Case: 45CH1:17-cv-00902 Document #: 10 Filed: 07/09/2018 Page 1 of 3 IN THE CHANCERY COURT OF MADISON COUNTY STATE OF MISSISSIPPI MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS AND SURVEYORS PLAINTIFF v. Cause No. 2017-902W BRENT MELTON AND VIZALINE, LLC DEFENDANTS MOTION FOR LEAVE TO FILE A THIRD-PARTY COMPLAINT Defendants Brent Melton and Vizaline, LLC, seek leave to file a third-party complaint against the members of the Mississippi Board of Licensure for Professional Engineers and Surveyors in their official capacities and state as follows: 1. Rule 14 permits Defendants to file a third-party complaint upon a showing of “good cause.” Defendants’ proposed third-party complaint is attached hereto as Exhibit A. 2. Defendants were sued by the Board and have asserted in their answer and affirmative defenses that the Board’s suit violates Defendants’ right to free speech protected by the First Amendment to the U.S. Constitution, as made applicable to the states through the Fourteenth Amendment to the U.S. Constitution. Defendants’ proposed complaint is brought pursuant to 42 U.S.C. § 1983, which creates a special cause of action that can be brought in federal or state court to remedy incursions on federal constitutional rights. See Felder v. Casey,  487 U.S. 131, 138­39 (1988). Defendants’ proposed complaint seeks declaratory and injunctive relief against the Board to halt the violation of Defendants’ First Amendment rights asserted in Defendants’ answer and affirmative defenses.   3. Although Defendants’ complaint is in the nature of a counterclaim, they are not permitted to sue the Board and are instead required to bring suit against the members of the {JX328505.1}  1   Case: 45CH1:17-cv-00902 Document #: 10 Filed: 07/09/2018 Page 2 of 3 Board in their official capacities. A suit pursuant to 42 U.S.C. § 1983 must be asserted against a “person.” 42 U.S.C. § 1983; see also ., 436 U.S. 658 (1978) Monell v. Dep’t of Soc. Servs (discussing 1983 personhood). Neither a state nor its agencies are “persons” for purposes of § 1983. Will v. Mich. Dep’t of State Police , 491 U.S. 58, 70 (1989). But “official-capacity actions for prospective relief are not treated as actions against the State” and may be brought against state officers. Id. at 71 n.10; Kentucky v. Graham , 473 U.S. 159, 167, n.14; Ex parte Young , 209 U.S. 123, 159-60 (1908). Official capacity suits are otherwise treated as “‘only another way of pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham , 473 U.S. at 165 (quoting Monell, 436 U.S. at 690 n.55). 4. Defendants have good cause to file their proposed complaint. Defendants’ proposed complaint raises the same First Amendment issue as Defendants’ answer and affirmative defenses to the Board’s complaint. While Defendants may not sue the Board itself, Defendants’ proposed complaint names the members of the Board in their official capacities as third-party defendants and seeks prospective relief to halt the Board’s violation of Defendants’ First Amendment rights; Defendants’ complaint is therefore permitted under § 1983. Because Defendants’ suit is against the members of the Board in their official capacity, it is otherwise treated the same as a suit against the Board. Accordingly, Defendants’ proposed complaint is, essentially, a counterclaim against the Board. Because this is the way that Defendants must raise their counterclaim, Defendants have shown good cause for the filing of this third-party complaint. WHEREFORE, PREMISES CONSIDERED, Defendants move for an Order allowing Defendants to file the Third-Party Complaint attached as Exhibit A. {JX328505.1}  2   Case: 45CH1:17-cv-00902 Document #: 10 Filed: 07/09/2018 Page 3 of 3 Respectfully submitted this the 9th day of July, 2018. /s/ Adam Stone Adam Stone, MS Bar No. 10412 Jackie R. Bost, II, MS Bar No. 102909 Jones Walker LLP 190 East Capitol Street, Suite 800 Jackson, MS 39201 T: 601.949.4900 F: 601.949.4804 astone@joneswalker.com jbost@joneswalker.com Counsel for Defendants Brent Melton and Vizaline, LLC Paul V. Avelar (AZ Bar No. 023078)* Institute for Justice 698 South Mill Avenue, Suite 301 Tempe, AZ 85281 T: 480.557.8300 F: 450.557.8305 Email: pavelar@ij.org Johanna Talcott (FL Bar No. 1008094)* Institute for Justice 2 South Biscayne Boulevard, Suite 3180 Miami, FL 33131-1803 T: 305.721.1600 F: 305.721.1601 Email: jtalcott@ij.org * Pro hac vice motions will be filed {JX328505.1}  3 Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 1 of 16 IN THE