Barnard v. Chamberlain

• Decision Date: 08 March 1990
• Docket Number: No. 88-2131,88-2131
• Citation: 897 F.2d 1059
• Parties: Brian M. BARNARD, Plaintiff-Appellant, v. Hans Q. CHAMBERLAIN, Commissioner Utah State Bar; Randy Dryer, Commissioner Utah State Bar; James Z. Davis, Commissioner Utah State Bar; the Hon. Pamela Greenwood, Commissioner Utah State Bar; Stewart M. Hanson, Jr., Commissioner Utah State Bar; Donald B. Holbrook, Commissioner Utah State Bar; Jackson Howard, Commissioner Utah State Bar; Kent M. Kasting, Commissioner Utah State Bar; Gordon J. Low, Commissioner Utah State Bar; Reed Martineau, Commissioner and President Utah State Bar; Anne Stirba, Commissioner Utah State Bar; and Stephen Hutchinson, Executive Director, Utah State Bar, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1059

897 F.2d 1059

Brian M. BARNARD, Plaintiff-Appellant, v. Hans Q. CHAMBERLAIN, Commissioner Utah State Bar; Randy Dryer, Commissioner Utah State Bar; James Z. Davis Commissioner Utah State Bar; the Hon. Pamela Greenwood Commissioner Utah State Bar; Stewart M. Hanson, Jr. Commissioner Utah State Bar; Donald B. Holbrook Commissioner Utah State Bar; Jackson Howard, Commissioner Utah State Bar; Kent M. Kasting, Commissioner Utah State Bar; Gordon J. Low, Commissioner Utah State Bar; Reed Martineau, Commissioner and President Utah State Bar; Anne Stirba, Commissioner Utah State Bar; and Stephen Hutchinson, Executive Director, Utah State Bar, Defendants-Appellees.

No. 88-2131.

United States Court of Appeals, Tenth Circuit.

March 8, 1990.

Brian M. Barnard (C. Dane Nolan with him on the brief), Utah Legal Clinic, Salt Lake City, Utah, for plaintiff-appellant.

Glenn C. Hanni (Brett G. Pearce with him on the brief), Strong & Hanni, Salt Lake City, Utah, for defendants-appellees.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and BROWN, District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

This is a civil rights action brought under 42 U.S.C. Sec. 1983. Plaintiff-appellant, a member of the Utah State Bar, brought this action against the Utah State Bar's governing board and certain of its employees. Plaintiff claimed that the defendants had deprived him of his constitutional right to free speech and his right to due process of law. Plaintiff sought damages, injunctive relief, and attorney's fees. The district court granted the defendants' motion for summary judgment and this appeal followed. We affirm.

Facts.

The Utah State Bar is a governmental entity established by state law and serving as an administrative agency of the Utah Supreme Court. The Bar was created for the purposes of, among other things, supervising the conduct of attorneys in the state of Utah, improving the administration of justice, and serving the legal profession. The defendants in this action are Commissioners of the State Bar, except for the defendant Hutchinson, who is its executive director.

The defendants publish a newsletter entitled the Utah Bar Letter approximately ten times per year. The Bar Letter is mailed to the members of the Utah Bar. Its contents are usually written and prepared by staff members and articles written by the Bar Commissioners are often published. The cost of publishing the Bar Letter is paid from the budget of the state bar, which is funded from mandatory dues assessed against Utah attorneys.

In order to understand the plaintiff's claim in the instant suit, it is necessary to review the facts surrounding a previous suit filed by plaintiff. In March of 1987, plaintiff submitted a letter to the editor of the Utah Bar Letter. The letter was critical of the Bar Commission's support for the Utah Law and Justice Center. ¹ The Bar Commissioners, who exercise editorial control over the Utah Bar Letter, refused to publish plaintiff's letter. Prior to this time, the Bar Letter had solicited comments and letters from Bar members and had routinely published any submitted letters. The Commission did not have any established guidelines for the publication of letters. Plaintiff filed suit, contending that the Commissioners were violating his first amendment rights. ² Plaintiff alleged that the Commissioners had made the Bar Letter a "designated public forum" by their solicitation and publication of letters and he further alleged that the Commissioners were engaging in impermissible viewpoint-based discrimination by not publishing his letter. The parties subsequently reached a settlement under which the Bar agreed to print plaintiff's letter, to pay plaintiff's attorney's fees, and to pay one dollar as nominal damages. In return, plaintiff agreed to dismiss with prejudice all pending claims against the Commissioners. The district court entered an order of dismissal based upon the stipulation and agreement of the parties. The stipulation read in part:

The defendants do not intend to publish letters to the editor in the Utah Bar Newsletter in the immediate future. The defendants shall study the issue as to the future publication of such letters. If the defendants determine in the future to publish such letters, defendants shall adopt and promulgate written contentneutral policies, and criteria for the consideration and publication of submitted "Letters to the Editor." Any content-based regulation shall be narrowly drawn to conform with lawful compelling interests.

