                                                                 F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                 DEC 22 2004
                               TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                        Clerk

STUART L. STEIN and STUART L.
STEIN, P.A., a professional law
corporation d/b/a The Stein Law Firm,

            Plaintiffs-Appellants,               No. 03-2169
      v.                                       (D. New Mexico)
LEGAL ADVERTISING                       (D.C. No. CIV 03-631 LFG/RHS)
COMMITTEE OF THE
DISCIPLINARY BOARD, STAN
HARRIS, Chair, C. BRIAN
CHARLTON, CHAD D. COOPER,
JOHN P. COSENTINO, MICHAEL P.
FRICKE, KYLE H. MOBERLY,
BARBARA MONTOYA, TROY W.
PRICHARD, and GREGORY P.
SHERMAN, all members of the LAC;
DISCIPLINARY BOARD OF THE
SUPREME COURT OF NEW
MEXICO, MICHAEL H. HOSES,
Chair, JAMES F. BECKLEY, SASHA
SIEMEL, RICHARD J. PARMLEY,
JR., VICTOR A. TITUS, MIKE G.
PAULOWSKY, DOROTHY S.
PETERS, LARRY RAMIREZ,
ROGER COPPLE and ROBERT S.
MURRAY, all members of the
Disciplinary Board, and HON. PETRA
MAES, HON. PAMELA B.
MINZNER, HON. PATRICIO M.
SERNA, HON. RICHARD C.
BOSSON, and HON. EDWARD L.
CHAVEZ, the Chief Justice and
Justices of the Supreme Court of New
Mexico,
               Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before BRISCOE , McCONNELL , and HARTZ , Circuit Judges.


       Stuart L. Stein appeals the district court’s decision to abstain under the

Younger doctrine in his case against the entities and individuals responsible for

disciplining New Mexico attorneys (“Defendants”). He argues that the state

proceedings do not satisfy the conditions for a   Younger abstention because they

are no longer in progress and will not provide an adequate forum for his federal

claims. Because we find that the state proceedings are still in progress and will

provide an adequate forum to hear Mr. Stein’s federal claims, we AFFIRM the

judgment of the district court and DENY all of Mr. Stein’s pending motions.

                                I. Factual Background.

       Mr. Stein is a New Mexico attorney specializing in estate planning. He

regularly presents seminars on creating living trusts and also advises clients on

how to structure their assets in order to qualify for Medicaid. He solicits



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.


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potential clients through print advertising. Until recently, New Mexico attorneys

wishing to advertise had to submit potential advertisements to the Legal

Advertising Committee (“LAC”) for approval prior to public dissemination.     1
                                                                                  If

the LAC found that a proposed advertisement violated New Mexico legal

advertising regulations it would issue a report to the Disciplinary Board of the

Supreme Court of the State of New Mexico (“Disciplinary Board”) if the attorney

disseminated the advertisement without correction. After receiving a report from

the LAC, the Disciplinary Board would have the option to file formal charges

against the attorney. If the Disciplinary Board filed formal charges, the

Disciplinary Board would also appoint a hearing officer to preside over the

proceedings. Following an adverse decision by the hearing officer an attorney

could appeal to the full Disciplinary Board and, if unsuccessful, to the New

Mexico Supreme Court.

      On June 28, 2002, Sally Scott-Mullins, Deputy Chief Disciplinary Counsel

of the Disciplinary Board, sent a letter to Mr. Stein notifying him that the LAC

forwarded complaints to her regarding legal advertisements he had submitted.

The letter suggested changes and deletions to the advertisements. The letter also

informed Mr. Stein that if he made the changes he would receive an informal




      After the district court issued its opinion in this case the New Mexico
      1

Supreme Court dissolved the LAC. See NMRA, Rules 16-706 and 16-707 (2004).

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admonition, and if he did not he would face formal disciplinary charges.   The

letter required a response by July 15, 2002. Mr. Stein requested, and received, an

extension until August 5, 2002.

A. Stein I.

      Instead of responding to the letter, Mr. Stein filed a federal lawsuit on July

29, 2002 against the LAC, the Disciplinary Board, and the New Mexico Supreme

Court. See Stein v. Legal Advertising Committee of Disciplinary Bd., 272

F.Supp.2d 1260 (D.N.M. 2003) (hereinafter Stein I). He sought a preliminary

injunction prohibiting the Disciplinary Board from acting against him. He alleged

violations of the First Amendment, the Due Process Clause, and the Equal

Protection Clause, pursuant to 42 U.S.C. § 1983. In response, the Defendants

filed a motion to dismiss based on abstention, exhaustion, and/or immunity,

motions for partial summary judgment on each claim asserted, and a response to

the preliminary injunction motion.

      On October 22, 2002, Ms. Scott-Mullins filed formal charges against Mr.

Stein. The Disciplinary Board convened a hearing committee to consider the

evidence and make findings of fact regarding the charges (hereinafter, Stein

Disciplinary Proceeding). On February 6, 2003, the district court granted the

Defendants’ motion to dismiss on Younger abstention grounds, concluding that




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the Stein Disciplinary Proceeding was in progress and that Mr. Stein would have

an opportunity to raise any constitutional claims during that proceeding.