CHANCERY COURT OF MADISON COUNTY STATE OF MISSISSIPPI BRENT MELTON AND VIZALINE, LLC DEFENDANTS/THIRD-PARTYPLAINTIFFS v. Cause No. 2017-902W SARAH TRACY, PE BILL MITCHELL, PE/PS JOSEPH FRANKLIN LAUDERDALE, PE/PS JOSEPH E. LAUDERDALE, PE/PS STEVEN A. TWEDT, PE DR. DENNIS D. TRUAX, PE RICHARD THOMAS TOLBERT, PS JOE W. BYRD, PS AND SHANNON D. TIDWELL, PS IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE MISSISSIPPI BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS AND SURVEYORS THIRD-PARTY-DEFENDANTS THIRD-PARTY COMPLAINT Defendants/Third-Party-Plaintiffs Brent Melton and Vizaline, LLC file this Third-Party Complaint and state as follows: INTRODUCTION 1. The Mississippi Board of Licensure for Professional Engineers and Surveyors—a group of state-licensed engineers and surveyors who are selected from lists approved by private trade associations—seeks to put an end to a business that the board members view as a potential competitor. Vizaline, LLC, provides a useful service to sophisticated consumers—banks—that does not clearly fall under the statutes on which the Board relies. {JX328514.1} 1 EXHIBIT A Case: 45CH1:17-cv-00902 2. Document #: 10-1 Filed: 07/09/2018 Page 2 of 16 Nevertheless, the Board wishes to use these vague, broad statutes to shut down Vizaline. Not only is the Board’s action not supported by Mississippi law, the Board’s action violates Vizaline’s First Amendment-protected speech. 3. Vizaline takes preexisting information and uses it to generate more information. The creation and dissemination of information—including as part of a business—is speech plainly within the protection of the First Amendment. 4. If the Board is permitted to continue its campaign against Vizaline, it will silence Vizaline’s constitutionally protected speech, deprive Vizaline’s customers of valuable information, and potentially bankrupt this Mississippi-founded and Mississippi-based tech startup business. JURISDICTION 5. This Court has jurisdiction over this third-party complaint pursuant to Rules 13, 14, and 20 of the Mississippi Rules of Civil Procedure; Article 6, § 159 of the Mississippi Constitution; and Mississippi Code § 9-5-81. 6. Venue is proper in the Court pursuant to Mississippi Code § 11-11-3. 7. Defendants/Third-Party-Plaintiffs seek declaratory and injunctive relief pursuant to the Fourteenth Amendment to the U.S. Constitution; the Civil Rights Act of 1871, 42 U.S.C. § 1983; Rule 57 of the Mississippi Rules of Civil Procedure; Article 6, § 159 of the Mississippi Constitution, and Mississippi Code § 9-5-81. PARTIES 8. Defendant/Third-Party-Plaintiff Brent Melton is an adult resident citizen of the State of Mississippi. {JX328514.1} 2 EXHIBIT A Case: 45CH1:17-cv-00902 9. Document #: 10-1 Filed: 07/09/2018 Page 3 of 16 Defendant/Third-Party-Plaintiff Vizaline, LLC, is a Mississippi limited liability company. It is co-owned by Defendant/Third-Party-Plaintiff Brent Melton and Scott Dow. 10. Plaintiff Mississippi Board of Licensure for Professional Engineers and Surveyors is a subdivision of the State of Mississippi, created by the Legislature as set forth in Mississippi Code §§ 73-13-1, et seq . 11. The Mississippi Board of Licensure for Professional Engineers and Surveyors has been granted legal authority to enforce Title 75, Chapter 13 of the Mississippi Code, which restricts the “practice of engineering” and the practice of “surveying” to those individuals who have a license. 12. By law, the Mississippi Board of Licensure for Professional Engineers and Surveyors consists solely of licensed professional engineers and licensed professional surveyors. Mississippi Code §§ 73-13-5, 73-13-7. 13. By law, appointees to the Mississippi Board of Licensure for Professional Engineers and Surveyors must have been recommended either by the Mississippi Engineering Society or the Mississippi Association of Professional Surveyors. Miss. Code Ann. § 73-13-5. 14. The current members of the Mississippi Board of Licensure for Professional Engineers and Surveyors are Third-Party-Defendants Sarah Tracy, PE; Bill Mitchell, PE/PS; Joseph Franklin Lauderdale, PE/PS; Joseph E. Lauderdale, PE/PS; Steven A. Twedt, PE; Dr. Dennis D. Truax, PE; Richard Thomas Tolbert, PS; Joe W. Byrd, PS; and Shannon D. Tidwell, PS. 15. Third-Party-Defendants Sarah Tracy, PE; Bill Mitchell, PE/PS; Joseph Franklin Lauderdale, PE/PS; Joseph E. Lauderdale, PE/PS; Steven A. Twedt, PE; Dr. Dennis D. Truax, PE; Richard Thomas Tolbert, PS; Joe W. Byrd, PS; and Shannon D. Tidwell, PS are sued only in {JX328514.1} 3 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 4 of 16 their official capacities as members of the Mississippi Board of Licensure for Professional Engineers and Surveyors. 