United States District Court, N.D. Illinois, Eastern Division
May 12, 2005.
JOHN JOSEPH OTROMPKE, Plaintiff,
CHAIRMAN OF THE COMMITTEE ON CHARACTER AND FITNESS FOR THE FIRST JUDICIAL DISTRICT OF ILLINOIS; ARLEEN ANDERSON; JAMES CARROLL; EILEEN LETTS; and ILLINOIS BOARD OF ADMISSIONS TO THE BAR, Defendants.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
In October 2003, John Otrompke sued the Chairman of the
Committee on Character and Fitness for the First Judicial
District of Illinois, along with several members of a panel of
that Committee, and the Illinois Board of Admissions to the Bar.
At the time, Otrompke's application for admission to the bar was
still pending before the Committee on Character and Fitness.
Otrompke claimed the defendants' failure to approve his admission
to the bar and their delay in granting him a hearing violated his
federal constitutional rights. He also asserted several state law
claims arising from the same underlying contentions.
On April 14, 2004, the Court ruled that Younger v. Harris,
401 U.S. 37 (1971), required the Court to abstain from
considering the merits of Otrompke's claims because the state
proceedings regarding his admission to the bar were ongoing,
implicated important state interests, and offered Otrompke an
adequate opportunity for review of his federal constitutional claims. Otrompke v. Chairman of Comm. on Character & Fitness,
No. 03 C 7198, 2004 WL 812993, *3-4 (N.D. Ill. Apr. 14, 2004).
Among other things, the Court indicated that it was clear that
the Illinois Supreme Court, as the arbiter of attorney
admissions, had the ability to hear and determine Otrompke's
federal claims. Id., *3 (citing Hale v. Comm. on Character and
Fitness of the State of Illinois, 335 F.3d 678, 683 (7th Cir.
The Court requested further submissions on whether we should
stay Otrompke's claims or dismiss them. Id., *5. Otrompke
requested a stay. He argued, among other things, that even if he
did not prevail in his quest to be admitted to the bar, he
intended to pursue a claim for violation of his procedural due
process rights based on the contention that the defendants had
unduly delayed holding a hearing on his claim. Pl. Motion to Stay
at 2. Defendants also took the position that a stay was
appropriate, noting that Otrompke could not bring damages claims
in connection with his petition to be admitted to the bar. Def.
Mem. Regarding Whether Dismissal or Stay is Appropriate at 1. The
Court granted the motion for a stay.
Around the same time, a hearing panel of the Committee on
Character and Fitness recommended that Otrompke not be certified
for admission to the bar. The Illinois Supreme Court thereafter
denied Otrompke's petition for review, and as a result he was not
admitted to the bar. The defendants then moved to dismiss the
case for lack of subject matter jurisdiction, relying on the
so-called Rooker-Feldman doctrine, which holds that federal
courts have no jurisdiction to review state court judgments. See
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416
(1923). The Court concluded that Rooker-Feldman indeed barred
this Court from reviewing the denial of bar admission and
dismissed Otrompke's claims to that extent. See Order of Nov.
16, 2004. The Court went on to say, however, that we were "unable
to say at this juncture that [Otrompke] cannot, as a matter of law, sustain a claim of a separate injury
arising from a procedural due process violation in the course of
an otherwise unchallengeable determination" and defendants had
cited no authority supporting such a contention. Id. So we
declined to dismiss the remainder of Otrompke's claims.
Otrompke then was granted leave to file a second amended
complaint, adding a new claim. In the new claim, Count 6,
Otrompke alleges that he may seek readmission to the bar, and he
asks the Court to declare unconstitutional Illinois Supreme Court
Rules 708(b) and 710, as well as Illinois Bar Admission Rules
4.2, 4.3, 9,1, and 9.2. Defendants have moved to dismiss, arguing
that Otrompke is again attempting to challenge the denial of his
petition for admission to the bar. Though that is not our sense
of what Count 6 involves, we take this opportunity to revisit the
The Supreme Court recently clarified the Rooker-Feldman
doctrine in Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
125 S.Ct. 1517 (2005). In that case, the Court said that the
doctrine "is confined to . . . cases brought by state-court
losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments."
Id. at 1521-22. In view of the way the Court articulated the
rule of Rooker-Feldman, and because Otrompke's lawsuit was
commenced before the Illinois Supreme Court had ruled, an
argument could be made that it is not barred by Rooker-Feldman,
as clarified in Exxon Mobil. This point pertains not only to
Count 6, but also to the other claims that the Court previously
found to be barred by Rooker-Feldman.
Defendants argue that even if Rooker-Feldman does not bar
Count 6, the claim is barred by the doctrine of claim preclusion.
Cf. Exxon Mobil, 125 S.Ct. at 1522 ("Rooker-Feldman does not
otherwise override or supplant preclusion doctrine. . . .").
