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