Berger v. Cuyahoga County Bar Ass'n

• Decision Date: 12 March 1993
• Docket Number: No. 91-4178,91-4178
• Citation: 983 F.2d 718
• Parties: 1993-1 Trade Cases P 70,106 Sanford J. BERGER; Robert M. Fertel, Plaintiffs-Appellants, v. CUYAHOGA COUNTY BAR ASSOCIATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 718

983 F.2d 718

1993-1 Trade Cases P 70,106

Sanford J. BERGER; Robert M. Fertel, Plaintiffs-Appellants, v. CUYAHOGA COUNTY BAR ASSOCIATION, et al., Defendants-Appellees.

No. 91-4178.

United States Court of Appeals Sixth Circuit.

Argued Sept. 25, 1992.

Decided Jan. 11, 1993.

Rehearing and Rehearing En Banc

Denied March 12, 1993.

Sanford J. Berger (argued and briefed), Robert M. Fertel, (argued) Berger & Fertel, Cleveland, OH, for plaintiffs-appellants.

David W. Mellott (briefed), Mark A. Phillips (argued), Kenneth A. Bravo, Benesch, Friedlander, Coplan & Aronoff, Ellen S Mandell, Turbow, Monastra & Mandell, Cleveland, OH, for defendants-appellees Cuyahoga County Bar Ass'n, Robert J. Fay, Grievance Committee of Cuyahoga County Bar Ass'n, Richard Koblentz and Lawrence Turbow.

Before: BOGGS and SUHRHEINRICH, Circuit Judges; and WELLFORD, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Plaintiffs Sanford J. Berger and Robert M. Fertel appeal the dismissal of their complaint seeking injunctive, declaratory, and monetary relief for claims arising out of state bar disciplinary proceedings brought against them. The district court dismissed the complaint on the basis of Younger abstention and the state action immunity. 775 F.Supp. 1096 (N.D.Ohio 1991). We hold that plaintiffs' claims are barred by judicial immunity, state action immunity, Younger abstention, and mootness. We AFFIRM.

I. FACTS

Plaintiffs are attorneys licensed to practice law in Ohio. They represented Daniel Gurish in a federal civil rights action in which the jury awarded Gurish $100,000 in damages. Plaintiffs filed a motion to recover their fees under 42 U.S.C. § 1988. ¹ This prompted a settlement offer of $130,000, inclusive of attorney fees. Against plaintiffs' advice, Gurish accepted the settlement offer.

Plaintiffs and Gurish disagreed as to the proper division of the settlement amount. Plaintiffs maintained that they were entitled to 50% of the original jury award of $100,000 plus the additional $30,000 award in the settlement, for a total of $80,000. Gurish contended that he was to receive $100,000, the full amount of his jury award. As a result of the dispute, Gurish obtained new counsel and brought suit against plaintiffs. Gurish ultimately settled with plaintiffs for $65,000, half of the settlement amount.

Although the matter was resolved, Gurish filed a complaint with the Cuyahoga County Bar Association regarding plaintiffs' conduct. An investigation by the Certified Grievance Committee of the Ohio Bar Association followed. ² The Grievance Committee scheduled an Investigative Hearing for November 20, 1989. At the hearing, the Grievance Committee found probable cause to file a formal complaint against plaintiff Berger. The matter was referred to a probable cause panel. ³

The Grievance Committee also filed an initial complaint against plaintiff Fertel based on testimony presented at the hearing. Another Investigatory Hearing was held on February 8, 1990, at which probable cause was found to support a formal complaint against plaintiff Fertel. This matter was also referred to a probable cause panel. Both complaints against plaintiffs were certified on October 18 1990, and a formal hearing was held on April 19, 1991.

On January 23, 1990, in the midst of the investigation, plaintiff Berger filed a complaint in federal district court seeking a declaratory judgment, injunctive relief, money damages, and costs. On February 28, 1990, plaintiff Berger amended the complaint to add Fertel as a plaintiff. Plaintiffs alleged various constitutional and antitrust violations on the part of the Ohio Supreme Court, the Cuyahoga County Bar Association, its committees, and its members.

On September 19, 1991, the district court dismissed the complaint based on Younger abstention and state action immunity from the antitrust claims. Plaintiffs filed a motion to alter or amend judgment which the district court denied. This timely appeal followed.

On September 2, 1992, during the pendency of this appeal, the Supreme Court of Ohio issued a decision finding that plaintiffs had charged an excessive fee, had withheld settlement proceeds from their client, and had interfered with the bar association investigation. Because of these infractions, the court suspended plaintiffs from the practice of law for one year. Cuyahoga County Bar Ass'n v. Berger, 64 Ohio St.3d 454, 597 N.E.2d 81 (1992) (per curiam).

