Rhode Island Ass'n of Realtors, Inc. v. Whitehouse

Citation51 F.Supp.2d 107
Decision Date09 June 1999
Docket NumberNo. C.A. 97-593-T.,C.A. 97-593-T.
PartiesRHODE ISLAND ASSOCIATION OF REALTORS, INC., Plaintiffs, v. Sheldon WHITEHOUSE, Attorney General, Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

Mark W. Freel, Edwards & Angell, Providence, RI, for plaintiffs.

Rebecca Tedford Partington, Brenda A. Doyle, Office of the Attorney General, Providence, RI, for defendants.

DECISION AND ORDER

TORRES, District Judge.

MEMORANDUM AND ORDER

The Rhode Island Association of Realtors, Inc. (the "Association") brings this action, pursuant to 42 U.S.C. § 1983, in which it seeks a declaration that R.I.Gen. Laws § 38-2-6 is unconstitutional, an injunction against enforcement of the statute and an award of attorneys' fees. The Association contends that the statutory prohibitions against using information obtained from public records for commercial solicitation and for obtaining an unfair commercial advantage over the party submitting the information, violate the free speech guarantee of the First Amendment to the United States Constitution.

The Rhode Island Attorney General has moved to dismiss for lack of standing, and the Association has moved for summary judgment. Because I find that the Association has standing to challenge the portion of the statute that prohibits commercial solicitation and because I further find that only that portion of the statute is unconstitutional, both motions are granted, in part, and denied, in part.

Background

The Rhode Island Public Records Act, R.I.Gen.Laws §§ 38-2-1 et seq., (the "Act") makes all records maintained by governmental agencies, except those specifically exempted, accessible to the public. However, § 38-2-6 limits the purposes for which information obtained from such records may be used. It provides:

38-2-6. Commercial use of public records — No person or business entity shall use information obtained from public records pursuant to this chapter to solicit for commercial purposes or to obtain a commercial advantage over the party furnishing that information to the public body. Anyone who knowingly and willfully violates the provision of this section shall, in addition to any civil liability, be punished by a fine of not more than five hundred dollars ($500) and/or imprisonment for no longer than one year.

In its complaint, the Association alleges that it is an organization consisting of licensed real estate agents that seeks to "[c]ompile a computerized data base of information from tax assessors' records to be made available to member realtors at a reasonable cost," (Compl.¶ 6), and to "[u]se certain data identifying new or recent real estate licensees in Rhode Island who are not yet affiliated with Plaintiff in an effort to solicit potential new members and market Plaintiff's services." (Compl.¶ 7.) The Association claims that § 38-2-6 unconstitutionally prohibits those proposed activities and that the Association has been deterred from engaging in them because it fears prosecution.

When this action was commenced, Jeffrey Pine was Rhode Island's Attorney General. He expressed the opinion that neither of the Association's proposed activities would violate the statute and he disclaimed any intention of prosecuting the Association for engaging in those activities. Accordingly, he filed the instant motion to dismiss on the ground that the Association lacks standing. Sheldon Whitehouse, who several months ago succeeded Pine as Attorney General, has not expressed an opinion regarding the statute's applicability and has not disclosed his intentions regarding possible prosecution of the Association.

Despite the position taken by Attorney General Pine, the Association insists that its proposed activities are prohibited by § 38-2-6 and that engaging in those activities would expose it to the risks of prosecution. Accordingly, the Association is pressing for a declaration that the statute is unconstitutional and has moved for summary judgment.

Standard of Review
I. Motion to Dismiss

Although the Motion to Dismiss is made pursuant to Fed.R.Civ.P. 12(b)(6), it rests upon the contention that the plaintiff lacks standing to maintain this action. Since standing is required to establish subject matter jurisdiction, the Court will treat the motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1).

When subject matter jurisdiction is challenged, the plaintiff must bear the burden of establishing that such jurisdiction exists. See Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992); Palazzolo v. Ruggiano, 993 F.Supp. 45, 46 (D.R.I.1998). Where the jurisdictional facts alleged in the complaint are undisputed, they are treated as true and the court should draw from them all reasonable inferences favorable to the plaintiff. See id. at 47. On the other hand, when the relevant facts are controverted, the court may engage in whatever fact finding is required and may consider evidence challenging and/or supplementing the plaintiff's jurisdictional allegations. Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 748 (1st Cir.1995); Smith v. O'Connell, 986 F.Supp. 73, 75 (D.R.I.1997).

II. Summary Judgment

Fed.R.Civ.P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In determining whether a genuine dispute of material fact exists, the Court must view the evidence in the light most favorable to the non-moving party and it must draw all reasonable inferences in that party's favor. See United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992). The mere existence of a dispute over factual issues is not enough; the disputed facts must be material. Thus, only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment. See Gadson v. Concord Hosp., 966 F.2d 32, 33 (1st Cir.1992).

Discussion
I. Standing to Challenge the Statute

A court lacks jurisdiction to entertain an action unless the plaintiff has standing to bring it. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir.1996). The requirement of standing is rooted in Article III of the Constitution, which limits courts to deciding "cases" and "controversies."

A Plaintiff bears the burden of demonstrating standing to invoke the jurisdiction of a federal court. In order to establish standing, a prospective plaintiff must show that the defendant's conduct has subjected the plaintiff to an actual or threatened injury. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The injury must be "distinct and palpable" as opposed to "abstract," "conjectural," or "hypothetical." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

A subjective fear of prosecution is insufficient to confer standing. See Gardner, 99 F.3d at 13. The plaintiff must establish that the fear is well-founded and "not imaginary or wholly speculative." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2311, 60 L.Ed.2d 895 (1979). Thus, the mere existence of a penal statute does not permit adjudication of its constitutionality "if real threat of enforcement is wanting." Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989 (1961) (plurality opinion).

In this case, the Attorney General argues that the complaint is deficient because the Association's proposed activities do not violate § 38-2-6 and because the complaint fails to allege any realistic threat of prosecution. The Attorney General also argues that the case is not ripe because "the proper time to bring such a challenge would be as a defense to a criminal charge." (Pl.'s Memo. at 3.) Those arguments are not persuasive.

A party disputing the constitutionality of a statute that criminalizes activity in which that party plans to engage is not required to "first expose himself to actual arrest or prosecution to be entitled to challenge (the) statute." Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309 (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)). It is enough for the party to demonstrate that (1) he or she intends to engage in a specific course of conduct; (2) the conduct arguably is affected with a constitutional interest; (3) the conduct is proscribed by the statute; and (4) a credible threat of prosecution exists. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309; Gardner, 99 F.3d at 13.

Here, those requirements are satisfied at least insofar as the proposed solicitation of prospective members is concerned. Commercial solicitation is a form of commercial speech protected by the First Amendment. See generally Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (invalidating ban on unsolicited mailing of contraceptive advertisements). See also Innovative Database Sys. v. Morales, 990 F.2d 217, 222 (5th Cir.1993) (voiding a Texas statute that prohibited a person who obtained information about a crime or accident victim from using that information "for the purpose of soliciting business from the person"). Moreover, notwithstanding the Attorney General's contrary opinion, because the proposed solicitation is designed to attract new members and to market the Association's services, it appears to fall within the statutory prohibition against "solicit[ing] for commercial purposes."

Determining whether the Association has demonstrated a "credible threat of prosecution" is a more difficult matter. The likelihood of prosecution turns, not only, on...

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