Verner v. State of Colo.

• Decision Date: 19 March 1982
• Docket Number: Civ. A. No. 81-K-1358.
• Citation: Verner v. State of Colo., 533 F.Supp. 1109 (D. Colo. 1982)
• Parties: Robert J. VERNER a/k/a Robert John Verner, Plaintiff, v. STATE OF COLORADO, Supreme Court of State of Colorado, Board of Continuing Legal Education of the State of Colorado, Colorado State Board of Law Examiners, Grievance Committee of the Supreme Court of the State of Colorado, Paul V. Hodges, George Lohr, Jean Dubofsky, Luis D. Rovira, Joseph R. Quinn, Robert B. Lee, William H. Erickson, James R. Carrigan, Edward E. Pringle, Donald E. Kelley, Edward C. Day, James H. Klein, James E. Bye, Marvin Stone, Donald Abram, Mark FulFord, Janet Roberts, Ted Manning, Dr. Thurston E. Manning, Cathryn Ables, James P. Holloway, and Any Other Unknown Parties, Defendants.
• Court: U.S. District Court — District of Colorado

533 F. Supp. 1109

Robert J. VERNER a/k/a Robert John Verner, Plaintiff, v. STATE OF COLORADO, Supreme Court of State of Colorado, Board of Continuing Legal Education of the State of Colorado, Colorado State Board of Law Examiners, Grievance Committee of the Supreme Court of the State of Colorado, Paul V. Hodges, George Lohr, Jean Dubofsky, Luis D. Rovira, Joseph R. Quinn, Robert B. Lee, William H. Erickson, James R. Carrigan, Edward E. Pringle, Donald E. Kelley, Edward C. Day, James H. Klein, James E. Bye, Marvin Stone, Donald Abram, Mark FulFord, Janet Roberts, Ted Manning, Dr. Thurston E. Manning, Cathryn Ables, James P. Holloway, and Any Other Unknown Parties, Defendants.

Civ. A. No. 81-K-1358.

United States District Court, D. Colorado.

March 4, 1982.

As Amended March 19, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert J. Verner, pro se.

R. Michael Mullins, Asst. Atty. Gen., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

As far as it is possible to determine through a computer search, this is a case of first impression in the United States. It is an action claiming over nine million dollars in damages and injunctive relief, pursuant to 42 U.S.C. § 1983, for the alleged violation of the plaintiff's first, sixth, eighth, thirteenth and fourteenth amendment rights, by the defendants, in suspending the plaintiff from practicing law due to his failure to comply with the requirements of Col.R.Civ.P. 260 ("rule 260"). This court has jurisdiction pursuant to 28 U.S.C. § 1343(3).¹ Rule 260 requires Colorado practicing attorneys and judges to complete a specified amount of continuing legal education. After a hearing on May 16, 1981, the defendant-Board of Continuing Legal Education of the State of Colorado ("C.L. E.-board") unanimously found that the plaintiff had failed to comply with rule 260's mandatory continuing legal education requirements and it entered its findings with the defendant-Supreme Court of the State of Colorado ("Colorado Supreme Court"). On August 21, 1981, the Colorado Supreme Court, en banc, ordered the plaintiff suspended from practice based on the C.L.E.-board's findings. This case is before me on the defendants' motion to dismiss pursuant to F.R.Civ.P. 12(b)(1) and (6).

I. SUBJECT MATTER JURISDICTION

The Tenth Circuit distinguishes between two types of challenges to attorney disciplinary or admission procedures for jurisdictional purposes. If an action challenges the constitutionality of the state's adoption or administration of a particular rule or regulation, federal district courts have jurisdiction over the action. However, if the action is one seeking review of an order affecting a particular attorney, it may only be reviewed by writ of certiorari to the United States Supreme Court, even if the challenge is anchored to alleged deprivations of constitutionally protected rights. See Phelps v. Kansas Supreme Court, 662 F.2d 649, 651 (10th Cir. 1981); Younger v. Colorado State Board of Law Examiners, 625 F.2d 372, 375-76 (10th Cir. 1980); Doe v. Pringle, 550 F.2d 596, 597-99 (10th Cir. 1976). Accordingly, this court only has jurisdiction to consider the plaintiff's challenges to the constitutionality of rule 260. All of the plaintiff's claims that are addressed to the defendants' conduct during the disciplinary proceedings, such as that the C.L.E.-board and the Colorado Supreme Court acted with prejudice and failed to consider evidence of the plaintiff's good conduct, are dismissed for want of jurisdiction.

