Innovative Database Systems v. Morales, 92-1633

• Decision Date: 06 May 1993
• Docket Number: No. 92-1633,92-1633
• Citation: 990 F.2d 217
• Parties: INNOVATIVE DATABASE SYSTEMS, et al., Plaintiffs-Appellees, v. Dan MORALES, in his capacity as Attorney General for the State of Texas, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 217

990 F.2d 217

INNOVATIVE DATABASE SYSTEMS, et al., Plaintiffs-Appellees, v. Dan MORALES, in his capacity as Attorney General for the

State of Texas, et al., Defendants-Appellants.

No. 92-1633.

United States Court of Appeals, Fifth Circuit.

May 6, 1993.

Rehearing Denied June 16, 1993.

Gary L. Bledsoe, Special Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for defendants-appellants.

Neil H. Cogan, SMU School of Law, Storey Hall, Dallas, TX, for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, DUHE, Circuit Judge, and BELEW ¹, District Judge.

BELEW, District Judge:

For the reasons assigned and authorities cited by our learned trial court colleague, Judge Robert B. Maloney, in his Order Granting Plaintiffs' Motion for Summary Judgement dated June 24, 1992, attached as an addendum hereto, we AFFIRM.

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

INNOVATIVE DATABASE SYSTEMS, et al.,

Plaintiffs,

v.

DAN MORALES, et al.,

Defendants.

No. 3:91-CV-1663-T

Filed June 21, 1992.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

This matter is before the court on the parties' cross motions for summary judgment. Plaintiffs filed their motion on January 29, 1992. Defendants filed their response and cross motion for summary judgment on April 24, 1992. Plaintiffs filed their response to Defendants' motion and reply in support of their own motion on May 8, 1992. The court, having considered the applicable law and the parties' arguments, is of the opinion that summary judgment should be granted in Plaintiffs' favor.

BACKGROUND

Plaintiffs brought this suit pursuant to the provisions of the Fourteenth Amendment of the United States Constitution; the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983; and Article I, section 8, of the Texas constitution. Plaintiffs seek to enjoin the enforcement of certain laws recently enacted by the Texas legislature. Plaintiffs argue that their rights to commercial free speech have been abridged by two recent amendments to Texas law. The laws sought to be enjoined are House Bill 922, which amends § 35.54 of the Texas Section 35.54, as amended by H.B. 922, entitled "Use of Crime Victim or Motor Vehicle Accident Information Purposes Prohibited," provides:

Business and Commerce Code, and Senate Bill 857, which amends article 4512b of the Texas Civil Statutes.

(a) In this section:

(1) "Crime victim information" means information that is collected or prepared by a law enforcement agency that identifies or serves to identify a person who, according to the records of the law enforcement agency, may have been the victim of a crime in which physical injury to the person occurred or was attempted or in which the offender entered or attempted to enter the dwelling of the person.

(2) "Motor vehicle accident information" means information that is collected or prepared by a law enforcement agency that identifies or serves to identify a person who, according to the records of the law enforcement agency, may have been involved in a motor vehicle accident.

(b) A person who has possession of crime victim or motor vehicle accident information that the person obtained or knows was obtained from a law enforcement agency may not use the information to contact directly a person who is a crime victim or who was involved in a motor vehicle accident or a member of the person's family for the purpose of soliciting business from the person or family member and may not sell the information to another person for financial gain.

(c) The attorney general may bring an action against a person who violates Subsection (b) of this section pursuant to Section 14.47 of this code.

(d) A person who violates Subsection (b) of this section commits an offense. An offense under this section is a Class C misdemeanor unless the defendant has been previously convicted under this subsection more than two times, in which event the offense is a felony of the third degree.

Tex.Bus. & Comm.Code Ann. § 35.54 (West Supp.1992).

