because a good faith purpose of this kind can be fully achieved through the use of these available mechanisms which erase the risk.
These available tools and mechanisms are also of great significance in a case of this kind because they provide a vehicle for presenting the question in a specific fact context against which a court can decide whether a plaintiff has met the burden, required by Bates, of demonstrating "that in fact his specific conduct" is protected under the First Amendment, 433 U.S. at 379, 97 S. Ct. at 2706-2707 et seq. The same showing is required on the claim of vagueness. For a case dealing with a general challenge to a regulation calling for provision of a "reasonable number" of beds for indigent patients, and for a "just and reasonable rate on equity", in the case of licensed nursing homes, see Mr. Justice Sullivan's opinion for a unanimous court in N.J. Ass'n etc., v. Finley, 83 N.J. 67, 415 A.2d 1147 (1980).
Finally, these tools and mechanisms provide a vehicle for the development and adoption of a saving construction, if one be needed, by the agency or court having primary jurisdiction over the subject matter. This is the heart and core of the Pullman doctrine. Since it is the States that are vested with authority to regulate professions under the police power, and since federal challenges on constitutional grounds are only collateral to that power, the structure and relations of the federal system require that the state agency and the state courts be provided with the initial opportunity to deal with the question, as well as to develop the specific facts.
The soundness of Pullman is illustrated by the fact that when a federal court enters judgment declaring a state regulatory provision unconstitutional and enjoining its enforcement, it throws out the baby with the bath water. It creates a gap in the law, leaving no regulation on a subject admittedly subject to regulation.
The New Jersey courts have shown their own sensitivity to this undesirable consequence, and have gone so far as to adopt a construction in a form equivalent to enacting a statute, in order to save the law until those with primary authority have time to act, thus avoiding a gap. The prime example is State v. De Santis, 65 N.J. 462, 323 A.2d 489 (1974). The opinion of Mr. Justice Jacobs in that case noted that some state courts had stricken their obscenity statutes as unconstitutional, leaving no enforceable law on the books, while others adopted constructions capable of saving the statute prospectively. See, especially, the discussion in 65 N.J. at 468-474, 323 A.2d 489.
Another example is found in the cases dealing with Congressional and legislative reapportionment under the one man/one vote concept. From Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) through Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) and Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713 (1964) and their progeny, the court is aware of no decision, federal or state, which invalidated laws enacted by a malapportioned legislature, or which ousted incumbent legislators from office, or enjoined the continuing operation of such a legislative branch. State courts, as in Jackman, have ruled that they could not abstain from ruling on the question whether an apportionment method denied equal protection of the law in violation of the Fourteenth Amendment, 43 N.J. at 457 et seq. 205 A.2d 713. But they have stayed their hand in respect to devising an apportionment method that meets constitutional muster "except as a last resort", allowing a malapportioned legislature meanwhile to function de facto, subject to the duty to devise a valid plan, 43 N.J. at 473, 205 A.2d 713.
There was no "saving construction" available in those cases, but where there was, as in De Santis, the New Jersey courts have never hesitated to adopt one and so apply the fundamental rule that controversies should be decided on non-constitutional grounds wherever possible.
In cases like this, involving state statutes and regulations, brought in a federal court, Pullman requires that the saving construction question, which is a matter of State law, be taken up by the state agency or court first, with the federal court meanwhile abstaining by ordering a stay while the state proceedings are conducted and concluded. The proper course is to retain jurisdiction, or if the case be dismissed, to make clear that the dismissal is without prejudice to litigate the federal claims in federal court at the conclusion of the state proceeding. See American Trial Lawyers Association v. N. J. Supreme Court, 409 U.S. 467, 93 S. Ct. 627, 34 L. Ed. 2d 651 (1973), where it is observed that abstention does not involve the abdication of federal jurisdiction but only the postponement of its exercise, citing England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). For the ensuing state proceeding, see 66 N.J. 258, 330 A.2d 350 (1974).
In the present case, the current regulation of the Board on its face does allow a licensee to provide information to the public, by publication in newspapers and comparable written publications, including "fees for routine professional services", thus evidently recognizing the right protected by Bates. See, also, Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975) dealing with the use of suggested "minimum fee" schedules, a related subject, and the text of the Statement of the Judicial Council of the AMA, published in 235 JAMA 2328 (1976) and reproduced in Bates, 433 U.S. at 369, footnote 20, 97 S. Ct. at 2701-2702, footnote 20.
For each and all of the foregoing reasons, the motion for preliminary injunction is denied, and the suit will be stayed pending the conclusion of appropriate state proceedings to be initiated without delay.
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