for a price, but instead inquires into the fitness of each of its applicants before certifying those applicants (Pls.' St. Fact, P 11-12).
Because of the CPME's policy of approving only one board per specialty, Dr. Tsatsos is now unable to advertise his affiliation with plaintiff Board within the State of Illinois. The same is true with respect to all other similarly certified podiatric surgeons practicing in the State of Illinois. (Pls.' St. Facts P 8). Dr. Tsatsos voluntarily terminated his advertising of all prohibited certifications, (Pls.' St. Facts P 34), and joined with the A.P.B.S.B. in bringing this lawsuit to find part (c) of the Advertising section of the Podiatric Act unconstitutional as applied to them. Dr. Tsatsos further contends that any sanction entered against him by defendant, under the Advertising provision of the Podiatric Act, is likewise unconstitutional and therefore unenforceable.
A. Summary Judgment
In order for a party to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). In the context of a summary judgment proceeding, the court does not weigh evidence to determine the truth of asserted matters, but simply determines whether there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The question to be considered in a motion for summary judgment is "whether, if the record of the summary judgment proceeding were the record of a trial, a reasonable factfinder, whether judge or jury, could find in favor of the party opposing the motion for summary judgment." Tobey v. Extel/Jwp., Inc., 985 F.2d 330, 332 (7th Cir. 1993). When a defendant moves for summary judgment, it must demonstrate, based on the record, that there is an absence of evidence to support the plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Similarly, a plaintiff cannot rest on mere allegations of a claim, especially with respect to an issue on which it bears the burden of proof, but must affirmatively demonstrate through a specific, factual showing that there is a genuine issue for trial. 106 S. Ct. at 2552-53. Summary judgment is appropriate when the evidence supporting the non-movant is merely colorable or is not significantly probative. Bank Leumi, Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). In the instant case defendant's failure to make any response to Plaintiff's Local Rule 12(m) Statement of Uncontested Facts results in the absence of any genuine issue of material fact or claim of absence of evidence supporting plaintiffs' claim. The court can thus move to those issues which are determinative of whether plaintiffs are entitled to judgment as a matter of law.
B. First Amendment and Commercial Speech
This case essentially deals with the issue of whether a state can categorically ban a professional from truthfully advertising credentials on his letterhead and impose sanctions for infractions of that ban. On this issue the Supreme Court has twice ruled in the negative. See Peel v. Attorney Reg. & Disciplinary Comm'n, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990) and Ibanez v. Fla. Dept. of Bus. & Pro. Regulation, 512 U.S. 136, 114 S. Ct. 2084, 129 L. Ed. 2d 118 (1994). In both cases, the Supreme Court held that a state could not restrict truthful letterhead-advertising of bona fide professional certifications, setting aside sanctions that a lower court upheld.
The Supreme Court recognized that the advertising of professional certifications is "a form of commercial speech entitled to protection by the First Amendment." Peel, 496 U.S. at 100, 110 S. Ct. at 2287, Ibanez, 114 S. Ct. at 2088. The court, however, noted that the First Amendment right to advertise is not absolute and set forth those circumstances under which such advertising may be restricted. Peel, 496 U.S. at 100, 110 S. Ct. at 2287; Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 64-65, 103 S. Ct. 2875, 2879, 77 L. Ed. 2d 469 (1983).
A state may restrict the advertising of professional credentials if either aspect of the following two-prong test is satisfied: "(1) whether the statement was misleading and, (2) even if it was not, whether the potentially misleading character of such statements creates a state interest sufficiently substantial to justify a categorical ban on their use." Peel, 463 U.S. at 100, 110 S. Ct. at 2287. A state may also restrict the advertising of professional certifications where those certifications are issued without inquiry into the fitness of the applicant or "indiscriminately for a price." Peel, 463 U.S. at 102, 110 S. Ct. at 2288. In this regard, the state bears "the heavy burden of justifying a categorical prohibition against the dissemination of accurate factual information." Peel, 463 U.S. at 109, 110 S. Ct. at 2292.
The burden placed upon a state to justify restrictions in the advertising of professional certifications emanates from the constitutional "presumption favoring disclosure over concealment." Peel, 463 U.S. at 109, 110 S. Ct. at 2292. The state's "burden is not slight; the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the harmful from the misleading, and the harmless from the harmful." Ibanez, 114 S. Ct. at 2089 (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 640, 105 S. Ct. 2265, 2279, 85 L. Ed. 2d 652 (1985)).
In the instant case, Dr. Tsatsos' statement on his letterhead that he is a "Board Certified Foot and Ankle Surgeon A.P.S.M.B." is factually true and verifiable. This was the situation in Peel, and, as did the court in Peel, we likewise find and conclude that "(t)here is no contention that any potential client or person was actually mislead or deceived by [Dr. Tsatsos'] stationery" Peel, 496 U.S. at 103, 104, 110 S. Ct. at 2288.
There is no dispute in this case that the statement in question is not actually misleading.
Defendant accordingly is seen to have totally failed to satisfy her burden on the issue of whether the subject advertising is actually misleading. Likewise we reach the same conclusion, for the same reasons, on the issue of whether the subject advertising is potentially misleading.
(Supra, at 5).
The state of the record in this case is such that the question as to whether the subject advertising is actually or potentially misleading is found to be purposely conceded by defendant in favor of plaintiffs.
