United States District Court, Northern District of Illinois, E.D
May 21, 1985
VIOLA ARMIJO ROUSE, PLAINTIFF,
THE JUDGES OF THE CIRCUIT COURT OF COOK COUNTY; THE HONORABLE HARRY G. COMERFORD, CHIEF JUDGE, CIRCUIT COURT OF COOK COUNTY; THE CHICAGO BAR ASSOCIATION, JOHN D. HAYES, PRESIDENT, CHICAGO BAR ASSOCIATION; JOHN S. ADLER, CHAIRMAN, COMMITTEE ON EVALUATION OF CANDIDATES, CHICAGO BAR ASSOCIATION; DEFENDANTS.
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.
Abstention and Comity
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 must be a person who may
fairly be said to be a state actor.
Lugar v. Edmondson Oil Co. at 937, 102 S.Ct. at 2753 (citation omitted).
The first prong of this test is clearly met, since the Judges determine
the method of selecting judges. The second is more problematic. The
C.B.A. is a private association. A state actor, however, need not be a
public official. Private actors who perform exclusive public functions
are, for these purposes, state actors. Terry v. Adams, 345 U.S. 461, 73
S.Ct. 809, 97 L.Ed. 1152 (1953); Flagg Brothers, Inc. v. Brooks,
436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Further, private
parties who de facto perform governmental functions by controlling public
officials or acting as their agents are acting under color of state law,
Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980);
Adickes v. Kress Co., 398 U.S. 144, 169-171, 90 S.Ct. 1598, 1614-1616, 26
L.Ed.2d 142 (1970).
The C.B.A. clearly performs many functions in screening and
recommending candidates for judicial office solely as a private
association. For example, the C.B.A. evaluates the qualifications of full
Circuit Court judges running for reelection and subsequently publishes
those recommendations for the guidance of the electorate. As revealed by
the memoranda in this case, the C.B.A. also reviews and evaluates sitting
associate Circuit Court judges who are seeking retention and transmits
its findings to the Judges who subsequently vote on those candidates. It
is clear that in both situations the C.B.A. acts independently of any
state function or the judges of the state court and acts without binding
effect. In those situations the candidates have already been determined
and the C.B.A. is
simply commenting on their qualifications. Thus such recommendations do
not perform a state function and are not under color of state law.
However, as alleged in the complaint, the role of the C.B.A. in
evaluating the qualifications of candidates for new associate judgeships
is quite different. In that situation, the C.B.A. does more than simply
rate the qualifications of existing candidates so that its ratings may
subsequently be used by the sitting judges or the electorate in the
election. In the case of a candidate who wishes, for the first time, to
become an associate judge the C.B.A.'s "not recommended" finding is
tantamount to exclusion from further consideration. Thus, the C.B.A. in
this limited situation acts as a de facto screening committee for the
Circuit Court. The Circuit Court is charged with the responsibility of
screening, evaluating and electing new associate judges. Ill.Rev.Stat.
ch. 110A, § 39. Thus, in excluding candidates from the ballot, the
C.B.A. has undertaken to perform an exclusive public function on behalf
of the Circuit Court and is a state actor. It is immaterial whether this
practice is by state rule or by custom and practice. Actions by a private
party in the absence of a state rule but pursuant to an established custom
or accepted practice sanctioned by the state constitute state action. See
Adickes v. Kress Co., 398 U.S. at 171, 90 S.Ct. at 1615; Terry v. Adams,
345 U.S. 461, 469-470, 73 S.Ct. 809, 813-814, 97 L.Ed. 1152 (1953).
The only authority cited by the C.B.A., Anderson v. Glismann,
577 F. Supp. 1506 (D.C.Col. 1984), is not persuasive. While the District
Court in that case did note that the fact that a private party acts
pursuant to a court appointment does not, without more, make such actions
attributable to the state, the court held that a court appointed
psychiatrist was not a state actor because, although he was acting under
the authority of the state, he was not acting on its behalf. We
understand this distinction to mean that a person who performs a private
function does not become a state actor in doing so under a state's
direction. Here, the C.B.A. acted both under authority of the state and
on its behalf because it performed the public function of screening
applicants for the Judges.
