Louisiana Consumer's League, Inc. v. Louisiana State Bd. of Optometry Examiners, 76-4471

• Decision Date: 12 August 1977
• Docket Number: No. 76-4471,76-4471
• Citation: 557 F.2d 473
• Parties: LOUISIANA CONSUMER'S LEAGUE, INC., et al., Plaintiffs-Appellants, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, consisting of President, G. Anthony Lemoine, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 473

557 F.2d 473

LOUISIANA CONSUMER'S LEAGUE, INC., et al., Plaintiffs-Appellants, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, consisting of President, G. Anthony Lemoine, et al., Defendants-Appellees.

No. 76-4471.

United States Court of Appeals, Fifth Circuit.

Aug. 12, 1977.

David A. Marcello, La. Center for the Public Interest, Philip S. Derfler, Robert M. Hearin, Jr., New Orleans, La., for plaintiffs-appellants.

William J. Wegmann, Sr., William J. Wegmann, Jr., Felicien P. Lozes, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG and FAY, Circuit Judges, and DUMBAULD, ^* District Judge.

PER CURIAM:

By this action plaintiffs seek to enjoin the enforcement of La.Rev.Stat.Ann. §§ 37:1063(9), 37:1065 (West 1974), insofar as those statutes prohibit the price advertising of prescription eyeglasses, lenses, or the frames or fittings thereof. Plaintiffs contended below that this prohibition operates in derogation of their first amendment right to receive information, as delineated in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, (1976). Following an evidentiary hearing, the district court denied plaintiffs' request for a preliminary injunction. Pursuant to 28 U.S.C. § 1292(a)(1), they have appealed that decision.

To be entitled to a preliminary injunction, a movant must establish the following four prerequisites: (1) a substantial likelihood that the movant will eventually prevail on the merits; (2) that the movant will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opponent; and (4) that the injunction would not be adverse to the public interest. See State of Texas v. Seatrain International, S.A., 518 F.2d 175 (5th Cir. 1975). This court's review of the district judge's determination whether a movant has carried this burden is limited in scope:

The grant or denial of a preliminary injunctive order lies within the discretion of the district court, reviewable in this court only for abuse. In re Fontainebleau Hotel Corp., 508 F.2d 1056, 1060 (5th Cir. 1975) (quoting various formulations of the "abuse of discretion" standard). See also, Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975); Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975); Hawkins v. Coleman, 475 F.2d 1278, 1279 (5th Cir. 1973); Johnson v. Radford, 449 F.2d 115, 116 (5th Cir. 1971).

Ruiz v. Estelle, 550 F.2d 238, 239 (5th Cir. 1977).

In the case at bar the trial judge denied preliminary relief upon his conclusion that plaintiffs had failed to demonstrate both sufficient likelihood of success on the merits and irreparable injury. The limited scope of appellate review notwithstanding, a most recent pronouncement from the Supreme Court makes plain that the district court's conclusion, however reasonable at the time, rests on legal propositions that can no longer be maintained. Under Bates v. State Bar of Arizona, --- U.S. ----, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the showing made by plaintiffs at the preliminary injunction hearing, unless rebutted by defendants, must now be seen as sufficient to compel a grant of the requested relief. The district court's denial of relief at the conclusion of plaintiff's presentation precluded defendants from offering any contrary evidence. Accordingly, the denial of a preliminary injunction must be vacated and the case remanded to provide defendants the opportunity to make an evidentiary presentation or, alternatively, for entry of an appropriate injunction.

Virginia Citizens Consumer Council, Inc., supra, held that the first amendment protected truthful price advertising in connection with the sale of prescription drugs. In finding an inadequate demonstration of likely success on the merits in the case at bar, the district court relied on the Supreme Court's caveat that it had spoken only with regard to the pharmaceutical profession and had left open to further consideration the significance of varying characteristics of other professions. See 96 S.Ct. at 1831 n.25.

Bates, supra, makes untenable the restrictive interpretation of Virginia Citizens Consumer Council, Inc. relied on below. In Bates the Supreme Court held that governments may not consistent with the first amendment prohibit lawyers from truthfully advertising the prices of "routine legal services." See --- U.S. at ----, 97 S.Ct. 2691. The court included within "routine legal services" such matters as uncontested divorces and adoptions, simple personal bankruptcies, and changes of name. See id. at ----, ---- - ----, 97 S.Ct. 2691. The court determined that price advertising of such services served important individual and social interests. See id. at ----, 97 S.Ct. 2691. It rejected numerous purported justifications of the ban on such advertising, including claims that the prohibition is necessary to the spirit of professionalism, that such advertising is inevitably misleading due to an inherent lack of standardization in legal services, that the ban eliminates an incentive to cut the quality of services, and that the difficulties of enforcing narrower regulations require a total...