Sam L. Beavers v. AR State Bd. of

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 96-3557
___________

Sam L. Beavers, *
*
Appellant, *
*
v. *
*
Arkansas State Board of Dental *
Examiners; Judith A. Safly, *
Director, Individually and in her *
Official Capacity; J. Walker Loyd, *
President, Individually and in his *
Official Capacity; Robert H. Burch, *
Member of the Arkansas Board of *
Dental Examiners, Individually and *
in his Official Capacity; J. David *
Alford, Member of the Arkansas * Appeal from the United States
Board of Dental Examiners, * District Court for the
Individually and in his Official * Eastern District of Arkansas
Capacity; R. Lester Barrett, *
Member of the Arkansas Board of *
Dental Examiners, Individually and *
in his Official Capacity; Cindy A. *
Johnson, Member of the Arkansas *
Board of Dental Examiners, *
Individually and in her Official *
Capacity; H. Fletcher Sullards, *
Member of the Arkansas Board of *
Dental Examiners, Individually and *
in his Official Capacity; James A. *
Burgess, Jr., Member of the Arkansas *
Board of Dental Examiners, Individually *
and in his Official Capacity; David E. *
Walker, Member of the Arkansas Board *
of Dental Examiners, Individually and *
in his Official Capacity; Connie E. Cox, *
Member of the Arkansas Board of *
Dental Examiners, Individually and *
in her Official Capacity, *
*
Appellees. *
___________

Submitted: November 20, 1997

Filed: August 6, 1998
___________

Before RICHARD S. ARNOLD,1 Chief Judge, McMILLIAN, Circuit Judge, and
STEVENS,2 District Judge.
___________

McMILLIAN, Circuit Judge.

Sam L. Beavers appeals from a final order entered in the United States District
Court3 for the Eastern District of Arkansas abstaining from exercising jurisdiction over

1
The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold
as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close
of business on April 17, 1998.
2
The Honorable Joseph E. Stevens, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
3
The Honorable Henry Woods, United States District Judge for the Eastern
District of Arkansas.
-2-
his claims under the First and Fourteenth Amendments and 42 U.S.C. § 1983 against
the Arkansas State Board of Dental Examiners and its nine constituent members
(collectively, the “Board”). Beavers v. Arkansas State Bd. of Dental Exam’rs, No. LR-
C-95-162 (E.D. Ark. Sept. 12, 1996) (“slip op.”) (citing Railroad Comm’n v. Pullman
Co., 312 U.S. 496 (1941) (Pullman)). The district court had proper jurisdiction over
this matter pursuant to 28 U.S.C. § 1331. Beavers timely filed a notice of appeal under
Rule 4(a) of the Federal Rules of Appellate Procedure which invoked this court’s
jurisdiction under 28 U.S.C. § 1291.

For reversal, Beavers contends that the district court erred in applying the
Pullman abstention doctrine because the challenged state regulations are (1) clear and
unambiguous and (2) not subject to an interpretation that would obviate the federal
constitutional question. For the reasons discussed below, we affirm the order of the
district court.

The following material facts are undisputed on appeal. Beavers practices
dentistry in Little Rock, Arkansas, and wishes to advertise in Arkansas in order to
promote his practice. The Board is an agency created by the Arkansas State
Legislature pursuant to Ark. Code Ann. § 17-82-201. The Board possesses statutory
authority to regulate dental advertising under Ark. Code Ann. § 17-82-208(a) and is
charged with the task of preventing advertising that is “fraudulent or misleading.” See
id. § 17-82-106. To this end, the Board has promulgated a series of rules and
regulations regarding the advertisement of dental services, the naming of dental
facilities, and the announcement of specializations. See generally Dental Practice Act
(Rules and Regulations) (the “Act”), Articles V-VII.4 Beavers brought the instant

4
The rules and regulations of the Arkansas Board of Dental Examiners must be
properly noticed and filed with the Secretary of State, the Arkansas State Library, and
the Bureau of Legislative Research pursuant to the Arkansas Administrative Procedure
Act, Ark. Code Ann. § 25-15-204(a)–(d)(1) (1997). If the rules and regulations that
Beavers challenges were not properly noticed and filed, they are not enforceable under
-3-
federal suit contending that some of these rules and regulations violate his constitutional
rights under the First and Fourteenth Amendments. Beavers challenges Articles V, VI,
and VII of the Act as facially overbroad on the ground that, taken as a whole, they
restrict advertising that is not fraudulent or misleading. Complaint ¶ 16.

