United States District Court, Northern District of Illinois, E.D
December 4, 1984
ROBERT J. ADAMS, JR., LAWRENCE WILLIAM KORRUB, TOM O'CONNELL HOLSTEIN AND ROBERT E. MCKENZIE, PLAINTIFFS,
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
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. . . .
Illinois Disciplinary Rule 2-103(b)(2) (1984). This rule became
effective on May 1, 1984. Plaintiffs are attorneys who
participate in direct mail advertising to individuals whom
plaintiffs believe may be in need of a lawyer's
services. The names of the individuals are taken from certain
published lists. Plaintiffs filed suit on April 25, 1984 against
the administrator and members of the Attorney Registration
Disciplinary Commission of the Supreme Court of Illinois, seeking
a declaration that the rule is unconstitutional and an injunction
against enforcement of the rule.*fn1
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.
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,
661 F.2d 1130, 1133 (7th Cir. 1982). A discretionary exercise of the
doctrine of abstention is not a proper basis for remand. Id. at
1134. Remand cannot, therefore, be ordered.
Because this court is unable to remand that declaratory action
to state court, abstention is not appropriate. There is no state
proceeding towards which this court can show deference. It might
however, that this court could conceivably stay this action
further to allow defendant to bring a state action seeking
prospective relief against plaintiffs based upon Rule
2-103(b)(2). Such an action would be based on state law, with
federal claims interposed as defenses only, and thus would not be
removable. The court then might be able to abstain in deference
to that state action. Even if such a proceeding existed, however,
abstention would not be an appropriate basis for this court to
ignore the "virtually unflagging obligation of the federal court
to exercise the jurisdiction given them." See Colorado River
Water Conservation District v. United States, 424 U.S. 800, 817,
96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976).
The reasons abstention is attractive are clear. The Supreme
Court has emphasized the importance of state interests in
regulating the bar.
The [state] has an extremely important interest in
maintaining and assuring the professional conduct of
the attorneys it licenses. States traditionally have
exercised extension control over the professional
conduct of attorneys.
Middlesex Ethics Committee v. Garden State Bar Association,
457 U.S. 423, 434, 102 S.Ct. 2515, 2522-23, 73 L.Ed.2d 116 (1982).
The regulation of attorneys is essential to the primary
governmental function of administering justice and at the core of
the state's power to protect the public. Bates v. State Bar of
Arizona, 433 U.S. 350, 361-62, 97 S.Ct. 2691, 2697-98, 53 L.Ed.2d
810 (1977). The notion of comity, that is, "a proper respect for
state functions, a recognition of the fact that the entire
country is made of a Union of separate state governments, and a
continuance of a belief that the National Government will fare
best if States and their institutions are left free to perform
their separate functions in their separate ways," Younger v.
Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669
(1971), counsels a federal court against interfering in a state's
regulation of its bar. This is especially so when, as here, the
state judiciary has had no opportunity in an adversary proceeding
to rule on plaintiff's constitutional claims. The issue before
the court is precisely the type of issue at which the state
courts should get a first shot.
Abstention, however, is a narrow exception to the duty of a
federal court to adjudicate a controversy before it and is
justified only in exceptional circumstances. See County of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct.
1060, 1062-63, 3 L.Ed.2d 1163 (1959). The Supreme Court has
recognized three types of abstention, based on deference to state
interests. See Ryan v. State Board of Elections of the State of
Illinois, 661 F.2d at 1135. Abstaining in this case would fit
none of the recognized types of abstention.
Plaintiffs claim that the type of abstention in Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is
appropriate in this case.*fn3 Younger abstention was recently
applied to state bar disciplinary hearings in Middlesex Ethics
Committee v. Garden State Bar Association, 457 U.S. 423, 102
S.Ct. 2515, 73 L.Ed.2d 116 (1981). It must be noted, however,
that the proceeding in Middlesex followed an alleged violation of
disciplinary rules. In fact, the Supreme Court has only applied
Younger in cases where a state enforcement proceeding followed an
of a state statute or rule, even if only in civil proceedings.
See e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200,
43 L.Ed.2d 482 (1975) (enforcement of nuisance statute after
alleged violation); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211,
51 L.Ed.2d 376 (1977) (judicial contempt proceeding after alleged
violation); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52
L.Ed.2d 486 (1977) (civil suit seeking return of money
The Seventh Circuit has explicitly required some sort of
violation and the existence of subsequent enforcement proceedings
for a Younger abstention to be allowed. In People of the State of
Illinois v. General Electric Co., 683 F.2d 206 (7th Cir. 1982),
cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed. 282 (1983),
the Seventh Circuit held that Younger does not require abstention
where there has been no violation of state law. In that case the
federal plaintiff brought a declaratory action alleging that a
certain state law was unconstitutional. The federal defendant,
the state, subsequently filed an action in state court seeking an
injunction against the federal plaintiffs predicated upon the
statute. The Seventh Circuit held that removal of the state
action was improper. The court then refused to apply the Younger
doctrine to the federal case.
