may please the cork my name is todd new kirk and i represent the appellant dr russell kaiser in this matter i'd like to reserve three minutes for rebuttal appellant as this court to reverse the trial court order dismissing this case for lack of rightness and lack of subject matter jurisdiction under federal civil procedure twelve b one opponents complaint challenges defendants pelleas regulations in the ohio ministry of code prohibiting him from advertising general dentistry procedures which are outside the scope of his declared specialty of into don x the regulations i'm so as well as the threaten disciplinary action of the apple these have chilled appellants first amendment rights and have caused him to forego lawful advertising in violation of the first moment as such appellants claims are right for three reasons  suffering prison harm and it is well established that even a momentary loss of first amendment rights constitutes a reparable harm and that's the case even if the regulations create a pull towards self censorship too there is nothing speculative about the harm caused in this case the regulations are applicable to the appellant under the dental practice act of ohio he can be disciplined for a violation of the regulations they didn't specifically say that he would be disciplined but they said he cannot advertise as he had been in the nature of the warning letter specifically in board cases is that you know it is to put the claim presents a purely legal question and there's new necessity for further development there's three factors to guide a rightness inquiry first it's the likelihood of the of the harm coming to pass to the hardship to the parties if judicial review is declined at this time and third whether the factual record is sufficiently developed to allow for a fair adjudication of the matter all three factors working appellant favor here first the likelihood of harm the district court found that the lack of rightness in this  case was largely predicated on the lack of formal disciplinary action by the board against that appellant our ripeness under this course jurors prudence in the united states supreme court does not rely on and in that case it was partly dependent on the fact that only a committee of the elections commission had had issued a finding and that they had found theory that if if it were applied in the future and list we wouldn't know what the what the facts would be the case involved a statutory scheme which penalized the telling of lies and there's no indication what the lie would the alleged lie would be riskier were pretty clear what the facts are is that is right and it seems like that be an easier way to distinguish was that you know that that is that is the case there is no the ohio administrative scheme doesn't penalize lies it penalizes truthful advertis g and you know in fact the board's warning letter tells him that his choices either to forego what is the truth and stop advertising especially and and i guess my question really suggests that there might be a difference because here we know exactly what the advertisement is going to be that's right yes or no so the facts the facts are just clear where as and as be a the future facts  we just don't know what they are that's correct your honor the scheme the ohio scheme lays out exactly what what can't be advertised as we don't know whether he will be  yes your honor that's true we don't know what the board will do whether they'll prosecute him or not but even if they're just attorney from advertising truthfully that's a violation of the first member rights and we can't rely on the board to just ignore regulations that they have the duty to enforce and they it's violating its burst amendment rights because it's chilling speech that's correct that's correct first amendment rights are particularly apt for a media protection on these kind of pre enforcement challenges because once there are children that losses are retrievable even a momentary loss is a violation of the first amen in what appellant is left with is a choice between either foregoing his first amendment rights of the constitution or intentionally violating what he knows to be a regulation and a rule of the board and what he's been warned about and risking prosecution for that and the supreme court has called you know this the sort of damocles or hobson's choice if the first amendment doesn't agree allow a government  governmental body to put a licensee in such a position and doing so is harmful to the rule of law because it encourages it encourages people to either violate the law intentionally in order to test their first member rights or to just forego those rights altogether does he have any procedure that he can undertake through the board to test his right some kind of declaratory judgment action in front of the border and state court he can not your honor he has to be charged in order to trigger the revised code one nineteen administrative process in fact the board routinely declines to answer declaratory questions or advisory opinions they issue policies from time to time but that is not at the request of a licensee about a certain question and the nature of that administrative process is in itself harmful when when a licensee is charged there's a notice of opportunity for hearing drafted and in that is a public document in soon as that document is issued licensees face the loss of reputation both professionally and personally  there's public allegations of misconduct obviously there's a public hearing there's financial hardship the results from loss of patients seen that that public document they lose insurance contracts they lose malpractise coverage  they even lose financing options for various business matters those charges are are widely circulated the reported between boards