Edelstein v. Wilentz

• Decision Date: 17 February 1987
• Docket Number: Nos. 86-5282,86-5487,s. 86-5282
• Citation: 812 F.2d 128
• Parties: Benjamin EDELSTEIN, Appellant, v. Hon. Robert N. WILENTZ, Hon. Robert L. Clifford, Hon. Alan B. Handler, Hon. Steward G. Pollock, Hon. Daniel J. O'Hern, Hon. Marie L. Garibaldi, Hon. Gary S. Stein, and the Supreme Court of New Jersey. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 128

812 F.2d 128

55 USLW 2481

Benjamin EDELSTEIN, Appellant, v. Hon. Robert N. WILENTZ, Hon. Robert L. Clifford, Hon. Alan

B. Handler, Hon. Steward G. Pollock, Hon. Daniel

J. O'Hern, Hon. Marie L. Garibaldi, Hon.

Gary S. Stein, and the Supreme

Court of New Jersey.

Nos. 86-5282, 86-5487.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Feb. 17, 1987.

Decided Feb. 26, 1987.

Rehearing and Rehearing En Banc Denied March 31, 1987.

W. Cary Edwards, Atty. Gen. of N.J., Deborah T. Poritz, Asst. Atty. Gen., Ross A. Lewin, Deputy Atty. Gen., Trenton, N.J., for appellees.

Benjamin Edelstein, Asbury Park, N.J., pro se.

Before GIBBONS, Chief Judge, SLOVITER, Circuit Judge, and SCIRICA, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. FACTS

Benjamin Edelstein, a New Jersey attorney, filed a complaint in federal court pursuant to 42 U.S.C. Sec. 1983 against all of the members of the New Jersey Supreme Court seeking a declaration that a Rule promulgated by the New Jersey Supreme Court deprived Edelstein and all other attorneys of the State of New Jersey of their Grievants in ethics matters, clients in fee arbitration cases and witnesses in both ethics and fee matters shall be absolutely immune from suit, whether legal or equitable in nature, for all communications to Committees, Fee Committees, the Director, the Board, or to appropriate staff and for testimony given in ethics or fee arbitration proceedings.

federal constitutional rights guaranteed by the First, Fifth and Fourteenth Amendments and an injunction against continued enforcement of the Rule. The Rule, which gives immunity to ethics grievants, provides:

N.J.Sup.Ct.R. 1:20-11(b).

Rule 1:20-11(b) effectively bars Edelstein's pending state court suit for malicious prosecution against Raymond Kramer, the husband of one of Edelstein's clients, who filed an ethics complaint against Edelstein in 1982 with the Monmouth County Bar Association Ethics Commission which was dismissed in 1985. Edelstein's suit was filed pursuant to N.J.S.A. 2A:47A-1 which gives professionals the right to file suit against "any person who falsely and maliciously and without probable cause" makes a complaint of unethical or unprofessional conduct to a disciplinary body.

Edelstein's federal action was assigned to District Judge Robert E. Cowen. Edelstein filed a motion seeking Judge Cowen's recusal, alleging that Cowen was biased because he had served from 1973 to 1978 as Director of the Office of the New Jersey State Courts charged with enforcement of the New Jersey Supreme Court rules governing attorneys' professional conduct. In ruling on the motion, Judge Cowen noted that it had been eight years since he had been employed by the New Jersey State Courts and that he had not been involved in the "promulgation or passing or acceptance" of Rule 1:20-11(b), which was promulgated after he left his position with the New Jersey State Courts. App. at 38-39. Concluding that he did "not see how anyone could reasonably say I lack objectivity to review the substantive claims which are made in this matter," Judge Cowen declined to recuse himself. App. at 39.

The defendants filed a motion to dismiss Edelstein's complaint, which was briefed and argued before the district court. At the hearing, Edelstein contended not only that the Rule as promulgated constitutes a violation of attorneys' rights under the Equal Protection and Due Process clauses, as he alleged in his complaint, but also that the Rule is invalid under the New Jersey Constitution because it was promulgated by the Supreme Court rather than by the legislature. This contention was not made in Edelstein's federal complaint.

With respect to Edelstein's federal constitutional claims, the court concluded that there was a rational basis for the rule, namely the encouragement of ethics complaints "to ferret out unethical practitioners and to motivate complainants to do this, to file complaints without fear of retribution. It makes sense to immunize them." App. at 52. Since the court found that attorneys are not a suspect class, the rational basis for the Rule defeated Edelstein's claim that it violated equal protection or due process. With respect to Edelstein's state constitutional claim, the court stated that it had "no jurisdiction in the matter." App. at 52. The court then dismissed Edelstein's complaint with prejudice.

