Request By:
Richard L. Ross, R.Ph.
Executive Director
Kentucky Board of Pharmacy
1228 U.S. 127, South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; William B. Pettus, Assistant Attorney General
This is in response to your April 13, 1987 letter to this Office in which you have requested an official Opinion of the Attorney General on whether KRS 315.050(1) is unconstitutional to the extent that it requires United States citizenship and whether the Board of Pharmacy should enforce this provision.
KRS 315.050(1) states in pertinent part as follows: "Every applicant for licensure as a pharmacist shall be . . . a citizen of the United States . . . ." KRS 315.050(1). The U.S. citizenship requirement found in KRS 315.050(1) has existed since 1946. This citizenship requirement is typical of many professional licensing statutes that existed then and still exist today.
The Constitution of the United States, Fourteenth Amendment, states in pertinent part that "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." A lawfully admitted resident alien is a "person" within the meaning of the Fourteenth Amendment's equal protection clause.
Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed.220 (1886). A lawfully resident alien has a right, protected by the Constitution, to earn a livelihood by following the ordinary occupations of life.
Terrace v. Thompson, 263 U.S. 197, 44 S. Ct. 15, 68 L. Ed. 255 (1923). Statutory classifications which discriminate against aliens are inherently suspect.
Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971).
In order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest.
In re Griffiths, 413 U.S. 717, 721-722, 93 S. Ct. 2851, 2855, 37 L. Ed. 2d 910, 915 (1973).
The United States Supreme Court has indicated that noncitizens may be constitutionally prohibited from participating in certain specified self-government processes and areas of employment closely intertwined with the state's governing activities. Thus, a New York statute that excluded aliens from employment as policemen,
Foley v. Connelie, 435 U.S. 291, 98 S. Ct. 1067, 55 L. Ed. 2d 287 (1978), and a New York law forbidding aliens from being certified as public school teachers,
Ambach v. Norwick, 441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979), have been upheld by the United States Supreme Court.
In recent years, the United States Supreme Court has steadily restricted the activities from which States may constitutionally exclude aliens. This recent trend began as early as 1948, when the United States Supreme Court invalidated a California statute denying commercial fishing licenses to aliens.
Torao Takashashi v. Fish and Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948). This trend has continued, with the United States Supreme Court invalidating statutes prohibiting aliens from (1) entering a State's classified civil service,
Sugarman v. Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973); (2) practicing law, In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); (3) working as civil engineers,
Examining Board of Engineers, Architects, and Surveyors v. Flores De Otero, 426 U.S. 572, 96 S. Ct. 2264, 49 L. Ed. 2d 65 (1976), Rehearing denied, 432 U.S. 7; (4) receiving state educational benefits,
Nyquist v. Mauclet, 432 U.S. 1, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977); and (5) becoming notary publics.
Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984).
Other federal courts have also invalidated the U.S. citizenship requirement for obtaining professional licenses to practice (1) pharmacy,
Wong v. Hohnstrom, 405 F.Supp. 727 (D.Minn. 1975); (2) medicine,
Surmeli v. State of New York, 412 F.Supp. 394 (S.D. N.Y. 1976); (3) engineering and physical therapy,
Kulkarni v. Nyquist, 446 F.Supp. 1269 (N.D. N.Y. 1977); and (4) dentistry,
Szeto v. Louisiana Board of Dentistry, 508 F.Supp. 268 (E.D. La. 1981).
Indeed, this Office has previously opined that a Kentucky statute requiring U.S. citizenship for employees of establishments holding liquor licenses was a discriminatory classification which violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. OAG 78-264.
The United States citizenship requirement found in KRS 315.050(1) has not yet been declared unconstitutional by any court. However, if challenged, it is very unlikely that this suspect classification could be justified. It is the Opinion of this Office that the above-cited cases make it abundantly clear that the U.S. citizenship requirement is unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and therefore should not be enforced. It is hoped that this Opinion will be of some guidance.