Zimmerman v. Grievance Committee of Fifth Judicial Dist. of State of N.Y., 455

• Decision Date: 27 January 1984
• Docket Number: D,No. 455,455
• Citation: 726 F.2d 85
• Parties: Aaron Mark ZIMMERMAN, Plaintiff-Appellant, v. GRIEVANCE COMMITTEE OF the FIFTH JUDICIAL DISTRICT OF the STATE OF NEW YORK, et al., Defendants-Appellees. ocket 83-7532.
• Court: U.S. Court of Appeals — Second Circuit

Page 85

726 F.2d 85

Aaron Mark ZIMMERMAN, Plaintiff-Appellant, v. GRIEVANCE COMMITTEE OF the FIFTH JUDICIAL DISTRICT OF the STATE OF NEW YORK, et al., Defendants-Appellees.

No. 455, Docket 83-7532.

United States Court of Appeals Second Circuit.

Argued Jan. 5, 1984.

Decided Jan. 27, 1984.

Gary Lavine, Syracuse, N.Y. (Aaron Mark Zimmerman, pro se, Mark Bennett, Allen, Babisch & Bennett, Des Moines, Iowa, on brief), for plaintiff-appellant.

William J. Kogan, Asst. Sol. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen., and Peter H. Schiff, Asst. Atty. Gen., Albany, N.Y., on brief), for defendant-appellee Grievance Committee of the Fifth Judicial Dist.

John A. Williamson, Jr., Albany, N.Y., for defendant-appellee New York State Bar Assn.

Henry S. Fraser, Syracuse, N.Y. (Coulter, Fraser, Ames, Bolton, Bird & Ventre, Syracuse, N.Y., on brief), for defendant-appellee Onondaga County Bar Assn.

Before NEWMAN and PRATT, Circuit Judges, and MacMAHON, District Judge. ^*

JON O. NEWMAN, Circuit Judge:

Aaron Mark Zimmerman appeals from the June 13, 1983, judgment of the District Court for the Northern District of New York (Neal McCurn, Judge) dismissing his amended complaint for lack of subject matter jurisdiction. The complaint alleged that Zimmerman's First Amendment rights were violated by a decision of the Appellate Division of the New York Supreme Court, which censured him for violating a State rule regulating lawyer advertising. We affirm.

Zimmerman, an attorney admitted to practice in New York, purchased listings in the attorneys' section of the Syracuse, New York, Yellow Pages. His name, arranged alphabetically by his first name, rather than by his surname, appeared in all of the twenty-five available areas of practice listed under a general caption "LAWYERS Grouped By Practice." Among the areas in which Zimmerman was listed were "Admiralty Law," "Bankruptcy," "Labor Law," and "Securities Law."

The Grievance Committee of New York's Fifth Judicial District instituted disciplinary proceedings against Zimmerman before the Appellate Division of the Supreme Court of the State of New York, Fourth Judicial Department. The Committee alleged that Zimmerman had violated the advertising rule in 11 N.Y.C.R.R. Sec. 1022.16(a), which adopts DR 2-101(A) of the Disciplinary Rules of the Code of Professional Responsibility. ¹ The Appellate Division issued a decision and order censuring Zimmerman for professional misconduct. In re Zimmerman, 79 A.D.2d 263, 438 N.Y.S.2d 400 (4th Dep't 1981) (per curiam). Zimmerman's appeal to the New York Court of Appeals was dismissed. 53 N.Y.2d 937, 440 N.Y.S.2d 1029, 423 N.E.2d 416 (1981), and a subsequent motion for leave to appeal was denied, 54 N.Y.2d 606, 443 N.Y.S.2d 1029, 427 N.E.2d 514 (1981). Zimmerman did not seek review in the United States Supreme Court, but instead instituted the present action in federal district court, purporting to plead various claims under 42 U.S.C. Sec. 1983 (Supp. V 1981).

We agree with the District Court's determination that District of Columbia Court of Appeals v. Feldman, --- U.S. ----, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), requires dismissal of Zimmerman's amended complaint for lack of subject matter jurisdiction. Feldman held that a federal court lacks subject matter jurisdiction over claims that an unsuccessful state bar applicant was subjected to an unconstitutional application of state bar admission rules in a state judicial proceeding. Id. 103 S.Ct. at 1311-15. The only permissible federal court challenge is review in the United States Supreme Court. 28 U.S.C. Sec. 1257 (1976). The decision in Feldman clearly applies to federal district court challenges to attorney disciplinary orders rendered by state courts in judicial proceedings. See 103 S.Ct. at 1314 n. 15; id. 103 S.Ct. at 1315-16 n. 16 (citing MacKay v. Nesbett, 412 F.2d 846 (9th Cir.1969)). Disciplinary proceedings before the New York Appellate Division are judicial in nature, Erdmann v. Stevens, 458 F.2d 1205, 1208-09 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972), and dismissal of an appeal from a disciplinary proceeding by the New York Court of Appeals is a final state court judgment. See Turco v. Monroe County Bar Association, 554 F.2d 515, 521 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 95 (1977).

Apparently recognizing that Feldman precludes a district court challenge to the censure itself, Zimmerman endeavors on appeal to broaden his challenge to include what he claims is "a general attack upon the constitutionality of the rule." Appellant's Brief at 7. Feldman recognized a distinction between "challenges to state court decisions in particular cases arising out of judicial proceedings," over which district courts lack jurisdiction, and "general challenges to state bar rules, promulgated by state courts in non-judicial proceedings," as to which district court jurisdiction exists. 103 S.Ct. at 1317. And the Supreme Court acknowledged in Feldman that a state court may be found to have acted in a non-judicial capacity in promulgating rules regulating the bar. Id. 103 S.Ct. at 1316; see, e.g., Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980). It is possible that a state court could combine in...