Edelstein filed a motion seeking to have the court amend its order to dismiss the state law claim without prejudice. Following oral argument, the district court denied the motion for amendment, but clarified its position, explaining that Edelstein's state law claim had been dismissed not on the merits but because the court had "declined to exercise pendent jurisdiction." App. at 61.

Edelstein appeals both from the denial of his request for recusal and from the dismissal of his claims.

II. RECUSAL

Edelstein's motion for recusal was based on his affidavit alleging that Judge In the absence of actual bias, we look to whether the judge must recuse because "his impartiality might reasonably be questioned." 28 U.S.C. Sec. 455(a). In determining whether recusal is required under this provision, we must apply an objective standard. As we have recently stated, under section 455(a), "a judge should recuse himself where a reasonable man knowing all the circumstances would harbor doubts concerning the judge's impartiality." United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir.1983).

                Cowen "may have a personal bias against me."    The applicable federal statute requires a federal judge to recuse from further participation in any proceeding in which "he has a personal bias or prejudice concerning a party."    28 U.S.C. Sec. 455(b)(1).  However, Edelstein failed to support his allegation of personal bias with any evidence other than the allegation of Judge Cowen's prior employment.  Since Judge Cowen had not had any personal responsibility for or connection with the subsequently enacted Rule, his prior employment does not constitute bias in fact which requires recusal under section 455(b)(1).   See United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1348 (1983)
                

Since a judge's prior position as a United States Attorney does not require his or her recusal unless the case at issue arose before the judge left that position, see Barry v. United States, 528 F.2d 1094 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976); In re Grand Jury Investigation, 486 F.2d 1013, 1015-16 & n. 3 (3d Cir.1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974), Judge Cowen's prior position with the New Jersey courts could not reasonably be deemed to be a basis to question Judge Cowen's ability to rule impartially in this case. Our standard of review is abuse of discretion. See Johnson v. Trueblood, 629 F.2d 287, 290 (3d Cir.1980), cert. denied, 450 U.S. 999, 101 S.Ct. 1704, 68 L.Ed.2d 200 (1981). We cannot say that Judge Cowen abused his discretion in declining to recuse himself.

III.

CONSTITUTIONAL CHALLENGES TO R. 1:20-11(b)

Edelstein contends that because Rule 1:20-11(b) bars attorneys from filing malicious prosecution actions that other professionals can file pursuant to N.J.S.A. 2A:47A-1, the Rule's classification of attorneys violates the Equal Protection Clause. We must subject the classification to strict judicial scrutiny only if it discriminates against a suspect class or impinges on a fundamental interest. Hahn v. United States, 757 F.2d 581, 593-94 (3d Cir.1985). Since Edelstein does not contend that attorneys constitute a suspect class, we consider only his contention that the classification impinges on fundamental rights.

The Constitution does not create a fundamental right to pursue specific tort actions. States may create immunities which effectively eliminate causes of action, subject only to the requirement that their action not be arbitrary or irrational. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33, 102 S.Ct. 1148, 1155-56, 71 L.Ed.2d 265 (1982); Martinez v. California, 444 U.S. 277, 282 & n. 5, 100 S.Ct. 553, 557 & n. 5, 62 L.Ed.2d 481 (1980); Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979); see also Davidson v. O'Lone, 752 F.2d 817, 830 (3d Cir.1984) (in banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

Edelstein asserts that the Rule violates his constitutional rights to earn a livelihood and to practice law. Appellant's Brief at 13. Even if there were a "constitutional right to earn a living," an issue we do not reach, Edelstein has failed to explain how a rule which at most may indirectly encourage malicious ethics complaints impinges on his ability to practice law. The subject of a frivolous ethics complaint encouraged by the Rule still retains the right and ability to practice law and is denied only the ability to pursue a cause of action against the prosecutor of the frivolous complaint.

Moreover, Edelstein's contention that there is a fundamental right to practice law is contrary to the established precedent that, absent impingement on some other fundamental right, states may establish regulations limiting admission to the bar subject only to review under a rational relationship standard. See Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The Constitution does not create fundamental interests in particular types of employment. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam); Malmed v. Thornburgh, 621 F.2d 565, 570 (3d Cir.), cert. denied, 449 U.S. 955, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980) (no fundamental interest in public employment). We have previously held that the right to practice law is not a fundamental right for purposes of due...