National Association For The Advancement Of Psychoanalysis v. California Board Of PsychologyNational Association For The Advancement Of Psychoanalysis v. California Board Of Psychology
Jeffrey S. Love, Lane Powell Spears Lubersky LLP, Portland, Oregon, for the plaintiffs-appellants.
Kerry Weisel, Deputy Attorney General, Oakland, California, for the defendants-appellees.
Appeal from the United States District Court for the Northern District of California; William H. Orrick, District Judge, Presiding. D.C. No. CV 97-3913 WHO.
OPINION
TASHIMA, Circuit Judge:
Plaintiff psychoanalysts Lionel Corbett, Cedrus Monte, and Allan Sowers, and the National Association for the Advancement of Psychoanalysis (“NAAP“) (collectively “plaintiffs“) sued defendants, members of the California Board of Psychology (“Board“), and the Attorney General of California, for declaratory and injunctive relief under
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Psychoanalysis and Psychology
Psychoanalysis and Psychology “Psychoanalysis” is defined in Stedman‘s Medical Dictionary (25th ed. 1990) as:
[A] method of psychotherapy, originated by Freud, designed to bring preconscious and unconscious material to consciousness primarily though the analysis of transference and resistance. . . . A method of investigating the human mind and psychological functioning, especially through free association and dream analysis in the psychoanalytic situation.
Id. at 1284; see also American Medical Association Encyclopedia of Medicine 831 (1989) (“The psychoanalyst is usually a doctor of medicine.“)1. “Psychology” has been defined as:
The scientific study of mental processes. Psychology deals with all internal aspects of the mind, such as memory, feelings, thought, and perception, as well as external manifestations, such as speech and behavior. It also addresses intelligence, learning and the development of personality. Methods employed in psychology include direct experiments, observations, surveys, study of personal histories, and special tests (such as intelligence tests and personality tests).
Id. at 832 (emphasis omitted). Psychology includes various approaches, including “psychoanalytic psychology,” which “stresses the role of the unconscious and childhood experiences.” Id.
The profession of psychology has been regulated in California since 1958, when the Legislature enacted the Psychology Certification Act,
The California Business and Professions Code defines a “psychologist” as a person so representing himself or herself “to the public by any title or description,” including “psychoanalysis” and “psychoanalyst.”
To qualify for a license to practice psychology in California, an applicant must possess a doctorate, or a degree deemed equivalent, in psychology or a related field such as education psychology. See
Section 2529 of the Business and Professions Code, relating to research psychoanalysts, is the only part of the statute that specifically addresses the qualifications of psychoanalysts. Under 2529, graduates of four, specific, California psychoanalytic institutes, or institutes deemed equivalent, “may engage in psychoanalysis as an adjunct to teaching, training, or research and hold themselves out to the public as psychoanalysts . . . .”
The licensing laws do not prevent “qualified members of other recognized professional groups,” including physicians, clinical social workers, family and child counselors, attorneys and ordained members of recognized clergy, from doing work of a psychological nature consistent with the laws governing their respective professions, provided that they do not hold themselves out to the public as psychologists or use terms that imply they are licensed to practice psychology.
C. Plaintiffs
The NAAP is a membership association of professional psychoanalysts dedicated to encouraging the study of, and improving the practice of, psychoanalysis in the United States and other countries. Its membership includes more than 1,000 certified psychoanalysts and more than 400 psychoanalyst candidates-in-training. The NAAP alleges that it has lost income from membership dues as a result of California‘s licensing scheme. According to the complaint, the NAAP filed suit “on its own behalf, as a representative of its members whose practice of psychoanalysis in California allegedly has been unreasonably restricted by California law, and on behalf of California residents who are prevented from retaining those NAAP members for professional psychoanalysis.”
Plaintiff Monte, who lives in California, has a master‘s degree in psychology from California State University at Sonoma and a diploma in analytical psychology from the C.G. Jung Institute in Zurich, Switzerland. Monte undertook clinical training in psychoanalysis in Switzerland, where she paid her supervisors and saw clients at a different site from her supervisors. Monte has been ordained as a Diplomate Jungian Analyst by the Association for the Integration of the Whole Person, a religious organization chartered in California. Monte would be eligible for a psychology license in California only if she completed additional courses and acquired supervised professional experience.
