson

Those present and voting “NAY” or against the foregoing ordinance as a whole:

None

WHEREUPON, the foregoing ordinance was unanimously passed, adopted and approved on this, the 4th day of September, A.D., 1984.

MAYOR

ATTEST:

COMMISSIONER-CLERK

(SEAL)

APPENDIX 2

§ 97-29-101. Distribution or wholesale distribution of obscene materials or performances; character and reputation as evidence; prosecutor’s bond.

A person commits the offense of distributing obscene materials or obscene performances when he sells, rents, leases, advertises, publishes or exhibits to any person any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. A person commits the offense of wholesale distributing obscene materials or obscene performances when he distributes for the purpose of resale any obscene material or obscene performance of any description knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so. The word “knowing” as used in this section means either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. The character and reputation of an individual charged with an offense under sections 97-29-101 through 97-29-109 and, if a commercial dissemination of obscene material or an obscene performance is involved, the character and reputation of the business establishment involved, may be placed in evidence by the defendant on the question of intent to violate sections 97-29-101 through 97-29-109.

Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of five hundred dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

§ 97-29-103. Definitions.

(1) Material or performance is obscene if:

(a) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and

(b) The material taken as a whole lacks serious literary, artistic, political or scientific value; and

(c) The material depicts or describes in a patently offensive way, sexual conduct specifically defined in subparagraphs (i) through (v) below:

(1) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;

(ii) Acts of masturbation;

(iii) Acts involving excretory functions or lewd exhibition of the genitals;

(iv) Acts of bestiality or the fondling of sex organs of animals; or

(v) Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.

(2) Undeveloped photographs, molds, printing plates and the like shall be deemed obscene material notwithstanding that processing or other acts may be required to make the obscenity patent or to distribute it.

(3) “Peformance” means a play, motion picture, dance or other exhibition performed before an audience.

(4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.

(5) “Wholesale distributes” means to distribute for the purpose of resale.

(6) “Material” means any book, magazine, newspaper, advertisement, pamphlet, poster, print, picture, figure, image, drawing, description, motion picture film, phonographic record, recording tape, video tape, or other tangible thing producing, reproducing or capable of producing or reproducing an image, picture, sound or sensation through sight, sound or touch, but it does not include an actual three-dimensional sexual device as defined in section 97-29-105.

§ 97-29-105. Distribution or wholesale distribution of unlawful sexual devices; prosecutor’s bond.

A person commits the offense of distributing unlawful sexual devices when he knowingly sells, advertises, publishes or exhibits to any person any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so. A person commits the offense of wholesale distributing unlawful sexual devices when he distributes for the purpose of resale any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs, or offers to do so, or possesses such devices with the intent to do so.

Any person, other than a city attorney, county prosecuting attorney or district attorney, who shall sign an affidavit charging an offense prescribed by this section shall file a bond in the amount of five hundred dollars ($500.00) at the time such affidavit is lodged. Such bond shall be conditioned that the affidavit was not filed frivolously, maliciously or out of ill will.

§ 97-29-107. Exemptions from application of §§ 97-29-101 through 97-29-109; procedure for claiming exemption; defenses.

(1) Sections . 97-29-101 through 97-29-109 shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:

(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device;

(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or care;

(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library of any public or private school, college or university in this state; or

(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the state of Mississippi.

(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether sufficient evidence exists to constitute an exemption from prosecution under the provisions of sections 97-29-101 through 97-29-109. If the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under this act any matter which could have been raised by the defendant in the motion to dismiss.

§ 97-29-109. Penalties.

Any person, except one who wholesale distributes, who violates section 97-29-101 or section 97-29-105 shall be guilty of a misdemeanor and, upon conviction, shall, in the case of the first offense, be fined not more than five thousand dollars ($5,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both. If the person has been previously convicted of a violation of section 97-29-101 or section 97-29-105 or of section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall be fined not less than two thousand five hundred dollars ($2,500.00) nor more, than ten thousand dollars ($10,000.00) or imprisoned for a term not to exceed one (1) year, or both.

