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PRINCETON COMMUNITY PHONE BOOK v. FRANK L. BATE (06/23/78)

decided: June 23, 1978.

THE PRINCETON COMMUNITY PHONE BOOK, INC., AND JOSEPH M. BOYD, APPELLANTS
v.
FRANK L. BATE, ESQ., BLANE E. CAPEHART, ESQ., BERNARD FEINBERG, ESQ., THEODORE W. GEISER, ESQ., WILLIAM J. HUGHES, ESQ., VICTOR R. KING, ESQ., HOWARD G. KULP, JR., ESQ., ABRAM A. LEBSON, ESQ., ROBERT O'HERN, ESQ., EVERETT M. SCHERER, ESQ., SEYMOUR T. SMITH, ESQ., EDWARD L. C. VOGT, ESQ., EDWARD L. WEBSTER, JR., ESQ., AND T. GIRARD WHARTON, ESQ., INDIVIDUALLY AND AS MEMBERS OF THE ADVISORY COMMITTEE ON PROFESSIONAL ETHICS OF THE NEW JERSEY SUPREME COURT (D.C. CIVIL NO. 75-881)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Adams, Van Dusen and Rosenn, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

This appeal raises a number of issues concerning Opinion 290 of the Advisory Committee on Professional Ethics of the New Jersey Supreme Court, prohibiting members of the New Jersey Bar from paying the Princeton Community Phone Book, Inc. to list their names, addresses and telephone numbers in the classified section of its publication. Plaintiffs sued claiming that, by adoption of Opinion 290, the defendants injured them by (a) depriving them of their constitutional rights,*fn1 in violation of 42 U.S.C. § 1983,*fn2 and (b) by restraining competition among publishers of telephone books, in violation of § 1 of the Sherman Act (15 U.S.C. § 1).*fn3 In ruling on the parties' motions for summary judgment, the district court held that plaintiffs' claim for injunctive and declaratory relief under § 1983 was moot, that defendants were absolutely immune to a damage action under § 1983, and that the nexus between defendants' conduct and interstate commerce was insufficient to establish jurisdiction under the Sherman Act. We reverse in part and affirm in part. Specifically, we hold that the claim for injunctive and declaratory relief is not moot, that Opinion 290 is unconstitutional, that the defendants are immune from a § 1983 damage action under the qualified immunity standard, and that the Sherman Act claim is barred by the Parker v. Brown*fn4 state action exemption.

I.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, The Princeton Community Phone Book, Inc. and its principal owner, Joseph M. Boyd, annually publish a telephone directory and distribute it to homes and offices in the Princeton, New Jersey, area. The corporation derives its income from charging a fee for listings and advertisements in its classified yellow pages. The Princeton Community Phone Book is "not unlike the directory published and distributed by the New Jersey Bell Telephone Company." Opinion 290 at 17a.

The defendants are or were members of the Advisory Committee on Professional Ethics of the New Jersey Supreme Court (hereinafter referred to as the Committee). The Committee members are appointed by the New Jersey Supreme Court and the Committee may issue opinions answering any inquiry submitted by a member of the New Jersey bar or by a local bar association. The Committee's published opinions are binding on local ethics committees. Under its discretionary powers, the Committee may decline to answer an inquiry without stating reasons. N.J. Court Rules, 1:19.

In 1973 the Princeton Community Phone Book discontinued its prior policy of listing professionals without charge in its yellow pages and published paid listings of lawyers in its yellow pages in the 1974 and 1975 editions.*fn5 In response to an inquiry on behalf of the Princeton Bar Association, the Committee, in October 1974, published Opinion 290, which stated in part: "It is the opinion of the Committee that the purchase of a classified listing in an advertising directory (such as the Princeton Community Phone Book) is not ethically acceptable." 19a. In the Opinion the Committee cited DR 2-102(A) (5) of the New Jersey Supreme Court Disciplinary Rules, which is identical with the same numbered provision of the American Bar Association Code of Professional Responsibility, and states:

"A lawyer or law firm shall not use . . . telephone directory listings . . . except that the following may be used if they are in dignified form: . . . A listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides, and in the city directory of the city in which his or the firm's office is located . . . ."

Thus, the Committee interpreted "the telephone directory or directories" to mean the directories published by the telephone company.*fn6 On January 22, 1975, the Committee declined plaintiffs' request to reconsider the Opinion and so notified plaintiffs. Plaintiffs then filed suit.

On April 22, 1976, almost a year-and-a-half after the publication of Opinion 290, the Committee published a notice suspending the effect of the Opinion pending the possible revision of the Disciplinary Rules by the New Jersey Supreme Court. The notice stated that the Committee would reconsider the Opinion after any such revisions.*fn7 After publication of this notice, plaintiffs unsuccessfully attempted to solicit lawyers to purchase listings in the Princeton Community Phone Book. Pending the outcome of this case, the Princeton Community Phone Book, Inc. is continuing free classified listings of lawyers.

On June 1, 1976, the district court held a pretrial hearing on defendants' motion for summary judgment and plaintiffs' motion for partial summary judgment. The court reserved judgment on the motions pending discovery. Then, on May 31, 1977, after affidavits, answers to interrogatories, and depositions had been filed, the court granted defendants' motion for summary judgment.*fn8 This appeal followed.

II.

INJUNCTIVE AND DECLARATORY RELIEF UNDER § 1983

A. Mootness

The district court held that plaintiffs' claim for injunctive and declaratory relief was moot because Opinion 290 had been suspended and was not in effect at the time the district court's decision was rendered. We disagree. Correspondence between attorneys and the Princeton Community Phone Book, Inc., which was made part of the record, establishes that a number of lawyers who had paid for classified listings in the Princeton Community Phone Book cancelled their listings because of Opinion 290. 79-88a. An affidavit by an employee of the Princeton Community Phone Book states that, after the Opinion had been suspended, she contacted lawyers who had purchased listings before the Opinion was promulgated but was unable to convince them to resume purchasing listings.

On a motion for summary judgment, inferences from this material must be viewed in the light most favorable to the party opposing the motion. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). This evidence clearly raises the inference that Opinion 290, even in its suspended status, had a chilling effect upon the Princeton Community Phone Book, Inc.'s ability to obtain paid listings and upon the lawyers who may have wished to be listed. Furthermore, a party arguing that a case is moot must bear a heavy burden of demonstrating the facts underlying that contention. United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). Nonetheless, the defendants produced no ...


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