motion to dismiss. First, Defendants state that they are absolutely immune from suit for having promulgated the challenged rules in this case. Second, Defendants assert that, even though they are not absolutely immune from suits for declaratory and injunctive relief when acting in their adjudicative and/or enforcement capacities, the present action against them must still be dismissed. Defendants contend this is so because there is no case or controversy between Plaintiffs and the Wisconsin Supreme Court Justices and because the third amended complaint fails to state a claim upon which relief can be granted.
In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiffs could prove consistent with the pleadings that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 96 L. Ed. 2d 381, 107 S. Ct. 2489 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).
The court agrees with Defendants' first contention that they are absolutely immune from suit in their legislative capacities. Plaintiffs, likewise, agree with this assertion. The promulgation of court rules is analogous to a legislator's action in enacting statutes. Accordingly, Defendants are immune from suit when acting in their legislative capacity. See, Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980). In other words, Defendants are absolutely immune from suit for having promulgated the mandatory bar membership rules and the dues reduction rules. The court must, therefore, turn its attention to the capacities in which Plaintiffs have brought suit against Defendants, that is, their adjudicatory and enforcement capacities.
In Consumers Union, 446 U.S. at 736, the United States Supreme Court held that State Supreme Court Justices are not absolutely immune from suit, other than damage suits, when sued as the enforcers of court rules. Furthermore, in Pulliam v. Allen, 466 U.S. 522, 541-42, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984), the United States Supreme Court held that judges are not immune from prospective injunctive relief against them in their judicial or adjudicative capacities. Nevertheless, this court finds that while Defendants have the authority to adjudicate violations of the mandatory bar membership rules and have the inherent power to discipline attorneys for violating these rules, neither authority serves as a basis for continuing this action against Defendants.
In O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974), the United States Supreme Court reiterated the basic rule that when there is no case or controversy between a plaintiff and a judge, article III of the United States Constitution is a bar to suits against judges even for declaratory and injunctive relief. Specifically, the Court stated in Littleton:
Those who seek to invoke the power of federal courts must allege an actual case or controversy . . . Plaintiffs in the federal courts 'must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdictions' . . . . It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged . . . official conduct . . . The injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical' . . . . Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse affects.