Any person who wholesale distributes in violation of section 97-29-101 or section 97-29-105 shall, upon conviction, be fined not more than ten thousand dollars ($10,-000.00) or imprisoned for. a term not to exceed one (1) year, or both. If the person has been previously convicted of a violation of section 97-29-101 or section 97-29-105 or of section 97-5-27 or 97-5-29, Mississippi Code of 1972, then the person shall, upon conviction, be fined not less than two thousand five hundred dollars ($2,500.00) nor more than fifty thousand dollars ($50,-000.00) or imprisoned for a term not to exceed one (1) year, or both.

A corporation, company, partnership, firm, association, business, establishment, organization or other legal entity other than an individual convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices shall be fined not less than one thousand dollars ($1,000.00) nor more than ten thousand dollars ($10,-000.00). If such legal entity has been previously convicted of distributing obscenity or unlawful sexual devices or wholesale distribution of obscenity or unlawful sexual devices or of a violation of section 97-5-27 or section 97-5-29, Mississippi Code of 1972, then such legal entity shall be fined not less than five thousand dollars ($5,000.00) nor more than fifty thousand dollars ($50,000.00).

      . See Appendix 1 for text of ordinance.

      . See Miss.Code Ann. §§ 97-29-101 through -109 (Supp.1984). See Appendix 2 for text of statutes.

      . Neither party has argued that this court should abstain from considering the constitutional issues pursuant to Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The court, however, has considered the application of the abstention doctrine on its own motion and con-dudes that abstention is not appropriate. Abstention is the exception rather than the rule, see Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976), and is rarely proper when first amendment rights are involved. See Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974).

      . See Appendix 1, Section II(l)(a)-(c).

      . The plaintiff also asserts that the restrictions on undeveloped photographs, molds, printing plates and the like constitute a prior restraint; that the procedural safeguards, particularly the absence of a probable cause hearing before a neutral detached magistrate, do not satisfy the requirements of due process; that the ordinance is facially overbroad; and that the "constructive knowledge” provisions violate the constitutional scienter requirements and utilize a civil law negligence standard. It is unnecessary for the court to consider these contentions because there are sufficient grounds in the plaintiffs other claims for the issuance of a preliminary injunction.


author: FRANK A. KAUFMAN, Chief Judge.

text:
    SECURITIES AND EXCHANGE COMMISSION v. PARADYNE CORPORATION.
    Civ. No. K-84-3862.
    United States District Court, D. Maryland.
    Jan. 15, 1985.
    Michael K. Wolensky and Barton S. Sacher, S.E.C., Atlanta, Ga., and J. Frederick Motz, U.S. Atty., and Larry A. Ceppos, Asst. U.S. Atty., Baltimore, Md., for plaintiff.
    Jeremy P. Ross and Bush, Ross, Gardner, Warren & Rudy of Tampa, Fla., James H. Schroop and Fried, Frank, Harris, Schriver & Kampelman, Washington, D.C., and L. Paige Marvel and Garbis & Schwait, Baltimore, Md., for defendant.
    R. Tenney Johnson and Zuckert, Scoutt, Rasenberger & Johnson, Washington, D.C., and Richard Whiteford and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., for deponent David W. Walden.
    Steven R. Ross, Gen. Counsel to the Clerk of the U.S. House of Representatives, Charles Tiefer, Asst. Gen. Counsel, and Michael L. Murray, Asst. Counsel, Washington, D.C., for Committee on Government Operations of the U.S. House of Representatives.
   FRANK A. KAUFMAN, Chief Judge.

