Hearing Aid Ass'n of Kentucky, Inc. v. Bullock

• Decision Date: 10 March 1976
• Docket Number: Civ. A. No. 75-30.
• Citation: 413 F. Supp. 1032
• Parties: HEARING AID ASSOCIATION OF KENTUCKY, INC., a Kentucky Corp. et al., Plaintiffs, v. Robert V. BULLOCK, Individually and in his official capacity as Assistant Deputy Attorney General, Department of Law, Commonwealth of Kentucky and Maurice A. Byrne, Jr., Individually and in his official capacity as Assistant Attorney General, Department of Law, Commonwealth of Kentucky, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

413 F. Supp. 1032

HEARING AID ASSOCIATION OF KENTUCKY, INC., a Kentucky Corp. et al., Plaintiffs, v. Robert V. BULLOCK, Individually and in his official capacity as Assistant Deputy Attorney General, Department of Law, Commonwealth of Kentucky and Maurice A. Byrne, Jr., Individually and in his official capacity as Assistant Attorney General, Department of Law, Commonwealth of Kentucky, Defendants.

Civ. A. No. 75-30.

United States District Court, E. D. Kentucky.

March 10, 1976.

Larry M. Greathouse, Frankfort, Ky., for plaintiffs.

Robert V. Bullock, Maurice A. Byrne, Jr., Asst. Attys. Gen. of Ky., Frankfort, Ky., for defendants.

MEMORANDUM OPINION

SILER, District Judge.

This case comes before the Court on the motion by the plaintiffs for a preliminary injunction and on the motion by the defendants to dismiss. Plaintiffs here have alleged that the defendants, who were Assistant Attorneys General for the Commonwealth of Kentucky when the matter was filed in this Court on October 14, 1975 (defendant Byrne stated in open court that he is no longer an Assistant Attorney General), have been violating the civil rights of the plaintiffs and the class of persons they represent, that is, all other members of the Hearing Aid Association of Kentucky, Inc., who allegedly have a federal trademark right to the use of "Certified Hearing Aid Audiologist." The plaintiffs allege that the defendants in their capacity as Assistant Attorneys General have, among other things, forced the defendants to sign "Assurances of Voluntary Compliance" and allowed derogatory news releases to be released to various news media, thus depriving the plaintiffs of property without due process of law and denial of equal protection of the laws. The plaintiffs also allege that the defendants, while acting under color of state authority and outside the limit of their lawful authority, deprived the plaintiffs of property, that is, the use of their trademark, without due process and equal protection of the laws. The plaintiffs also allege that the investigative procedure used by the defendants under KRS 367.240 has interfered with the civil rights of the plaintiffs by attempting to force the plaintiffs as witnesses against themselves, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and that the investigative demands made by the defendants are so broad and uninformatively worded as to deny the plaintiffs' ability to determine their legal rights, in violation of the due process laws of the Fourteenth Amendment to the Constitution. Plaintiffs have asked for a preliminary and permanent injunction enjoining the defendants from continuing efforts to impair the rights of the plaintiffs to the use of the term "Certified Hearing Aid Audiologist" in their lawful business pursuits and asked for compensatory damages in the amount of $10,500.00 and punitive damages in the amount of $30,000.00. The defendants have moved this Court to dismiss this action on the following grounds:

1. The doctrines of abstention and comity should preclude this Court from acting, since the same or a similar matter is pending in the state court system.

2. The plaintiffs have allegedly failed to state a cause of action, inasmuch as the property rights, if any, in the use of the trademark involved cannot be used in a manner as to deceive the public.