16. The Mississippi Board of Licensure for Professional Engineers and Surveyors and the members thereof are collectively referred to herein as “the Board.” FACTS Vizaline’s Business 17. Vizaline, LLC is a small business based out of Madison, Mississippi, that provides innovative geospatial imaging services to the banking industry. 18. Brent Melton, originally from Yazoo City, Mississippi, worked in the banking industry for 42 years, specifically, in small community banks in Mississippi and Louisiana. 19. When banks take on a piece of property as collateral for a loan, loan-review policies require them to do surveys of properties for bigger loans (typically for loans greater than $500,000, but each bank has its own policies). But for smaller loans, conducting property surveys—which are expensive—is not required or financially feasible. 20. During his career, Brent recognized the need for small banks to have a low cost means to interpret and visualize the legal descriptions of the many smaller, less expensive properties they own or take on as loan collateral. Being better able to understand what property banks have in their portfolios allows banks to reduce their risks in real-estate loans and better serve their customers. 21. Brent realized that new digital geospatial and visualization tools provide a way to take legal property descriptions—called metes and bounds descriptions—and convert those descriptions into easier to understand information: drawings and pictures. {JX328514.1} 4 EXHIBIT A Case: 45CH1:17-cv-00902 22. Document #: 10-1 Filed: 07/09/2018 Page 5 of 16 Digital geospatial and visualization tools—especially when paired with modern GPS technology—are used in a variety of contexts and by a variety of companies. Geovisualization is used in wildfire fighting, forestry, archaeology, urban planning, and other contexts. Many— indeed most—county assessors provide Geographic Information System (GIS) maps providing detailed information about property to the public. Moreover, Google Maps, Zillow, Uber, and any number of programs and apps provide maps with various topographical and spatial information, often in real time. 23. When Brent retired, he decided to bring his idea to fruition. He took his concept to be evaluated by a group of key technology entrepreneurs at a meeting at the Stennis Space Center. The President of the Mississippi Enterprise for Technology led this evaluation. 24. At that meeting, Brent met Scott Dow, an expert in geospatial and remote sensing. 25. Scott has a substantial background in business, technology, and entrepreneurship. He started his own computer-networking company while an undergraduate at Mississippi State University. He spent years managing IT networks for a variety of customers. 26. In 1996, Scott co-founded a company that uses state-of-the-art airborne remote sensing and data-analysis technologies to develop topographic maps and 3D models. That company provides its service to customers in various industries, including levee management, gas and oil pipeline operation, and utility services like electric, water, and wastewater. Scott’s expertise in remote sensing and geospatial modeling led him to work on projects with the military and the Defense Advanced Research Projects Agency (DARPA). 27. Recognizing the potential that came from their respective experiences, Brent and Scott decided to go into business together. They started Vizaline, LLC. {JX328514.1} 5 EXHIBIT A Case: 45CH1:17-cv-00902 28. Document #: 10-1 Filed: 07/09/2018 Page 6 of 16 Vizaline has a public website generally discussing its products, but exclusively markets and sells its services to banks. 29. Vizaline’s only customers are, and always have been, banks. Vizaline does not and has never sold its reports to the general public. It does not and has never offered to sell its reports to the general public. 30. Indeed, Vizaline’s customers are exclusively small, community banks, for which less risk at less cost is of paramount concern. 31. Banks frequently obtain interests in real property, most often as collateral for mortgages and other loans. 32. When banks obtain property interests, they need to know what the property interests actually are—where a given property is relative to other local features, whether it is as big as claimed, etc. 33. Property—especially rural property—is typically described in “metes and bounds.” 