In Securities and Exchange Commission v. Paradyne Corporation, No. 83-351-Civ-T-lO, instituted on March 25, 1983 in the United States District Court for the Middle District of Florida, Tampa Division (Tampa Court), the Securities and Exchange Commission (SEC), as plaintiff, alleges that defendant violated certain provisions of the federal securities laws with regard to defendant’s obtention of and performance under a contract with the Social Security Administration (SSA). Subsequent to the filing of the said Florida case on March 25, 1983, three cases have been filed in this Court relating to discovery being conducted in this District with regard to the said pending Tampa case. In one of those cases, Civil No. T-83-1256, defendant sought to compel attendance of certain SSA employees at noticed deposition proceedings. In addition, questions arose in that case concerning the production’ of certain SSA documents. That case ended pursuant to an agreement among the parties approved by the Court. In Civil No. K-83-3155, a discovery dispute erupted relating to the appropriate place and time for the taking of a deposition of a nonparty deponent. That case was terminated after an Order of this Court and subsequent agreements between counsel of record and the deponent. In Civil No. K-84-1586, two nonparty deponents sought relief. In that case, this Court issued a stay Order dated April 24, 1984, permitting the issues raised in that case to be presented to the Tampa Court and closing that case subject to reopening if the SEC, Paradyne or the non-party deponents so requested on or before May 22, 1984. No such request has been lodged with this Court.

The within case represents the fourth instance in which a discovery dispute relating to the Tampa case has been submitted to this Court. Herein, defendant has moved to compel a nonparty deponent, David W. Walden, to answer certain questions addressed to Walden during the taking of Walden’s deposition on September 6, 1984 and September 25, 1984. Seemingly, Walden is being deposed because he is the author of a study commissioned by the SSA at the request of the SEC to examine certain matters allegedly related to the subject matter of the Tampa case. Walden’s deposition was noticed by defendant and was attended by Charles Tiefer, Esq., counsel for the Committee on Government Operations of the United- States House of Representatives (Committee). Tiefer was so present over the continuing objection of counsel for defendant. The deposition proceeding was also attended by counsel, respectively, for Walden, the SEC and defendant. The record of the said deposition proceeding, as well as all documents filed in this case, reveals that Walden, as the deponent, was, on September 6 and September 25, 1984, and presently is, prepared to answer the questions which were put to him by defendant during the deposition proceeding, insofar as he personally is concerned, but that he refused to answer certain questions simply because of his desire not to answer any questions which the Committee has a right not to have him (Walden) answer. In that regard, the Committee takes the position that it has the right to assert a privilege against Walden’s answering such questions, contending that Walden, formerly -employed in a rather high-ranking position by the SSA from January 30, 1983 to September 1, 1984, and currently living in Maryland, submitted an investigative report to the SSA concerning defendant’s dealings with that agency, that Walden testified with regard to his investigation in a public session before the Committee and that such report was subsequently made available to the Comptroller General.

The defendant takes the position that the Committee enjoys no such privilege and seeks from this Court an order compelling Walden to answer not only the questions which he refused to answer during the deposition proceeding, but also certain additional questions which defendant desires to put to Walden during a renewed deposition proceeding. Defendant further asks this Court to order Tiefer not to attend any further deposition proceedings involving Walden as a deponent and, additionally, seeks sanctions against Tiefer for his actions to date. Finally, defendant has moved to transfer its within quests for relief to the Tampa Court. Walden, joined by the SEC and the Committee, opposes such transfer and all such relief. While there would appear to be considerable doubt as to whether this Court has the power to transfer defendant’s quest for any order directed to Walden to any federal district court outside of the District of Maryland, there would appear to be no question concerning this Court’s power to transfer defendant’s motion seeking an order to Tiefer not to attend any renewed deposition proceeding involving Walden. Federal Civil Rule 26(c) provides that a party may seek, either in the forum court or in a court in which district the deposition is being taken, an order “to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense, including ... (5) that discovery be conducted with no one present except persons designated by the court____” Accordingly, defendant’s motion to issue such an order to Tiefer may be transferred by this Court, i.e., the court in the district in which Walden’s deposition is being taken, to the Tampa Court, i.e., the forum court. See Socialist Workers Party v. Attorney General, 73 F.R.D. 699 (D.Md.1977); Bank of Texas v. Computer Statistics, Inc., 60 F.R.D. 43 (S.D.Tex.1973). While defendant’s quest for relief in this case was seemingly brought principally pursuant to Federal Civil Rule 37(a), defendant has indicated that Rule 26(c), as well as Rule 37(a) and other rules, is applicable.

