Phipps v. Wilson, 10248.

• Decision Date: 23 February 1951
• Docket Number: No. 10248.,10248.
• Citation: 186 F.2d 748
• Parties: PHIPPS v. WILSON.
• Court: U.S. Court of Appeals — Seventh Circuit

186 F.2d 748 (1951)

PHIPPS v. WILSON.

No. 10248.

United States Court of Appeals Seventh Circuit.

January 25, 1951.

Rehearing Denied February 23, 1951.

H. M. Phipps, Chicago, Ill., for appellant.

Ivan A. Elliott, Atty. Gen., William C. Wines, Asst. Atty. Gen., for appellee.

Before DUFFY, FINNEGAN and SWAIM, Circuit Judges.

DUFFY, Circuit Judge.

On March 10, 1950, plaintiff, appearing pro se, filed the complaint herein in the District Court of the United States for the Northern District of Illinois. The defendants named are the seven justices of the Supreme Court of Illinois, as well as the Supreme Court of Illinois itself. A motion to strike the complaint was granted, with leave to amend. On June 5, 1950, plaintiff filed what he designated as "Amended Substituted Complaint," to which the original complaint was attached as Exhibit B. Thereafter the individual defendants moved to strike the amended complaint and to dismiss the cause. This appeal is from the judgment of dismissal of the district court on said motion.¹

The allegations of the original complaint and of the amended complaint are lengthy, involved and discursive, the two pleadings occupying 36 pages of the printed record herein. Many of the charges set forth would seem to have no connection with the claimed basis for the suit, unless perhaps to impugn the motives of all persons who were in any way connected with charging the plaintiff with malconduct and with investigating such charges. However, from the welter of plaintiff's charges and allegations we can sift out the following: Plaintiff has been a citizen of the United States for more than seventy years and a resident of the State of Illinois for over fifty years. On April 6, 1899, the Supreme Court of Illinois issued to plaintiff a license to practice law in the State of Illinois, and for some unstated period prior to 1943 he maintained a law office in the city of Chicago. On May 12, 1943, the Supreme Court of Illinois disbarred the plaintiff by ordering that his name be stricken from the roll of attorneys admitted to practice law.²

Plaintiff alleges that he was disbarred "without record, court protection or opinion," and contrary to the Constitution and laws of the State of Illinois, and that he was deprived of his rights under the Constitution of the United States.

Among the many allegations and charges made by the plaintiff are the following specific complaints: that the Illinois Supreme Court unlawfully delegated to the committees of the Chicago Bar Association judicial power to investigate the complaints against him; that the Illinois Supreme Court failed to render an opinion in writing as required by Chapter 37, § 21, Ill.Rev. Stat.; that the statutory procedure for striking an attorney's name from the roll was not followed; that no consideration was given by the Supreme Court or by the Chicago Bar Association to complaints which plaintiff made and filed against five attorneys; that years subsequent to the order of disbarment the defendants refused to permit the clerk of the Supreme Court to file a pleading tendered by the plaintiff.

We have encountered considerable difficulty in ascertaining just what relief plaintiff is seeking from the federal courts in this action. Upon oral argument before this court plaintiff conceded that neither this court nor the district court had the power to order the Illinois Supreme Court to reinstate his name upon the attorney roll. In his amended complaint plaintiff prays "for the protection of his Constitutional Rights guaranteed him by the Constitution of the United States." In another part of the complaint he refers to the Fourteenth Amendment to the U. S. Constitution. He further states, "May It Please the Court to grant unto your petitioner relief, for the reasons set forth, directed to the respondents, that they correct the order of May 12, 1943, by vacating the order of disbarment for the reason that it was procedure prohibited by the statutory laws of Illinois, and thereby violated the petitioner's state rights and Constitutional guarantees; your petitioner represents to this court, that, should any meritorious cause exist for which he may be chargeable, the statutory procedure for inquiry therein, when filed, will not be met by dilatory procedure, where consideration is likewise given to complaints he shall offer (except the facts of the allegations involved in this pleading), in event this court feels so inclined to so suggest or order."

Plaintiff further asks that "the Supreme Court of Illinois receive any just or meritorious censure" because of its attack upon him; also that defendants "be specifically required, in their answer, to provide your petitioner with the names and dates of appointment of all parties who participated in any investigation affecting your petitioner.³

Plaintiff, in Paragraph 39 and elsewhere in the amended complaint, alleges that disbarment proceedings, being penal, require a strict construction by the courts. He alleges that the statutory procedure as to disbarments was not strictly followed in his case, and that the pleading (complaint against him) should be verified "in accordance with the rules of best evidence required under the State Law of Illinois."

A disbarment proceeding in Illinois is not a criminal case with its formalities of pleading. In re Hamilton, 388 Ill. 589, 58 N.E.2d 449. It is not a criminal prosecution, and is not subject to the rules of criminal law. In re Carr, 377 Ill. 140, 36 N.E.2d 243; In re Malmin, 364 Ill. 164, 4 N.E.2d 111. Such proceedings are not governed by common law rules of pleading. In re Needham, 364 Ill. 65, 4 N.E.2d 19. To constitute a cause for disbarment or discipline the conduct of an attorney need not necessarily amount to a crime or a misdemeanor. In re Alschuler, 388 Ill. 492, 58 N.E.2d 563. A disbarment proceeding does not come within the Illinois Civil Practice Act. People ex rel. Chicago Bar Ass'n v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1.

The Illinois Supreme Court has likewise passed upon other contentions raised herein by the plaintiff. It has held that the procedure under Chapter 110, § 259.59, Rule 59, is not an unconstitutional delegation of judicial power. In re Donaghy, 393 Ill. 621, 66 N.E.2d 856. It has also held that this section gives the commissioners a wide discretion as to procedure to be followed in disbarment cases. In re Lenox, 371 Ill. 505, 21 N.E.2d 721.

Construing the amended complaint most favorably to the pleader as an attempt to state a claim upon which relief can be granted by a federal court, it may be said that plaintiff claims to be aggrieved by his disbarment by the Illinois Supreme Court, and by the procedure and manner by which it was accomplished, and that the State of Illinois, through its Supreme Court, has taken his property from him without due process of law, contrary to the provisions of the Fourteenth Amendment, U. S. Constitution; and plaintiff demands that the federal courts do something to remedy the situation in which he finds himself.

An attorney is an officer of the court before which he has been admitted to practice. The power to discipline or disbar such officer for unprofessional conduct is inherent in the court, and exists independent of statute. People ex rel. Ludens v. Harris, 273 Ill. 413, 112 N.E. 978; In re Roth, 398 Ill. 131, 75 N.E.2d 278.

As to disbarment, due process requires only that an attorney have reasonable notice of the charges against him and a reasonable...