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BROWN v. MCGARR

March 20, 1984

W. JAMES BROWN, AN ATTORNEY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FRANK J. MCGARR, CHIEF JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, THE JUDICIAL CONFERENCE OF THE UNITED STATES, RICHARD W. AUSTIN, IN HIS CAPACITY AS CHAIRPERSON OF THE DISTRICT ADMISSIONS COMMITTEE, AND H. STUART CUNNINGHAM, CLERK OF THE UNITED STATES DISTRICT COURT, DEFENDANTS.



The opinion of the court was delivered by: Gordon, Senior District Judge.

DECISION and ORDER

This is an action challenging the constitutionality of recently adopted local rules for the District Court for the Northern District of Illinois. The plaintiff alleges that the defendants denied him his fifth amendment right to due process by not giving him notice and a hearing before establishing requirements for admission to a newly-created trial bar. The defendants have moved to dismiss certain defendants and for summary judgment upholding the rules. Because the defendants' summary judgment motion will be granted, I need not reach the issue whether all defendants are properly joined.

On July 12, 1982, the District Court for the Northern District of Illinois, pursuant to 28 U.S.C. § 1654, 2071 and Rule 83, Federal Rules of Civil Procedure, adopted rules creating a trial bar. Under the new rules, any member in good standing of the Illinois bar may be admitted to the federal bar (Rule 3.00(A)). Any member of the federal bar may enter appearances, file pleadings, motions and other documents, sign stipulations, and receive payments upon judgments, decrees or orders. (Rule 3.10(A)). Only members of the newly-created trial bar, however, may conduct testimonial proceedings alone or represent a defendant in a criminal proceeding. Nonmember of the trial bar may appear in these matters only if accompanied by advising members of the trial bar.

In order to be eligible for trial bar membership, an attorney must have four "units" of trial-type experience. (Rule 3.00(C)(7)). An attorney may receive a unit for participating as lead or co-counsel at a trial, observing an experienced trial attorney who consults with the observer, or participating in an approved law school trial advocacy course. Two of the four qualifying units must involve the attorney's participation as lead or co-counsel. To qualify, trial experience must involve substantial testimonial proceedings in state court or in federal court before a district judge, bankruptcy judge or magistrate. Experience before an administrative law judge may also qualify if approved by the district admissions committee. (Rule 3.00). The new rules also impose a $25 fee for trial bar admission.

The plaintiff had been admitted to the federal bar for the Northern District of Illinois in 1977. However, he does not yet possess sufficient trial experience to be eligible for the new trial bar membership. When originally admitted to the federal bar in 1977, the plaintiff was authorized to appear alone at testimonial and criminal proceedings; as a result of the new rules, he may no longer do so.

The plaintiff challenges the new rules as violative of his fifth amendment right to due process. He alleges four constitutional deficiencies: (1) he received no actual notice that his right to appear alone at testimonial and criminal proceedings would be revoked, (2) he was not given an opportunity to be heard, (3) the court lacked authority to require a $25 fee for admission to the trial bar, and (4) when admitted to the federal bar in 1977, he was not warned that his admission was limited in time or purpose.

Before considering his constitutional challenges to the new rules, I will address the issue of the plaintiff's standing to contest the imposition of a $25 admission fee for members of the trial bar. The case and controversy clause of article III of the Constitution requires that the plaintiff "allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). That the plaintiff is ineligible for trial bar membership and, therefore, not liable for the $25 fee, is a premise of this lawsuit. Because his allegations necessarily place him outside the class of attorneys who are required to pay the $25 fee, the plaintiff can show no injury to himself caused by its imposition. The issue of the legality of the $25 fee is, therefore, not properly before me, and I shall not decide it.

The plaintiff argues that his fifth amendment due process right was violated because he was not personally notified and given a hearing before the new trial bar rules were adopted by the District Court for the Northern District of Illinois. He also contends in his brief that the rules themselves are inconsistent with due process because they impermissibly presume that trial competency can be acquired only through trial experience. Thus, the plaintiff attacks the rules on both procedural and substantive due process grounds.

PROCEDURAL DUE PROCESS

The primary purpose of the fifth amendment's due process clause is to protect the individual citizen from the arbitrary exercise of power by the government. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Application of Gault, 387 U.S. 1, 20, 87 S.Ct. 1428, 1439, 18 L.Ed.2d 527 (1967). When an individual's rights are being determined in a judicial or quasi-judicial proceeding, due process requires that the individual be given notice and afforded an opportunity to be heard. Mathews, 424 U.S. at 333, 96 S.Ct. at 901; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). These rights accrue in the context of "proceedings designed to adjudicate disputed facts in particular cases. . . ." United States v. Florida East Coast Co., 410 U.S. 224, 245, 93 S.Ct. 810, 821, 35 L.Ed.2d 223 (1973); see also Gray Panthers v. Schweiker, 652 F.2d 146, 155 n. 18 (D.C.Cir. 1980). If the plaintiff should contest the Northern District admissions committee's application of the new rules to himself, claiming eligibility for admission under the rules, he would no doubt be entitled to notice and a hearing.

In the context of rulemaking, however, the fifth amendment's requirements of individualized due process do not apply. Florida East Coast Co., supra; Bi-Metallic Co. v. Colorado, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915); Gray Panthers v. Schweiker, 652 F.2d at 155 n. 18; Sima Products Corp. v. McLucas, 460 F. Supp. 128, 133-34 (N.D.Ill. 1978), aff'd 612 F.2d 309 (7th Cir. 1980), cert. denied 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980); Tribe, American Constitutional Law, § 10-8, p. 514 (ed. 1978). The reasons for this limitation on individualized due process were explained by the Supreme Court in Bi-Metallic Co., supra, a case involving an increase in property valuation by a state administrative taxing agency:

    Where a rule of conduct applies to more than a few
  people it is impracticable that every one should have
  a direct voice in its adoption. The Constitution does
  not require all public acts to be done in town meeting
  or an assembly of the whole. General statutes within
  the state power are passed that affect the person or
  property of individuals, sometimes to the point of
  ruin, without giving them a chance to be heard. Their
  rights are protected in the only way that they can be
  in a complex society, by their power, immediate or
  remote, over those who make the rule.
  Bi-Metallic Co., 239 U.S. at 445, 36 S.Ct. at 142;
  Accord, Florida East Coast Co., 410 U.S. at 224, 93
  S.Ct. at 810 (due

  process does not require the ICC to hold hearings when
  setting freight rates).

The exclusion of large groups from the scope of due process protections is not justified on practical grounds alone: "We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed procedures." O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 800, 100 S.Ct. 2467, 2483, 65 L.Ed.2d 506 (1980). (J. Blackmun concurring). The new district court rules establishing a trial bar ...


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