Durham v. Brock

• Decision Date: 18 March 1980
• Docket Number: No. 80-3019-NA-CV.,80-3019-NA-CV.
• Citation: 498 F. Supp. 213
• Parties: Bart DURHAM v. Hon. Ray L. BROCK, Jr., Chief Justice; Hon. Joseph W. Henry, Justice; Hon. Robert E. Cooper, Justice; Hon. William H. D. Fones, Justice; Hon. William J. Harbison, Justice, all of the Supreme Court of Tennessee, and Hon. William E. Leech, in his official capacity as Attorney General of the State of Tennessee.
• Court: U.S. District Court — Middle District of Tennessee

498 F. Supp. 213

Bart DURHAM v. Hon. Ray L. BROCK, Jr., Chief Justice; Hon. Joseph W. Henry, Justice; Hon. Robert E. Cooper, Justice; Hon. William H. D. Fones, Justice; Hon. William J. Harbison, Justice, all of the Supreme Court of Tennessee, and Hon. William E. Leech, in his official capacity as Attorney General of the State of Tennessee.

No. 80-3019-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

March 18, 1980.

COPYRIGHT MATERIAL OMITTED

Bart C. Durham, III, pro se.

William M. Leech, Jr., Atty. Gen., Claudius C. Smith, Asst. Atty. Gen., Nashville, Tenn., for defendants.

MEMORANDUM

MORTON, Chief Judge.

The plaintiff in this action seeks declaratory and injunctive relief against two portions of amendments adopted by the Tennessee Supreme Court and thereby made a part of the state's Code of Professional Responsibility. The amendments have the effect of limiting the content of lawyer advertising which the plaintiff contends are regulations violative of first amendment protections which are guaranteed to legitimate commercial speech.

A federal question is presented in which the value of the right asserted exceeds $10,000 exclusive of interest and costs. Jurisdiction is accordingly conferred by 28 U.S.C. §§ 1331, 1343 and relief authorized by 28 U.S.C. § 2201 and Fed.R.Civ.P. 57. Venue is proper under 28 U.S.C. § 1391(b).

The two challenged regulations are an Ethical Consideration and a Disciplinary Rule of Tennessee's Code of Professional Responsibility (Code). They state:

I.

EC 2-8 is amended as follows: ...

lawyers may not specify in any advertisement (1) one or more fields of law in which he or she practices except for the purpose of designating fees for routine legal services allowed under the decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 53 L.Ed.2d 810 (1977)....

IV.

DR 2-101(B)(2) is amended by adding thereto the following:

however, no such advertisement shall indicate areas of practice or specialization except when listing routine legal services accompanied by a fee schedule for such services.

Tennessee Supreme Court Order of December 19, 1979.

The plaintiff has alleged that he is a licensed attorney who has been advertising his services since July of 1977 in accordance with Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) and as further defined by the Tennessee Supreme Court in an amendment dated April 15, 1978, 563 S.W.2d XXV-XXXVIII. The plaintiff is doing business with three other attorneys and an office staff as the "Legal Clinic of Bart Durham." The plaintiff asserts that the great majority of the cases accepted by the clinic are in the five areas of divorce, bankruptcy, criminal law, injuries on the job, and automobile accidents. He states that very few cases are accepted in the fields of labor, civil rights, taxation, landlord and tenant, administrative, corporate, real estate, contracts and other areas.

The media employed for the plaintiff's advertisements include newspapers, radio, television, and the yellow pages of the telephone directory.

The defendants have the responsibility for the licensing and regulation of attorneys and failure to abide by those regulations may result in suspension or disbarment from the profession, in addition to other sanctions.

In short, the plaintiff wishes to advertise the areas of law to which he has limited the majority of his practice and do so without also listing a price for the fields advertised. It would also appear that the plaintiff wishes to advertise routine legal services for which he seeks clients, also without listing a fee for those services. The plaintiff claims that this form of commercial speach is protected by the first amendment and may not be properly banned.

The defendants have asserted that such advertising would be false, misleading or deceptive and that, under the Bates decision, it may be properly regulated by the state.

