First Choice Chiropractic, LLC v. DeWine

• Decision Date: 13 August 2020
• Docket Number: Nos. 19-4092/20-3038,s. 19-4092/20-3038
• Citation: 969 F.3d 675
• Parties: FIRST CHOICE CHIROPRACTIC, LLC; James Fonner, D.C.; Prestige Chiropractic & Injury, LLC; Rennes Bowers, D.C.; Allied Health & Chiropractic, LLC; Ty Dahodwala, D.C.; Schroeder Referral Systems, Inc., Plaintiffs-Appellants, v. Mike DEWINE, Ohio Governor; Dave Yost, Ohio Attorney General; Ohio State Chiropractic Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

969 F.3d 675

FIRST CHOICE CHIROPRACTIC, LLC; James Fonner, D.C.; Prestige Chiropractic & Injury, LLC; Rennes Bowers, D.C.; Allied Health & Chiropractic, LLC; Ty Dahodwala, D.C.; Schroeder Referral Systems, Inc., Plaintiffs-Appellants,

v.Mike DEWINE, Ohio Governor; Dave Yost, Ohio Attorney General; Ohio State Chiropractic Board, Defendants-Appellees.

Nos. 19-4092/20-3038

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2020

Decided and Filed: August 13, 2020

ARGUED: Paul W. Flowers, PAUL W. FLOWERS CO., L.P.A., Cleveland, Ohio, for Appellants. Samuel C. Peterson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Paul W. Flowers, Louis E. Grube, PAUL W. FLOWERS CO., L.P.A., Cleveland, Ohio, for Appellants. Samuel C. Peterson, Benjamin M. Flowers, Michael J. Hendershot, Michael A. Walton, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

Ohio law prohibits health care practitioners and their agents from directly soliciting business from victims of a motor vehicle accident or crime, by any means other than U.S. mail, until thirty days after the date of the incident. The plaintiffs in this case are various chiropractors and a referral service that appeal the district court's denial of their request for injunctive and declaratory relief. They claim that the statute restricts commercial speech in violation of the First Amendment. They also contend that the restrictions' focus on health care practitioners, but not other professional industries, violates the Fourteenth Amendment's guarantee of equal protection. Because our precedents squarely foreclose the plaintiffs' challenges, we affirm.

I.

In 2019, the Ohio General Assembly adopted Ohio Revised Code § 1349.05 as part of its biennial budget bill. H.B. 166, 133rd Gen. Assemb., 2019–2020 Sess. (Ohio 2019). Section 1349.05 restricts health care practitioners—including chiropractors—and their agents in directly soliciting business from accident or crime victims. Ohio Rev. Code § 1349.05(A)(3)(e), (B), (C). Subsection (B) regulates health care practitioners and provides as follows:

No health care practitioner, with the intent to obtain professional employment for the health care practitioner, shall directly contact in person, by telephone, or by electronic means any party to a motor vehicle accident, any victim of a crime, or any witness to a motor vehicle accident or crime until thirty days after the date of the motor vehicle accident or crime. Any communication to obtain professional employment shall be sent via the United States postal service.

Subsection (C) provides the same restrictions but with regard to the agents of health care practitioners:

No person who has been paid or given, or was offered to be paid or given, money or anything of value to solicit employment on behalf of another shall directly contact in person, by telephone, or by electronic means any party to a motor vehicle accident, any victim of a crime, or any witness to a motor vehicle accident or crime until thirty days after the date of the motor vehicle accident or crime. Any communication to solicit employment on behalf of another shall be sent via the United States postal service.

The plaintiffs in this case largely consist of entities and individuals that provide chiropractic services. One of the plaintiffs, Schroeder Referral Systems, Inc., is a referral service that identifies and contacts prospective patients for health care providers. The plaintiffs claim that they "all rely upon advertising and marketing techniques that permit prompt contact with victims of motor vehicle and pedestrian accidents." (CA6 R. 23, Appellant Br., at 24.)

Prior to the effective date of § 1349.05, the plaintiffs commenced an action for declaratory and injunctive relief. They alleged that the statute violates their constitutional rights to free speech and equal protection. The plaintiffs then filed a motion for a preliminary injunction under Federal Rule of Civil Procedure 65(a).

The district court denied the plaintiffs' motion for a preliminary injunction. It found that the plaintiffs failed to show a substantial likelihood of succeeding on the merits of their free speech and equal protection claims, noting that "strong" precedents foreclosed the plaintiffs' challenges. (DE 22, Mem. Op. & Order, PageID 179.) The plaintiffs appealed the district court's denial of their motion. The parties then stipulated in the district court that they did not intend to put forth any more evidence or arguments, and the district court entered a final judgment denying relief for the plaintiffs. The plaintiffs appealed that judgment as well. We granted their motion to consolidate the two appeals.

