United States District Court, S.D. Indiana, Indianapolis Division
CRAIG COOPER, et al. Plaintiffs,
CINDY A VAUGHT, et al. Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(ECF NO. 72) AND PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT (ECF NO. 68)
R. SWEENEY II, JUDGE
Craig D. Cooper, D.D.S. (“Dr. Cooper”), and the
American Academy of Implant Dentistry (“AAID”)
challenge the constitutionality of 828 Ind. Admin. Code
§ 1-1-18(f), a rule regulating specialty advertising by
dentists licensed by the Indiana State Board of Dentistry
(the “Board”). Specifically, Plaintiffs allege
that the rule (1) violates their First Amendment rights by
prohibiting Dr. Cooper and AAID's members from
advertising that they are specialists in implant dentistry;
(2) violates their due process rights; (3) violates their
equal protection rights; and (4) violates the Sherman Act.
(Compl. ¶¶ 40-61, ECF No. 1.) Plaintiffs seek
injunctive and declaratory relief.
November 4, 2017, the Board's Rules Committee voted to
submit its proposed revisions to § 1-1-18 to the Board
for consideration. (Nowakowski Decl. ¶ 4, ECF No. 39-1.)
On December 1, 2017, the Board met and voted to accept the
proposed amendments and to begin the rulemaking process. (2d
Nowakowski Decl. ¶ 5, ECF No. 80- 1.) See Ind.
Code § 25-14-1-13 (authorizing the Board to adopt and
enforce rules). Unlike the old rule, the proposed amended
rule does not list permitted specializations but instead
provides that a dentist “may advertise as being a
specialist in, or limiting practice to, a particular field of
dentistry, only if the dentist has completed a dental
specialty program of at least two (2) years training from:
(1) a Commission on Dental Accreditation approved program; or
(2) a program approved by another organization approved by
the United States Department of Education.” On April 5,
2019, the Board voted not to readopt § 1-1-18, and the
rule expires on January 1, 2020. (3d Nowakowski Decl. ¶
4.) In the meantime, the Indiana Attorney General's
Office has stayed enforcement of 1-1-18(f) during the
rulemaking process, and no administrative complaints relating
to 1-1-18(f) are currently pending against Dr. Cooper or any
other dentist. (Isenberg Decl. ¶¶ 6-7.)
See Ind. Code § 25-14-1-20 (providing that
proceedings or disciplinary action against licensed dentist
shall proceed under Ind. Code § 25-1-7); Ind. Code
§ 25-1-7 (empowering the office of the attorney general
to “receive, investigate, and prosecute complaints
concerning regulated occupations”). Defendants contend
that the Court lacks Article III jurisdiction because
Plaintiffs' claims are moot. Plaintiffs disagree.
Constitution extends the “judicial Power” only to
“Cases” and “Controversies.”
See U.S. Const. art. III, § 2. “[N]o
principle is more fundamental to the judiciary's proper
role in our system of government[.]” Spokeo, Inc.
v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting
Raines v. Byrd, 521 U.S. 811, 818 (1997)).
Accordingly, “[n]o federal court . . . has jurisdiction
to pronounce any statute, either of a state or of the United
States, void, because irreconcilable with the constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies.” Golden v.
Zwick-ler, 394 U.S. 103, 110 (1969).
actual controversy must exist not only at the time the
complaint is filed, but through all stages of the
litigation.” Ozinga v. Price, 855 F.3d 730,
734 (7th Cir. 2017). “When a party with standing at the
inception of the litigation loses it due to intervening
events, ” the claim becomes moot, stripping the court
of jurisdiction. Freedom from Religion Found., Inc. v.
Concord Cmty. Schs., 885 F.3d 1038, 1050 (7th Cir. 2018)
(quoting Parvati Corp. v. City of Oak Forest, Ill.,
630 F.3d 512, 516 (7th Cir. 2010)); see also Wis. Right
to Life, Inc. v. Schober, 366 F.3d 485, 490-91 (7th Cir.
2004) (“cases that do not involve actual, ongoing
controversies are moot and must be dismissed for lack of
jurisdiction”) (internal quotation marks omitted).
a plaintiff's complaint is focused on a particular
statute, regulation, or rule and seeks only prospective
relief, the case becomes moot when the government repeals,
revises, or replaces the challenged law and thereby removes
the complained-of defect.” Ozinga, 855 F.3d at
734; see also Fed'n of Advert. Indus.
Representatives, Inc. v. City of Chicago, 326 F.3d 924,
930 (7th Cir. 2003) (“In a string of cases, the
[Supreme] Court has upheld the general rule that repeal,
expiration, or significant amendment to challenged
legislation ends the ongoing controversy and renders moot a
plaintiff's request for injunctive relief.”)