there's a there's some harm that's created just by being in charge and even if he's alternately successful in the administrative process he still harms to a great extent and that's not even counting the fact that you know his first amendment rights are harmed before he's even charged so you know there is substantial harm to the appellant and the district court you know failed to recognize those harm to him in seem to indicate that all this would be made ok as long as he was able to go through the administrative process and challenge the board's rules that way but i'd like to point out both iran and burns in in this this court's decision in connection distributing versus reno that even if the statute did issue is applicable and could be enforced that creates an injury in fact so you know that's a that's another hardship to a pal and here that's an injury his first amendment rights have been taken from the third prong is whether the whether the factual record is sufficiently developed to create a fear allow for a fair adjudication of the matter this case really requires no further factual development there may be some discovery needed about the specific first amendment requirements of the board the board's legitimate interest in the regulations whether the regulations  advance that interest things like that but it certainly doesn't require him to be charged as to district court seemed to indicate there's no there's no factual development just from the charge itself other than we know then that the board is in fact enforcing the regulations you know what the ads are that he wants to do that's the idea yes he had to sign both before the warning letter that he used that he had to take down after the morning that he was he would like to use the signs that he had yes but in a know whether that will be allowed well the language that he presented to the board for approval was different language and he hoped that that would then be permitted all but they don't know whether he can do that either now he doesn't know and so essentially you're saying there are two different  s each of which he is i desired to use in terms of language but neither of which has gotten approval from the board on that's correct he he specifically got the warning letter about his previous sign and then when he proposed alternative language to advertise the board declined to rule on it but issued a copy of their warning letter along with third denial  clearly indicating the him that you know you've been warned thank you  may please the court my name is catherine bach greater represent the police in this case dr kaiser's essentially was asking the court to issue an advisory opinion on advertising rules that had never been enforced against him isn't that true in every ripeness case that deal when they consider if it's not if it's not right that would be an advisory opinion and in this case the court examined those three factors and found that it was not weight and the first factor is the likelihood of harm and that involves not just the possibility that the board would possibly sanction him for this activity but a probability than you know in norton this court noted that first amendment rightness is relaxed but there still has to be a substantial probability that the agency would take action that the person why isn't there a probability here because the board hasn't done anything to them then they've never taken any action they never threaten any action the board has limited resources and they're not necessarily going to prosecute every advertising violation that they see if there is one if there even is one they send him a warning letter in two thousand and nine they send him a warning letter and then in two thousand and seven he proposed he s and the board said you need to consult legal counsel and senate and they sent a copy of the letter from before they never threatened any action and they've never used to two thousand and seven but was that two thousand and eleven two thousand twelve i believe two thousand and twelve so in two thousand and twelve they reiterate the warning letter by sending by giving him a copy of it that's occurred but there's a difference between pointing out what the law is and indicating that they're going to take action to enforce  it if they gave him a copy of the previous warning letter why isn't this the same as another warning letter you could consider it to be but even that warning letter doesn't say that they are going to take action against him but but your test was that there's a probability  as opposed to a certainty that they're going to take action correct and i don't think that letter even indicates a probability that they would he's indicated that the board has disciplined many licensees for violations of this but they've only come up with one case in the past seven years when the board that he says relates to that but that case did not even charge with the regulations that are at issue here it was illegible ation of the minimum cyrano of care so there's no indication of the board has taken steps to  almost ever enforce these laws and there's certainly no indication that they intend to force them against him in yes you know i think of ripeness in pre enforcement review the the regulated party had to make an economic decision whether to comply or not and that was the harm and that was entirely sufficient in abbott labs because they didn't know whether to change their labels or not if they change their labels they'd be doing something that they thought they didn't have to do but if they didn't change their labels they took a risk that they were wrong and they'd have to be punished i don't see how this is different from there and i don't see how whether they think the issue that the court talked about was that the that that abbott labs