II. STANDARDS OF REVIEW

We review decisions to abstain de novo. Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 925 F.2d 962, 967 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 59, 116 L.Ed.2d 35 (1991); Litteral v. Bach, 869 F.2d 297, 298 (6th Cir.1989); Traughber v. Beauchane, 760 F.2d 673, 676 (6th Cir.1985). Further, the application of judicial immunity and state action immunity are questions of law which we also review de novo. Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir.1990) (judicial immunity); Grason Elec. Co. v. Sacramento Mun. Util. Dist., 770 F.2d 833, 835 (9th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 886, 88 L.Ed.2d 921 (1986) (state action immunity).

Questions of jurisdiction are fundamental matters which we may review sua sponte. Carras v. Williams, 807 F.2d 1286, 1289 n. 5 (6th Cir.1986). Thus, we address the problem of mootness on our own motion.

III. ANALYSIS

On appeal, plaintiffs contend that the Ohio disciplinary action is an improper exercise of state jurisdiction, which is by federal law preempted as well as being unconstitutional. Plaintiffs also raise antitrust claims. Plaintiffs seek money damages for the alleged constitutional and antitrust violations, an injunction against the state proceedings, and a declaratory judgment that the proceedings are unconstitutional. Defendants counter that these claims are not properly before this court because of immunity and Younger abstention. We address plaintiffs' claims seeking money damages first.

A. MONEY DAMAGES

1. Judicial Immunity

Plaintiffs seek money damages for constitutional and antitrust violations. Defendants maintain that, under doctrines of immunity, these claims are barred.

Traditionally, judges have enjoyed broad immunity from suit for judicial acts. Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 543, 98 L.Ed.2d 555 (1988). Judicial immunity, however, does not preclude suit for prospective relief such as an injunction. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565 (1984). Further, the existence of judicial immunity depends on whether the offending actions were taken to carry out a judicial function. Forrester, 484 U.S. at 227, 108 S.Ct. at 544. See Sparks v. Character and Fitness Comm., 859 F.2d 428, 432-34 (6th Cir.1988), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989).

However, judges may be entitled to different types of immunity if non-judicial functions are involved. For example, the Supreme Court has held that judges who promulgate a code of conduct for attorneys act in a legislative capacity and are entitled to legislative immunity from suits based on such actions, rather than judicial immunity. Forrester, 484 U.S. at 228, 108 S.Ct. at 544. On the other hand, a judge who enforces a code of conduct is entitled to prosecutorial immunity. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 736-37, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980). See Forrester, 484 U.S. at 228-29, 108 S.Ct. at 544-45. Because prosecutors are absolutely immune from suit for money damages, judges acting as enforcers are also absolutely immune from suit for money damages. Consumers Union, 446 U.S. at 736, 100 S.Ct. at 1977; Imbler v. Pachtman, 424 U.S. 409, 421-29, 96 S.Ct. 984, 990-94, 47 L.Ed.2d 128 (1976).

In the present appeal, defendants' role was that of an enforcer. Thus, under Forrester and Consumers Union, the Supreme Court of Ohio and its justices are immune from suit for money damages. The Cuyahoga County Bar Association, its committees and members are likewise immune from suit because they acted as arms of the Supreme Court of Ohio in performing a function for which the court and its justices are immune. Sparks, 859 F.2d at 433 ("[I]t is of no moment that the actor is a designee of the justices of [the Supreme Court of Ohio] rather than the justices themselves."). See also Watts v. Burkhart, 978 F.2d 269 (6th Cir.1992) (en banc) (discussing prosecutorial and judicial immunity).

2. State Action Immunity

Plaintiffs also allege that the disciplinary rules and proceedings are unreasonable restraints on trade which violate the Sherman Act, 15 U.S.C. §§ 1 through 7. Defendants raise state action immunity in defense to this claim.

The Supreme Court has stated that state action immunity precludes application of the Sherman Act to state programs. Parker v. Brown, 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943). This is because the Sherman Act was not intended to limit state programs which "derive [their] authority and ... efficacy from the legislative command of [a sovereign] state." Id. at 350, 63 S.Ct. at 313.

The Court has applied this doctrine to the promulgation and enforcement of codes of ethical conduct for attorneys. In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that disciplinary rules promulgated by a state supreme court pursuant to a constitutional grant of authority over the practice of law are directives of the sovereign which qualify for state action immunity. Id. at 359-63, 97 S.Ct. at 2696-99.

In the present case, plaintiffs violated Ohio disciplinary rules regarding fees, settlement proceeds, and disciplinary investigations. These rules were promulgated by the Supreme Court of Ohio pursuant to its constitutional grant of power to regulate the practice of law. See Ohio Const. art. IV, § 2(B)(1)(g). Promulgation and enforcement of the rules are plainly exercises of Ohio's sovereign...