34. Metes and bounds are used as legal descriptions for property in deeds, easements, and other legal documents. 35. Metes and bounds descriptions are established by surveyors. 36. Vizaline does not establish or purport to establish metes and bounds descriptions of property, nor does Vizaline locate control monuments or measure items that are not defined within the legal description. 37. Rather, Vizaline takes existing metes and bounds descriptions—which are difficult to visualize—and creates a simple map that is easy to understand. 38. When banks have acquired, or are considering acquiring, an interest in real property, they have access to metes and bounds descriptions through registered deeds or other legal documents. {JX328514.1} 6 EXHIBIT A Case: 45CH1:17-cv-00902 39. Document #: 10-1 Filed: 07/09/2018 Page 7 of 16 Loan-review policies—for when banks take on a piece of property as collateral for a loan—require banks to do formal surveying of properties for larger loan amounts (typically more than $500,000) to confirm that the metes and bounds descriptions are accurate. 40. Loan review policies do not require—nor is it financially worthwhile for—banks to survey the many small and less-expensive properties they have a property interest in through smaller loans. 41. Vizaline meets the needs of banks—especially small community banks—to have roughly accurate illustrative drawings of their small and less-expensive properties to better understand their property portfolios, but at a fraction of the cost of surveying. 42. Banks hire Vizaline to provide reports on their small and less-expensive properties. 43. Banks provide the preexisting legal descriptions of their property from deeds or other legal descriptions to Vizaline. 44. Vizaline takes those legal property descriptions and enters that information into its computer program to generate simple graphical renderings of the descriptions. 45. Vizaline then overlays the graphics onto satellite images (like those found on Google Earth) to visualize the property’s boundaries and relative location. 46. Vizaline flags potential metes and bounds discrepancies illustrated by the drawing—for example, if the metes and bounds descriptions do not close (describe a completed shape) or if they describe the wrong property size—which Vizaline recommends the bank have resolved by attorneys and licensed surveyors who perform a traditional, formal survey. 47. Vizaline provides the new information it generates to its bank customers in a report called “Viza-Plat.” {JX328514.1} 7 EXHIBIT A Case: 45CH1:17-cv-00902 48. Document #: 10-1 Filed: 07/09/2018 Page 8 of 16 The Viza-Plat report is provided to Vizaline’s bank customers to help the bank better understand its assets, protect its portfolio, and protect its customers. 49. Vizaline thus describes Viza-Plat as “Simply Put – A New Way to Visualize Your Legal Descriptions.” 50. Banks are sophisticated consumers of Vizaline’s reports. 51. As compared to traditional surveys, Vizaline charges banks very little to take the preexisting metes and bounds information from deeds or other legal descriptions, input that data into their program, generate simple graphical renderings of the data, and overlay the graphics onto satellite images. 52. Vizaline does not market its services as a survey or as a substitute for surveys. 53. Vizaline alerts its customers that “Vizaline’s product Viza-plat is a polygon(s) of a particular property of interest, constructed from a property description and placed on imagery for visualization and general reference purposes only.” 54. Vizaline further alerts its customers that “It is not a Legal Survey, nor is it intended to be or replace a Legal Survey.” (emphasis in original). 55. Although Vizaline stands accused of the unlicensed “practice of surveying,” Vizaline does not survey property. 56. Vizaline does not locate, relocate, establish, reestablish, lay out or retrace any property boundary or easement. 57. Vizaline does not make any survey for the subdivision of any tract of land, including rights-or-way or easements. 58. Vizaline does not determine the position for any survey monument or reference point. 59. Vizaline does not set, reset, or replace any survey monument or reference point. {JX328514.1} 8 EXHIBIT A Case: 45CH1:17-cv-00902 60. Document #: 10-1 Filed: 07/09/2018 Page 9 of 16 Vizaline does provide specialized advice—in the form of a map—to their bank customers to help the banks understand their property portfolios. 