Rapp v. Committee on Professional Ethics & Conduct

• Decision Date: 31 December 1980
• Docket Number: Civ. No. 80-366-D.
• Citation: 504 F. Supp. 1092
• Parties: Stephen J. RAPP and William H. Gilliam, d/b/a Rapp & Gilliam, A Professional Corporation, Plaintiffs, v. The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, and its Chairman, John Gamble, in his official capacity, and the Iowa Supreme Court and the individual members thereof, W. W. Reynoldson, Clay LeGrand, Harvey Uhlenhopp, David Harris, Mark McCormick, Robert G. Allbee, Arthur A. McGivern, Jerry L. Larson and Louis W. Schultz, in their official capacities, Defendants.
• Court: U.S. District Court — Southern District of Iowa

504 F. Supp. 1092

Stephen J. RAPP and William H. Gilliam, d/b/a Rapp & Gilliam, A Professional Corporation, Plaintiffs, v. The COMMITTEE ON PROFESSIONAL ETHICS AND CONDUCT OF the IOWA STATE BAR ASSOCIATION, and its Chairman, John Gamble, in his official capacity, and the Iowa Supreme Court and the individual members thereof, W. W. Reynoldson, Clay LeGrand, Harvey Uhlenhopp, David Harris, Mark McCormick, Robert G. Allbee, Arthur A. McGivern, Jerry L. Larson and Louis W. Schultz, in their official capacities, Defendants.

Civ. No. 80-366-D.

United States District Court, S. D. Iowa, C. D.

December 31, 1980.

COPYRIGHT MATERIAL OMITTED

Allen, Babich & Bennett, Gordon E. Allen, Leslie Babich, Mark W. Bennett, Des Moines, Iowa, for plaintiffs.

Paul F. Ahlers and H. Richard Smith, Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, Iowa, for the Iowa Supreme Court and individual members thereof.

Lee H. Gaudineer, Jr., and Carlton G. Salmons, Austin & Gaudineer, Des Moines, Iowa, for the Committee and its chairman.

MEMORANDUM OPINION AND RULINGS ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

VIETOR, District Judge.

Plaintiffs are lawyers licensed by and practicing law in the state of Iowa. On June 24, 1980, they filed this action under 42 U.S.C. § 1983, with jurisdiction predicated under 28 U.S.C. § 1343, challenging the constitutionality of provisions of the Iowa Code of Professional Ethics regulating lawyer advertising. Plaintiffs seek declaratory and injunctive relief against the defendants, The Committee on Professional Ethics and Conduct of the Iowa State Bar Association and its chairman, John Gamble, in his official capacity, the Iowa Supreme Court, and the individual members of the Iowa Supreme Court in their official capacities.¹

This matter comes before the court at this time on the defendants' Rule 56 motions for summary judgment. All defendants assert that this court lacks subject matter jurisdiction and, alternatively, that the issues sought to be adjudicated are barred by the doctrine of res judicata or claim preclusion. Additionally, the defendants Iowa Supreme Court and its individual justices assert that 28 U.S.C. § 2283 and the doctrines of judicial immunity, abstention and comity preclude this court's consideration of the issues raised in this suit against them. Plaintiffs have filed their resistance and the motions, having come before this court for oral argument on October 17, 1980, are now fully submitted.

RULE 56

Fed.R.Civ.P. 56(b) provides: "A party against whom a claim * * * is asserted * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

Fed.R.Civ.P. 56(c) provides in part: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

UNDISPUTED MATERIAL FACTS

The material facts relevant to the jurisdictional issues raised by the motions for summary judgment are undisputed.

The Iowa Supreme Court has promulgated the Iowa Code of Professional Responsibility for Lawyers, which includes disciplinary rules regulating lawyer advertising, DR 2-101 through DR 2-105, inclusive. Section (D) of DR 2-101 provides in part:

The committee on professional ethics and conduct of the Iowa State Bar Association, acting as commissioners of the supreme court as provided by court rule 118, on its own motion or upon the request of a lawyer admitted to practice in this state, shall, from time to time, consider and recommend to the court proposed amendments to the code relative to lawyer advertising.

Court rule 118.2, referred to in the quoted portion of DR 2-101(D), provides:

The members of the Committee on Professional Ethics and Conduct of the Iowa State Bar Association and their successors, as confirmed by order of this court are appointed commissioners of this court to initiate or receive, and process complaints against any attorney licensed to practice law in this state for alleged violations of the Iowa Code of Professional Responsibility for Lawyers and laws of the United States or the state of Iowa. Upon completion of any such investigation the committee on professional ethics and conduct shall either dismiss the complaint made, or admonish or reprimand the complained against attorney, or file and prosecute the complaint before the grievance commission or any division thereof.