Under 28 U.S.C. § 1738, a federal court must give a state court judgment the same preclusive effect
that it would be given by a court of that state. Exxon Mobil,
125 S.Ct. at 1527. In Illinois, the doctrine of claim preclusion,
or res judicata, bars relitigation of claims that were or could
have been made in an earlier proceeding. River Park, Inc. v.
City of Highland Park, 184 Ill. 2d 290, 302, 703 N.E.2d 883, 889
(1998). A claim is precluded by an earlier judgment if the two
cases involve the same parties or their privies and the same
causes of action, and the earlier action concluded in a final
judgment on the merits. Id.
Count 6, as defendants read it, includes both a challenge to
the cited rules as they were used in Otrompke's failed attempt to
gain admission to the bar, and a facial challenge to those rules
as they may be applied in the future. The requirements for claim
preclusion are plainly met with regard to any claim in Count 6
that challenges the failure of Otrompke's application for
admission. First, the "cause of action" involved in both the
Illinois bar admission proceedings and Count 6 concerns the
procedures and rules used, and the matters relied upon, in
denying Otrompke admission to the bar. Second, the same parties
the Committee on Character and Fitness and the Board of
Admissions to the Bar are involved in both proceedings. Third,
the Illinois Supreme Court's denial of review was a judgment on
the merits. Hale v. Comm. on Character and Fitness for the State
of Illinois, No. 01 C 5605, 2002 WL 398524, *5 (N.D. Ill. Mar.
Otrompke could have mounted an attack on the Supreme Court
Rules and Bar Admission Rules in question before the Committee's
panels and the Illinois Supreme Court. See Otrompke, 2004 WL
812993, *3 (citing Hale, 335 F.3d at 683). Indeed, this Court's
earlier ruling made it clear that "the Illinois Supreme Court is
capable of resolving [Otrompke's] federal claims."
Id., *5. Otrompke does not suggest that he could not asserted have his
claims in the context of the bar admission proceedings. Rather,
he contends he was not required to do so. Specifically, Otrompke
contends that because he reserved the right to pursue his federal
claims in federal court, the claims are not barred. In this
regard, Otrompke relies on England v. Louisiana State Bd. of
Medical Examiners, 375 U.S. 411 (1964). England permits a
plaintiff who files a case in federal court before state
proceedings begin to tell the state tribunal that he wishes to
litigate his federal claims in federal court. This permits the
federal court to engage in what is referred to as Pullman
abstention, that is, where the federal court stays a case with
parallel state proceedings to permit the state court to clarify
an issue of state law, while permitting the plaintiff to return
to the federal court for determination of the federal claims
after the state court has decided the state law issue. See
Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941).
In this case, however, the Court abstained not under Pullman,
but rather under Younger v. Harris. England reservation does
not apply in the Younger context, "where the purpose of
abstention is not clarification of state law, but reluctance to
interfere with an ongoing state judicial proceeding." Duty Free
Shop, Inc. v. Administracion de Terrenos de Puerto Rico,
889 F.2d 1181, 1183 (1st Cir. 1989) (Breyer, J.). See, also, e.g.,
Communications Telesystems Int'l v. California Public Utility
Comm'n, 196 F.3d 1011, 1019 (9th Cir. 1999); United Parcel
Service, Inv. v. California Public Utility Comm'n, 77 F.3d 1178,
1184 n. 5 (9th Cir. 1996); Temple of the Lost Sheep Inc. v.
Abrams, 930 F.2d 178, 182-83 (2d Cir. 1991). For this reason,
Otrompke was not entitled to England reservation of his
constitutional challenge to the cited rules as they were applied
to him. Indeed, part of the basis for Younger abstention is the
proposition that the state forum in which proceedings were
ongoing at the time the federal suit was filed is adequate to
determine the plaintiff's federal claims. See, e.g., Steffel v.
Thompson, 415 U.S. 452, 460-61 (1974).
Defendants argue that Otrompke's challenge to future
application of the rules is similarly barred by claim preclusion.
Otrompke says that he plans to reapply for admission and that he
is entitled to prospective determination of whether the cited
rules are constitutional on their face. The Court is not
persuaded that this claim is barred by the doctrine of claim
preclusion. It is true that under Illinois law, a party's failure
to raise a constitutional claim in one suit that proceeds to
judgment bars the party from raising that constitutional claim in
a later suit. See, e.g., Furgatch v. Butler,
188 Ill. App. 3d 1060, 1067, 545 N.E.2d 140, 144 (1989). But in the Illinois cases
cited by defendants, the operative facts were the same in both
the first and second suits. See id.*fn1 In the present
situation, that is less than clear; Otrompke's facial challenge
involves a prospective future reapplication for admission.
Defendants have cited no case in which the Illinois courts have
addressed "how they would treat a general prospective challenge
to procedural rules that governed prior proceedings in which the
plaintiff could have raised identical points." Stanton v.
District of Columbia Court of Appeals, 127 F.3d 72, 78 (D.C.