Defendant has further indicated that discovery in the Tampa case will involve information submitted to the Committee by federal governmental agencies located in districts other than in the District of Maryland. Neither the SEC, the Committee or Walden has asserted to the contrary. In that context, it would appear advisable for this Court to permit the Tampa Court to have the opportunity itself to consider questions of privilege asserted by the Committee in the within case — questions which will seemingly relate to the case before it in more than a discovery context — at the same time that the Tampa Court determines, pursuant to transfer from this Court, whether Tiefer or anyone else representing the Committee may be present at the deposition of a nonparty deponent such as Walden. As a practical matter, in view of Walden’s asserted willingness to answer the type of questions which defendant has put and desires to put to him (provided by so doing he [Walden] is not taking a position contrary to one meritoriously asserted by the Committee), the determination of whether the Committee may rightfully assert such a privilege and also whether Tiefer or anyone else representing the Committee may be present at the deposition of Walden or some other nonparty deponent will seemingly go a long way toward preventing further discovery disputes of the type involved in the within and in certain of the three earlier cases filed in this Court. Accordingly, this Court is today entering an Order transferring to the Tampa Court defendant’s quest for an order to Tiefer not to attend the taking of the deposition of Walden if and when the same resumes. In that said Order, this Court will stay its consideration of any and all other quests for relief in this case by defendant pending further action by the Tampa Court. Also, in that said Order, this Court will require defendant to file status reports concerning these matters on the first day of March, 1985 and on the first day of each subsequent month, until relieved from that obligation by further order of this Court. After defendant files any such report, the SEC, the Committee and Walden may have the opportunity to respond to any such submission by defendant within 14 days after the date of filing of such submission by defendant. Finally, that Order will afford to the SEC, the defendant, the Committee and Walden the opportunity to file any submission in this Court at any time with respect to any of the issues pending in this Court in this case.

      . Rule 37(a)(1), as amended in 1970, provides as follows:

        Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken.
      The Moore treatise states that—
      Appropriate Court.
      Rule 37(a)(1) provides that all motions to compel discovery, except those that relate to the taking of a deposition are to be made in the court in which the action is pending. In the case of motions relating to the taking of a deposition, if the deponent is a party, the motion can be brought either in the court in which the action is pending, or in the court in the district in which the deposition is being taken. If the deponent is not a party, then the motion must be brought in the court in the district in which the deposition is being taken. 4A J. Moore, J. Lucas, D. Epstein, Moore’s Federal Practice § 37.02(1) (2d ed. 1984) (footnote omitted). See the following cases taking, in certain instances, positions embodying at least some variance: Westinghouse Electric Corp. v. Rio Algom Ltd., 503 F.Supp. 33 (N.D.Ill.1980); Westinghouse Electric Corp. v. Rio Algom Ltd., Misc. No. 79-0920 (D.D.C. July 3, 1980); In re Subpoena to Ford Aerospace & Communications Corp., 27 Fed.R.Serv.2d 402 (E.D.Pa.1979); Zinser v. Palmby, 440 F.Supp. 1022 (D.D.C.1977). See also, in a pre-1970 setting before Rule 37(a) was amended to its present state, Lincoln Laboratories, Inc. v. Savage Laboratories, Inc., 27 F.R.D. 476 (D.Del.1961). A copy of Judge Flannery’s opinion in Westinghouse Electric Corp. is filed in the court file in this case.

      . See page 5 and starred footnote thereto in defendant’s memorandum filed in this Court on November 27, 1984 (docket No. 10).

      . See the memorandum cited in note 2, supra, p. 7, n. **.


text:
    Ralph L. SIMMONS v. Margaret HECKLER, Secretary, Department of Health and Human Services.
    Civ. No. K-84-713.
    United States District Court, D. Maryland.
    Jan. 15, 1985.
    Michael A. Genz, Legal Aid Bureau, Inc., Hughesville, Md., for plaintiff.
    J. Frederick Motz, U.S. Atty., and Larry D. Adams, Asst. U.S. Atty., Baltimore, Md., for defendant.
   FRANK A. KAUFMAN, Chief Judge.