To establish a violation of the due process clause, Plaintiff must
demonstrate that she was deprived of a "liberty" or "property" interest.
We first examine whether Plaintiff has demonstrated the existence of a
liberty interest as that term has been interpreted by the courts. In
essence, Plaintiff's claim is based on her allegation that the C.B.A.'s
rating of her as "not recommended" deprived her unfairly of her
opportunity to obtain employment as a state judge. The "not recommended"
rating is alleged to be false in that it was unjustified given her
excellent credentials. Plaintiff does not allege that such a "not
recommended" rating injured her good name, reputation, honor or
integrity. Further, she does not allege that the C.B.A. rating imposed a
stigma or other disability upon her that foreclosed her ability to seek
other employment opportunities. In fact, it is readily apparent that she
could allege neither. The "not recommended" rating is confidential and
not disclosed under the C.B.A. rules to other than select members of the
C.B.A. itself and to the candidate. Further, the C.B.A. "not recommended"
rating arose out of the C.B.A.'s finding that Plaintiff lacked
"experience" and "judicial temperament." Neither finding adversely
reflects on Plaintiff's ability to perform as a lawyer or in any other
business or professional endeavor.
The Supreme Court announced the applicable legal standard to be applied
in order to determine whether Plaintiff has stated a cognizable liberty
interest in Board of Regents v. Roth, 408 U.S. 564, 573-574, 92 S.Ct.
2701, 2707-2708, 33 L.Ed.2d 548 (1972). The Court defined a protectible
liberty interest as one that occurs when (1)
charges are made by the government against an individual which might
seriously damage his standing and associations in the community, or (2)
the state imposes on the individual a stigma or other disability which
forecloses his freedom to take advantage of a range of employment
opportunities. In Perry v. Federal Bureau of Investigation, et al.,
759 F.2d 1271, 1276-1280 (7th Cir. 1985), the Seventh Circuit found a
protected liberty interest when dissemination of an allegedly false
F.B.I. report reflecting on a candidate's honesty and mental stability
made it virtually impossible for that candidate to obtain a law
enforcement position with federal, state, or local agencies. Thus, the
plaintiff was foreclosed from a large group of potential employers. Here,
no such result has occurred. The best that can be said for Plaintiff's
claim is that a small group of attorneys in the C.B.A. will perceive that
she is not qualified by experience or temperament for the position of a
state court -judge. Plaintiff has no protected liberty interest in
obtaining a single position of judge where other opportunities for
employment in her field exist. Cafeteria and Restaurant Workers v.
McElroy, 367 U.S. 886, 895-896, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d 1230
(1961). Plaintiff remains free, without stigma, to pursue a career as a
public defender, a prosecutor, or to embark on private practice of law.
Indeed, she even remains free to pursue a career as a federal judge or
magistrate. The limited effect of the C.B.A.'s "not recommended" rating
does not rise to the level of a protected liberty interest under the due
process clause because it does not significantly injure her professional
standing or foreclose her from an array of other employment opportunities
as an attorney.
Plaintiff could maintain her action if, under color of state law, she
was unconstitutionally deprived of a protectible property interest.
Plaintiff agrees in her memorandum in opposition to the motion to dismiss
that in order to sustain such a claim she must allege entitlement. As
stated by the Supreme Court in Roth, 408 U.S. at 577, 92 S.Ct. at 2709,
To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire
for it. He must have more than a unilateral
expectation of it. He must instead have a legitimate
claim of entitlement to it.
