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AMERICAN INST. OF FOOT MED. v. NEW JERSEY STATE BD

December 3, 1992

Re: American Institute of Foot Medicine, etc., et al
v.
New Jersey State Board of Medical Examiners, etc., et al



The opinion of the court was delivered by: NICHOLAS H. POLITAN

LETTER OPINION AND ORDER

 ORIGINAL ON FILE WITH CLERK OF THE COURT

 Dear Counsel:

 This matter comes before the court on plaintiffs American Institute of Foot Medicine's a/k/a American Podiatric Medical Specialties Board's ("AIFM/APMSB") and nine of its individual. members' application for a preliminary injunction. The defendant in this action is the New Jersey Board of Medical Examiners (the "Board"). *fn1" The Board opposed the application for a preliminary injunction and requested this court to abstain from exercising its jurisdiction and to dismiss plaintiffs' complaint. For the reasons outlined below this court will abstain from deciding the merits of plaintiffs' case and will STAY this action pending the Supreme Court of New Jersey's review of N.J.A.C. 13:35-6.10(m). Accordingly, plaintiffs' application for a preliminary injunction is DENIED.

 The facts underlying plaintiffs' application are relatively simple. The Board is a professional licensing agency and regulating body of the State of New Jersey, Division of Consumer Affairs, New Jersey Department of Law and Public Safety. On June 19, 1989, the Board promulgated a new regulation which provided:

 Any licensee advertising Board Certification in a specialty must possess certification by a certifying agency recognized by the Board of Medical Examiners. A list of recognized agencies shall be maintained by the Board.

 The Board should adopt the standards of the American Board of Medical Specialties, the American Osteopathic Association and the American Podiatric Medical Association as the acceptable standards to be met by certifying Boards in the respective professions. If the applying organization is able to demonstrate that it meets the objective standards established by those recognized bodies for consideration of accreditation, the New Jersey Medical Board should then ask that the examination administered by the proposed certifying organization be submitted to it for review. The graduate experience by the certifying organization must be defined by the organization and submitted to the Board. The Credentials Committee [of the Board] should review that information from the certifying organization and should make a recommendation to the Board on the acceptability of the organization.

 Prior to the enactment of Regulation M, the individual plaintiffs and other New Jersey podiatric licensees who were members of AIFM/APMSB were able to advertise Board Certification status in New Jersey based upon their membership in AIFM/APMSB. Because AIFM/APMSB was not one of the bodies recognized by the Board, however, after the enactment of Regulation M, AIFM/APMSB applied to the Board for recognition of its Board Certification credentials. In its application, AIFM/APMSB also sought to obtain permission from the Board to continue to advertise its Board Certification credentials pending a final decision by the Board on its application for recognition under Regulation M. That preliminary request was denied by the Board on April 30, 1990 and plaintiff AIFM/APMSB and the individual plaintiffs were precluded from advertising their Board Certification status from that point forward.

 Upon its review of the submissions of AIFM/APMSB, testimony before the Credentials Committee of the Board, and the various reports before it, the Board determined that AIFM/APMSB had not demonstrated a sufficient basis for recognition by the Board and the request was denied. A formal letter was filed by the Board on October 2, 1992 *fn2" explaining the reasons for the denial.

 On October 28, 1992 plaintiffs filed a complaint in the federal district court alleging that the action of the Board has denied plaintiffs their right to advertise truthful information in violation of the First Amendment of the United States Constitution; that Regulation M is unconstitutional on its face in violation of the First Amendment of the United States Constitution; that the Board has denied plaintiffs Equal Protection of the laws under the Fourteenth Amendment of the United States Constitution; that the Board acting under color of state law in denying plaintiffs their constitutional rights has violated 42 U.S.C. ยง 1983, et seq.; and that the Board has denied plaintiffs their constitutional rights to advertise truthful information consistent with the New Jersey State Constitution, N.J. Const. art. 1, par. 6 and to equal protection of the laws under N.J. Const. art. 1, par. 1.

 I begin by recognizing that "federal courts have a 'virtually unflagging obligation' to exercise their jurisdiction." Deakins v. Monaghan, 484 U.S. 193, 98 L. Ed. 2d 529, 108 S. Ct. 523, (1988). However, "where questions under both state law and the federal constitution are present, the policies of promoting comity with the state courts and ensuring the smooth functioning of the federal judiciary counsel the federal courts to stay their hands, at least initially." Hughes v. Lipscher, 906 F.2d 961, 964 (3rd Cir. 1990) (citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643, (1941)).

 Pullman abstention is generally "appropriate where the state court's resolution of an unsettled question of state law may moot or change the analysis of the federal constitutional issue." Hughes, 906 F.2d at 964; Georgevich v. Strauss, 772 F.2d 1078, 1089 (3d Cir. 1985) (en banc) cert. denied, 475 U.S. 1028, 89 L. Ed. 2d 339, 106 S. Ct. 1229 (1986). The application of abstention is equitable in nature and is thus within the court's discretion. ...


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