For example, with respect to Article V, Beavers challenges subparts C.1 & E,
which require dentists to include the words “general practice” or “general dentistry,”5
separate and apart from the name of the dentist, in all advertisements announcing
general dental services; subparts C.1– .2, which restrict the announcement of general
dentistry or specialty services to typeface that is less bold and smaller in size than the
smallest lettering in the statement “general dentist”; and subpart E, which restricts the
specialty services that may be advertised to those recognized by the American Dental
Association. See id. ¶¶ 11–13, 15. With respect to Article VI, Beavers challenges
subpart A, which requires dentists to use their surnames in all advertisements and
correspondence and as part of any fictitious name approved by the Board. Brief of
Appellant at 7. In addition, Beavers challenges Ark. Code Ann. § 4-29-405 to the
extent that it requires that the corporate name of a dental practice contain the names of
one or more shareholders and Ark. Code Ann. § 17-82-305(c) & (e) to the extent that
they prohibit licensed dentists from announcing or advertising specialty services other
than those recognized by the American Dental Association. Amended Complaint ¶ 1.6
Beavers also lodges an apparent Fourteenth Amendment claim against the Board on the
ground that “other professions, such as attorneys, are allowed to, and do, advertise
services without advertising that they are generalists.” Complaint ¶ 14.

Arkansas law. See id. § 25-15-203(b).
5
The word “family” may be substituted for the word “general.” Dental Practice
Act (Rules and Regulations), Article V, E.
6
Beavers’s amended complaint, which the district court granted leave to file on
April 8, 1996, appears to supplement rather than replace his original complaint.
-4-
 As an agency of the State, the Board is subject to the Arkansas Administrative
Procedure Act (the AAPA) as codified in Ark. Code Ann. § 25-15-202 et seq. The
AAPA permits persons who allege injury or threat of injury to their person, business,
or property, by any rule or its threatened application, to seek declaratory judgment of
the validity or applicability of that rule in the circuit courts of Arkansas. Ark. Code
Ann. § 25-15-207. The Board has not taken any action against Beavers. Nor is there
a pending state court action in this case.

Relying on the Pullman abstention doctrine, the district court held that abstention
was proper on the ground that Arkansas state courts could rule on state statutory
grounds and avoid the First Amendment question entirely. Slip op. at 4-5. The district
court reasoned that a state court ruling that the Board’s regulations are “onerous and
excessive” obviates any federal constitutional question. Id. at 4. We agree.

Beavers argues that Pullman abstention is inappropriate because the Board
necessarily violated the First Amendment if it exceeded its statutory authority in
regulating commercial speech. In other words, Beavers contends that a finding that the
regulations are “onerous and excessive” is tantamount to a finding that they violate the
First Amendment, and thus the federal constitutional question cannot be avoided.
Beavers further contends that the Board’s statutory authority to prohibit “fraudulent and
misleading” dental advertising mirrors the constitutional standard of scrutiny applied
to limitations on commercial speech. See, e.g., Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm’n, 447 U.S. 557, 563-64 (1980); Virginia State Bd. of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771& n. 24 (1976).

The Board argues that the district court did not abuse its discretion in abstaining
because “[a]bstention by Federal Courts is very appropriate when there are difficult
questions of state law bearing on policy problems of substantial public import.” Brief
for Appellee at 10 (citing Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S.

-5-
25 (1959)). In addition, the Board points out that there are state remedies available to
Beavers under the AAPA.