61. Vizaline began selling Viza-Plat in April 2014. 62. Since its founding, Vizaline has grown to six employees in Mississippi. It operates in five southern states and provides its services to over thirty banks, most of which are located in Mississippi. Many banks in other states have expressed interest in using Vizaline’s services. The Board’s Attack on Vizaline 63. Vizaline’s business model caught the attention of the Mississippi Board of Licensure for Professional Engineers and Surveyors. 64. In a May 2015 meeting, the Board called on Vizaline to revise its website, not market to the general public, and clarify that Vizaline’s work product is not intended to be used as a survey. 65. Vizaline complied with the Board’s demand. 66. Nevertheless, in December 2015, the Board determined that Vizaline was engaged in the practice of surveying. 67. The Mississippi Legislature defines “surveying” at Mississippi Code § 73-13-71 as follows: The practice of “surveying,” within the meaning and intent of Sections 73-13-71 through 73-13-105, shall mean providing professional services such as consultation, investigation, testimony evaluation, expert technical testimony, planning, mapping, assembling and interpreting reliable scientific measurement and information relative to the location, size, shape or physical features of the earth, improvements on the earth, the space above the earth, or any part of the earth, utilization and development of these facts and interpretation into an orderly survey map, plan or report and in particular, the retracement of or the creating of land boundaries and descriptions of real property. The practice of surveying includes, but is not limited to, any one or more of the following: {JX328514.1} 9 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 10 of 16 (a) Locating, relocating, establishing, reestablishing, laying out or retracing any property boundary or easement. (b) Making any survey for the subdivision of any tract of land, including rights-of-way and easements. (c) Determining, by the use of principles of surveying, the position for any survey monument or reference point; or setting, resetting or replacing any such monument or reference point, commonly known as control surveys. (d) Creating, preparing or modifying electronic or computerized data, including land information systems and geographic information systems, relative to the performance of the activities in the above-described paragraphs (a) through (c). 68. The Board has interpreted the definition of surveying in Mississippi Code § 73-13-71 as encompassing Vizaline’s business. 69. The Mississippi Legislature provides that the unlicensed practice of “surveying” is both a civil and criminal offense at Mississippi Code § 73-13-95 as follows: Any person who shall practice, or offer to practice, surveying in this state without being licensed in accordance with the provisions of Sections 73-13-71 through 73-13-105, or any person presenting or attempting to use as his own the certificate of licensure or the seal of another, or any person who shall give any false or forged evidence of any kind to the board or to any member thereof in obtaining a certificate of licensure, or any person who shall falsely impersonate any other licensee of like or different name, or any person who shall knowingly attempt to use a license which has been expired for more than twelve (12) consecutive months or revoked certificate of licensure, or any person who shall violate any of the provisions of Sections 73-13-71 through 73-13-105, shall be guilty of a misdemeanor, and shall, upon conviction of a first offense of violating this section, be sentenced to pay a fine of not less than One Hundred Dollars ($ 100.00), nor more than Five Thousand Dollars ($ 5,000.00), and in addition thereto shall make restitution to the board for investigative expenses and court costs, or suffer imprisonment for a period of not exceeding three (3) months, or both. Upon any second and subsequent conviction of violating this section, such person shall be sentenced to pay a fine of not less than Five Thousand Dollars ($ 5,000.00), nor more than Ten Thousand Dollars ($ 10,000.00), or by imprisonment in the county jail for not more than one (1) year, or both. The criminal penalties provided for in this section may be assessed in addition to those civil penalties provided for in Section 