Bell v. Legal Advertising Committee
| Decision Date | 19 March 1998 |
| Docket Number | No. Civ. 95-0471 BB/LCS.,Civ. 95-0471 BB/LCS. |
| Citation | 998 F.Supp. 1231 |
| Parties | Ronald A. BELL, et al., Plaintiffs, v. The LEGAL ADVERTISING COMMITTEE, et al., Defendants. |
| Court | U.S. District Court — District of New Mexico |
Victor R. Marshall, Cindi L. Pearlman, Victor R. Marshall & Assoc., Albuquerque, NM, for Plaintiffs.
Paul M. Schneider, Legal Bureau/RMD, State of N.M., Santa Fe, NM, for Defendants.
THIS MATTER comes before the Court for consideration of Plaintiffs' Motion for Preliminary and Permanent Injunction (Doc. 102); Plaintiffs' Application for Preliminary Approval for Payment of More Than One Attorney (Doc. 104); Defendants' Motion to Dismiss Claim for Declaratory and Injunctive Relief (Doc. 105); and a motion by Plaintiffs to strike a brief filed recently by Defendants. The Court has reviewed the submissions of the parties and the relevant law and, for the reasons set forth below, finds that the motion to dismiss should be GRANTED in part and DENIED in part; that the application for approval of more than one attorney is premature; and that the motion for preliminary and permanent injunction should be held in abeyance pending discovery and a hearing on the merits.
Plaintiff Ron Bell is a New Mexico licensed attorney who has run afoul of the attorney-advertising rules promulgated by the New Mexico Supreme Court. Bell ran a number of advertisements utilizing various media, including television and billboards. As a result, he became the subject of a disciplinary proceeding during which he was accused of violating both procedural and substantive aspects of the advertising rules. While the disciplinary proceedings were pending Bell filed this action alleging violations of his First Amendment rights. Rather than interfere with the ongoing state disciplinary process, this Court applied the Younger doctrine1 and abstained from hearing the case, pending completion of the state proceedings. Those proceedings resulted in the New Mexico Supreme Court suspending Bell's license to practice law for one year.2
After the New Mexico Supreme Court completed its action on Bell's case, he returned to this Court asking for relief. He continues to maintain that his First Amendment rights were violated and are being violated by actions taken by Defendants, and especially by the legal advertising committee (LAC), an administrative body charged by the New Mexico Supreme Court with performing the first level of review of advertisements disseminated by New Mexico attorneys. Bell seeks declaratory and injunctive relief in the form of an order allowing him to run twenty-one different advertisements that have been acted on by the LAC. Defendants have moved to dismiss Bell's action, raising several arguments in support of their motion.
Plaintiff's advertisements and legal claims can be grouped into several different categories that lead to the application of different legal principles. First, of the twenty-one ads he seeks to run, there are two that have been approved for content by the LAC, but which were part of the disciplinary proceedings only because Bell had not submitted them to the LAC in a timely manner. Second, eight other ads were rejected by the LAC and were part of the disciplinary proceedings on the basis of both substantive and procedural violations of the advertising rules. Third, eleven ads have been rejected by the LAC but were not part of the disciplinary proceedings brought against Bell. Instead, Bell apparently withdrew those ads from circulation following the LAC's negative evaluation. Fourth, Bell raises a general challenge to the advertising rules insofar as the rules forbid all testimonials and endorsements in advertisements. Finally, Bell brings another general challenge to the procedural requirements of the advertising rules, which require that an attorney submit proposed ads to the LAC for review at the same time as the attorney submits the ad to the newspaper, television station, or other media in which the ad will run. The Court will address each of the above categories of claims separately.
