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ADAMS v. ATTY. REG. & DIS. COM'N OF S. CT. OF ILL.

December 4, 1984

ROBERT J. ADAMS, JR., LAWRENCE WILLIAM KORRUB, TOM O'CONNELL HOLSTEIN AND ROBERT E. MCKENZIE, PLAINTIFFS,
v.
ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF THE SUPREME COURT OF ILLINOIS, AND CARL H. ROLEWICK, ITS ADMINISTRATOR, DEFENDANTS. IRWIN ZALUTSKY AND RONALD PINSKY, INDIVIDUALLY AND AS A PROFESSIONAL CORPORATION, PLAINTIFFS, V. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF THE SUPREME COURT OF ILLINOIS, AND CARL H. ROLEWICK, ITS ADMINISTRATOR, DEFENDANTS. MELVIN JAMES KAPLAN, PLAINTIFF, V. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF THE SUPREME COURT OF ILLINOIS, AND CARL H. ROLEWICK, ITS ADMINISTRATOR, DEFENDANTS. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION AND CARL H. ROLEWICK, ADMINISTRATOR, PETITIONERS, V. ROBERT J. ADAMS, JR., LAWRENCE WILLIAM KORRUB, TOM O'CONNELL HOLSTEIN AND ROBERT E. MCKENZIE, RESPONDENTS.



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

MEMORANDUM AND ORDER

I. Background

This is an action challenging the constitutionality of an Illinois rule of professional responsibility governing the initiation of contact between an attorney and a potential client. The rule allows initiation of contact by attorneys through

  written communication distributed generally to
  persons not known in a specific matter to require
  such legal services as the lawyer offers to provide
  but who in general might find such services to be
  useful. . . .

On April 26, 1984, this court in effect granted plaintiff's emergency motion for a temporary restraining order. Without any comment on the merits of the action, the court allowed enforcement of the old, but not the new, rule against the named plaintiffs, consistent with whatever the Commission policy was prior to the filing of the instant action.*fn2 On May 9, 1984, this court heard arguments on plaintiff's preliminary injunction motion. The court again refused to rule on the merits of the action, noting that this was an area of special interest to the State, that principles of comity and federalism counseled against a coercive order by a federal court in this area, and that federal intervention in this area should only be considered after state court adjudication of the issue. The Commission agreed to refrain from relying upon the new rule to seek sanctions against the plaintiffs, for the time being, and no coercive order was entered. It also agreed to report the proceedings to the Illinois Supreme Court Committee on Professional Responsibility for its consideration. On June 8, 1984, counsel for defendant reported that the Committee had refused to consider any recommended changes in the new rule, and the Commission therefore sought additional time to file a declaratory action before the Illinois Supreme Court. The agreed abstention on enforcing the new rule was maintained and the case was held over until the Supreme Court decided whether or not to take the action. On June 25, 1984, the Supreme Court of Illinois allowed petitioner's motion for an original declaratory action in that court pursuant to Supreme Court Rule 381. Ill.Rev.Stat. ch. 110A, § 381. Plaintiffs, respondents in the declaratory action, filed a petition for removal pursuant to 28 U.S.C. § 1441. Presently before the court is defendants' motion to remand the state court proceedings and to dismiss or stay the federal proceedings.

II. Remand

Defendant seeks remand of the Supreme Court declaratory action removed to this court. Generally an action is removable only if the action is within a district court's original jurisdiction. See 28 U.S.C. § 1441. See also People of the State of Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 574 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); Olsen v. Olsen, 580 F. Supp. 1569, 1572 (N.D.Ind. 1984). Defendant argues that the declaratory action was not originally within this court's jurisdiction. It claims the constitutional issues raised could only have been interposed as a defense and removal was therefore improper. See People of the State of Illinois v. General Electric Co., 683 F.2d 206, 208 (7th Cir. 1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).

Before turning to a discussion of that contention, it may be helpful to review further the present posture of the controversy. When the suit was first brought here the new rule was about to become effective. There is no real dispute that the past practices of the plaintiffs would violate the new rule, and that they had every intention of continuing those practices but for the new rule. The Commission is obligated to enforce the new rule, and it has evidenced every intention of doing so if it can. There was an actual case or controversy; there was no present violation and, accordingly, no basis for disciplinary action under the new rule (and whatever the plaintiffs have since done is pursuant to the agreed protection of an agreement not to seek sanctions under the new rule for their practices in the interim).

This Court invited the Commission to invite the Committee to reconsider the matter, thus providing a means by which the Illinois Supreme Court could have the subject matter, the new rule, before it for further review. While that procedure did not neatly fit into any jurisdictional pigeonhole, it did accord with the notion that important state interests are implicated and that comity considerations should cause a federal court to proceed hesitantly. See Middlesex Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). The Commission accepted that invitation; the Committee did not. The Commission then did the only thing it could do: bring an action in the Illinois Supreme Court which was the converse of plaintiffs' coercive action here and which, indeed, was what one would expect to be filed as a counterclaim here.

The Commission's declaratory action seeks a ruling that the promulgation of Rule 2-103(b)(2) "is an appropriate exercise of the judicial power of the State of Illinois and a constitutional regulation of commercial speech by attorneys." On its face, that action raises significant constitutional questions. That is its purpose. "Whether a state action for a declaratory judgment is removable to federal court is determined by reference to the character of the threatened action. If it is inevitably federal in nature, then federal jurisdiction exists." Hunter Douglas, Inc. v. Sheet Metal Workers International Association, Local 159, 714 F.2d 342, 345 (4th Cir. 1983). See Arden-Mayfair, Inc. v. Louart Corp., 434 F. Supp. 580, 582-84 (D.Del. 1977); 10A C. Wright, A. Miller, M. Kane, Federal Practice & Procedure, § 2766 at 745 (2d ed. 1983).

In People of the State of Illinois v. General Electric Co., supra, the federal action sought declaratory relief and the subsequent state action sought coercive relief. The Court concluded that the removal of the second action was improvident since it rested upon state law, with the constitutional questions arising only by way of defense. The state action here does not, however, seek enforcement of the new rule; it seeks an affirmative declaration of constitutionality. Perhaps it was so framed because a claim for prospective relief, avoiding as it does the administrative procedures mandated by Supreme Court Rules 751-773, and raising factual questions respecting precisely what plaintiffs intend to do, is beyond the ambit of Rule 381. In any event, it is the constitutional issues that are the core of the Commission's action, and the action is, therefore, removable.

Remand of a suit after removal to federal court is controlled by 28 U.S.C. § 1447(c). See Cook v. Weber, 698 F.2d 907, 909 (7th Cir. 1983). That statute allows remand if "the case was removed improvidently and without jurisdiction." 28 U.S.C. § 1447(c). Discretionary reasons for remand not authorized by the statute are not a proper basis for remand. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 342-45, 96 S.Ct. 584, 588-90, 46 L.Ed.2d 542 (1976). The court has already stated that a proper jurisdictional basis existed and that all non-jurisdictional requirements for removal have apparently been satisfied. See Ryan v. State Board of Elections of the State of Illinois, 6 ...


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