Sensational Smiles, LLC v. Mullen

• Decision Date: 17 July 2015
• Docket Number: Docket No. 14–1381–cv.
• Citation: 793 F.3d 281
• Parties: SENSATIONAL SMILES, LLC, d/b/a Smile Bright, Plaintiff–Appellant, Lisa Martinez, Plaintiff v. Jewel MULLEN, DR., in her official capacity as Commissioner of Public Health, Jeanne P. Srathearn, DDS, in her official capacity as a Member of the Connecticut Dental Commission, Elliot Berman, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Lance E. Banwell, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Peter S. Katz, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Steven G. Reiss, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Martin Ungar, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Barbara B. Ulrich, in her official capacity as a Member of the Connecticut Dental Commission, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

793 F.3d 281

SENSATIONAL SMILES, LLC, d/b/a Smile Bright, Plaintiff–Appellant

Lisa Martinez, Plaintiff

v.Jewel MULLEN, DR., in her official capacity as Commissioner of Public Health, Jeanne P. Srathearn, DDS, in her official capacity as a Member of the Connecticut Dental Commission, Elliot Berman, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Lance E. Banwell, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Peter S. Katz, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Steven G. Reiss, DDS, in his official capacity as a Member of the Connecticut Dental Commission, Martin Ungar, DMD, in his official capacity as a Member of the Connecticut Dental Commission, Barbara B. Ulrich, in her official capacity as a Member of the Connecticut Dental Commission, Defendants–Appellees.

Docket No. 14–1381–cv.

United States Court of Appeals, Second Circuit.

Argued: April 15, 2015.

Decided: July 17, 2015.

Paul M. Sherman (Dana Berliner, on the brief), Institute for Justice, Arlington, VA, for Plaintiff–Appellant.

Daniel Shapiro, Assistant Attorney General, for George Jepsen, Attorney General of Connecticut, for Defendants–Appellees.

Before: CALABRESI, CABRANES, and DRONEY, Circuit Judges.

Opinion

Judge DRONEY concurs in a separate opinion.

GUIDO CALABRESI, Circuit Judge:

The question in this case is whether a Connecticut rule restricting the use of certain teeth-whitening procedures to licensed dentists is unconstitutional under the Due Process or Equal Protection Clauses. Because we conclude that there are any number of rational grounds for the rule, we affirm the judgment of the District Court.

BACKGROUND

Under Connecticut law, the State Dental Commission (“the Commission”) is charged with advising and assisting the Commissioner of Public Health in issuing dental regulations. See Conn. Gen.Stat. § 20–103a(a). On June 8, 2011, the Commission issued a declaratory ruling that only licensed dentists were permitted to provide certain teeth-whitening procedures. On July 11, 2011, the Connecticut State Department of Public Health sent Sensational Smiles—a non-dentist teeth-whitening business—a letter requesting that it “voluntarily” cease the practice of offering teethwhitening services, and warning that it could otherwise face legal action.

Sensational Smiles sued, challenging several aspects of the declaratory ruling. The parties before the District Court eventually agreed, however, that just one rule constrained the services offered by Sensational Smiles—specifically, the rule stating that only a licensed dentist could shine a light emitting diode (“LED”) lamp at the mouth of a consumer during a teeth-whitening procedure.¹ Sensational Smiles asserted that this rule violates the Equal Protection and Due Process Clauses, because no rational relationship exists between the rule and the government's legitimate interest in the public's oral health. Accordingly, Sensational Smiles sought a declaratory judgment from the District Court that the rule was unconstitutional as applied, as well as a permanent injunction barring the rule's enforcement. The District Court (Michael P. Shea, Judge ) rejected Sensational Smiles' arguments and granted defendants' motion for summary judgment. Sensational Smiles appealed.

DISCUSSION

We review the District Court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Delaney v. Bank of America Corporation et al., 766 F.3d 163, 167 (2d Cir.2014).

The claims at issue—that the declaratory ruling violated the Constitution's Equal Protection and Due Process Clauses—are both subject to rational-basis review. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“[A] classification neither involving fundamental rights nor proceeding along suspect lines ... cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate government purposes.”); Molinari v. Bloomberg, 564 F.3d 587, 606 (2d Cir.2009) (“The law in this Circuit is clear that where, as here, a statute neither interferes with a fundamental right nor singles out a suspect classification, we will invalidate that statute on substantive due process grounds only when a plaintiff can demonstrate that there is no rational relationship between the legislation and a legitimate legislative purpose.”) (citations, internal quotation marks, and brackets omitted).