At oral argument counsel for Bell stated that two of his advertisements, titled "Rehab" and "20 M.P.H.," were approved for content by the LAC. That being the case, there does not appear to be any reason Bell cannot run the advertisements, and his substantive claims with regard to those advertisements appear to be moot. See Berger v. Cuyahoga County Bar Ass'n, 983 F.2d 718, 724 (6th Cir.) (), cert. denied, 508 U.S. 940, 113 S.Ct. 2416, 124 L.Ed.2d 639 (1993). The Court will therefore grant Defendants' motion to dismiss insofar as it specifically concerns those advertisements.
By requesting declaratory relief to the effect that Bell can run these advertisements without fear of discipline, Bell is essentially making a collateral attack on the New Mexico Supreme Court's decision to discipline him for running the ads. Such an attack, which constitutes at least a partial review of the action taken by the state court, would violate the basic tenets of federalism and is not permissible. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303, 1316-17, 75 L.Ed.2d 206 (1983) (); Razatos v. Colorado Supreme Court, 746 F.2d 1429, 1432 (10th Cir.1984) (same). The fact that Bell's collateral attack includes a claim that he has a First Amendment right to run these advertisements does not grant this Court the power to review the state court's decision. Feldman (); Wu v. State Bar of California, 953 F.Supp. 315, 321 (C.D.Cal.1997) ().
Bell attempts to avoid application of the Feldman rule by maintaining that the New Mexico Supreme Court did not address the constitutional issues he now attempts to raise in this Court. This argument is of no aid to Bell, because his own actions caused the Supreme Court to refrain from addressing those issues. During the disciplinary proceedings, Bell filed what is known as an England reservation,3 attempting to reserve his federal constitutional claims for decision by this court. Bell continued to rely on his England reservation before the New Mexico Supreme Court, despite the fact that this Court, in abstaining from this case on Younger grounds, informed Bell that the England doctrine does not apply in cases involving the Younger doctrine. The transcript of the hearing held by the Supreme Court indicates that the parties did not brief the constitutional issues, and that counsel for Bell expressly informed the Supreme Court that he would like to address those issues but could not do so unless counsel for Defendants agreed that it would not constitute a waiver of Bell's England reservation. In other words, Bell attempted to reserve his constitutional claims for decision by this Court, even though there is absolutely no indication the New Mexico Supreme Court would have refused to hear and decide those claims. To the contrary, the Supreme Court inquired about the constitutional issue, but Bell's counsel politely refused to address it in that forum.
The Court will not allow Bell to evade the normal process envisioned by Feldman, Razatos, and other well-established precedent. Counsel are not entitled to reserve constitutional challenges for the forum they believe to be most advantageous to their interest. Where a specific disciplinary action is initiated, the attorney facing that action is limited to defending that action in the state proceedings and then, if the defense is unsuccessful, requesting review by the United States Supreme Court. Feldman; Phelps v. Kansas Supreme Court, 662 F.2d 649, 651 (10th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982). During the state proceedings the attorney must raise all arguments, including constitutional arguments, against the discipline, or the arguments will be waived. The simple expedient of failing to raise a federal constitutional argument cannot be used to move that constitutional claim from the state system to the federal. In this case, Bell could have attempted to obtain the authority to run the questioned eight advertisements by making his constitutional arguments to the New Mexico Supreme Court. Having failed to do so, he cannot now ask this Court for the same relief he could have sought during the disciplinary proceedings.
Bell also argues that he was prevented from raising his constitutional arguments during the state proceedings, because the LAC and the Disciplinary Board both refused to consider his constitutional arguments.4 The Court acknowledges that the LAC refused to consider any constitutional issues raised by Bell, and that the disciplinary counsel who filed the charge against Bell stated her opinion that it would be inappropriate for an administrative agency to rule on the constitutionality of the Supreme Court's rules. The situation at the Disciplinary Board level was more complicated, because Bell filed his England reservation and then avoided raising any constitutional issues in furtherance of his attempt to preserve those issues for decision by this Court. It appears that the Board was willing to at least allow Bell to introduce evidence relevant to his constitutional claims, but Bell declined the opportunity. In any event, it is clear that Bell could have raised his constitutional claims in the ...
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