Ktsanes v. Underwood

• Decision Date: 26 March 1979
• Docket Number: No. 75 C 3421.,75 C 3421.
• Citation: 467 F. Supp. 1002
• Parties: Basil D. KTSANES, Plaintiff, v. Honorable Robert C. UNDERWOOD et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

467 F. Supp. 1002

Basil D. KTSANES, Plaintiff, v. Honorable Robert C. UNDERWOOD et al., Defendants.

No. 75 C 3421.

United States District Court, N. D. Illinois, E. D.

March 26, 1979.

COPYRIGHT MATERIAL OMITTED

Jason E. Bellows, Bellows & Bellows, Chicago, Ill., for plaintiff.

William J. Scott, Atty. Gen. of Illinois, and Herbert Lee Caplan, Asst. Atty. Gen., Chicago, Ill., for defendants.

Before PELL, Circuit Judge, PERRY, Senior District Judge, and McGARR, District Judge.

OPINION AND ORDER

PELL, Circuit Judge.

This action for injunctive and declaratory relief, invoking our jurisdiction, 28 U.S.C. § 1343(3), to enforce the Civil Rights Act, 42 U.S.C. § 1983, challenges the constitutional validity of Rule 705(d) of the Supreme Court of Illinois. Rule 705 (Ill.Rev.Stat. 1975, ch. 110A, § 705) provides that an attorney who has resided and practiced law in another state for five years may, upon passing a character and fitness test, be admitted to the bar of Illinois. Paragraph (d) of Rule 705 provides:

An applicant who has taken and failed to pass the bar examination in Illinois shall not be eligible to apply for admission on foreign license.

Plaintiff Basil D. Ktsanes was born in Illinois and resided there until he went to Kentucky to attend law school. He was graduated in June, 1967, then returned to Illinois and took the Illinois bar examination in July but failed to pass. Not finding satisfactory employment in Illinois, he returned to Kentucky and obtained a position there with the Jefferson County Attorney.

In July 1968, the plaintiff took and passed the Kentucky bar examination. He thereupon practiced law in Kentucky until December 1974, when he moved his residence to Illinois. In August 1974, he inquired of the Secretary of the Illinois State Board of Law Examiners how to gain admission to the Illinois Bar. The Secretary sent him a copy of the Illinois Supreme Court rules governing admission to the Illinois Bar, referred him to Rule 705(d), and stated that the Law Examiners had no choice but to follow the provisions of the rules. The plaintiff then petitioned the Justices of the Illinois Supreme Court for a waiver of Rule 705(d) and for his admission subject to his meeting all other conditions as may be ordered by the Court and by the Illinois State Board of Law Examiners. The petition was denied in March 1975. He subsequently filed a complaint in the district court seeking the convening of a three-judge district court, an injunction enjoining defendants Justices of the Illinois Supreme Court and Members of the Illinois State Board of Law Examiners from enforcing the provisions of Rule 705(d), and a declaration that the rule is void and unenforceable because it is contrary to the equal protection clause of the Fourteenth Amendment.

The defendants filed a motion to dismiss. The district court granted the motion on the grounds that it lacked jurisdiction to review a final decision of the Illinois Supreme Court relating to its bar, and that there was a rational connection between Rule 705(d) and the plaintiff's fitness to practice law. The court also denied his prayer to convene a three-judge court. The court of appeals reversed the district court's decision and, in a signed opinion issued on March 23, 1977 held: (1) that the district court did have jurisdiction in that the plaintiff's petition for waiver and its denial did not constitute a judicial proceeding appealable to the Supreme Court of the United States for the reason that he had asked the Illinois Supreme Court to take ministerial action, not to make a judicial determination, and the court therefore acted in an administrative capacity when it denied his petition; and (2) that a three-judge court was necessary to hear the case because a substantial federal question was raised by the constitutional challenge to Rule 705(d) in that there appeared to be no controlling decision rendering the claim obviously frivolous. Ktsanes v. Underwood, 552 F.2d 740 (7th Cir. 1977).

Defendant thereupon filed a petition for rehearing and a suggestion for rehearing en banc. Because the petition interpreted the opinion of the court in a manner not intended, the court of appeals on August 15, 1977 issued a per curiam opinion in which it stated that it had not decided the merits of the case and that a three-judge court must still determine (1) whether on grounds of comity and federalism a federal court is precluded from reviewing the State of Illinois rejection of an applicant for the Illinois Bar, and (2) if not, whether the Illinois rule challenged violates the equal protection clause. Ktsanes v. Underwood, 560 F.2d 790 (7th Cir. 1977).

Before analyzing whether we should abstain on grounds of comity and federalism, it is important to note exactly what the plaintiff has alleged. He has alleged only that Rule 705(d) violates the equal protection clause of the Fourteenth Amendment. He makes no claim that the rule, properly interpreted, should not apply to him, or that the rule is invalid on any state law ground. Moreover, his equal protection claim is that the rule is unconstitutional on its face, not merely as applied in his case. With this in mind, the abstention analysis is quite simplified.

Abstention is a court created doctrine first articulated in 1941 in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Although the doctrine has expanded to several different forms since the Pullman case, it is still broadly defined as a doctrine "under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, and which is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976), quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959).

The Supreme Court has confined the circumstances appropriate for abstention to three categories, in none of which the present case fits. Colorado River Water Cons. Dist. v. United States, 424 U.S. at 814-17, 96 S.Ct. 1236. First, "Abstention is appropriate `in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.'" Id. at 814, 96 S.Ct. at 1244. See e. g., Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). But in the present case, as in Zablocki v. Redhail, 434 U.S. 374, 380 n.5, 98 S.Ct. 673, 677-78 n.5, 54 L.Ed.2d 618 (1978), "there are no ambiguities in the statute for the state courts to resolve, and — absent issues of state law that might affect the posture of the federal constitutional claims — this Court has uniformly held that individuals seeking relief under 42 U.S.C. § 1983 need not present their federal constitutional claims in state court before coming to a federal forum. See, e. g., Wisconsin v. Constantineau, 400 U.S. 433, 437-39, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 245-52, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). See also Huffman v. Pursue, Ltd., 420 U.S. 592 at 609-10 n.21, 95 S.Ct. 1200, 43 L.Ed.2d 482." Rule 705(d) is clear, and the plaintiff has not raised any state law issue regarding its application. Therefore, requiring the parties to repair to the state courts could not "materially alter the constitutional issue presented" and the benefits of such abstention are "too speculative to justify avoidance of the question presented;" accordingly, abstention under this Pullman branch of the doctrine would not be appropriate. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 481, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977).

Second, abstention is appropriate when, "absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining the closure of places exhibiting obscene films, Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); or collection of state taxes, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943)." Colorado River Water Cons. Dist. v. United States, 424 U.S. at 816, 96 S.Ct. at 1246. This branch of the abstention doctrine is clearly not applicable to the present case because there is no pending state court proceeding involving the plaintiff and his relationship to Rule 705.

The third branch of the abstention doctrine is not as clearly defined as the other two. See generally 17 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4244 at 482 (1978). This branch is known as Burford-type abstention taking its name from Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Justice Brennan described this branch as follows:

Abstention is also appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), for example, involved such a question. In particular, the concern there was with the scope of the eminent domain power of municipalities under state law. See also Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968); Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933). In some cases, however, the state question itself need not be

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