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