would have had it was a new regulation and that abbott labs would have had to expend a large amount of resources to change their take active steps to change their their labels for their drug it didn't have to they could just keep doing what they were doing and risk the good and this court has held in inordinate an amicable how do you deal with that case though i think you have to be on all fours for rightness in this case i don't think so because there's not he's not there's no indication that he has to expend some amount of money to change his life and he makes very clear allegations that he's going to lose money from because he doesn't get to perform a particular kind of practice he's limited in the kind of practice he can advertise i don't well that seems to be even stronger well being able to practice is not what he does i would first say he he alleges that there's a chilling effect but he hasn't or he's asserted that there's a chilling effect he hasn't alleged any facts that he actually has speech has actually been chilled there's no and he's never alleged that he took down that allegation would be that he's that it might be that it will make a difference to his practice if he's not able to advertise in this way on the one hand and if he does ever ties in this will risk sanctions that are harsh that's correct and that there are there is no first admin and a first amendment protection for advertising illegal activity and to advertise things outlines is not illegal does but he can't he can't he can't get an answer to that right see that's that in atlanta they claimed it wasn't illegal they said it's not illegal for us not to put these names on the label and in in amex and in norton the courts held that that certainty that just not knowing whether you're going to be prosecuted is not sufficient is not a significant enough hardship that it was an adolescent but it was an avid lapse because i think there was an affirmative change that the person had to make to expend a significant amount of it is different because number one that was a decision of the full commission in barry and in terms of hardship in terms of hardship again in the know whether he could make a particular kind of speech that was what reasoning was so i remember barry he actually alleged that he intended to make the speech and did not make the speech because of the commission's actions there isn't something like that here i would like to make these things but i don't do that because simply action but that's he hasn't really alleged that he is alleged that he made the sign but he's never alleged in his complaint or in the record anywhere that he changed the sign or that he took the sign down he said that today with that's not in the record and in barry also he did not have it s that case said that he had no right to appeal the commission's decision and in this case we do have that and also the the the warning letters that are at issue are issued by one or two members of a thirteen member board there's the full board has never made a determination on on any of this advertising or the letter said on behalf of the board they're sent by the board supervising member to any communication that goes on for the board has the board letterhead on it but it's not ruled upon by the full by the full board i would hear the board to decide as as mr newkirk indicated there would be administrative process where if he were charged with this if the board ever chose to pursue this so he has to wait for the board to pursue him would look if you thought of yourself if you changed this from being a dentist to being a lawyer wouldn't this really deter a prudent lawyer from making various claims about the extent of the lawyers lawyer knew that the lawyer could be pursued by the bar it might in again anything is possible but in this case we don't have that that indication that there's a substantial probability that any action is going to be taken has to be not just a subject i'm still a credible threat that there will be high and the evidence that you point to with respect to the credible chill likely chill is that the represented more for seven years i'm not aware of any case where the board has disciplined someone for a violation of their sign or any other type of advertising and in cases where where this court heard where this court the supreme court has found that there's a likelihood  such as money such as holder one hundred fifty people have been prosecuted under that statute are you aware or should i ask properly does the record show whether there have been other warning letters sent to other people there's nothing in the record about that and i'm not aware of any and in in stuff will the plaintiff was twice directly threatened with arrest from the police and his companion who was engaging in the same activity was actually arrested in people's rights organization the city had said that it would vigorously enforce in him a god in contrast the court found it was not right even though the person had called the a t f individuals planets had called the a t f and asked if their conduct would violate the law and the a t f said yes it would and you could be prosecuted but the court held that that was not there still was not a substantial threat of prosecution that justified making the case right and that was actually a criminal  a criminal possible violation what relevance do you see of the s b a list the s b a list has a lot of similarities in that it was not a decision of the full agency it was a subset of that agency and here we have a warning letter which is a very small fraction of the full board it's even less or less substantial here because there was a probable cause determination made there and we don't have a probable cause determination in this case  and the recommend that s b a lift this