Russell Kiser v. Harry Kamdar
831 F.3d 784
6th Cir.2016Background
- Dr. Russell Kiser is a licensed dentist with postdoctoral endodontics training but chooses not to limit his practice to endodontics. Ohio classifies him as a general dentist unless he both completes ADA-recognized specialty training and limits his practice to that specialty.
- Ohio regulations forbid non–Board-recognized specialists from using certain specialist titles (e.g., "endodontist") in advertising; violations can lead to discipline, including license suspension or revocation.
- Kiser received a 2009 warning from the Ohio State Dental Board that he was performing procedures outside the scope of endodontics while holding himself out as a specialist; in 2012 the Board declined to approve proposed signage that listed him as both "endodontist" and "general dentist."
- Kiser sued state board members seeking declaratory and injunctive relief, alleging violations of the First Amendment (commercial speech), substantive and procedural due process, and equal protection. District court dismissed for lack of ripeness; Sixth Circuit reversed on ripeness and on appeal remanded after district court dismissed on the merits.
- The Sixth Circuit here reverses dismissal of Kiser’s First Amendment, substantive-due-process (as coextensive with First Amendment), and equal-protection claims, but affirms dismissal of his procedural-due-process claim; case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ohio may bar Kiser from using the title "endodontist" in advertising (commercial-speech claim) | Kiser: ban suppresses truthful, nonmisleading commercial speech about his specialized training. | Board: advertising such a title while practicing outside the specialty is illegal or misleading, so ban is permissible. | Reversed: Kiser plausibly alleged a First Amendment commercial-speech claim; the illegal-activity exception does not apply and intermediate scrutiny (Central Hudson) governs. |
| Whether Kiser’s claim should be analyzed under substantive due process (right to earn a living) | Kiser: regulation infringes his substantive due-process economic liberty to practice both endodontics and general dentistry. | Board: regulations only restrict advertising content, not the ability to perform procedures. | Reversed in part: substantive-due-process claim is coextensive with First Amendment commercial-speech protection; should be treated as First Amendment claim, not an independent economic-liberty violation. |
| Procedural due process — private delegation / ADA role | Kiser: Board blindly adopts ADA specialty list, impermissibly delegating power to a private body (private nondelegation). | Board: ADA list is informational; Board’s regulation—not ADA—causes any injury; no improper delegation like in Eubank/Roberge. | Affirmed: Kiser lacks standing to challenge ADA’s list and the private-delegation analogy fails; procedural-due-process claim dismissed. |
| Equal protection — disparate treatment of non–Board-recognized specialists | Kiser: regulation discriminates against dentists who aren’t Board-recognized specialists by restricting their commercial-speech rights. | Board: law is rationally related to legitimate interest (distinguishing specialists). | Reversed: Equal-protection challenge must receive intermediate scrutiny because it targets regulation of commercial speech; plaintiff stated a viable claim. |
Key Cases Cited
- Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (struck down broad ban on attorney advertising)
- Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85 (1977) (struck down ban on "For Sale" signs)
- Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973) (upheld ban on want ads proposing illegal employment discrimination)
- Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557 (1980) (established intermediate scrutiny test for commercial speech)
- Parker v. Commonwealth of Kentucky, Board of Dentistry, 818 F.2d 504 (6th Cir. 1987) (invalidated similar dental-advertising restrictions as applied)
- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (commercial speech protection; advertising prescription prices)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government must show harms are real and restriction materially alleviates them)
- Edenfield v. Fane, 507 U.S. 761 (1993) (government may not rely on speculation to justify commercial-speech restraints)
- Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) (narrow tailoring standard for commercial-speech regulations)
- Chambers v. Stengel, 256 F.3d 397 (6th Cir. 2001) (equal-protection claims involving commercial speech receive intermediate scrutiny)