Plaintiff Sowers holds a master‘s degree in divinity and a certificate in psychoanalysis from the National Psychological Association for Psychoanalysis in New York City. Sowers is certified as a pastoral counselor in the Presbyterian Church and certified as a psychoanalyst in the State of Vermont. He is a resident of New York, but intends to travel to California to establish a psychoanalytic practice. He wishes to hold himself out professionally to the public, using the title “psychoanalyst.”
D. Procedural History
The district court dismissed plaintiffs’ first amended complaint under
Plaintiffs then filed their third amended and supplemental complaint (“complaint“), which was dismissed with prejudice for failure to state a claim. The district court concluded that, although standing was adequately alleged, the complaint failed to state claims under the First or Fourteenth Amendment. Plaintiffs filed a timely notice of appeal.
II. JURISDICTION
The district court had jurisdiction pursuant to
III. STANDARD OF REVIEW
We review de novo the district court‘s dismissal for failure to state a claim pursuant to
IV. DISCUSSION
Plaintiffs allege that California‘s mental health licensing laws abridge their Fourteenth Amendment substantive due process and equal protection rights and their First Amendment rights of speech and association.3
A. Fourteenth Amendment
To withstand Fourteenth Amendment scrutiny, a statute is required to bear only a rational relationship to a legitimate state interest, unless it makes a suspect classification or implicates a fundamental right. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (equal protection); Richardson v. City & County of Honolulu, 124 F.3d 1150, 1162 (9th Cir. 1997), cert. denied, 119 S. Ct. 168 (1998) (substantive due process).
1. Fundamental Right
Because psychoanalysts are not a suspect class entitled to heightened scrutiny, we must examine whether the licensing scheme implicates any fundamental right. We hold that it does not.
Plaintiffs contend that California‘s mental health licensing laws are subject to strict scrutiny under the Due Process Clause of the Fourteenth Amendment because they implicate the fundamental rights associated with the close-knit relationships between analysts and analysands. It is true that the Fourteenth Amendment protects some personal relationships, such as “those that attend the creation and sustenance of a family” and other “highly personal relationships.” IDK, Inc. v. Clark County, 836 F.2d 1185, 1193 (9th Cir. 1988) (internal quotation marks and citation omitted).
At the other end of the relationship spectrum, we have held that the relationship between an escort and a client paying for escort services is not an intimate association implicating substantive due process rights. See id. Although we do not imply that the relationship between a client and an escort is similar in nature to the relationship between a patient and a psychoanalyst, we do find some of our analysis in IDK to be instructive. The relationship between a client and a psychoanalyst lasts “only as long as the client is willing to pay the fee.” Id. Even if analysts and clients meet regularly and clients reveal secrets and emotional thoughts to their analysts, these relationships simply do not rise to the level of a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978) (right to marry); Moore v. City of East Cleveland, 431 U.S. 494, 503-06 (1977) (right to live with family); Griswold v. Connecticut, 381 U.S. 479, 482-86 (1965) (right to marital privacy); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (right of parents to direct children‘s upbringing and education). “These are not the ties that ‘have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.‘” IDK, 836 F.2d at 1193 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984)).
We further conclude that substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider. The Seventh Circuit has noted that “most federal courts have held that a patient does not have a constitutional right to obtain a particular type of treatment or to obtain treatment from a particular provider if the government has reasonably prohibited that type of treatment or provider.” Mitchell v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (citations omitted). We agree, and hold that there is no fundamental right to choose a mental health professional with specific training.
2. Rational Basis
Because we conclude that the licensing scheme neither utilizes a suspect classification nor implicates a fundamental right, we now examine whether it is “rationally related to a legitimate state interest.” Dukes, 427 U.S. at 303. In applying the rational basis test, we presume the constitutionality of the classification. See id. “[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.” Vance v. Bradley, 440 U.S. 93, 111 (1979); see also Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (holding under a Fifth Amendment due process analysis that a statute should be upheld if “it might be thought that the particular legislative measure was a rational way to correct” a problem). “[W]e do not require that the government‘s action actually advance its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it did.” Dittman v. California, 191 F.3d 1020, 1031 (9th Cir. 1999) (quoting Halverson v. Skagit County, 42 F.3d 1257, 1262 (9th Cir. 1995) (citation and internal quotation marks omitted)), cert. denied, 120 S. Ct. 2717 (2000). We need only determine whether the licensing scheme has a “conceivable basis” on which it might survive rational basis scrutiny. Id. (quoting Lupert v. California State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985)).