Standing

The threshold question in this matter is one of standing to sue. It is the position of the defendants that the plaintiff has not been prosecuted or threatened with prosecution and that, therefore, there is no case or controversy within Article III of the Federal Constitution. In analyzing the question of standing, the court is faced with both the question of constitutional limitations on the jurisdiction of the federal courts as well as prudential limitations on the exercise of that jurisdiction in the sound discretion of the court. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.2d 1586 (1953). In the former dimension, the question is one of justiciability, i. e., whether the plaintiff has "alleged such a personal stake in the outcome of the controversy" as to warrant the invocation of federal jurisdiction and the remedial powers thereof. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Federal jurisdiction, then, will lie only where the plaintiff has suffered some "threatened or actual injury resulting from the putatively illegal action ...." Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The personal stake in the outcome is "to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663, 678 (1962). See generally, Warth v. Seldin, 422 U.S. 490, 498-502, 95 S.Ct. 2197, 45 L.Ed.2d 343, 354-56 (1975).

It is true that, in this case, the plaintiff has not been prosecuted (as were the plaintiffs in Bates) nor has he been directly threatened with prosecution. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Supreme Court found that Georgia—licensed physicians had standing to challenge the constitutionality of the abortion laws of that state. Id. at 188, 93 S.Ct. at 745-746, 35 L.Ed.2d at 210. The physicians "do have standing despite the fact that the record does not disclose that any of them has been prosecuted or threatened with prosecution, for violation of the State's abortion statutes. The physician is the one against whom these criminal statutes operate ... and the statutes therefore assert a sufficiently direct threat of personal detriment. The doctors should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Id. citing Crossen v. Brekenridge, 446 F.2d 833, 839-40 (6th Cir. 1971). See also Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554, 561-62 (E.D.Pa.1975), vacated, Beal v. Franklin, 428 U.S. 901, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976) and aff'd, Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976).

In the case sub judice, the plaintiff faces severe penalties for the exercise of what he believes to be a constitutional right illegally abridged by the State of Tennessee. These penalties range up to and include being barred from the practice of a learned profession. The court notes that the standing hurdle is formidable in this type of case and that the major prior restraint cases do not involve declaratory relief.¹See, e. g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). Moreover, Bates refused to apply the doctrine of "overbreadth," a traditional one in the area of first amendment rights, to commercial speech. 433 U.S. at 380-81, 97 S.Ct. at 2707-2708, 53 L.Ed.2d at 833-34. As such, a person may not challenge a commercial speech regulation on the grounds that it may be applied unconstitutionally in circumstances other than those before the court. Id. at 380, 97 S.Ct. at 2707, 53 L.Ed.2d at 833. The reasoning of the court was that commercial speech is different from political or ideological speech. Since commercial speech is directly connected with economic well-being, it is unlikely that it will be crushed by overbroad regulation. Id. at 381, 97 S.Ct. at 2707-2708, 53 L.Ed.2d at 834. More importantly, the Court reasoned that the "advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and therefore protected." Id. But that approach subsumes the idea that the speaker will have a choice, i. e., to speak if truthful and non-deceptive or not speak if misleading. That is not the case here. The plaintiff asserts that his advertisement is truthful, not deceptive, and not misleading. Therefore, the plaintiff claims that his protected speech has been banned and that he has standing to litigate the issue.

It is axiomatic that on a motion² to dismiss for lack of standing the court must accept as true all the material allegations of the complaint and construe the complaint in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343, 356 (1975).

In Poe v. Menghini, 339 F.Supp. 986 (D.Kan.1972), it was stated that "it is not necessary that plaintiffs have violated the statute or that a prosecution be pending before the constitutionality of a statute may be challenged, so long as the actual interference with fundamental rights is alleged or is shown." Id. at 990. See also Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (teacher seeking declaratory and injunctive relief claiming that state statute making the teaching of evolution a criminal act was unconstitutional).

This was the position taken in a declaratory judgment case based on Bates, Bolton v. Kansas State Board of Healing Arts, 473 F.Supp. 728 (D.Kan.1979). There, the court analyzed the standing requirement under Bates and concluded that chiropractors, who believed that...