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First Choice Chiropractic, LLC v. DeWine

United States District Court, N.D. Ohio, Eastern Division

January 3, 2020

FIRST CHOICE CHIROPRACTIC, LLC, et al., Plaintiffs,
v.
OHIO GOVERNOR MIKE DeWINE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          WILLIAM H. BAUGHMAN, JR. UNITED STATES MAGISTRATE JUDGE

         I.

         On August 30, 2019, three chiropractic care and treatment facilities, their owners, and a patient referral service sought injunctive and declaratory relief to stop certain provisions of Ohio's 2020-2021 Biennial Budget Bill[1] from going into effect. Plaintiffs challenged provisions that regulate marketing and solicitation practices by chiropractors in Ohio.

         On October 16, 2019, I denied plaintiffs' motion for a preliminary injunction.[2] I based my opinion primarily on the analysis by federal courts, including the Sixth Circuit, of similar regulations in other states. Fundamental to that analysis is the Supreme Court's opinion in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York[3] that articulated a four-part intermediate scrutiny test for assessing the constitutionality of state-imposed regulations on commercial speech.

         Plaintiffs' appealed my order.[4] Shortly thereafter, the defendants answered the amended complaint.[5] About a month later, the parties filed a joint stipulation informing me of their intention not to submit any further evidence or argumentation, and asking that I proceed to adjudicate the merits of the First Amended Class Action Complaint for Declaratory and Injunctive Relief based upon the present record.[6] I do so with this order. Because I denied the motion for a preliminary injunction and no further evidence is to be provided, law and logic require that I also deny plaintiffs' request for declaratory and in-junctive relief.

         II.

         Before proceeding to the merits, I need to address two preliminary matters. First, if the plaintiffs have already appealed my order of October 16, 2019 denying the motion for a preliminary injunction, how can I rule on the First Amended Complaint's claims for declaratory and injunctive relief? Asked another way, how can I enter a final judgment in this case if part of the case is already before the Sixth Circuit? I can issue this order because I lost jurisdiction upon appeal of my October 16, 2019 order only over those aspects of the case on appeal.[7] Plaintiffs appealed only my order of October 16, 2019, which dealt solely with their motion for a preliminary injunction.[8] Consequently, I retain jurisdiction over the rest of the case unrelated to plaintiffs' motion for a preliminary injunction.

         Second, the parties now want me to adjudicate the merits of the First Amended Complaint's claims for declaratory and injunctive relief, but do I then need to be specific as to which type of relief I am adjudicating? No, practically speaking, because the Supreme Court has recognized that the practical effect of injunctive and declaratory relief can be virtually identical.[9] Moreover, in analyzing this case for potential injunctive relief, the law requires me to determine whether Ohio's new Budget Bill violates federal constitutional rights. That's the same question I must answer when determining whether declaratory relief is appropriate. Were I to grant relief, the Supreme Court has suggested that declaratory relief will normally be sufficient to protect a plaintiff's interests, though in some circumstances injunctive relief may be appropriate as well.[10]

         III.

         “The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”[11] It follows then that “[a] party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer ‘continuing irreparable injury' for which there is no adequate remedy at law.”[12]

         To review, I examined the four factors required by law in denying plaintiffs' motion for a preliminary injunction: whether plaintiffs have established a substantial likelihood or probability of success on the merits of their claims; whether plaintiffs would suffer irreparable injury if a preliminary injunction did not issue; whether the injunction would cause substantial harm to others; and whether the public interest would be served if I were to grant the requested injunction.[13] I was mindful that “[a]lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.”[14] I was also mindful that “[a] preliminary injunction is an extraordinary remedy never awarded as of right.”[15]

         The law requires careful analysis of these factors. “In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.' ”[16] In exercising my discretion, I paid “particular regard for the public consequences in employing the extraordinary remedy of injunction.”[17]

         “When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.”[18] Exhaustive analysis demonstrated that it was so in this case. I concluded that under the intermediate scrutiny test, plaintiffs failed to show a substantial likelihood or probability of winning their First Amendment claim on the merits. I also concluded that plaintiffs failed to show a substantial likelihood or probability of winning their Fourteenth Amendment equal protection claim on the merits.

         I analyzed the other three prongs of the preliminary injunction test as well. I concluded that plaintiffs on balance failed to carry their burden on all four prongs of the preliminary injunction test. As an example, plaintiffs warned that their referral service would “effectively and immediately shut down, ” and employee layoffs, bankruptcy, and the loss of business and future referrals would result absent an injunction.[19] If the chiropractic profession had in fact suffered this irreparable injury as forecasted, plaintiffs would have made sure I saw this parade ...


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