B. Stein II.

      On March 17, 2003, the hearing committee issued an order noting that any

arguments Mr. Stein wished to raise about the constitutionality of the New

Mexico Advertising Rules could be raised by a motion to dismiss, as an

affirmative defense in his answer, or both. On April 9, 2003, the LAC denied two

new advertisements submitted by Mr. Stein. The LAC also advised Mr. Stein that

if he did not terminate use of these advertisements he might face professional

discipline.

      In response to denial of the new advertisements, Mr. Stein filed another

federal lawsuit (hereinafter Stein II). The complaint in Stein II alleged violations

similar to those alleged in Stein I. On April 21, 2003, the Defendants filed a

motion to dismiss. On April 22, 2003 the district court issued an order dismissing

the case without prejudice, again on Younger abstention grounds.

C. Stein III.

      After Stein II there were two notable developments. First, Mr. Stein filed a

counterclaim and a third party claim in the Stein Disciplinary Proceeding. Ms.

Scott-Mullins filed a motion to strike these claims because the hearing committee

had already advised Mr. Stein to file any constitutional claims in a motion to


                                         -5-
dismiss or in his answer. Second, Mr. Stein filed a petition before the

Disciplinary Board seeking declaratory relief and appealing the LAC’s denial of

the Stein II advertisements. In response, the Disciplinary Board issued an order

staying the Stein Disciplinary Proceeding. The Disciplinary Board issued the

stay because the constitutional issues raised by the petition for declaratory relief

and the appeal of the Stein II advertisements encompassed the same constitutional

issues implicated in the Stein Disciplinary Proceeding.

       On May 27, 2003, Mr. Stein filed a third federal lawsuit against the

Defendants (hereinafter Stein III). The complaint was largely similar to Stein I &

II, but alleged that the two developments since Stein II eliminated the abstention

rationale. The Defendants filed a motion to dismiss and/or for summary

judgment. On June 17, 2003, the district court dismissed the case without

prejudice on Younger abstention grounds. Mr. Stein filed a timely appeal.

                                      II. Analysis.

       A district court’s abstention under    Younger is subject to de novo review.

Amanatullah v. Colorado Board of Medical Examiners         , 187 F.3d 1160, 1163

(10th Cir. 1999).   A federal court must abstain under Younger if (1) there is a

state, civil, criminal or administrative proceeding that is in progress and is

judicial in nature; (2) the state proceeding provides an adequate forum to hear a

litigant’s federal claims; and (3) the state proceedings involve important state


                                             -6-
interests. Id. at 1163. In this appeal, Mr. Stein argues that the state disciplinary

proceedings are no longer in progress and that the state is not providing an

adequate forum for him to present his constitutional challenge to New Mexico’s

advertising regulations.

A. The in progress requirement.

       Mr. Stein argues that the state proceedings are no longer in progress

because of the stay of the   Stein Disciplinary Proceeding         and the uncertain status

of his appeal of the rejection of the advertisements at issue in        Stein II . In order to

show that state proceedings are no longer in progress a litigant must show

exhaustion of his state appellate remedies.         Morrow v. Winslow , 94 F.3d 1386,

1392 (10th Cir. 1996). We take judicial notice of an order issued by the New

Mexico Supreme Court on October 26, 2004, stating that the Disciplinary Board

has jurisdiction to hear Mr. Stein’s petition for declaratory judgment. This order

demonstrates that Mr. Stein has yet to exhaust his state appellate remedies, and

consequently his arguments are, at best, premature. He cites no authority for his

contention that temporarily staying one element in a group of related state

proceedings provides an exception to the exhaustion rule. The exhaustion rule is

a clear and sensible approach to     Younger analysis, and we see no reason to

compromise it. Accordingly, we conclude that the proceedings are still in

progress for Younger purposes.


                                              -7-
B. Adequate forum.

       In the context of state administrative proceedings, there is an adequate

forum for Younger purposes if a litigant may raise federal claims during state

court review of the proceedings.    Amanatullah , 187 F.3d at 1164 (quoting    Ohio

Civil Rights Comm’n v. Dayton Christian Schools, Inc.    , 477 U.S. 619, 629

(1986)) . Mr. Stein does not argue that New Mexico law precludes him from

asserting his federal claims during state court review of the Disciplinary Board’s

actions. Instead he offers two arguments that are legally irrelevant and

demonstrably inaccurate. First, he argues that there is some doubt whether the

Disciplinary Board will entertain his petition for a declaratory judgment on his

constitutional claims. Second, he contends that there are no procedures to govern

a request for a declaratory judgment before the Disciplinary Board. The October

26, 2004 Order of the New Mexico Supreme Court dispenses with both of these

claims. The Order provides that the Disciplinary Board has jurisdiction over the

petition for a declaratory judgment and should use the procedures outlined in

NMRA, Rule 17-314(A) to govern these proceedings. Thus, Mr. Stein will get a

chance to present his federal claims in a structured state administrative

proceeding—a setting that is adequate for     Younger purposes.




                                            -8-
                                   III. Conclusion.

      The State of New Mexico is attempting to provide Mr. Stein with a forum

to present his federal challenges to New Mexico’s attorney advertising rules.

Despite being met with Mr. Stein’s increasingly inventive motions at every turn,

the proceedings continue to meet the conditions that require a     Younger abstention.

Accordingly, we AFFIRM the ruling of the district court and DENY all of Mr.

Stein’s pending motions.

                                                  Entered for the Court,

                                                  Michael W. McConnell
                                                  Circuit Judge




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