Sullo & Bobbitt, PLLC v. Abbott

• Decision Date: 10 July 2012
• Docket Number: Civil Action No. 3:11-CV-1926-D
• Court: U.S. District Court — Northern District of Texas
• Parties: SULLO & BOBBITT, PLLC, et al., Plaintiffs, v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, et al., Defendants.

SULLO & BOBBITT, PLLC, et al., Plaintiffs,

v.GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, et al., Defendants.

Civil Action No. 3:11-CV-1926-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Dated: July 10, 2012

MEMORANDUM OPINIONAND ORDER

A lawyer and law firm challenge the constitutionality of Tex. Gov't Code Ann. § 82.0651 (West 2011) (the "Civil Barratry Statute") and the denial by certain municipalities and a justice court of immediate access to misdemeanor offense information that plaintiffs seek to use in soliciting clients by direct mail. Defendants move to dismiss plaintiffs' claims under Fed. R. Civ. P. 12(b)(1) and/or 12(b)(6). The court dismisses plaintiffs' claims for the reasons that follow, but it also grants plaintiffs leave to replead.

I

This is an action by plaintiffs Sullo & Bobbitt, PLLC ("Sullo & Bobbitt") and Barry L. Bobbitt ("Bobbitt") under 42 U.S.C. § 1983 against defendants Greg Abbott ("the Attorney General"), in his official capacity as Attorney General of Texas, Stewart Milner ("Judge Milner"), in his official capacity as Chief Municipal Judge of the City of Arlington, Texas, Gloria Lopéz-Carter ("Lopéz"), in her official capacity as Director of the City of Dallas Municipal Court, Thomas G. Jones ("Justice Jones"), in his official capacity as Justiceof the Peace, Precinct 1-1 of Dallas County, Texas, and Ninfa L. Mares ("Judge Mares"), in her official capacity as Chief Municipal Judge of the City of Fort Worth, Texas.¹

Bobbitt is a Texas attorney and an owner of Sullo & Bobbitt, a law firm.² Bobbitt's practice focuses on defending individuals charged with misdemeanor offenses in the Dallas-Fort Worth area. Plaintiffs advertise their availability for legal representation through direct mail solicitations. To do so, plaintiffs request from courts, including those of Judge Milner, Justice Jones, and Judge Mares (collectively, "the Judges"), and from Lopéz, new misdemeanor citations, charges, and court filings for the purpose of identifying the defendant's name and address, the date of the violation or citation, and the criminal violation charged. Plaintiffs send direct-mail solicitations within 30 days of the recipient's arrest or the issuance of a summons.

Plaintiffs bring two claims in this case. First, they sue under § 1983 seeking a declaratory judgment against the Attorney General that Senate Bill 1716, which was codified as Tex. Gov't Code Ann. § 82.0651,³ is an unconstitutional restraint on their First andFourteenth Amendment rights to commercial free speech.⁴ Second, they seek under § 1983 a declaratory judgment against the Judges and Lopéz, alleging that defendants' denial of immediate and contemporaneous access to new criminal citations, charges, and court filings violates plaintiffs' First and Fourteenth Amendment rights to access and unconstitutionally restrains their First and Fourteenth Amendment rights to commercial free speech. Plaintiffs also allege under their second claim that they are "entitled" to ancillary injunctive relief but do not specifically pray for such relief. See Am. Compl. 44 & 45(b).

The Attorney General⁵ and Lopéz move to dismiss under Rules 12(b)(1) and 12(b)(6). The Judges move to dismiss under Rule 12(b)(6). Plaintiffs oppose the motions.

II

The court turns first to plaintiffs' claim against the Attorney General under § 1983 alleging that the Civil Barratry Statute is an unconstitutional restraint on their First and Fourteenth Amendment rights to commercial free speech.

A

The Civil Barratry Statute states, in relevant part:

(c) A person who was solicited by conduct violating the laws of this state or the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas regarding barratry by attorneys or other persons, but who did not enter into a contract as a result of that conduct, may file a civil action against any person who committed barratry.

(d) A person who prevails in an action under Subsection (c) shall recover from each person who engaged in barratry:

(1) a penalty in the amount of $10,000;

(2) actual damages caused by the prohibited conduct; and

(3) reasonable and necessary attorney's fees.

