Stanfield v. Department of Licensing & Regulation , 128 Mich. App. 207 ( 1983 )

128 Mich. App. 207 (1983) 339 N.W.2d 876

STANFIELD
v.
DEPARTMENT OF LICENSING AND REGULATION

Docket No. 60143.

Michigan Court of Appeals.

Decided August 17, 1983.

Foster, Swift, Collins & Coey, P.C. (by Arthur R. Przybylowicz), for plaintiffs.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Howard C. Marderosian, Assistant Attorney General, for defendants.

Before: DANHOF, C.J., and ALLEN and K.N. HANSEN,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of the trial court denying their challenge to the constitutionality of a portion of the occupations section of the Public Health Code. MCL 333.16101 et seq.; MSA 14.15(16101) et seq.

Plaintiffs challenge that portion of the code which deals with the practice of psychology. MCL 333.18201 et seq.; MSA 14.15(18201) et seq. Plaintiffs are all persons possessing "limited licenses" which permit them to practice school psychology. They claim that to the extent that the code allows them to practice their profession in the course of their employment with a school, but not independently of that employment, it constitutes a violation of due process and a denial of equal protection.

The practice of psychology in Michigan is defined as involving the following:

"(b) `Practice of psychology' means the rendering to individuals, groups, organizations, or the public of services involving the application of principles, methods, and procedures of understanding, predicting, and influencing behavior for the purposes of the diagnosis, assessment related to diagnosis, prevention, amelioration, or treatment of mental or emotional disorders, disabilities or behavioral adjustment problems by means of psychotherapy, counseling, behavior modification, hypnosis, biofeedback techniques, psychological tests, or other verbal or behavioral means. The practice of psychology shall not include the practice of medicine such as prescribing drugs, performing surgery, or administering electro-convulsive therapy." MCL 333.18201(1)(b); MSA 14.15(18201)(1)(b).

A person practicing psychology without a license is subject to criminal prosecution. MCL 333.XXXXX-XXX.16299; MSA 14.15(16294)-14.15(16299).

It is undisputed that a person desiring to practice psychology generally must obtain, as a minimum qualification for such practice, a doctoral degree in psychology. MCL 333.18223(1); MSA 14.15(18223)(1). A limited license to practice as a school psychologist is authorized by MCL 333.18214(2); MSA 14.15(18214)(2):

"(2) This part does not prohibit an individual approved by the state department of education from using the title `school psychologist' and engaging in those duties and activities pertinent to employment by a public or private elementary or secondary school."

While the parties contest the relative qualifications of doctoral degree psychologists as compared to masters degree level school psychologists, there is general agreement that those persons who possess a doctoral degree in psychology have more training than school psychologists. Plaintiffs do point out, however, that school psychologists may have more training with respect to the practice of psychology in schools than do some licensed psychologists. Plaintiffs are not possessed of doctoral degrees in psychology.

After hearing testimony from expert psychologists presented by both parties, the circuit court denied plaintiffs' request to declare the statutory scheme unconstitutional, rejecting both plaintiffs' due process and equal protection claims. The court noted that the expert testimony was inconsistent concerning the desired requisite minimum requirements which should be included for those desiring to practice psychology. It also noted that there was disagreement concerning whether private practice by school psychologists would be detrimental to the health and welfare of society. The court found that, because the practice of psychology in a school is more closely supervised than is private practice, the Legislature could have rationally decided to limit school psychologists to practice only in the school setting.

The Supreme Court has set forth the relevant tests for reviewing due process and equal protection challenges to legislative enactments. In Shavers v Attorney General, 402 Mich 554, 612-614; 267 NW2d 72 (1978), the Supreme Court held:

"The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. See Michigan Canners v Agricultural Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976).

"The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep't of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973):

"`Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.' (Citations omitted.)

"In the application of these tests, it is axiomatic that the challenged legislative judgment is accorded a presumption of constitutionality. See Michigan Canners v Agricultural Board, supra, 343-344. What this `presumption of constitutionality' means, in terms of challenged police power legislation, is that in the face of a due process or equal protection challenge, `where the legislative judgment is drawn in question', a court's inquiry `must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it'. United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). A corollary to this rule is that where the legislative judgment is supported by `any state of facts either known or which could reasonably be assumed', although such facts may be `debatable', the legislative judgment must be accepted. Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936)." (Footnotes omitted; emphasis in original.)

It has long been held that the regulation of the practice of psychology is properly within the state's police power. Nelles v Superintendent of Public Instruction, 5 Mich App 47, 52-53; 145 NW2d 795 (1966). Therefore, the only issue presented herein is whether there is any rational basis to support the Legislature's decision to limit the practice of school psychologists to the school setting.

The record supports the trial court's finding that school psychologists, in the course of their employment with a school district, are accountable to and supervised by the school district in which they work. In addition, there was general agreement that the training received by a school psychologist is geared towards practicing in a team setting. Private practitioners function independently of each other, without supervision and often without any type of consultation.

In view of the foregoing, we believe that the Legislature's decision to limit the practice of these persons to the school setting is rationally related to a legitimate state objective and neither violates due process nor constitutes a denial of equal protection.

The decision of the trial court is affirmed. No costs.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.