The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
Viola Armijo Rouse ("Plaintiff") has brought a two-count complaint
pursuant to 42 U.S.C. § 1983 seeking redress for the alleged
deprivation of her property and liberty rights under the Fourteenth
Amendment to the United States Constitution. The defendants are the
Judges of the Circuit Court of Cook County and the Honorable Harry G.
Comerford, Chief Judge of that Court (the "Judges"), and the Chicago Bar
Association and both its president and the chairman of its Committee on
Evaluation of Candidates (the "C.B.A."). In essence, Plaintiff complains
that her "not recommended" rating by the C.B.A. unconstitutionally denied
her a fair opportunity to be considered by the Judges for election to the
position of Associate Judge of the Circuit Court.
More particularly, Plaintiff alleges that she is an attorney, licensed
to practice law in Illinois, and currently employed as an Assistant Cook
County Public Defender. (Complaint, ¶ 3.) Plaintiff meets the minimum
requirements for becoming an Associate Judge and wishes to pursue that
career. Plaintiff alleges that the Circuit Court of Cook County "has
delegated to the Chicago Bar Association the screening and the initial
evaluation of potential candidates for judicial office in Cook County."
(Complaint, ¶ 4.) No candidate will be considered for that office
unless he or she is recommended by the C.B.A. (Complaint, ¶ 6.)
Plaintiff submitted her name as a potential candidate and followed all
of the procedures of the C.B.A. for pursuing her candidacy. (Complaint,
¶ 12.) As is customary under the C.B.A. guidelines, Plaintiff was
afforded a hearing before a panel of the Committee on Evaluation of
Candidates and thereafter received written notice that she was found "not
recommended" by the C.B.A. because of a lack of "judicial temperament"
and "professional experience." (Complaint, ¶ 27.) Plaintiff's "not
recommended" rating has the effect of excluding
her from further consideration for the position of associate judge
because candidates who are "not recommended" by the C.B.A. are not
eligible for election by the Judges.*fn* Finally, Plaintiff alleges that
the investigation of her candidacy and subsequent hearing was unfair in
major part because the chairman of her hearing panel harbored a bias
against her. Thus Plaintiff claims that her liberty and property
interests in a fair consideration for the position of associate judge
were taken from her without due process of law. Plaintiff requests, as
relief, inter alia, that this court declare defendants' selection process
unconstitutional, declare that the selection process was not followed in
Plaintiff's case, and enjoin defendants to consider Plaintiff as a
recommended candidate in the current election of associate judges.
Both the Judges and the C.B.A. have filed motions attacking the
complaint. The Judges initially ask this court to refuse to consider this
controversy on the principles of abstention and comity. The Judges
further move to dismiss the complaint on the grounds that Plaintiff's
allegations do not implicate a protected liberty or property right under
the Fourteenth Amendment of the United States Constitution. The C.B.A.
has moved to dismiss the complaint against it on the grounds that its
actions with respect to Plaintiff's candidacy are those of a private
association and not under color of state law. The C.B.A. also argues that
the relief requested by Plaintiff — requiring her name to be placed
on the judicial ballot — violates the C.B.A.'s First Amendment
right of freedom of speech.
Because the election of Associate Judges is already underway and there
will not be another election for two years, this court has considered the
matter on an expedited basis.
The Judges argue that a federal court should not place itself in the
position of overseeing the screening and selection process of associate
state court judges but rather should require Plaintiff to repair to the
state courts to seek redress. The Judges rely on Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny,
wherein the Supreme Court has repeatedly cautioned the federal courts
against interfering with the exercise of a state's sovereign judicial
authority absent compelling reasons for doing so. Thus, federal courts
should not intervene in pending state court criminal actions, O'Shea v.
Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), or pending
civil actions in which the state courts have an overriding interest, Webb
v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981).
Superficially, the Judges' position seems tenable because the state
courts would ideally be the forum for review of the operation of state
court rules and practices and those adopted by the C.B.A. to which the
Judges defer, without intrusion by this court.
However, the argument in favor of abstention must be rejected.
Plaintiff's claim does not arise from or relate to the subject of a
pending civil or criminal state suit. The state proceeding (screening and
election of Associate Judges) has been completed and never involved any
state court lawsuit. Further, non-intervention arguments have been
rejected by federal courts in cases which seek review of the
administration of the state courts. Pulliam v. Allen, ___ U.S. ___, 104
S.Ct. 1970, 1979-1980, 80 L.Ed.2d 565 (1984); Supreme Court of Virginia
v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).
Federal courts are extremely reluctant to abstain in civil rights cases
arising under the federal constitution because Plaintiff should be
entitled to the benefit of federal adjudication of such claims. Stephens
v. Tielsch, 502 F.2d 1360 (9th Cir. 1974). In this case, where Plaintiff
seeks an immediate injunction of an ongoing but finite selection
process, this court cannot deprive Plaintiff of a federal forum for the
airing of her constitutional claims by effectively rendering them moot
through an act of abstention.
The Judges rely heavily upon Richardson v. Koshiba, 693 F.2d 911 (9th
Cir. 1982). While this court has no quarrel with the principles
enunciated in that opinion, it is distinguishable from the case at bar.
There it was the plaintiff not the defendants, who sought and obtained
federal abstention. Id. at 913. The court placed great weight on the fact
that it was not denying to the plaintiff a desired federal forum. Id. at
917 n. 17. Secondly, the property interest or entitlement question under
the due process clause involved the interpretation of state law, the bar
association rules expressly given the force and effect of state law and
the state constitution, concerning the status of a sitting state court
judge. Id. at 912, 916, 917. Here, defendants, not Plaintiff, seek
abstention. Further, Plaintiff's claim of entitlement in this case does
not involve a difficult state law question because she does not presently
hold a position for which she seeks protection. Rather, she is simply a
defeated contender claiming constitutional deficiencies in the selection
process. Finally, the clock was not running in the Richardson case as it
is here where Plaintiff seeks to be included in an ongoing election.
Accordingly, the Judges' motion for abstention is denied.
In order for Plaintiff to plead a § 1983 claim against the C.B.A.,
she must affirmatively allege that the C.B.A.'s actions in her case were
not those of a private association but those of a state actor. Plaintiff
has made such allegations. (Complaint, ¶¶ 6, 8, 9, et al.) Thus, the
court must determine whether the C.B.A.'s screening and subsequent "not
recommended" finding occurred under color of state law.
In Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744,
2753, 73 L.Ed.2d 482 (1982), the Supreme Court enunciated the essential
elements of an action which may be fairly attributable to a state.
First, the deprivation must be caused by the exercise
of some right or privilege by the State or by a rule
of conduct created by the State or by a person for
whom the State is responsible. . . . Second, the party
charged with the deprivation ...