73-13-37. Unless licensed in accordance with the provisions of Sections 73-13-71 through 73-13105, no person shall: {JX328514.1} 10 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 11 of 16 (a) Directly or indirectly employ, use, cause to be used or make use of any of the following terms or any combination, variations or abbreviations thereof as a professional, business or commercial identification, title, name, representation, claim, asset or means of advantage or benefit: “surveyor,” “professional surveyor,” “licensed surveyor,” “registered surveyor,” “registered professional surveyor,” “licensed professional surveyor,” “surveyed,” “surveying,” “professional land surveyor,” or “licensed professional land surveyor”; (b) Directly or indirectly employ, use, cause to be used or make use of any letter, abbreviation, word, symbol, slogan, sign or any combinations or variations thereof, which in any manner whatsoever tends or is likely to create any impression with the public or any member thereof that any person is qualified or authorized to practice surveying; or (c) Receive any fee or compensation or the promise of any fee or compensation for performing, offering or attempting to perform any service, work, act or thing which is any part of the practice of surveying. Any person, firm, partnership, association or corporation which shall do, offer or attempt to do any one or more of the acts or things set forth in items (a) through (c) of the preceding paragraph shall be conclusively presumed and regarded as engaged in the practice of surveying. 70. The Board alleges that Vizaline and Brent have violated subsection (c) of Mississippi Code § 73-13-95. 71. The Board does not allege that Vizaline or Brent have violated any other part or subsection of Mississippi Code § 73-13-95. 72. In February 2016, the Board authorized the Attorney General to bring a lawsuit on the Board’s behalf seeking an injunction against Vizaline. 73. The Attorney General, on behalf of the Board, filed the instant lawsuit against Vizaline and Brent on September 21, 2017. 74. The Board’s lawsuit seeks to enjoin Vizaline and Brent from offering their services in Mississippi. 75. The Board’s lawsuit further seeks to require Vizaline and Brent to “immediately disgorge themselves” of all fees and compensation earned through Vizaline “by returning all amounts to {JX328514.1} 11 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 12 of 16 the persons or entities from whom it was received or collected, along with legal interest thereon calculated from the date of receipt until the date of disgorgement.” 76. The Board, through the Attorney General, is seeking to force Vizaline and Brent to repay every dollar Vizaline has ever earned to its customers, even though Vizaline’s customers have never complained about Vizaline, continue to be customers of Vizaline, and support Vizaline’s business. CONSTITUTIONAL VIOLATION 77. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue operating their business in Mississippi as they operate their business in other states. 78. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free of the threat of “disgorgement” of fees willingly paid to Vizaline for its services. 79. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to take existing data and information and use it to create and disseminate new information. 80. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to take preexisting legal descriptions of property and use those descriptions to create simple graphical renderings of the descriptions. 81. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to overlay their graphical renderings of legal descriptions of property onto satellite images (like those found on Google Earth) to visualize the legal descriptions. {JX328514.1} 12 EXHIBIT A Case: 45CH1:17-cv-00902 82. Document #: 10-1 Filed: 07/09/2018 Page 13 of 16 But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to use their graphical renderings of legal descriptions of property to flag potential metes and bounds discrepancies illustrated by the graphical renderings and alert their bank customers to those potential discrepancies for resolution by attorneys and licensed surveyors who perform a traditional, formal survey. 83. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to provide specialized advice—in the form of visualization information about property legal descriptions—to their bank customers to help the banks understand their property portfolios. 