3. The defendants have a quasi-judicial immunity which would preclude money damages being obtained against them.

ABSTENTION AND COMITY

This action was filed in this Court on October 14, 1975. Process in this case was served upon the defendants on October 16, 1975. According to the affidavits filed in the record in this case, it apparently is uncontradicted that the defendant, Maurice A. Byrne, Jr., caused to be filed an action on behalf of the Commonwealth of Kentucky, ex rel. Attorney General Ed W. Hancock against William Ramsey of Louisville on October 16, 1975, in the Jefferson Circuit Court in Louisville, Kentucky; caused a similar suit to be filed against R. E. Conn, one of the plaintiffs herein, on October 20, 1975, in the same Jefferson Circuit Court; and caused the third suit to be filed against Stanley I. Browning, another of the plaintiffs in this case, in the Boyd Circuit Court, Catlettsburg, Kentucky, on October 22, 1975. Although William Ramsey is not a party to this action herein, the attorney for the plaintiffs alleges in his motion for a preliminary injunction that William Ramsey is a member of the class for whom this action was originally brought. Each action apparently alleged that the defendant was engaging in false, misleading, and deceptive conduct in violation of KRS 367.170 by the use of the term "Certified Hearing Aid Audiologist," and requested an injunction restraining and enjoining the defendant and others from directly disseminating or causing the dissemination of any advertisements or making representations by any title or description of service using the words "audiologist," "audiology," or any other words indicating the practice of audiology, for the Court to require the defendants to refund the entire purchase price and any other money paid to the defendant on the basis of these misrepresentations, and to require the defendant to pay a civil penalty in the amount of $2,000.00 for willful violations of KRS 367.170. In these cases, the Attorney General's Office alleged that under Kentucky law, KRS Chapter 334A, the qualifications and licensing procedures for audiologists are set out and the plaintiffs herein (defendants in state court proceedings) do not meet the qualifications and are not licensed to use the terms such as "audiologist."

No action was taken by the Court in this case until a hearing was held on February 18, 1976. This was due to the fact that one of the Judges of this Court died in February, 1975, which caused the remaining two Judges of the Court to concentrate primarily on criminal cases. It was not until December, 1975, that the judicial vacancy was filled by the induction of the undersigned Judge, so this matter was brought to a hearing at the earliest possible occasion.

In the meantime, the Jefferson Circuit Court on January 13, 1976, issued an opinion and granted a summary judgment in the case of Commonwealth of Kentucky, ex rel. Ed W. Hancock v. R. E. Carr, restraining and enjoining R. E. Carr from directly or indirectly advertising or making representations which describe himself or his trade, occupation, practice or service by any title or description or services using the word "audiologist" or any other words indicating the practice of audiology. The Court did not determine whether the defendant in that case should be required to refund the purchase price or to pay civil penalties. In argument before this Court on February 18, 1976, the defendant, Robert V. Bullock, indicated to the Court that another decision should be handed down soon in the case of Commonwealth of Kentucky v. William Ramsey by the Jefferson Circuit Court. Since our hearing, that Court has granted summary judgment against Ramsey in case number 207118, enjoining him in a similar fashion as done in Carr, supra.

In general, federal courts are very reluctant to enjoin proceedings in a state court. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Congress has even precluded such an action, except "as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. As stated in Younger v. Harris, supra, one of the underlying reasons for restraining courts of equity from interfering with matters in state courts is the notion of "comity," that is, a proper respect for state functions and a belief that the federal government will fare best if the states are left free to perform their own functions. Another term for this is "Our Federalism." In Younger v. Harris, it was said that the "normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions." Id. at 45, 91 S.Ct. at 751, 27 L.Ed.2d at 676. The test was set in that case that since there is a fundamental policy against federal interference with state criminal prosecutions, even proof of irreparable injury is insufficient unless it is "both great and immediate." Id. at 46, 91 S.Ct. at 751, 27 L.Ed.2d at 676. Accord, Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926). Of course, in that case, the Court did not find any proof of harassment or bad faith on the part of the authorities. In the case at hand, the plaintiffs imply that the defendants were acting in bad faith and were harassing the plaintiffs, but based upon the record at this time, the Court does not find that there is any evidence to support such a conclusion. The defendants were apparently acting on behalf of the Attorney General of the Commonwealth of Kentucky and were performing duties which were conferred upon them by the Kentucky Legislature.

There is no question, however, that this Court does have jurisdiction, if it desires to use it, to enjoin state court proceedings under the exception allowed in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

Later, in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), it was held that the principles of Younger v. Harris, supra, apply to a civil case, where the civil case has some relationship to a criminal proceeding. One of the important factors in Huffman was that the State was a party to the case in the state court proceeding. As stated in Huffman, at least three Courts of Appeals have applied Younger when the pending state proceedings were civil in nature and apparently not related at all to a criminal case. See Duke v. Texas, 477 F.2d 244 (5th Cir. 1973) (speaking on campus to protest Southeast Asia War); Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973) (access to public...