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May 21, 1985


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


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.

State Action

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 ...

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