# Sensational Smiles, LLC v. Mullen

> Court of Appeals for the Second Circuit · July 17, 2015 · 793 F.3d 281

URL: https://www.frixlaw.com/law-library/cases/8413523

## Case

- **Full name:** SENSATIONAL SMILES, LLC, d/b/a Smile Bright, Lisa Martinez 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
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 17, 2015
- **Citations:** 793 F.3d 281; 2015 U.S. App. LEXIS 12359; 2015 WL 4385295
- **Precedential status:** Published
- **Opinion:** Concurrence by Droney
- **Judges:** Cabranes, Calabresi, Droney
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8413523

## How later opinions describe it (automated extraction)

- applying rational basis review to regulation permitting only dentists to provide certain teeth‐whitening procedures
- discussing deferential principles of rational-basis review under the Equal Protection Clause

## Opinion text

DRONEY, Circuit Judge,
concurring in part and concurring in the judgment:
I join the majority opinion in its conclusion that the Dental Commission’s declaratory ruling is rationally related to the state’s legitimate interest in protecting the public health. Because this is sufficient to resolve the appeal, I would not reach the question of whether pure economic protectionism is a legitimate state interest for purposes of rational basis review. The majority having chosen to address that issue, I write separately to express my disagreement.
In my view, there must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses. As the majority acknowledges, only the Tenth- Circuit has adopted the view that pure economic protectionism is a legitimate state interest. See Poweré v. Harris, 379 F.3d 1208, 1221 (10th Cir.2004). Two of the circuits that reached the opposite conclusion expréssly rejected the Tenth Circuit’s approach. See St. Joseph Abbey v. Castille, 712 F.3d 215, 222-23 (5th Cir.2013); Merrifield v. Lockyer, 547 F.3d 978 , 991 n. 15 (9th Cir. 2008).
I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey , particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here. See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest]. Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority ..., whenever courts have upheld legislation that might otherwise appear protectionist ..., courts have always found that they could also rationally advance a non-protectionist public good.” (emphasis in original)).
A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. In Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 , 75 S.Ct. 461 , 99 L.Ed. 563 (1955), the Supreme Court reviewed an Oklahoma statute that, inter alia, forbade opticians from replacing eyeglass lenses without a prescription from an optometrist or ophthalmologist, even when an optician could easily and safely have done the work. See id. at 485-87 , 75 S.Ct. 461 . In con- *289 eluding that the legislation passed rational basis review, the Court recognized that the requirement of a prescription could advance the public interest in an eye examination by a doctor before the lens replacement. See id. at 487-88 , 75 S.Ct. 461 .
In City of New Orleans v. Dukes, 427 U.S. 297 , 96 S.Ct. 2513 , 49 L.Ed.2d 511 (1976) (per curiam), the Court reviewed a New Orleans ordinance that prohibited food vendors from operating pushcarts in the French Quarter. See id. at 298 , 96 S.Ct. 2513 . A grandfather clause exempted existing vendors from the ban if they had been operating continuously in the French Quarter for at least eight years. See id. The Supreme Court held that the exemption survived rational basis review, observing that New Orleans may have concluded that “newer businesses were less likely to have built up substantial reliance interests in continued operation” and that the grandfathered vendors may have “themselves become part of the distinctive character and charm” of the French Quarter. Id. at 305 , 96 S.Ct. 2513 .
The two more recent decisions cited by the majority upheld differential rates of state taxation. Nordlinger v. Hahn, 505 U.S. 1 , 112 S.Ct. 2326 , 120 L.Ed.2d 1 (1992), considered a California property tax regime that tied the assessment of property values to the value of the property at the time it was acquired, as opposed to its current value. See id. at 5 , 112 S.Ct. 2326 . This approach benefítted long-term property owners over newer owners. See id. at 6 , 112 S.Ct. 2326 . However, the Court identified the state’s “legitimate interest in local neighborhood preservation, continuity, and stability” and the “reliance interests” of existing property owners as rational bases for the law. Id. at 12-13 , 112 S.Ct. 2326 .
In Fitzgerald v. Racing Association of Central Iowa, 539 U.S. 103 , 123 S.Ct. 2156 , 156 L.Ed.2d 97 (2003), the Court reviewed an Iowa law that imposed higher taxes on racetrack slot machine revenues than it imposed on riverboat slot machine revenues. See id. at 105 , 123 S.Ct. 2156 . Again finding the differential tax treatment rational, the Court suggested that the state legislature “may have wanted to encourage the economic development of river communities or to promote riverboat history.” Id. at 109 , 123 S.Ct. 2156 . And it again emphasized “reliance interests,” observing that the law preserved the historical tax rate for riverboats, whereas racetracks had not previously been permitted to operate slot machines at all. Id. at 105,109 , 123 S.Ct. 2156 .