(collecting cases). “Only when there is a substantial
likelihood that the offending policy will be reinstated if
the suit is terminated will a court recognize that the
controversy remains live.” Ozinga, 855 F.3d at
734; see, e.g., Ne. Fla. Chapter of the
Associated Gen. Contractors of Am. v. City of Jacksonville,
Fla., 508 U.S. 656, 662 (1993) (holding that repeal did
not moot challenge to ordinance where replacement ordinance
was substantially similar); City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289
(1982) (holding that repeal did not moot challenge to
ordinance where defendant city announced its intent to
reenact the ordinance if the case were dismissed).
Otherwise, government officials are presumed to have
“acted in good faith in repealing the challenged law or
policy.” Ozinga, 855 F.3d at 734.
the Board has voted not to readopt § 1-1-18, the
challenged rule expires on the first of the new year, and the
Indiana Attorney General's Office has stayed enforcement
of § 1-1-18(f) during the rulemaking process. Two
Seventh Circuit decisions are instructive. In Wisconsin
Right to Life, a district court declared a Wisconsin
campaign finance law unconstitutional in another case, but
the law had not been repealed. 366 F.3d at 487; see also
520 Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961,
964 (7th Cir. 2006) (“Decisions of district courts bind
the litigants but have no authoritative effect elsewhere in
the circuit (or even in the same district).”). A state
board wrote the plaintiff that the law would not be enforced
and posted online that the law was unconstitutional. 366 F.3d
at 488. The Seventh Circuit held that the case was therefore
moot. Id. at 492. In Concord, on the other
hand, the plaintiffs challenged the constitutionality of a
school district's annual Christmas pageant. In response,
the defendant school district changed its winter celebration
program in subsequent years, and the superintendent provided
assurances that there had been “a variety of informal
discussions” that “resulted in what appeared to
be a consensus . . . that the changes should be made
permanent.” Concord, 885 F.3d at 1051. The
district “failed to document in any way its decision to
make the changes permanent, ” so the Seventh Circuit
held that the controversy remained live. Id. at
case is like Wisconsin Right to Life and unlike
Concord. Three formal steps have culminated in the
Board's decision not to readopt the challenged rule: (1)
the Rules Committee's vote to submit its proposed
revision to the Board, (2) the Board's vote to begin the
rulemaking process, and (3) the Board's ultimate vote not
to readopt § 1-1-18. Although the rule technically
remains in effect until January 1st, the Board's actions
amount to far more than “informal discussions”
resulting “in what appeared to be consensus, ”
and the Attorney General's Office's stay of
enforcement ensures that Plaintiffs will suffer no harm as a
result of § 1-1-18(f) before its expiration.
contend that Defendants' claim that the Board voted not
to readopt the rule is “inconsistent with the official
publication of the Board's recent actions in the Indiana
Register, ” which lists § 1-1-18 in a
“Notice of Intent to Readopt.” (Pls.' Resp.
to Notice ¶ 2.) But the notice is dated March 27,
2019-before the Board's April 5 vote not to readopt. (The
copy attached to Plaintiffs' notice indicates a date of
access of April 11-apparently a red herring.) Plaintiffs have
therefore not established a “substantial likelihood
that the offending policy will be reinstated” to
overcome the presumption that the Board acted in good faith.
See Ozinga, 855 F.3d at 734
further argue that the controversy remains live because past
violations of the expiring rule could be enforced in the
future. Enforcement is stayed and the rule expires in
January. Plaintiffs do not allege that they violated §
1-1-18(f) before the Attorney General's Office stayed
enforcement. Another Seventh Circuit case is instructive on
this point. In Devine, the district court held that
the plaintiff lacked standing because no criminal prosecution
was “imminent.” 433 F.3d at 962. But, unlike this
case, the Illinois Department of Labor had issued a civil
investigative demand, the defendants “declined to
provide [shelter from prosecution to the plaintiff]
voluntarily, ” and the “State's Attorney did
not offer the [plaintiff] a prompt opportunity to resolve the
dispute in state court, ” so the Seventh Circuit
reversed, finding the case presented a live controversy.
Id. at 962-64.
Plaintiffs appear to argue that the Court should decide their
claims on the merits because the parties' motions for
summary judgment are fully briefed. (See Pls.'
Resp. to Notice ¶ 3, ECF No. 82.) A ripe motion does not
save a moot claim. Article III limits federal courts'
jurisdiction to “Cases” and
“Controversies”; it contains no
challenge a rule and seek prospective relief. Their claims
are moot because the Board has voted not to readopt the rule,
enforcement of the rule has been stayed pending promulgation
of a new rule, and there is no evidence of a substantial
likelihood that the rule will be reinstated. Accordingly,
Plaintiffs' motion for summary judgment (ECF No. 68) is
denied, Defendants' motion for summary
judgment (ECF No. 72) is granted in the
alternative, and Plaintiffs' claims are
dismissed without prejudice for lack of
jurisdiction. A final judgment will be entered separately.