The Court is persuaded by Otrompke's reliance on Stanton,
which involved a situation similar to the one presented in this
case. In that case, the plaintiff litigated several challenges to
suspensions of his law license by the District of Columbia bar
authorities. He then filed a suit in which he asserted a
prospective challenge to various provisions of the District's
rules of professional conduct and the procedures governing
reinstatement. The defendants argued that these claims were barred because the plaintiff could have, but
had not, challenged these same provisions in the earlier
litigation. The court, in a thoughtful decision by Judge Stephen
Williams, rejected this argument. As in the present case, the
local jurisdiction's courts had not addressed the application of
claim preclusion in the specific context at issue. Judge Williams
thus looked to "broader principles of claim preclusion" and
[l]itigation of the validity of one past course of
conduct is not the same "claim" as either (1)
litigation over the validity of similar conduct
occurring after the acts covered by the initial
litigation; or (2) litigation challenging a rule in
anticipation of its possible application to similar
events occurring or expected to occur after the
Id. at 79 (citations omitted). Because the plaintiff's current
suit involved "an initial facial attack following prior
retrospective litigation," his claim was not barred. Id. at 79.
The same is true here. The District of Columbia (the
jurisdiction whose claim preclusion rules were at issue in
Stanton) follows the same "transactional" approach to claim
preclusion used in Illinois. See id. at 78; River Park,
184 Ill. 2d at 313, 703 N.E.2d at 894. The Court is persuaded that
under Illinois law, claim preclusion does not bar Otrompke's
prospective challenge to the cited rules.
That, however, does not save Otrompke's claim. Defendants have
also moved to dismiss Count 6 for failure to state a claim. Count
6 simply cites the rules in question and alleges they are
unconstitutional without identifying why. Nor does Otrompke make
any effort in his responses to defendants' motion to describe how
Count 6 states a claim upon which relief may be granted. Though a
plaintiff is not required to plead a legal theory in his
complaint, the plaintiff facing a motion to dismiss who makes no
effort to explain how he has stated a claim acts at his peril.
See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041
(7th Cir. 1999); Stransky v. Cummins Engine Co., 51 F.3d 1329,
1335 (7th Cir. 1995). The only claims that the Court can discern from Count 6 are
that it is unconstitutional to allocate to a bar applicant the
burden of proving his good character, and that Illinois Bar
Admission Rules 4.2 and 4.3 are unconstitutionally vague and
overbroad. Neither contention has merit. First, the proposition
that it is inappropriate to impose the burden of proof on the
applicant has been soundly rejected. See, e.g., Konigsberg v.
State Bar of California, 366 U.S. 36, 40-41 (1961);
Martin-Trigona v. Underwood, 529 F.2d 33, 37 (7th Cir. 1976).
Second, Otrompke's facial challenge to Rules 4.2 and 4.3 on
grounds of overbreadth fails because he has made no showing that
those rules are or may be invalid in all their applications, see
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494 n. 5 (1982), and also because he has provided
the Court with no basis to believe that either rule reaches a
significant amount of constitutionally protected conduct. See
id. at 494-95; City of Chicago v. Morales, 527 U.S. 41, 52-53
(1999). Otrompke's vagueness challenge to the rules is infirm
because he has made no effort to show that the criteria the rules
list for consideration by the Committee are so subjective or
unclear that they promote arbitrary or discriminatory
enforcement. See generally Kolender v. Larson, 461 U.S. 352,
For these reasons, the Court grants defendants' motion to
dismiss Count 6.
The status of the remainder of Otrompke's claims is a bit murky
at this point. The comments made earlier in this decision
regarding the Supreme Court's recent clarification of the
Rooker-Feldman doctrine suggest it may be appropriate to
revisit our earlier ruling dismissing certain of Otrompke's
claims under that doctrine. Defendants also argue summarily in
their present motion that all of Otrompke's claims that concern
the procedures and methods used and the matters considered in
denying his bar application are barred by claim preclusion. But
this argument is insufficiently developed in defendants' motion
to warrant the Court's consideration at this point. If defendants renew the argument in a motion for
summary judgment, they should address, among other things,
whether the unavailability of damages in the context of the
proceedings regarding Otrompke's bar application affects the
application of claim preclusion. See generally Restatement (2d)
of Judgments § 26, comment c (1982). In addition, as noted in the
Court's Rooker-Feldman ruling, it remains to be seen whether a
claim of denial of procedural due process in the course of an
otherwise unchallengeable determination is viable in the present
context. But at this point, because the case is nearing the end
of the discovery period, these issues should be addressed, if at
all, in a motion for summary judgment, rather than in a motion to
dismiss the recently-filed third amended complaint.
For the reasons stated above, the Court grants defendants'
motion to dismiss the second amended complaint as to Count 6 but
otherwise denies the motion without prejudice [docket # 55-1,
61-1]. Plaintiff's motions for leave to file excess pages and a
supplement to his responsive memorandum are granted [docket #
64-1, 67-1]. Plaintiff's motion to extend the discovery cutoff
date was previously denied without prejudice and is therefore
terminated [# 70-1].