84. But for the Board’s application of Mississippi’s surveyor licensing laws to Vizaline and Brent, Vizaline and Brent would be free to continue to provide specialized advice—in the form of visualization information about property legal descriptions—to their bank customers for compensation. CLAIM FOR RELIEF 85. Defendants/Third-Party-Plaintiffs incorporate and re-allege paragraphs 1 through 84. 86. Application of Mississippi Code §§ 73-13-73 and 73-13-95 to Defendants/Third-Party- Plaintiffs abridges their freedom of speech. 87. Defendants/Third-Party-Plaintiffs take existing data and information (generated by licensed surveyors) and use it to create and disseminate new information. 88. The creation and dissemination of information are speech within the meaning of the First Amendment. {JX328514.1} 13 EXHIBIT A Case: 45CH1:17-cv-00902 89. Document #: 10-1 Filed: 07/09/2018 Page 14 of 16 Defendants/Third-Party-Plaintiffs create and disseminate information to provide specialized advice—in the form of visual depictions of property legal descriptions—to their bank customers to help the banks understand their property portfolios. 90. The provision of specialized advice to paying customers is speech within the meaning of the First Amendment. 91. Under Mississippi law, as interpreted and enforced by the Board, licensed surveyors may use preexisting data (metes and bounds descriptions) to generate drawings and maps but Vizaline and Brent may not use preexisting data (metes and bounds descriptions) to generate drawings and maps. 92. Under Mississippi law, as interpreted and enforced by the Board, licensed surveyors may create and disseminate information to provide specialized advice—in the form of visualization information about property legal descriptions—to banks to help the banks understand their property portfolios but Vizaline and Brent may not create and disseminate information to provide specialized advice—in the form of visualization information about property legal descriptions— to banks to help the banks understand their property portfolios. 93. Application of Mississippi Code §§ 73-13-73 and 73-13-95 to Defendants/Third-Party- Plaintiffs restrains the way in which they may use and disseminate information. 94. Application of Mississippi Code §§ 73-13-73 and 73-13-95 to Defendants/Third-Party- Plaintiffs restrains the way in which they may provide specialized advice to customers. 95. Application of Mississippi Code §§ 73-13-73 and 73-13-95 to Defendants/Third-Party- Plaintiffs acts as content- and speaker-based restrictions on the availability and use of information. {JX328514.1} 14 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 15 of 16 PRAYER FOR RELIEF Based on the foregoing, Defendants/Third-Party-Plaintiffs respectfully request the following: A. Entry of judgment declaring Mississippi Code §§ 73-13-73 and 73-13-95, as interpreted by the Board and as applied to Defendants/Third-Party-Plaintiffs, unconstitutional under the First Amendment to the U.S. Constitution, as made applicable to the states through the Fourteenth Amendment to the U.S. Constitution. B. Entry of a permanent injunction prohibiting the Board from applying Mississippi Code §§ 73-13-73 and 73-13-95 to Defendants/Third-Party-Plaintiffs, from seeking injunctive relief to prohibit Defendants/Third-Party-Plaintiffs from operating their business in the State of Mississippi, and from seeking disgorgement of fees and compensation collected by Defendants/Third-Party-Plaintiffs from providing their services. C. An award of attorneys’ fees pursuant to 42 U.S.C. § 1988; and D. Such further legal and equitable relief as the Court may deem just and proper. Respectfully submitted this the ____ day of , 2018. Adam Stone, MS Bar No. 10412 Jackie R. Bost, II, MS Bar No. 102909 Jones Walker LLP 190 East Capitol Street, Suite 800 Jackson, MS 39201 T: 601.949.4900 F: 601.949.4804 astone@joneswalker.com jbost@joneswalker.com Counsel for Defendants/Third-PartyPlaintiffs Brent Melton and Vizaline, LLC {JX328514.1} 15 EXHIBIT A Case: 45CH1:17-cv-00902 Document #: 10-1 Filed: 07/09/2018 Page 16 of 16 Paul V. Avelar (AZ Bar No. 023078)* Institute for Justice 698 South Mill Avenue, Suite 301 Tempe, AZ 85281 T: 480.557.8300 F: 450.557.8305 Email: pavelar@ij.org Johanna Talcott (FL Bar No. 1008094)* Institute for Justice 2 South Biscayne Boulevard, Suite 3180 Miami, FL 33131-1803 T: 305.721.1600 F: 305.721.1601 Email: jtalcott@ij.org * Pro hac vice motions will be filed {JX328514.1} 16 EXHIBIT A