court held that the recommendation of a subset of the agency is not a definitive statement of the agency and again there's a difference between stating what the law is or saying there's a violation and and bringing an action  threatening to bring action or presenting a credible threat of an action the board has limited resources and they have prosecutorial discretion and there's no indication that they've exercised it very frequently in the past or that they have any attention to do so with respect to  and as to the hardship that the dr kaiser cites to the l rod case and talks about first amendment irreparable harm irreparable harm is different from the hardship that you need in imminent hardship that you need to find for ri case doesn't discuss standing or rightness on that case was dismissed for failure to state a claim and the issue is separation of powers not not rightness or standing and the the bill of the old no reparable arm issue in abbott labs so and sort of injunctive terms no i'm not saying that dr kaiser pointed out that that first any violation of the first amendment const here he argued that any violation of constitutional for the first amendment constitutes irreparable harm but that's not the question here that case was not about rightness or standing and again he does he alleges a chilling effect but and or morrison this court held that you have to show you have to show more than substantial than subjective chilling you have to show that the agency took action to make a credible a credible credible threat asking again has knowledge he said today but he hasn't alleged in the record that he took the sign down or that he modified the sign that that he proposed he states a legal conclusion that there is a chilling effect but that's not sufficient under under at all why shouldn't the line be drawn between the situation hypothetically where there's just the regulation on the books and there's been no effort to enforce it and there's been no warning letter on the one hand hypothetically and a situation where there have been warning letters to the individual why shouldn't that be the dividing line for right this purposes because even the even a warning letter in and what was sent in this case was basically a non answer the second time and in copying the warning letter from before doesn't indicate that the board a substantial probability that the board is going to take action does it matter that the second letter as i understand it suggested that he should contact legal counsel i don't i don't believe so i don't see that how can you clarify well i'm just asking you whether the fact that the board's letter or the warning letter said you should contact your legal counsel and suggesting earlier there is going to be a need in the future for him to have wave goodbye i see what you mean no i think that's just that's a that's a standard indication that the board is not going to give other people legal advice because they don't represent them so if they have a question they should seek legal counsel i don't think there's an indication that they were saying you should go get legal counsel because we're coming after you and as as mr newkirk indicated the board generally doesn't they speak to their rules they speak through their public actions when you contact them or you're speaking to the board staff and they can't necessarily give interpretations of the board statute if they get a repeated question they might take it to the full board and happen issue a policy statement as he indicated but when they get individual questions they don't have the authority to really do advisory type opinions thank you your red light of oh thank you thanks very much piper indicated that that we haven't shown any any other licensees the been disciplined in that there's no indication that these rules have been in force for me ever be enforced that's not what's required here only that only comes in the case into the play when there's there's regulations or laws of historical curiosity in this case obviously the board's paying attention they issued a warning letter  they found that he could not advertise as he had been in as to the case we cited where the board had taken action in the past i represented that individual and although the final  charges did not include the challenge statute here he was required to sign a consent agreement where he made the choice whether to either stop advertising his specialty or to limit his practice to that that is his only indication about whether he could be prosecuted or not morrison does say an affirmative action has to be taken by the agency there has been an affirmative action here in fact t they should the warning letter in august two thousand and nine in again two thousand and twelve they issued a warning letter and and told him to speak to legal counsel taken together those two things in the k to reasonable person that if he continues to advertise as he had been or that he wished to he would be prosecuted last thing i want to address is the the police indication that this hasn't been ruled upon by the full board i'm not sure it's dispositive in this case but the fact that the warning letter is issued on behalf of the board that the board is involved in the case that's the deterrent effect th they're challenging has been adopted by the full board excuse me i'm sorry but the policy that they're challenging that you're challenging has been adopted by the full board there's no question about that that's correct your honor it's gone through making process and then of approved by the full board for all the reasons i've discussed the palm as versus the decision of the trial court dismissing this case under rule twelve you want thank you thank you both for your argument the case will be submitted with the court called the next case