Rules 5.1 through 5.6 of the Rules of Procedure of The Committee on Professional Ethics and Conduct of the Iowa State Bar Association provide:

5.1 Any member of the bar desiring to expand the information authorized for disclosure pursuant to the provisions of DR 2-101 or DR 2-105, Iowa Code of Professional Responsibility for Lawyers, or to provide for its dissemination through forums other than therein authorized or otherwise to change those rules, may apply to the committee. Such application shall be made in writing by restricted, certified mail, and shall include such documentation as the applicant deems appropriate. The committee thereafter shall determine, on the basis of documentation at hand, further investigation, or whatever hearings it deems to be necessary, whether all or any part of the proposal is necessary in the light of existing provisions of the code, accords with the standards of accuracy, reliability, and truthfulness, and would facilitate the process of informed selection of lawyers by potential consumers of legal services.

5.2 If the committee is of the opinion that no relief should be granted in response to any such application and no changes are necessary, it shall make a determination to that effect and then shall proceed as provided hereinafter.

5.3 If the committee concludes that relief should be granted in response to such application, it shall make its determination to that effect and submit the same to the supreme court by filing the same with the clerk of the court as a recommended amendment to the Iowa Code of Professional Responsibility for Lawyers, universally applicable to all lawyers admitted to practice in Iowa.

5.4 Within ten days after the committee has made its determination under paragraphs 5.1 and 5.2 herein above, it shall notify applicant of its determination by furnishing said applicant a copy thereof by restricted, certified mail. Applicant shall have thirty days from the date of the said mailing by the committee to the applicant to take exception to all or any part of the determination of the committee. Said exceptions shall be taken by filing with the committee within said thirty-day period, complete written notice and documentation of the exceptions and the reasons therefor, which shall be forwarded to the committee by restricted, certified mail.

5.5 Within thirty days from the receipt of the exceptions, the committee shall file with the clerk of the court a copy of said exceptions and documentations attached thereto, together with any written response which the committee seeks to make to the court together with a certification of its mailing to the applicant a copy of its response to the exceptions, in order that the court may determine the whole matter, with or without hearing, as to the court may appear appropriate and desirable.

5.6 Nothing herein contained shall permit any publication other than provided in DR 2-101 or DR 2-105 unless and until said DR 2-101 or DR 2-105 shall be amended by the court. No applicant for expanded information for disclosure or other publication under the said rules shall make such disclosure or publication until the same specifically has been approved by rule of the court.

On September 14, 1979, pursuant to the quoted portion of DR 2-101(D) and Committee Rule 5.1, plaintiffs filed an application with the Committee on Professional Ethics and Conduct to change the disciplinary rules regulating lawyer advertising.

In their application, plaintiffs submitted proposed amendments and filed a 13 page brief and argument in which they articulated their objections to the existing rules and reasons for their proposed amendments. The plaintiffs also requested an oral hearing on the application, which was held on December 13, 1979, and was open to public attendance. Plaintiffs presented their views on the proposed amendments, as did Emmet Tinley, Roy Follet, vice president and director of advertising at the Des Moines Register & Tribune, and Leonard Howe, former president of an advertising agency. Northwestern Bell Telephone Company filed written comments. On January 18, 1980, the Committee filed its report and recommendation with the Iowa Supreme Court, accepting plaintiffs' application in part, rejecting it in part, and proposing several amendments to the Code of Professional Responsibility's provisions governing lawyer advertising.

On February 12, 1980, the Iowa Supreme Court scheduled a hearing on this matter to consider the report and adoption of amendments. The order stated that "any interested organization, agency or person may submit appropriate documents and briefs in favor or opposed to all or any of the proposed amendments." One could also request to be heard orally on the amendments.

Plaintiffs filed their bill of exceptions and brief and argument with the court on February 19, 1980. In their bill of exceptions, plaintiffs proposed amendments and in their brief set forth both constitutional and public policy arguments for their proposed amendments. Briefs or comments were also filed by the Academy of Actuaries, the Iowa Broadcasters' Association, and Northwestern Bell Telephone Company. The Iowa Supreme Court heard oral arguments on April 16, 1980, from the plaintiffs, the Committee, and the Iowa Broadcasters' Association. On May 5, 1980, the Iowa Supreme Court entered its order adopting the amendments to the Iowa Code...