First, plaintiffs argue that there is no rational basis for requiring professionals already trained in psychoanalysis to have certain other training in order to obtain a license. Because the Lochner5 era has long passed, this argument must fail. See Armendariz v. Penman, 75 F.3d 1311, 1318 (9th Cir. 1996) (stating that Lochner “symbolizes an era in which the Court, invalidating economic legislation, engaged in a level of judicial activism which was unprecedented in its time and unmatched since“). As the Supreme Court stated in Williamson:
It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
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.
348 U.S. at 488 (citation omitted).
This case is nearly identical to Maguire v. Thompson, 957 F.2d 374 (7th Cir. 1992), in which the Seventh Circuit held that the Illinois General Assembly had a rational basis for requiring certain training for health care professionals to obtain a medical license, even though naprapaths, who treat human ailments through manipulation of tissue, were excluded from practicing. The Maguire court observed that:
[T]he General Assembly could have concluded that [certain] level[s] of education provide[ ] better training in theories of disease. Logically, better training leads to better diagnosis and better treatment. . . . [I]t is within the legislative prerogative to limit the practice of medicine to those who provide the safest service.
. . . It would even be rational for a legislature to conclude that the training offered in a school of naprapathy would in fact be inadequate for proper medical diagnosis and treatment and therefore people seeking treatment from those who hold only a degree in naprapathy run a serious risk of either misdiagnosis or non-diagnosis of their ailment.
Id. at 377-78 (citation omitted). The Seventh Circuit again utilized the reasoning of Maguire in holding that the Illinois legislature could regulate acupuncture by requiring a degree from a chiropractic school. See Mitchell, 995 F.2d at 774-76. We agree with the reasoning of these cases.
Based on the health and welfare of its citizens, California certainly has a “conceivable rational basis” for regulating the licensing of psychologists, and therefore, psychoanalysts. Dittman, 191 F.3d at 1031. According to the Supreme Court, “health . . . includes psychological as well as physical well being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). The California Legislature first regulated psychology because it “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” Sunset Report at 1. The Psychology Licensing Law includes a legislative finding that the “practice of psychology in California affects the public health, safety, and welfare and is to be subject to regulation and control in the public interest to protect the public from the unauthorized and unqualified practice of psychology.”
Plaintiffs argue additionally that the licensing scheme is not rationally related to a legitimate state interest because it is ineffective and unnecessary. In support of their argument, they observe that a committee had recommended to the California Medical Board that the laws regulating psychoanalysts were unnecessary and ineffective. As additional evidence that the scheme is unnecessary, plaintiffs point to the facts that research psychoanalysts are allowed to practice without meeting all of the requirements of the licensing scheme and that, in four years, only one complaint has been filed against a research psychoanalyst. Research psychoanalysts, however, are a small and discrete group. That they appear to be able to practice satisfactorily without having met all licensing requirements does not compel the Legislature to infer that all psychoanalysts could practice satisfactorily without having met the educational and experience requirements of the licensing scheme. We thus perceive no legal basis for interfering with the Legislature‘s judgment regarding the training needed for mental health professionals.
Plaintiffs next argue that the psychology licensing laws have no rational basis because the California licensing schemes for other, similar counseling professions are less stringent. Plaintiffs highlight the differences between the licensing schemes for family counselors and social workers, as opposed to psychologists, in an attempt to show that the exclusion of psychoanalysts is irrational, when other professionals are permitted to engage in counseling. See
Finally, plaintiffs attack the psychologist licensing scheme on several other grounds, all of which we reject. They suggest that the scheme is irrational because other states, such as Vermont, Washington and Colorado, have less restrictive licensing schemes for psychoanalysts. This does not mean, however, that it is irrational for California to have its existing scheme. It simply is not the function of the courts to tell California how to craft its legislation.
We conclude that the psychologist licensing scheme is rationally related to legitimate government interests; therefore, the district court properly dismissed plaintiffs’ Fourteenth Amendment claims.
B. First Amendment
Plaintiffs further contend that California‘s psychologist licensing laws violate their First Amendment rights to freedom of speech.6 The First Amendment applies to state laws and regulations through the Due Process Clause of the Fourteenth Amendment. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996). We conclude that, even if a speech interest is implicated, California‘s licensing scheme passes First Amendment scrutiny.
1. Extent to Which Speech is Implicated
The Supreme Court has held that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949); see also Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447, 456 (1978) (holding that “the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity“).