(e) This section shall be liberally construed and applied to promote its underlying purposes, which are to protect those in need of legal services against unethical, unlawful solicitation and to provide efficient and economical procedures to secure that protection.

Tex. Gov't Code Ann. § 82.0651(c)-(e).⁶ According to plaintiffs, the Civil Barratry Statute provides private enforcement for Tex. Penal Code Ann. § 38.12(d)(2)(C) (West 2009) (the "Criminal Barratry Statute"). The Criminal Barratry Statute states, in relevant part:

(d) A person commits an offense if the person:

(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person's employment, legal representation, advice, or care a writtencommunication or a solicitation, including a solicitation in person or by telephone, that:

(C) concerns an arrest of or issuance of a summons to the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the arrest or issuance of the summons occurred[.]

Tex. Penal Code Ann. § 38.12(d)(2)(C).

In Moore v. Morales, 843 F. Supp. 1124 (S.D. Tex. 1994) ("Moore I"), rev'd on other grounds, 63 F.3d 358 (5th Cir. 1995), the court held that the Criminal Barratry Statute was unconstitutional and enjoined the defendants, including the Attorney General, from enforcing the statute. Id. at 1133. The Attorney General also issued an opinion that concluded:

[a]fter considering both the unappealed federal district court decision in Moore [I], and particularly the appellate court's opinion in Ficker [v. Curran, 119 F.3d 1150 (4th Cir. 1997)], we believe section 38.12(d)(2)(C) of the Penal Code prohibiting an attorney from sending a direct mail solicitation to a targeted criminal defendant or his relatives within thirty days of his arrest, neither directly or materially advances a substantial state interest nor is narrowly drawn as provided under Central Hudson [Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)], and thus contravenes the First Amendment to the United States Constitution.

Tex. Att'y Gen. Op. No. JC-0022, 1999 WL 156298, at *4 (1999). Plaintiffs contend that although Moore I held the Criminal Barratry Statute unconstitutional and the Attorney General considers it to be unconstitutional, the Texas Legislature has now authorized private enforcement of the unconstitutional Criminal Barratry Statute by adopting the Civil BarratryStatute, and that the Civil Barratry Statute is also unconstitutional.⁷

B

The Attorney General moves to dismiss under Rule 12(b)(1), contending that the court lacks subject matter jurisdiction because plaintiffs do not have Article III standing.⁸ "Federal courts cannot consider the merits of a case unless it presents an actual controversy, as required by Art. III of the Constitution and the Federal Declaratory Judgment Act, 28 U.S.C. § 2201." Miss. State Democratic Party v. Barbour, 529 F.3d 538, 544 (5th Cir. 2008) (quoting Steffel v. Thompson, 415 U.S. 452, 458 (1974)) (internal quotations marks omitted); see also, e.g., Roark & Hardee LP v. City of Austin, 522 F.3d 533, 541 (5th Cir. 2008). Standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975). The Attorney General's argument is limited to Article III standing. To satisfy the case-or-controversyrequirement of Article III, plaintiffs must allege facts demonstrating that they have "suffered 'injury in fact,' that the injury is 'fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)); see also Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 134 (5th Cir. 2009) (holding, in context of motion to dismiss, that plaintiff must allege facts that give rise to plausible claim of standing). The injury in fact must be "concrete and . . . actual or imminent, not conjectural or hypothetical," and "the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 & 561 n.1 (citations and internal quotation marks omitted). "A plaintiff can meet the standing requirements when suit is brought under the Declaratory Judgment Act by establishing actual present harm or a significant possibility of future harm, even though the injury-in-fact has not yet been completed." Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir. 2003) (citations and internal quotation marks omitted). The injury must also be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Lujan, 504 U.S. at 560-61 (alterations omitted) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). And "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressable by a favorable decision.'" Id. at 561 (quoting Simon, 426 U.S. at 38).

As the parties seeking to invoke federal jurisdiction, plaintiffs bear the burden of proving their standing. Lujan, 504 U.S. at 561. Because the Attorney General's motion todismiss is not supported by evidence, the court must decide the jurisdictional question based on the amended complaint alone, and must presume that the allegations of the amended complaint are true....