Thus, since defendant is seen as failing totally to carry her burden under the "Peel " two-prong test to sustain the state's restrictions placed upon commercial speech, judgment must be rendered for plaintiffs once they establish that the certification was issued by a bona fide Board.
C. Plaintiff Board's Certifications Are Bona Fide
Again, the record in this case established a complete absence of any triable fact tending to show that plaintiff Board "made no inquiry into... fitness or had issued certificates indiscriminately for a price." These are some of the more essential matters which must be resolved in defendant's favor for her restriction upon commercial speech to be upheld. Ibanez, 114 S. Ct. at 2091 (citing Peel, 463 U.S. at 102, 110 S. Ct. at 2288). The state of the record herein is such that this court finds that plaintiff Board, which itself was subject to significant, recognized, federally-sponsored professional oversight, (supra, at n.4) meticulously selected and tested its candidates and made inquiries into the fitness of each of its applicants before certifying those applicants. Additionally, there is no evidence whatsoever that the Board issued and certifications indiscriminately for a price. (Supra, at 6-7; Pls.' St. Fact, P 11-12, 21-29) We find the record establishes that plaintiff Board's examination and certification process and later awarded certifications were bona fide. (Id.)
We conclude that judgment must be entered in favor of plaintiffs, as a matter of law. The state of the record in this case does not offer even a hint that Dr. Tsatsos' own certification by A.P.M.S.B., nor the A.P.M.S.B. certification process itself is deceptive, false, inherently, actually or potentially misleading, or subject to abuse.
We find ample evidence to hold that the certification by A.P.M.S.B. is unequivocally bona fide, and its incorporation into Dr. Tsatsos stationery, as a form of advertising, is truthful; we further find the advertising of the A.P.M.S.B. certification serves the public interest. (Pls.' St. Fact, P 15). As such the A.P.M.S.B. certification can not be categorically barred or restricted by the state, as is the current situation effected by defendant's actions. Advertising of the A.P.M.S.B. certification in the State of Illinois is deserving of the protection of the First Amendment. Ibanez, 114 S. Ct. at 2088; Peel, 463 U.S. at 109-110, 110 S. Ct. at 2292; Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638, 105 S. Ct. 2265, 2275, 85 L. Ed. 2d 652 (1985); see also In re R.M.J., 455 U.S. 191, 203, 102 S. Ct. 929, 937, 71 L. Ed. 2d 64 (1982)("Truthful advertising related to lawful activities is entitled to the protection of the First Amendment.")
The facts stated on Plaintiff's letterhead, like those in Peel, are true and verifiable. Peel, 496 U.S. at 100, 110 S. Ct. at 2288. There is no contention in this case that any potential patient was actually misled or deceived by Plaintiff's letterhead; indeed just the opposite seems to be conceded in this case. (Pls.' St. Facts, PP 13-15). A podiatrist's certification by A.P.M.S.B., like the lawyer's certification in Peel, is a verifiable fact, as are the predicate requirements for that certification. 110 S. Ct. at 2288. Plaintiff's certification is not an unverifiable opinion of the ultimate quality of a podiatrist's work or a promise of success, cf. In re R.M.J., 455 U.S. at 201, n. 14, 102 S. Ct. at 936, n. 14, but is a fact from which, realistically, a potential patient may or may not draw an inference concerning a podiatrist's skill level. Peel, 496 U.S. at 101, 110 S. Ct. at 2288.
Invariably, some potential patients will infer from Plaintiff's letterhead that his qualifications are superior to those podiatrists who are certified only by CPME. But the information is not in any way misleading, and in fact, originates from a bona fide certifying Board -- the A.P.M.S.B. -- which meticulously selects and tests its applicants. (Pls.' St. Facts, P 27). Accordingly, we find the state violated the First Amendment Rights of the plaintiffs in sanctioning Dr. Tsatsos for use of the subject advertising in his letterhead, and as such judgment must be rendered in plaintiffs' favor.
This case involves nothing more than a bona fide podiatric practitioner who has earned a bona fide board-certification from a bona fide podiatric medical certifying board being precluded by the state from informing the public of his achievement, even though defendant has conceded that this information "serves the public interest" and is not misleading in any way. The First Amendment protects the dissemination of information which "serves the public interest." such as Dr. Tsatsos' advertising of his A.P.M.S.B. certification.
For all the foregoing reasons plaintiffs' motion for summary judgment is GRANTED. The court finds that part (c) of the Advertising section of the Illinois Podiatric Medical Practice Act of 1987, (225 ILCS § 100/21(c)) is unconstitutional as applied by defendant to plaintiffs and other podiatrists similarly situated. The sanctions imposed against plaintiff Dr. Tsatsos by defendant are likewise found to be unconstitutional and unenforceable. Additionally, pursuant to 42 U.S.C. § 1988, reasonable attorney fees and costs are awarded to plaintiffs from defendant.
EDWARD A. BOBRICK
U.S. Magistrate Judge
DATE: October 7, 1996
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that plaintiffs' motion for summary judgment is granted. The court finds that part (c) of the Advertising section of the Illinois Podiatric Medical Practice Act of 1987, (225 ILCS § 100/21(c)) is unconstitutional as applied by defendant to plaintiffs and other podiatrists similarly situated. The sanctions imposed against plaintiff Dr. Tsatsos by defendant are likewise found to be unconstitutional and unenforceable. Additionally, pursuant to 42 U.S.C. § 1988, reasonable attorney fees and costs are awarded to plaintiffs from defendant.
October 7, 1996