II.

The plaintiffs challenge the district court's denial of their request for injunctive relief. They raise two issues on appeal. First, they argue that § 1349.05 imposes restrictions on commercial speech in violation of the First Amendment. Second, they claim that § 1349.05 violates the Fourteenth Amendment's Equal Protection clause by regulating health care practitioners but not other professionals who may similarly contact accident or crime victims.¹ Neither claim has merit.

A.

As a threshold matter, the parties dispute the scope of subsections (B) and (C)—the provisions that place restrictions on the solicitation of accident and crime victims. The government explains that subsections (B) and (C) forbid health care practitioners and their agents from directly soliciting accident and crime victims in person, by phone, or by electronic means, only within the thirty days following the accident or crime. The plaintiffs, however, insist on an interpretation where the statute prohibits health care practitioners and their agents from ever soliciting business from accident or crime victims, by any means, at any time, unless through U.S. mail. The plaintiffs even suggest that § 1349.05 permanently bars indirect communications, such as television commercials, newspaper listings, and billboards.

In construing § 1349.05, we "must predict how the [Ohio Supreme Court] would interpret the statute," and we "apply the general rules of statutory construction as embraced by the [Ohio] judiciary." United States v. Simpson , 520 F.3d 531, 535–36 (6th Cir. 2008) (citing Meridian Mut. Ins. Co. v. Kellman , 197 F.3d 1178, 1181 (6th Cir. 1999) ).

We agree with the government's interpretation of the statute and find the plaintiffs' interpretation to be unsupported by the statutory language. The first sentence of each subsection, together, state that health care practitioners and their agents cannot, as a means of soliciting business, "directly contact in person, by telephone, or by electronic means" any party or witness to an accident or crime, "until thirty days after the date of the ... accident or crime." § 1349.05(B), (C) (emphasis added). The provisions unambiguously lift their restrictions on direct solicitations once thirty days has passed from the date of the accident or crime. The second sentence then clarifies what form of direct contact is not prohibited during the initial thirty-day window: communications through U.S. mail.² See id. ("Any communication to obtain professional employment shall be sent via the United States postal service.").

The plaintiffs entirely divorce this second sentence from the rest of the provision and claim that, when read in isolation, the second sentence unambiguously prohibits any form of solicitation at any time except through U.S. mail. We cannot, however, read this one sentence in isolation—we must read it in the broader context of the statute. Ohio Rev. Code § 1.42 ; see also Elec. Classroom of Tomorrow v. Ohio Dep't of Educ. , 154 Ohio St.3d 584, 118 N.E.3d 907, 909 (2018) ("Because a statute must be considered as a whole, ‘a court cannot pick out one sentence and disassociate it from the context....’ " (quoting State v. Wilson , 77 Ohio St.3d 334, 673 N.E.2d 1347, 1350 (1997) )).

When § 1349.05 is read in its entirety, its scope is clear. It prohibits health care practitioners and their agents from directly soliciting accident or crime victims, within the thirty days following the accident or crime, by any means other than U.S. mail. After the thirty days have passed, the statute no longer restricts direct solicitations. To read the second sentence of subsections (B) and (C) as prohibiting any form of solicitation, at any time, except those through U.S. mail would render the entire preceding sentence meaningless. In other words, if all non-mail direct solicitations were prohibited at all times, there would be no need to more narrowly state that non-mail, direct solicitations are banned just in the thirty days after an incident. See Boley v. Goodyear Tire & Rubber Co. , 125 Ohio St.3d 510, 929 N.E.2d 448, 452 (2010) ("No part [of a statute] should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative." (quoting State ex rel. Myers v. Bd. of Educ. , 95 Ohio St. 367, 116 N.E. 516, 517 (1917) )). Moreover, contrary to the plaintiffs' suggestion, the statute explicitly regulates only "direct"—and not indirect—communications; thus, under the statute, health care practitioners and their agents are free, at any time, to solicit business by means of general advertisements to the public, such as through television advertisements, newspaper listings, or billboards.

Even if the plaintiffs' interpretation of the statute were plausible, the canon of constitutional avoidance would nevertheless lead us to adopt the government's interpretation. See State ex rel. Taft v. Franklin Cty. Court of Common Pleas , 81 Ohio St.3d 480, 692 N.E.2d 560, 561–62 (1998) ("Courts have a duty to liberally construe statutes to avoid constitutional infirmities." (citing Hughes v. Ohio Bur. Of Motor Vehicles , ...