F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 3 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PETER M. MCDEVITT,
Plaintiff-Appellant,
v. No. 96-2094
(D.C. No. CIV 94-383)
DISCIPLINARY BOARD OF THE (D.N.M.)
SUPREME COURT FOR THE STATE
OF NEW MEXICO; LARRY
RAMIREZ, Chairman; CHRISTINA
ARMIJO; MICHAEL D.
BUSTAMANTE; GREGG W. CHASE;
CHARLES W. DANIELS; PATRICIA
B. MURRAY; WARREN F.
REYNOLDS; ALEX ROMERO;
FREDDIE J. ROMERO; SARAH M.
SINGLETON; RAYMOND
HAMILTON; RICHARD L.
GERDING, in their official capacities;
TOM UDALL, Attorney General,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and LUCERO, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff/appellant Peter M. McDevitt appeals from the district court’s order
dismissing his complaint for injunctive and declaratory relief against
defendants/appellees. We affirm.
Appellant is a licensed attorney in the State of New Mexico. His primary
area of practice has been representing consumer debtors in proceedings under
Chapters 7 and 13 of the United States Bankruptcy Code. He has advertised his
legal services in the yellow pages of various telephone directories and in various
newspapers.
In 1992, the New Mexico Supreme Court adopted revised legal advertising
rules. See SCRA 16-701 through 707 (1995 Repl.) (as amended, effective
August 1, 1992). Rule 16-707(B) requires any lawyer who advertises services
through any public medium to file a copy of the advertisement with the Legal
Advertising Committee of the Disciplinary Board (Committee) for evaluation of
compliance with the legal advertising rules. The Rule further provides that the
copy shall be filed either prior to or concurrently with the lawyer’s first
dissemination of the advertisement. See id. A filing fee of $50 per submission,
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payable to the Disciplinary Board, must accompany the filing. SCRA
16-707(D)(4) (1995 Repl.) (as amended, effective August 1, 1992).
Appellant failed to submit certain advertisements to the Committee. The
Committee requested disciplinary counsel for the Disciplinary Board to
commence disciplinary proceedings against appellant for his failure to comply
with the filing and fee payment requirements outlined above. Disciplinary
proceedings were commenced against appellant for violation of the filing and fee
payment requirements. During the disciplinary proceedings, appellant attempted
to raise a constitutional challenge to the Rules; however, the hearing panel
appointed by the Disciplinary Board held that the panel was not empowered to
consider the constitutional issues appellant raised.
The hearing panel found that appellant had violated Rule 16-707(B), and
recommended that he be formally reprimanded and placed on probation. The
Disciplinary Board adopted the hearing panel’s recommendations, and
recommended to the Supreme Court of New Mexico that appellant be issued a
formal reprimand, but that imposition of the reprimand be deferred on the
condition that appellant submit all of his advertisements to the Committee for
review and that he comply with all other requirements contained in the Rules.
Appellant filed a petition for review of the panel’s decision with the Supreme
Court of New Mexico, which summarily denied the petition.
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Appellant thereafter filed this action in federal district court, asserting that
New Mexico’s procedure for reviewing advertisements violated his First
Amendment rights because (1) the requirement that he submit the advertisement
to the Committee constituted a prior restraint; (2) the submission procedure
unduly burdened his right of commercial speech; and (3) the requirement that he
pay a $50 fee was an unconstitutional tax on speech. The district court dismissed
appellant’s prior restraint claim, and granted summary judgment on the other two
claims. 1
We review de novo the district court’s order dismissing for failure to state a
claim, see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir. 1996), and
its grant of summary judgment, see David v. City & County of Denver, 101 F.3d
1344, 1355 (10th Cir. 1996). In reviewing summary judgment, we apply the same
standards as the district court. See id. Factual disputes must be resolved and
inferences drawn in favor of the nonmoving party. See id. “Summary judgment
is warranted only if the uncontroverted material facts establish that the moving
party is entitled to judgment as a matter of law.” Id.
1
Appellant also asserted a claim, before the district court, that the
submission requirement violated his First Amendment rights because some
Committee members were also attorneys in active practice who had a bias or
inherent interest in rejecting advertisements from competing attorneys. He has
not renewed this argument on appeal.
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1. Prior restraint
Appellant contends that the advertising rules are constitutionally invalid
because they impose a prior restraint on the content of his advertisements. His
contention is without merit. “Governmental action constitutes a prior restraint
when it is directed to suppressing speech because of its content before the speech
is communicated.” Cummins v. Campbell, 44 F.3d 847, 853 (10th Cir. 1994)
(emphasis added) (quoting O’Connor v. City and County of Denver, 894 F.2d
1210, 1220 (10th Cir. 1990)). Rule 16-707(B) allows appellant to submit his
advertisement either in advance or concurrently with its first publication. So long
as he submits his advertisement concurrently with its first publication, any
disapproval must inevitably occur not prior to, but following, the dissemination of
the advertisement.