Plaintiff’s claims for social security benefits with respect to alleged disability dating back to 1982 have been denied by the Administrative Law Judge (ALJ) and the Appeals Council. While the ALJ concluded that plaintiff was unable to perform his past relevant work as a construction laborer, the AU determined that plaintiff was able to perform light work. That conclusion would appear in error in view of the fact that the record in this case and the applicable regulations of the Secretary seem clearly to establish that, at best, plaintiff is capable only of performing sedentary, as opposed to light, work. However, although the record in this case may support a determination that plaintiff is able to perform sedentary work, the AU’s decision did not, with regard to plaintiffs alleged, nonexertional impairments, appropriately apply the standards set forth by the Fourth Circuit in Grant v. Schweiker, 699 F.2d 189 (4th Cir.1983) and Smith v. Schweiker, 719 F.2d 723 (4th Cir.1984). Absent correct application of those standards, the AU’s decision cannot stand as one supporting the conclusion that plaintiff can perform sedentary work.

In the within case, the record establishes that plaintiff is suffering not only from problems relating principally to his back, but also from certain psychological problems. Whether those psychological problems constitute nonexertional limitations only, rather than rising to the level of nonexertional impairments, see Smith v. Schweiker, supra at 725, presents a question which cannot be determined on the basis of the present state of the record. In a case such as this one, the testimony of a vocational expert would not have been required to determine the existence or nonexistence of only exertional impairments. However, while the psychological problems which plaintiff has encountered may, on further examination, be deemed limitations rather than impairments, the existence of those problems dictate that, on remand, the AU should not only specifically consider whether nonexertional impairments as opposed to nonexertional limitations exist, but also, so that this case will not move back and forth between the Secretary and this Court, the ALJ should receive and consider the testimony of a vocational expert concerning whether plaintiff can perform sedentary work of one or more specific, designated types available in the national economy in substantial quantity.

Because in this case it would appear that reopening the record for more evidence will serve a useful purpose, a remand is in order rather than a reversal. Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir.1974). This is not a case in which the record indicates that plaintiff, without doubt, is unable to perform any work available in the national economy in substantial quantity. See Taylor v. Weinberger, 512 F.2d 664 (4th Cir.1975); Lochte v. Schweiker, Civil Action No. R-82-491, November 30, 1984; Ray v. Secretary of Health, Education and Welfare, 465 F.Supp. 832 (E.D.Mich.1978). In those latter three cases, the records respectively seem to indicate the lack of such doubt and, therefore, under the standards of Breeden, called for reversal rather than remand.

In this case, the Appeals Council did not make specific findings with regard to certain new information proffered to it on behalf of plaintiff. That new information might well have shed light on the issues in this case with regard to nonexertional impairments. In Myers v. Califano, 611 F.2d 980, 983 (4th Cir.1980), Judge Butzner wrote that “[t]he Appeals Council’s failure to make specific findings concerning [new informaion relevant and material to the evaluation of plaintiff's condition] was reversible error____ [u]nless the Secretary explicitly indicates the weight given to all the relevant evidence.” See also Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979). In view of the fact that this Court is remanding the within case for the reasons hereinabove set forth in this opinion, it is not necessary for this Court, in this instance, to determine whether or not, on balance, the need for the Appeals Council to meet the standards of Myers and Stawls would in and of itself require a remand.

During a hearing held on the record in open court on January 9, 1985, counsel for the Secretary stated that the Secretary did not oppose a remand for the reasons and purposes set forth herein. On the other hand, counsel for plaintiff argued vigorously in favor of reversal rather than remand. For the reasons set forth supra, remand rather than reversal is deemed appropriate by this Court. Accordingly, an Order to that effect will today be filed.

      . A copy of that unpublished opinion has been placed in the court file in this case.