Article 4512b, as amended by S.B. 857, entitled "Practice of chiropractic," provides in pertinent part:

Sec. 14a. The Texas Board of Chiropractic Examiners may refuse to admit persons to its examinations and may cancel, revoke or suspend licenses or place licensees upon probation for such length of time as may be deemed proper by the Board for any one or more of the following causes:

* * * * * *

17. If, when uninvited, a licensee or person designated, contracted or paid by licensee directly canvasses, drums, secures or solicits by phone, mail or in person patients or potential patients who, because of their particular circumstances, are vulnerable to undue influence. Circumstances in which patients or potential patients may be considered to be vulnerable to undue influence include but are not limited to:

a. when a person is known by the licensee to have recently been involved in a motor vehicle accident;

b. when a person is known by the licensee to have recently been involved in a work-related accident; or

c. when a person is known to the licensee to have recently been injured by another person or as a result of another person's actions.

Tex.Rev.Civ.Stat.Ann. art. 4512b(14a)(17) (West Supp.1992).

Defendant Morales is the Attorney General of the state of Texas and is responsible for enforcing § 35.54. Defendant James Franklin is president of the Texas Board of Chiropractic Examiners and is responsible for implementing article 4512b. Plaintiff Innovative Database Systems (IDS) is in the business of obtaining accident reports from public agencies and making that information available to its clients, including attorneys and chiropractors, for a fee. Also for a fee, IDS produces and sends client-approved communications to client-selected accident victims. Plaintiff National Association of Accident Injury Victims Section 35.54, as amended by H.B. 922, prohibits IDS and NAAIV from providing accident information obtained from public records to their clients. IDS and NAAIV allege that the amendments prevent them from practicing their business by making the activity in which they engage illegal.

                (NAAIV) provides similar services to its members.   Plaintiff David Alexander is a chiropractor licensed by the Texas Board of Chiropractic Examiners
                

IDS and NAAIV allege that article 4512b, as amended by S.B. 857, prevents them from engaging in their business. This allegedly results from the authority of the Texas Board of Chiropractic Examiners to suspend or revoke the license of any chiropractor who communicates, without invitation, with any person known to have recently been involved in a motor vehicle accident. IDS and NAAIV allege that this prevents chiropractors from using the services of IDS and NAAIV.

Plaintiffs Backpain and Alexander allege that the amendments to § 35.54 and article 4512b prevent them from sending communications, without invitation, to accident victims, regardless of whether the communications are false, deceptive or misleading.

All of the Plaintiffs argue that the amendments violate their rights under the First Amendment of the United States Constitution, as incorporated by the Fourteenth Amendment, and Article I, section 8 of the constitution of the state of Texas. Both of these laws are alleged to be unconstitutional on their face and as applied to Plaintiffs.

SUMMARY JUDGMENT STANDARD

Summary judgment should only be entered where the record establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant bears the burden of establishing the propriety of summary judgment. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986).

Once a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law will identify what facts are material. Id. at 248, 106 S.Ct. at 2510. A dispute as to a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

DISCUSSION

I

The parties are in agreement that both of the laws in question place restrictions on commercial speech. However, Defendants argue that the restrictions are reasonable and comport with the United States Constitution.

In 1985, the Supreme Court held that "[c]ommercial free speech that is not false or deceptive and does not concern unlawful activities ... may be restricted only in the service of a substantial government interest, and only through means that directly advance that interest." Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985). The regulation of commercial speech may extend only so far as the interest it serves. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 565, 100 S.Ct. 2343, 2351, 65 L.Ed.2d 341 (1980). Thus, state rules designed to prevent the "potential for deception and confusion ... may be no broader than reasonably necessary to prevent the deception." In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982).

Applying these principles in Zauderer, the Supreme Court struck down an Ohio rule that categorically prohibited advertisements for solicitation of legal employment regarding a specific legal problem, even if such advertisements were truthful and not deceptive. The Court distinguished Zauderer from Ohralik v. Ohio State Bar In Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 474, 108 S.Ct. 1916, 1922, 100 L.Ed.2d 475 (1988), the Supreme Court stated the relevant inquiry in determining whether lawyer solicitation may be prohibited ...