We review the district court’s decision to abstain for an abuse of discretion. See,
e.g., National City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1126 (8th Cir. 1982) (citing
Harman v. Forssenius, 380 U.S. 528, 537 (1965) (applying abuse of discretion standard
to Pullman abstention decision)). “The underlying legal questions, however, are subject
to plenary review.” Sheerbonnet, Ltd. v. American Express Bank Ltd., 17 F.3d 46, 48
(2d Cir. 1994); accord Grode v. Mutual Fire, Marine & Inland Ins. Co., 8 F.3d 953, 957
(3d Cir. 1993).

As a general rule, federal courts have a “virtually unflagging obligation” to
exercise their jurisdiction in proper cases. Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 817 (1976). This obligation notwithstanding, federal
courts may abstain from deciding an issue in order to preserve “traditional principles of
equity, comity, and federalism.” Alleghany Corp. v. McCartney, 896 F.2d 1138, 1142
(8th Cir. 1990). The Pullman abstention doctrine is one of several limited doctrines that
permit district courts to preserve such principles.7

Pullman abstention requires consideration of (1) the effect abstention would have
on the rights to be protected by considering the nature of both the right and necessary
remedy; (2) available state remedies; (3) whether the challenged state law is unclear;
(4) whether the challenged state law is fairly susceptible to an interpretation that would
avoid any federal constitutional question; and (5) whether abstention will avoid

7
See, e.g., Colorado River Water Conservation Dist. v. United States, 424 U.S. 800
(1976) (to avoid duplicative litigation); Younger v. Harris, 401 U.S. 37 (1971) (to avoid
intrusion on state enforcement of state laws in state courts); Burford v. Sun Oil Co., 319 U.S.
315(1943) (to avoid needless conflict in the administration of state affairs).

-6-
unnecessary federal interference in state operations.8 George v. Parratt, 602 F.2d 818,
820-22 (8th Cir. 1979) (George). In Lake Carriers’ Association v. MacMullan, 406 U.S.
498, 510-11 (1972), the Supreme Court defined the proper context for Pullman
abstention:

The paradigm case for abstention arises when the challenged state statute
is susceptible of “a construction by the state courts that would avoid or
modify the [federal] constitutional question.” . . . More fully, we have
explained: “Where resolution of the federal constitutional question is
dependent upon, or may be materially altered by, the determination of an
uncertain issue of state law, abstention may be proper in order to avoid
unnecessary friction in federal-state relations, interference with important
state functions, tentative decisions on questions of state law, and
premature constitutional adjudication. . . . The doctrine . . . contemplates
that deference to state court adjudication only be made where the issue of
state law is uncertain.” Harman v. Forssenius, 380 U.S. 528, 534 (1965).

Id. (other citations omitted).

In light of these factors, the district court correctly determined that this case is
fairly subject to a determination by the Arkansas courts that the Board exceeded its
authority under Ark. Code Ann. § 17-82-106, thereby obviating federal constitutional
inquiry. Moreover, as the district court further noted, the AAPA expressly permits
challenges to state rules and regulations in the circuit courts of Arkansas. Slip op. at 4.
Beavers, therefore, has an adequate state remedy available to him. Furthermore, while
Pullman abstention has generally been disfavored in the context of First Amendment
claims where state statutes have been facially challenged under the federal constitution,
see, e.g., City of Houston v. Hill, 482 U.S. 451, 467 (1987); Dombrowski

8
This factor incorporates two distinct considerations: (1) whether there is a
pending state action that will be disrupted, and (2) whether federal intervention would
interfere with state procedures and policies in areas of special state interest. George
v. Parratt, 602 F.2d 818, 822 (8th Cir. 1979).
-7-
v. Pfister, 380 U.S. 479, 489-90 (1965); George, 602 F.2d at 820, Pullman abstention
has nonetheless been upheld in some cases in the interest of comity and federalism.
See, e.g., Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 307-12 (1979);
Harrison v. NAACP, 360 U.S. 167, 176-78 (1959).

In light of the foregoing, we hold that the district court did not abuse its discretion
in abstaining from exercising jurisdiction over Beavers’s claims under the Pullman
abstention doctrine. Accordingly, we affirm the order of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-8-