As the Supreme Court has stated on multiple occasions, rational-basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller, 509 U.S. at 319, 113 S.Ct. 2637. Rather, we are required to uphold the classification “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 320, 113 S.Ct. 2637 (internal quotation marks omitted). Accordingly, to prevail, the party challenging the classification must “negative every conceivable basis which might support it.” Id. (citation and internal quotation marks omitted).

Reviewing the record de novo, we agree with the District Court that a rational basis, within the meaning of our constitutional law, existed for Connecticut's prohibition on non-dentists pointing LED lights into their customers' mouths. All sides agree that the protection of the public's oral health is a legitimate governmental interest. The parties, however, strongly dispute whether the rule at issue rationally relates to this interest. Here, the Commission received expert testimony indicating that potential health risks are associated with the use of LED lights to enhance the efficacy of teeth-whitening gels.² While Sensational Smiles disputes this evidence, it is not the role of the courts to second-guess the wisdom or logic of the State's decision to credit one form of disputed evidence over another.

Sensational Smiles argues that even if there was some basis for believing that LED lights could cause harm, there was still no rational basis for restricting the operation of LED lights to licensed dentists. This is so because dentists are not trained to use LED lights or to practice teeth whitening, and are not required to have any knowledge of LED lights in order to get dental licenses. The Commission, however, might have reasoned that if a teeth-whitening customer experienced sensitivity or burning from the light, then a dentist would be better equipped than a non-dentist to decide whether to modify or cease the use of the light, and/or to treat any oral health issues that might arise during the procedure. The Commission might also have rationally concluded that, in view of the health risks posed by LED lights, customers seeking to use them in a teeth-whitening procedure should first receive an individualized assessment of their oral health by a dentist. Indeed, the Commission explicitly found that “[t]he decision of whether to recommend or apply bleaching agents and/or bleaching lights to a particular person's teeth requires significant diagnostic expertise and skills, in part, to allow the provider to distinguish between pathological versus non-pathological causes of tooth discoloration.” App'x at 201. There were thus rational grounds for the Dental Commission to restrict the use of these lights to trained dentists.

Sensational Smiles further argues that the rule is irrational because it allows consumers to shine the LED light into their own mouths, after being instructed in its use by unlicensed teeth-whitening professionals, but prohibits those same teeth-whitening professionals from guiding or positioning the light themselves. The law, however, does not require perfect tailoring of economic regulations, and the Dental Commission can only define the practice of dentistry; it has limited control over what people choose to do to their own mouths. Moreover, and perhaps more importantly, individuals are often prohibited from doing to (or for) others what they are permitted to do to (or for) themselves. Thus, while one may not extract another's teeth for money without a dental license, individuals can remove their own teeth with pliers at home if they so choose, and a failure to ban the latter practice would not render a ban on the former irrational. The same is true of legal services, where individuals may proceed pro se, but may not represent others without a law license.

In sum, given that at least some evidence exists that LED lights may cause some harm to consumers, and given that there is some relationship (however imperfect) between the Commission's rule and the harm it seeks to prevent, we conclude that the rule does not violate either due process or equal protection.

This would normally end our inquiry, but appellant, supported by amicus Professor Todd J. Zywicki, forcefully argues that the true purpose of the Commission's LED restriction is to protect the monopoly on dental services enjoyed by licensed dentists in the state of Connecticut. In other words, the regulation is nothing but naked economic protectionism: “rent seeking ... designed to transfer wealth from consumers to a particular interest group.”³ Zywicki Br. at 3. This raises a question of growing importance and also permits us to emphasize what we do not decide, namely, whether the regulation is valid under the antitrust laws. See N. Carolina State Bd. of Dental Examiners v. F.T.C., ––– U.S. ––––, 135 S.Ct. 1101, 191 L.Ed.2d 35 (2015) (holding that dental board was not sufficiently controlled by the state to claim state antitrust immunity).

In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir.2013) (“[N]either precedent nor broader principles suggest that mere economic...