The defendants published plaintiff's letter in the August/September 1987 edition of the Bar Letter. The letter was accompanied by the following notice: "The Bar Commission is studying revisions to the publications policies of the Utah State Bar. Pending the outcome of this study and until further notice, the letters to the editor forum is withdrawn and no further letters will be published." Thereafter, the defendants ceased to publish letters to the editor in the Bar Letter.

After reviewing the January 1988 issue of the Bar Letter, plaintiff concluded that the defendants had resumed a practice of publishing opinions of bar members. This conclusion was based on three articles that appeared in the January 1988 issue. One was an article by a Utah attorney concerning the ethical obligation to represent unpopular clients. The other two were "pro" and "con" letters by two Utah attorneys on the issue of mandatory continuing legal education. Based on these articles, in February 1988 plaintiff submitted an "opinion/article" to the Bar Letter for publication. The article, like plaintiff's previous letter, criticized the Utah State Bar for its use of bar dues to help finance the Utah Law and Justice Center. The minutes from a February 19, 1988 meeting of the Utah Bar Commission reflect the following discussion of plaintiff's article by the Commission:

Mr. Hutchinson described an article submitted by Brian Barnard with a request from Mr. Barnard that it be published in the Bar Letter. Discussion followed with Commissioner Hanson suggesting that publication be deferred pending the development of a policy on publications by the subcommittee previously appointed. Commissioner Holbrook suggested that the article should be declined publication on the grounds of libelous content and moved to deny publication on the grounds that the proposed article contains libelous statements. Second by Commissioner Chamberlain. Motion carried with negative vote by Commissioner Greenwood. It was the position of the Bar Commission that the Letters to the Editor Forum in the Bar Letter had not been reopened and that the policy for letters was still being developed. Motion to reactivate the policy subcommittee by Commissioner Hanson, second by Commissioner Greenwood. Carried unanimously.

After the defendants refused to publish the plaintiff's "opinion/article," plaintiff filed this suit alleging that the defendants had deprived him of his right to free speech under the First and Fourteenth Amendments and his right to due process of law. The district court granted the defendants' motion for summary judgment, finding that the Utah Bar Letter had been closed as a limited public forum after the settlement of the first suit in July 1987 and that it had remained closed as a forum since that time. ³

Appellant's Sec. 1983 Claim.

To state a claim under Sec. 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). We first address appellant's contention that the defendants were acting under color of state law. We note that the record is not clear as to the exact nature of the relationship between the Utah State Bar, the Bar Commission, and the Utah Bar Letter. It is undisputed, however, that the Bar Letter is a publication of the Utah State Bar, which is a governmental entity established by state law and created as an administrative agency of the Utah Supreme Court. The Utah State Bar is an "integrated" bar, meaning that Utah attorneys must belong to the bar in order to practice law in the state. Compare Niehaus v. Kansas Bar Association, 793 F.2d 1159, 1164 (10th Cir.1986) with Keller v. State Bar of California, 767 P.2d 1020 (Cal.1989). The defendants exercise control over the publication of the Bar Letter by virtue of their positions as officers of the Utah Bar. Keeping in mind our duty when reviewing a motion for summary judgment to draw all factual inferences in the manner most favorable to the party opposing summary judgment, Ewing v. Amoco, 823 F.2d 1432, 1437 (10th Cir.1987), we find sufficient facts alleged from which one could conclude that the defendants' conduct amounted to state action and that the refusal to publish the plaintiff's article was taken under color of state law. See Estiverne v. Louisiana State Bar Ass'n, 863 F.2d 371, 376 (5th Cir.1989). See also Keller v. State Bar of California, 47 Cal.3d 1152, 255 Cal.Rptr. 542, 767 P.2d 1020 (1989) (Integrated bar found to be a state actor), cert. granted, --- U.S. ----, 110 S.Ct. 46, 107 L.Ed.2d 15 (1989). We therefore proceed to address appellant's argument that he was deprived of a right secured by the Constitution and laws of the United States.

First Amendment Claim.

In order to facilitate the analysis of free speech claims, the Supreme Court has established what is referred to as "forum analysis." Under this approach, "[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educator's Ass'n., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). Forum analysis applies to instrumentalities "used for the communication...