[T]he federal plaintiffs in the present case did
not violate state law, so the state could not have
brought a penalty action against them. The state's
interest in maintaining law and order through
enforcement of its penal statutes was not impaired by
the federal lawsuit and the principle of the Younger
case is therefore inapplicable.
Id. at 212. In Ciotti v. Cook County, 712 F.2d 312
1983), the court clarified the General Electric gloss on Younger.
It stated that for a federal plaintiff to be assured a federal
forum, the plaintiff must (1) satisfy the jurisdictional
requirements; (2) bring the action before violating the law; and
(3) "either refrain from violating the statute during the
pendency of the federal action or obtain an injunction against
state enforcement of the statute." Id. at 314.
The court in General Electric was specifically concerned with
the situation that would occur here if the court allowed an
action for prospective relief to form the basis for a Younger
[T]he state argues, as an alternative ground for
dismissal of the federal suit, that the district
court, even if it had jurisdiction, should have
abstained from exercising it and forced the companies
to litigate exclusively in the state courts. There
must be something wrong with this argument, because
if it were accepted it would prevent people from ever
challenging the constitutionality of state
legislation in federal court. Every time someone
brought a suit to have a state law declared
unconstitutional the state would immediately file an
action in state court to enjoin violation of the
statute and then move the federal district court to
stay or dismiss the federal suit, thereby forcing the
federal plaintiff to litigate his federal claims by
way of defense in the state court action.
683 F.2d at 212-13. In the present case plaintiffs chose to
litigate their constitutional claims in the federal court. They
had not, at the time of filing, violated the disciplinary rule
and, after the hearing on April 26, 1984, enforcement of the rule
against them was deferred. In this circuit at least, the state
cannot now bring an enforcement action that would require this
court to abstain.
The plaintiffs concede that the abstention doctrine created in
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61
S.Ct. 643, 85 L.Ed. 971 (1941), might be appropriate, but that
concession is not warranted. Pullman abstention is appropriate
"`in cases presenting a federal constitutional issue which might
be mooted or presented in a different posture by state court
determination of pertinent state law.'" Colorado River, supra,
424 U.S. at 814, 96 S.Ct. at 1244, quoting County of Allegheny v.
Frank Mashuda Co., supra,
360 U.S. at 189, 79 S.Ct. at 1063. Where the state law is not
uncertain, however, Pullman does not apply. See Babbitt v. Farm
Workers, 442 U.S. 289, 306, 99 S.Ct. 2301, 2312-13, 60 L.Ed.2d
895 (1979); Ryan v. State Board of Elections, 661 F.2d at 1136.
In the present case there is no issue of state law which could
moot this question. The meaning of the regulation is clear. No
question concerning state law has been raised. Pullman abstention
does not apply.
In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87
L.Ed. 1424 (1943), the Supreme Court created a third type of
abstention. There the court held that the district court should
have abstained on a difficult issue of state regulation because
of the complexity of the state law issue, the expertise of the
state court, the predominance of local issues, and the need for
coherent state doctrine in the area. Such an abstention is
appropriate where the importance of the issues of state law
transcend the result in the individual case. See Colorado River,
supra, 424 U.S. at 814, 96 S.Ct. at 1244. These cases involve
administrative regulation of areas of state interest, such as oil
exploration, see Burford, supra, state eminent domain, see
Louisiana Power & Light Co. v. Thibodaux, 360 U.S. 25, 79 S.Ct.
1070, 3 L.Ed.2d 1058 (1959), and railroad passenger service, see
Alabama Public Service Commission v. Southern Railway,
341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). These cases involve
interpretation of state law and in these cases the courts fear
that federal intervention would disrupt state efforts to create
coherent policy with regard to matters of substantial state
interest. See generally Ryan, supra, at 1135. In the present
case, though the subject is of acute state interest, there is no
complex system of state regulation of which state courts have
superior knowledge and ability, and there is no difficult issue
of state law. Construction of the challenged statute is
unquestioned. Interference with a complex series of state
regulations is not sought. Burford does not counsel abstention
from this issue.
The present case came to the court at such a time and in such
a posture that abstention in deference to a different state law
suit is neither required or allowed. The declaratory action was
properly removed to this court and remand of that action cannot
be allowed. Again, this federal court is not comfortable acting
as the court of first resort in determining the constitutionality
of disciplinary rules vital to regulation of an essential state
interest. Plaintiffs, however, chose the federal forum to decide
their federal constitutional claims and did so prior to any
violation. They properly sought and obtained relief from
enforcement of the new rule. They are raising an issue that is
free of difficult questions, in fact any questions, of state law
and which does not impact greatly on a complicated area of state
regulation. This court delayed the action to give the Committee
an opportunity to review the rule; it chose not to do so.
Plaintiffs deserve a ruling on the merits. Accordingly, the court
is now prepared to rule on plaintiffs' present motion for