Russell Kiser v. Lili Reitz
765 F.3d 601
| 6th Cir. | 2014Background
- Kiser is a licensed dentist practicing in Mansfield, Ohio, regulated by the Ohio State Dental Board.
- Board regulations restrict advertising as a specialist to the scope of that specialty and prohibit practicing outside it.
- Kiser is an endodontist and completed a post-doctoral program; he is a Diplomate of the American Board of Endodontics.
- In 2009 the Board warned Kiser for practicing outside the scope of endodontics while advertising as a specialist.
- In 2012 the Board sent a second letter urging counsel and did not approve his signage proposal; no further action occurred.
- Kiser filed a §1983 pre-enforcement suit alleging Board advertising rules chill his First Amendment commercial speech; district court dismissed for lack of jurisdiction; on appeal the dismissal was reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue pre-enforcement. | Kiser alleges credible threat of enforcement. | Board argues no current enforcement, no standing. | Kiser has standing |
| Injury in fact in pre-enforcement challenge. | Kiser suffers chilling effect on truthful advertising. | No concrete injury without enforcement action. | Yes, credible threat of enforcement constitutes injury |
| Redressability of the injury. | Court could declare regulations unconstitutional or enjoin enforcement. | Relief cannot be granted absent enforcement action. | Relief likely from favorable decision (declaratory or injunctive relief) |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (three standing elements; injury, causation, redressability)
- SBA List v. Driehaus, 134 S. Ct. 2347 (U.S. 2014) (standing in pre-enforcement, credible threat sufficient)
- Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) (prudential ripeness concerns in standing analysis)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (U.S. 1979) (credible threat of prosecution supports standing)
- Steffel v. Thompson, 415 U.S. 452 (U.S. 1974) (chilling effect and hypothetical enforcement)
- Abbott Labs. v. Gardner, 387 U.S. 136 (U.S. 1967) (ripeness and immediate effect of regulations)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (U.S. 2010) (administrative action can create legal injury)
- Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (U.S. 1998) (facts not subject to refinement; immediate review sometimes)