United States District Court, Northern District of Illinois, E.D
March 20, 1984
W. JAMES BROWN, AN ATTORNEY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
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
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 affect
thousands of present and future Chicago-area attorneys. It is difficult
to imagine a group better able to look after its interests.
Having determined that the due process clause did not entitle the
plaintiff to notice and a hearing, I will now consider whether the
district court's adoption of the trial bar rules violated the due process
clause in any other manner. In the case of administrative agencies, it is
usual for Congress to accompany its grant of rulemaking authority with
procedural safeguards regulating the exercise of that authority; the most
prominent example of such safeguards is the Administrative Procedure Act
(APA), 5 U.S.C. § 551 et seq. Although neither the APA nor any other
procedural statute is specifically applicable to the exercise of
rulemaking authority by the district court, these statutes are relevant
to the extent that they have been accorded constitutional significance.
Under the APA, rulemaking is "informal" if it is not required by
statute to be done "on the record." An agency making an informal rule
must provide "interested persons an opportunity to participate in the
rulemaking through submission of written data, views or arguments."
5 U.S.C. § 553(c). Formal rulemaking involves a trial-type
evidentiary hearing. 5 U.S.C. § 553, 556-7. Because these and similar
provisions in other statutes establish procedures intended to protect the
rights of persons affected by bureaucratic action, courts in some
instances have identified the statutes' procedural safeguards with fifth
amendment due process requirements, Sierra Club v. Costle, 657 F.2d 298,
392 n. 462 (D.C.Cir. 1981); Gray Panthers v. Schweier, 652 F.2d at 155
n. 18 (D.C.Cir. 1980). However, Supreme Court pronouncements on the
subject cast doubt on the theoretical soundness of this identification.
Bowles v. Willingham, 321 U.S. 503, 519, 64 S.Ct. 641, 649, 88 L.Ed. 892
(1944); Pacific States Co. v. White, 296 U.S. 176, 185-6, 56 S.Ct. 159,
163-4, 82 L.Ed. 138 (1935); See also K. Davis, Administrative Law §
6:1, p. 449 (2d ed. 1978).
Even assuming that the Constitution mandates APA-type safeguards on the
exercise of delegated legislative authority by administrative agencies, I
do not believe that the due process clause similarly restrains the
district court in the exercise of its authority to regulate the
admissions of attorneys who appear before it. The special status of the
courts and the nature of the power being exercised justify the
When a federal administrative agency makes rules, it performs a
legislative function, implementing a broad national policy set by
Congress and stated in the statute creating the agency. The setting of
national policy is preeminently a function of the representative branch
of government. Congress, of course, need not follow any procedure before
acting because its responsiveness to the popular will is assured by the
electoral process. Because administrative agencies are not directly
answerable to the electorate, procedural safeguards such as are found in
the APA are necessary in order to inject the popular voice into the
making of policy decisions that would otherwise be made solely by
bureaucrats. Just as it is proper that broad policies be set by the
representative branch of government, it is also proper that there be a
public component in the making of rules implementing those policies.
The subject matter of the rules in the case at bar, however, places
them outside the legislative sphere: "Both the admission and the removal
of attorneys are judicial acts. It has been so decided in repeated
instances." Randall v. Brigham, 74 U.S. 523, 535, 7 Wall. 523, 535, 19
L.Ed. 285 (1868). That the court's admission of attorneys is here
regulated by rules does not change the judicial nature of the court's
act. The Randall court's justification of judicial control over attorneys
has lost none of its validity:
The authority of the court over its attorneys and
counselors is of the highest importance. They
constitute a profession essential to society. Their
aid is required not merely to represent suitors before
the courts, but in the more difficult transactions of
private life. The highest interests are placed in
their hands and confided to their management. The
confidence which they receive and the responsibilities
which they are obliged to assume demand not only
ability of a high order, but the strictest integrity.
The authority which courts hold over them, and the
qualifications required for their admission, are
intended to secure those qualities. Id., at 540, 7
Wall. at 540.
Although delegated by Congress, the authority which the District Court
for the Northern district of Illinois exercised here differs from
authority delegated to administrative agencies in that it is uniquely
within the judiciary's competence and implements no national policy set
by Congress. Rather, the delegated authority is necessary to the smooth
and independent functioning of the courts. Procedural safeguards over
rulemaking by administrative agencies serve the interest of public
participation in national policy decisions. Because this interest is not
at stake when a court exercises its authority to control the admission of
attorneys, no procedural safeguards are required.
The procedures which culminated in the adoption of the rules challenged
here were thorough and well designed to assure a fair result. In 1976, at
the instance of the United States Judicial Conference, the Devitt
Committee was appointed to study possible ways to improve the standard of
advocacy in the federal courts. The committee conducted a lengthy inquiry
which included a survey of the legal community's views and four public
hearings. The Devitt Committee published its first report in 1978. Report
and Tentative Recommendations, 79 F.R.D. 187 (1978). Additional hearings
were held on the first report and a final report was issued which
recommended rules similar to those adopted in the Northern District of
Illinois. Final Report, 83 F.R.D. 215 (1979).