Plaintiff has no entitlement to the position of Associate Judge of the
Circuit Court. No candidate for that office could possibly claim
entitlement since it is an elective office. There are no state rules,
regulations, or even practices which have been brought to the attention
of this court which, in any conceivable way, could entitle an attorney,
even a highly experienced one, to such an office. All that Plaintiff
alleges, and all that she could allege, is that she meets the minimum
objective qualifications. (Complaint, ¶ 14.) See Jolly v. Listerman,
672 F.2d 935, 941 (D.C.Cir. 1982) ("there is no recognized property right
in a mere chance or expectation of being hired . . . by a particular
employer or to a particular position").
However, Plaintiff argues that her entitlement, although not to the
position of judge, is to the right, upon meeting the minimum
qualifications, to receive a fair consideration of her application.
Plaintiff points to the C.B.A. procedures which permit and perhaps
require an investigation and hearing. She argues that under the due
process clause such investigation and hearing must comport with
fundamental fairness. Plaintiff's argument misses the mark. The Seventh
Circuit has repeatedly held that "`[p]rocedural protections or the lack
thereof do not determine whether a property right exists.'" Shango v.
Jurich, 681 F.2d 1091, 1100 (7th Cir. 1982) (quoting Suckle v. Madison
General Hospital, 499 F.2d 1364, 1366 (7th Cir. 1974)). In other words
the existence of a state procedural scheme does not by itself create a
protected property interest. The protectible property interest must be
found under state law and must exist independently of and apart from any
procedural guarantees. Plaintiff's argument fails because it concedes
there is no protected interest in being elected a state judge while
claiming a protected property interest in being fairly considered for
that position. For these reasons, the court finds that Plaintiff has
failed to allege a constitutionally protected property interest.
Although not necessary to a determination of this case, the court feels
constrained to note that even if Plaintiff had pled the existence of a
constitutionally protected liberty or property interest, her complaint
fails to establish that either the general procedures or the specific
actions of the C.B.A. in reviewing her candidacy denied her due process.
The essence of the C.B.A. investigation and hearing is peer review, not
an impartial trial by jury. Thus, many of her allegations of unfairness
are immaterial. While the C.B.A. procedures call for investigation of the
candidate's qualifications, the C.B.A. is not required to conduct an
exhaustive investigation of all the candidate's experiences or alleged
qualifications. Investigators with both personal and hearsay knowledge of
the candidates' qualifications can properly sit on the hearing panel and
vote on the candidate. Attorney members of the C.B.A. are not to be
disqualified from the panel because they have opposed the candidate in
litigation; in fact, in many ways they are the most useful panelists.
There need be no requirement that the hearing panel constitute a
cross-section of the legal community with full minority representation.
All that is required in peer review is that a randomly selected group of
the candidate's peers determine qualifications. Much of such a
determination is of necessity based on both personal experiences with the
candidate and a perception of her reputation in the legal community.
Thus, the court believes that the C.B.A. rules and procedures afford
judicial candidates a fair peer review and, hence, due process if due
process be required.
Plaintiff also complains that the C.B.A. did not follow its own rules
in its review of Plaintiff's credentials. Most significantly, Plaintiff
charges that the chairman of the hearing committee had been her courtroom
adversary and had developed a personal dislike for public defenders in
general and the Plaintiff in particular. Under C.B.A. rules, members
should disqualify themselves from serving on a hearing panel if they have
"personal relationship or a continuing or longstanding professional
relationship" with a candidate (C.B.A. Procedures of June 14, 1976.
Plaintiff, however, does not allege such a relationship but only that the
chairman had been an "actual adversary of Plaintiff." (Complaint, ¶
20.) Nothing in the C.B.A. procedures would disqualify the chairman under
these circumstances. Thus, Plaintiff has not alleged that the C.B.A.
violated its own guidelines. In short, the court finds that the C.B.A.
review of Plaintiff's application did not deny her procedural due process
even if she had a constitutionally protected liberty or property
For the reasons stated above, the complaint is dismissed under
Fed.R.Civ.P. Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.