II. IMMUNITIES

A. THE ELEVENTH AMENDMENT

The Eleventh Amendment to the United States Constitution provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state." States and their agencies may not be sued in federal court directly or in their own names for damages or for injunctive or declaratory relief by virtue of the eleventh amendment. See Nachmod, Civil Rights and Civil Liberties Litigation, § 5.08 (1979). The Supreme Court has interpreted this amendment also to bar suits against a state in federal courts brought by citizens of the defendant state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

The plaintiff claims that § 1983 actions in federal court against states are not subject to any bars after the Supreme Court's decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruling in part Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). There are two traditional obstacles to suing states in federal courts under 42 U.S.C. § 1983: (1) The eleventh amendment bar against suing states in federal court; and (2) judicial interpretations of § 1983 holding that states are not "persons" within the meaning of the statute.² See e.g. Coopersmith v. Supreme Court, State of Colorado, 465 F.2d 993, 994 (10th Cir. 1972), where the Tenth Circuit held, in reliance on Monroe v. Pape, supra, that states are not "persons" under § 1983.

In Edelman v. Jordan, 415 U.S. 651, 675-77, 94 S.Ct. 1347, 1361-62, 39 L.Ed.2d 662 (1974), the Supreme Court held, without explication, that congress did not intend to waive the states' eleventh amendment immunity through 42 U.S.C. § 1983. In Fitzpatrick v. Bitzer, 427 U.S. 445, 452, 96 S.Ct. 2666, 2669, 49 L.Ed.2d 614 (1976), the court explained its result in Edelman: because § 1983 excludes cities as persons, "it could not have been intended to include states as party-defendants" and it therefore was not intended to abrogate the states' eleventh amendment immunity. In Fitzpatrick, the court held that congress intended to abrogate the states' eleventh amendment immunity through the 1972 amendments to Title VII of the Civil Rights Act of 1964. The court noted that congress possessed the power under § 5 of the fourteenth amendment, to override the states' constitutional immunity.

The plaintiff argues that the Supreme Court's decision in Monell, overruling Monroe v. Pape, supra, and holding that cities are now persons under § 1983, weakens previous rationale for both excluding states as "persons" and for presuming that congress did not intend to abrogate the states' eleventh amendment immunity through § 1983. See Hutto v. Finney, 437 U.S. 678, 703, 98 S.Ct. 2565, 2580, 57 L.Ed.2d 522 (1978) (Brennan, J., concurring). While there is a strong argument that states are "persons" under § 1983 after Monell, see Marrapese v. State of Rhode Island, 500 F.Supp. 1207, 1209-12 (D.R.I.1980), the Supreme Court has reaffirmed the holding that § 1983 was not intended to override the states' eleventh amendment immunity in Quern v. Jordan, 440 U.S. 332, 338-49, 99 S.Ct. 1139, 1143-49, 59 L.Ed.2d 358 (1979). In Quern, the majority reasoned that a clear showing of congressional purpose is required before the court will find an intent to abrogate the states' eleventh amendment immunity. The majority found that congress, in enacting § 1983, did not clearly demonstrate its intent to abolish the states' eleventh amendment immunity as it had in enacting Title VII, see Fitzpatrick v. Bitzer, supra, and the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, see Hutto v. Finney, supra.

The plaintiff further claims that the State of Colorado has waived its eleventh amendment immunity by virtue of its partial waiver of its common law state sovereign immunity against being sued in state court. Assuming, arguendo, that the state's partial waiver of sovereign immunity is even applicable to this type of action,³ a state's waiver of its immunity against suit in its own courts does not constitute a waiver of its eleventh amendment immunity against suit in federal court. Edelman v. Jordan, supra, 415 U.S. at 677 n.19, 94 S.Ct. at 1363 n.19.

Accordingly, the plaintiff's § 1983 claims against the State of Colorado and its named agencies (C.L.E.-board, Colorado Supreme Court, Colorado State Board of Law Examiners and the Grievance Committee of the Colorado Supreme Court), are barred by the eleventh amendment.

The plaintiff's § 1983 claims against the named individual state officials⁴ require a different analysis. In federal actions naming state officials as party-defendants, it is important to determine whether the suit is essentially against the state and therefore barred by the eleventh amendment. State officials may be sued in their personal capacity for damages in a federal action because the eleventh amendment grants them no immunity even when they are acting in their official capacity. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974). Such federal actions are deemed actions against the individual officials and not against the state. However, when an action is in essence one for recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke the eleventh amendment bar, even though individual officials are nominal defendants. Edelman v. Jordan, supra; Ford Motor Company v. Department of Treasury of the State of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).

Further, the Supreme Court recognizes an exception to the eleventh amendment bar in actions for equitable relief against state officials.⁵ See Ex Parte Young, 209 U.S. 123, 125, 28 S.Ct. 441, 442, 52 L.Ed. 714 (1908). The court justifies this exception by utilizing a legal fiction that the individual and not the state is being sued since the use of the state's name by a state official to enforce an unconstitutional act is a proceeding without the state's authority and does not affect the state in its sovereign or governmental capacity. Id. at 159-60, 28 S.Ct. at 453-54.

In the instant case, the plaintiff's damage claims against the named state officials are not barred by the ...