The District Court for the Northern District of Illinois appointed the
Austin Committee to implement the Devitt Committee's recommendations. The
Austin Committee published proposed rules in the March 26, 1981, issue of
the Chicago Law Bulletin and in the March-April 1981 issue of the Chicago
Bar Record, and invited interested parties to submit their views. All
interested attorneys were invited to attend and participate in an open
meeting on the proposed rules held on April 26, 1981. The Austin
Committee issued its final report on November 30, 1981. The District
Court for the Northern District of Illinois adopted the rules on July
Under the broadest possible interpretation of the due process clause,
procedural safeguards are required whenever group or individual rights are
affected. Although I have explained why I believe this interpretation to
be erroneous, I do not doubt that, were it correct, the rules challenged
here would pass constitutional muster. The plaintiff's interests were
protected because the procedure followed was elaborate and fair.
SUBSTANTIVE DUE PROCESS
Since the challenged rules creating a trial bar do not involve a
suspect classification or infringe a fundamental right, it remains only
to determine whether the rules are within the district court's authority
and whether the rules' requirements are "rationally related to the
applicant's fitness to practice law in the court where he seeks
admission." Matter of Roberts, 682 F.2d 105, 108 (3d Cir. 1982); cf.
Board of Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796
The sources of the district court's authority to make the rules which
the plaintiff challenges are 28 U.S.C. § 1654, 2071 and Rule 83,
Federal Rules of Civil Procedure:
The Supreme Court and all courts established by Act
of Congress may from time to time prescribe rules for
the conduct of their business. Such rules shall be
consistent with Acts of Congress and rules of practice
and procedure prescribed by the Supreme Court.
28 U.S.C. § 2071.
In all courts of the United States the parties may
plead and conduct their own cases personally or by
counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct
causes therein. 28 U.S.C. § 1654
Each district court by action of a majority of the
judges thereof may from time to time make and amend
rules governing its practice not inconsistent with
these rules. Copies of rules and amendments so made by
any district court shall upon their promulgation be
furnished to the Supreme Court of the United States.
In all cases not provided for by rule, the district
courts may regulate their practice in any manner not
inconsistent with these rules.
Rule 83, Federal Rules of Civil Procedure.
Every federal court which has construed these provisions has held that
they permit a federal district court to regulate the admission of the
attorneys who practice before it. Matter of Roberts, supra; Matter of
Abrams, 521 F.2d 1094, 1099 (3d Cir. 1975), cert. denied 423 U.S. 1038,
96 S.Ct. 574, 46 L.Ed.2d 413 (1975); Sanders v. Russell, 401 F.2d 241
(5th Cir. 1968); Galahad v. Weinshienk, 555 F. Supp. 1201, 1204 (D.Colo.
1983); Lark v. West, 182 F. Supp. 794 (D.D.C. 1960), aff'd, 289 F.2d 898
(D.C. Cir.), cert. denied, 368 U.S. 865, 82 S.Ct. 114, 7 L.Ed.2d 63
It is clear that district courts have the authority to regulate the
admissions of attorneys; it follows that courts must be able to exercise
this authority independently. The statutes do not foreclose a district
court from setting standards for the admission of attorneys which are
higher than the admission standards set by other federal district or
state courts. The district court for the Northern District of Illinois
exercised precisely this authority when it adopted rules requiring a
measure of trial experience for admission to the district trial bar.
As amply evidenced by the legal authorities cited above, the
maintenance of high standards of advocacy is a legitimate government
objective uniquely within the judicial sphere of competence. Just how
high these standards may be without exceeding the heretofore recognized
sphere of judicial control over attorneys is uncertain. The permissible
governmental interest in guaranteeing the competence of attorneys
presumably cannot sustain federal court admission rules which are so
strict as to distort the concept of attorney competence beyond
recognition. Moreover, at some point on a scale of standards, sixth
amendment interests would be implicated. I am convinced, however, that
the rules challenged here are not so restrictive as to fall outside the
area of judicial control which congress intended to acknowledge in
28 U.S.C. § 1654 and 2071.
The challenged rules are narrowly drawn so as not to restrict lawyers
except in the targeted area of trial advocacy. The sole infringement of
attorney practice is the requirement that an attorney have four units of
trial-type experience before being permitted to conduct trial proceedings
unassisted. Four units of experience as defined by the' rules are not
excessive. An attorney can obtain such experience in a variety of ways,
including even a law school trial advocacy course.
It is undoubtedly true that some attorneys without four units of
trial-type experience are competent to conduct trial proceedings
unassisted, while other attorneys with abundant trial experience are not
competent to do so. This does not, however, render the trial bar rules
unconstitutional, as the plaintiff argues. The Constitution may not
reasonably be construed to require that the rules infallibly identify
competent attorneys; it is enough if the rules are rationally related to
their legitimate objective of maintaining a high standard of advocacy in
the district court. Since an experienced attorney undoubtedly is more
likely than an inexperienced attorney to be a competent trial
practitioner, I find that the trial bar rules are rationally related to
their legitimate objective and, therefore, substantially consistent with
the due process clause of the fifth amendment.
The plaintiff's arguments are constitutionally flawed. I do not doubt
that the rules have deprived the plaintiff of a right; countless
government regulations intrude upon citizens' rights. The issue is
whether the District Court for the Northern District of Illinois
infringed the plaintiff's right in an unlawful manner. My examination of
the relevant statutes and constitutional principles convinces me that the
challenged rules establishing a trial bar are a valid exercise of the
district court's authority under 28 U.S.C. § 1654, 2071 and Rule 83,
Federal Rules of Civil Procedure.
Therefore, IT IS ORDERED that the defendants' motion for summary
judgment be and hereby is granted.
IT IS ALSO ORDERED that the defendants' motion to dismiss certain of
the defendants be and hereby is dismissed.
IT IS FURTHER ORDERED that this action be and hereby is dismissed.
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