Plaintiffs contend that, because psychoanalysis is the “talking cure,” it deserves special First Amendment protection because it is “pure speech.” As the district court noted, however, “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech . . . . That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.”7
The Supreme Court noted that an attorney‘s in-person solicitation of clients is “entitled to some constitutional protection,” but “is subject to regulation in furtherance of important state interests.” Ohralik, 436 U.S. at 459. The Ohralik Court also noted “numerous” examples of communications “that are regulated without offending the First Amendment.” Id. at 456 (highlighting the exchange of securities information, corporate proxy statements, exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees). The Supreme Court held that the regulation of solicitation within the legal profession “falls within the State‘s proper sphere of economic and professional regulation.” Id. at 459.
The modern state owes and attempts to perform a duty to protect the public from those who seek for one purpose or another to obtain its money. When one does so through the practice of a calling, the state may have an interest in shielding the public from the untrustworthy, the incompetent, or the irresponsible, or against unauthorized representation of agency. A usual method of performing this function is through a licensing system.
Thomas v. Collins, 323 U.S. 516, 544 (1945) (Jackson, J., concurring). Given the health and safety implications, California‘s interest in regulating mental health is even more compelling than a state‘s interest in regulating in-person solicitation by attorneys. We conclude that the licensing scheme is a valid exercise of California‘s police power.
2. Content and Viewpoint Neutrality
We further conclude that California‘s licensing scheme is content and viewpoint neutral; therefore, it does not trigger strict scrutiny. We have held that “‘[t]he appropriate level of scrutiny is tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content.‘” Black v. Arthur, 201 F.3d 1120, 1123 (9th Cir. 2000) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)). “The ‘principal inquiry’ in determining whether a regulation is content-neutral or content-based ‘is whether the government has adopted [the] regulation . . . because of [agreement or] disagreement with the message it conveys.‘” Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996) (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
California‘s mental health licensing laws are content neutral; they do not dictate what can be said between psychologists and patients during treatment. Nothing in the statutes prevents licensed therapists from utilizing psychoanalytical methods or prevents unlicensed people from engaging in psychoanalysis if no fee is charged.8 This reasoning mirrors Justice Jackson‘s concurrence in Thomas, 323 U.S. at 545, in which he stated:
A state may forbid one without its license to practice law as a vocation, but I think it could not stop an unlicensed person making a speech about the rights of man or the rights of labor . . . . Likewise, the state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought.
Id. (Jackson, J., concurring).
Although the California laws and regulations may require certain training, speech is not being suppressed based on its message. Plaintiffs argue that the licensing scheme regulates the content of speech because the Board‘s psychological examination tests only certain areas, including the biological bases of behavior, research methods, and assessment and diagnosis. Plaintiffs contend that psychoanalysts, on the other hand, are trained in such areas as Jungian understanding of personality, techniques for the activation and interpretation of the unconscious, and archetypal material, including mythology and fairy tales. Plaintiffs also allege that the Board uses the content of an institution‘s curriculum to determine which institutions provide “equivalent” training under California Business and Professions Code 2914 and 2529. The licensing scheme, however, was not adopted because of any disagreement with psychoanalytical theories. See Crawford, 96 F.3d at 384. It was adopted for the important purpose of protecting “public health, safety, and welfare.”
Although some speech interest may be implicated, California‘s content-neutral mental health licensing scheme is a valid exercise of its police power to protect the health and safety of its citizens and does not offend the First Amendment.10
3. Prior Restraint
In addition, we hold that the psychology licensing laws are not a prior restraint on speech. See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998) (“A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of government officials.“). Because this is a valid licensing scheme designed to protect the mental health of Californians, the state “may exercise some discretion in granting licenses.” IDK, 836 F.2d at 1196. Because there is no allegation that the state is revoking or denying licenses “for arbitrary or constitutionally suspect reasons,” there is no problem of prior restraint. Id.; see also City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 755-56 (1988) (fearing “unbridled discretion” in state officials could result in censorship); Young v. City of Simi Valley, 216 F.3d 807, 819 (9th Cir. 2000) (“When an approval process . . . is completely discretionary, there is a danger that protected speech will be suppressed impermissibly because of the government official‘s . . . distaste for the content of the speech.“) (citation omitted).
V. CONCLUSION
In sum, we hold that California‘s psychology licensing laws do not violate either the First or the Fourteenth Amendment. We thus affirm the district court‘s dismissal of this action. As the district court noted, plaintiffs’ concerns about the licensing of psychoanalysts are “best addressed to the state legislature.”
AFFIRMED.