Moreover, the Committee is not empowered to restrain publication of a
noncomplying advertisement. In the event it finds that an advertisement is not in
compliance with the applicable rules, the Committee may only advise the attorney
that continued publication may result in professional discipline, see
Rule 16-707(G), and report the results of its investigation and make
recommendations to the disciplinary counsel, see Rule 16-706(C).
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2. Burden of submission procedure
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Appellant argues that the submission procedure places an undue burden on
his First Amendment right to advertise his legal services. While the courts
generally accord speech by attorneys on public issues and matters of legal
representation the strongest protections the Constitution has to offer, a lesser
degree of protection is reserved for purely commercial advertising. See Florida
Bar v. Went For It, Inc., 115 S. Ct. 2371, 2381 (1995). Attorney standards and
conduct have traditionally been subject to extensive regulation by the States,
making it particularly appropriate to apply only limited scrutiny to state
regulations concerning attorney advertising. See id. In analyzing such
restrictions, the courts apply “intermediate” scrutiny, using the framework set
forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447
U.S. 557 (1980). See Went For It, Inc., 115 S. Ct. at 2375-76.
Under Central Hudson, courts apply a four-part analysis to regulation of
commercial speech. First, the court determines whether the expression is
protected by the First Amendment. Central Hudson, 447 U.S. at 566. The
government may freely regulate commercial communications which are
misleading or related to unlawful activity. See id. at 563-64. Commercial speech
which falls into neither of these categories may be regulated only if the
government satisfies the three remaining portions of the test. The government
must assert a substantial interest to be achieved by the restriction. Any restriction
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must directly advance the state interest involved. Finally, the regulation must be
narrowly drawn. See id. at 564-66; see also Went For It, Inc., 115 S. Ct. at 2376.
The state here asserts its interest in ensuring that the public receives
truthful, relevant and meaningful information regarding its need for attorneys, the
availability of legal services and the cost of such services. This interest is
substantial. See Edenfield v. Fane, 507 U.S. 761, 769 (1993). However, as the
challenged regulation impacts both truthful and deceptive or inaccurate speech by
requiring that all advertisements be filed, the state must also satisfy the remaining
two elements of the Central Hudson test. See Edenfield, 507 U.S. at 768-69.
To satisfy the third element of the Central Hudson test, the state must show
a real harm to its asserted interest which the restriction will alleviate to a material
degree. See Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1592 (1995). The
state presented a summary of evidence gathered by its Task Force Committee
concerning public attitudes toward attorney advertising, discussing studies which
show that the public’s regard for the trustworthiness, honesty and professionalism
of lawyers has been adversely affected by attorney advertising. The Task Force
Committee studied various rules that have been proposed in other states to
regulate attorney advertising, and, with considerable participation by the State Bar
Commissioners, New Mexico attorneys, and the New Mexico Supreme Court, and
an opportunity for public comment, it developed its own rules which it claims are
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designed to foster rational, intelligent and voluntary decision-making on the part
of the public concerning legal services.
The Supreme Court has implicitly endorsed the ability of supervisory filing
and review systems such as the one now in use in New Mexico to alleviate harms
associated with attorney advertising. Moreover, the Court has noted that a filing
system is a narrowly-tailored means for addressing such harms. In Shapero v.
Kentucky Bar Association, 486 U.S. 466, 476 (1988), the Court, in discussing
direct-mail solicitation, noted as follows:
The State can regulate such abuses and minimize mistakes through
far less restrictive and more precise means, the most obvious of
which is to require the lawyer to file any solicitation letter with a
state agency, giving the State ample opportunity to supervise
mailings and penalize actual abuses. (citations omitted)
See also In re R.M.J., 455 U.S. 191, 206 (1982) (suggesting a system of filing all
general mailings with the Advisory Committee as a “less restrictive path” for
ensuring supervision). We conclude that the remaining elements of the Central
Hudson test are met here. 2
2
Appellant argues that the state’s use of a newspaper clipping service would
provide a less intrusive method of supervising lawyer advertising. He has
submitted no evidence on either the costs or feasibility of using a clipping
service. He does not explain how a clipping service would provide a good
substitute for several requirements found in the current rule: that attorneys submit
a copy of the advertisement in the form in which it is to be disseminated,
including videotapes or audiotapes, that they file a transcript in the event that the
advertisement is transmitted by means of audio or video media, and that they
(continued...)
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3. Payment of filing fee
Finally, appellant argues that the requirement that he pay a $50 fee to the
Disciplinary Board for each submission of advertising for review constitutes an
unconstitutional tax on speech. Rule 16-707(D)(4) specifically provides that the
filing fee will be used solely to defray the cost of administering the Rules. A fee
of this sort, which is used to meet expenses incident to the administration of a
regulatory statute governing exercise of a constitutional right, does not constitute
an unconstitutional infringement of that right. See, e.g., Cox v. New Hampshire,
312 U.S. 569, 576-77 (1941) (upholding license fee on parade).
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
2
(...continued)
detail the anticipated frequency or use of the advertisement and the time period
during which it is to be run. See Rule 16-707(D).
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