It may be that, as a practical matter, economic protectionism can be couched in terms of some sort of alternative, indisputably legitimate state interest. Indeed, the majority suggests as much when it observes that, in this case, the state may have concluded that protectionism “would subsidize lower costs for more essential dental services that only licensed dentists can provide.” Maj. Op., ante, at 287. But it is quite different to say that protectionism/or its own sake is sufficient to survive rational basis review, and I do not think the Supreme Court would endorse that approach. Accord Merrifield, 547 F.3d at 991 n. 15 (“We do not disagree that there might be instances when economic protectionism might be related to a legitimate governmental interest and survive rational basis review. However, economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest.”).
Nor do I believe that rejecting pure economic protectionism as a legitimate state interest requires us to resurrect Lo-chner. Accord St. Joseph Abbey, 712 F.3d at 227 (“We deploy no economic theory of *290 social statics or draw upon a judicial vision of free enterprise.... We insist only that Louisiana’s regulation not be irrational— the outer-most limits of due process and equal protection — as Justice Harlan put it, the inquiry is whether ‘[the] measure bears a rational relation to a constitutionally permissible objective.’ Answering that question is well within Article Ill’s confines of judicial review.” (second alteration in original) (footnote omitted)); Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002) (“We are not imposing our view of a well-functioning market on the people of Tennessee. Instead, we invalidate only the General Assembly’s naked attempt to raise a fortress protecting the monopoly rents that funeral directors extract from consumers. This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review.”); see also Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L.Rev. 1689, 1692 (1984) (“The minimum requirement that government decisions be something other than a raw exercise of political power has been embodied in constitutional doctrine under the due process clause before, during, and after the Lo-chner era.”).
The majority, by contrast, essentially renders rational basis review a nullity in the context of economic regulation. See Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“The end result of the majority’s reasoning is an almost per se rule upholding intrastate protectionist legislation.”); cf. Ranschburg v. Toan, 709 F.2d 1207, 1211 (8th Cir.1983) (“Although states may have great discretion in the area of social welfare, they do not have unbridled discretion. They must still explain why they chose to favor one group of recipients over another. Thus, it is untenable to suggest that a state’s decision to favor one group of recipients over another by itself qualifies as a legitimate state interest. An intent to discriminate is not a legitimate state interest.”). If even the deferential limits on state action fall away simply because the regulation in question is economic, then it seems that we are not applying any review, but only disingenuously repeating a shibboleth. Cf Windsor v. United States, 699 F.3d 169, 180 (2d Cir.2012) (“[W]hile rational basis review is indulgent and respectful, it is not meant to be ‘toothless.’ ” (citation omitted)), aff'd, — U.S. -, 133 S.Ct. 2675 , 186 L.Ed.2d 808 (2013).
I acknowledge that the deference afforded by courts to legislative enactments is significantly greater in the context of economic regulation than it is “in matters of personal liberty.” St. Joseph Abbey, 712 F.3d at 221 (citing United States v. Carotene Prods. Co., 304 U.S. 144 , 152 n. 4, 58 S.Ct. 778 , 82 L.Ed. 1234 (1938)); see also Allison B. Kingsmill, Note, Of Butchers, Bakers, and Casket Makers: St. Joseph Abbey v. Castille and the Fifth Circuit’s Rejection of Pure Economic Protectionism as a Legitimate State Interest, 75 La. L.Rev. 933, 936 (2015) (“The [Supreme] Court has not invalidated a single piece of economic legislation on due process or equal protection grounds since [the 1930s], opting for a more deferential, rational basis review of state laws.”). But this difference in degree does not compel the conclusion that our deference in the economic sphere must be absolute. Nor will an insistence on some legitimate, non-protectionist state interest result in sweeping judicial entanglement in the legislative process.
For this reason, I am not troubled by the majority’s surmise that “even the law at issue in Lochner — the paradigm of disfavored judicial review of economic regulations — might well fail the sort of rational *291 basis scrutiny advocated by Sensational Smiles.” Maj. Op., ante, at 287. First, I doubt that this would actually be the case; even if, as a matter of historical fact, the Lochner law was intended to be a protectionist measure, such intent is not disposi-tive of the rational basis inquiry. See id. at 286. And, in the highly unlikely event that the evidence showed that the law was entirely untethered to any conceivable legitimate state purpose (including protection of the public health), I do not see why the law should survive. Lochner is “the paradigm of disfavored judicial review of economic regulations” because it imposed exacting limits on state action, in stark contrast to the deferential standard applied under modern rational basis review. See Lochner v. New York, 198 U.S. 45, 59 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905) (“There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty”). Our aversion to Lochner’s flawed approach is well founded, but we should not respond to that aversion by abandoning the minimum requirements of due process and equal protection.
In short, no matter how broadly we are to define the class of legitimate state interests, I cannot conclude that protectionism for its own sake is among them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8413523. Public record. Not legal advice.