Niles v. Lowe
Opinion of the Court
MEMORANDUM AND ORDER
This action arises from the initiation of disciplinary proceedings against plaintiff Niles, an attorney duly licensed to practice law by the Supreme Court of the State of Hawaii. Plaintiff is alleged to have violated Disciplinary Rules of the Supreme Court of the State of Hawaii (hereinafter “DR”) 2-101(A)
Defendant Lowe is Chief Disciplinary Counsel of the Supreme Court of the State of Hawaii. According to plaintiff’s allegations, defendant informed him in early 1975 that his activities at Leeward College were being investigated. On September 2, 1975, after plaintiff had furnished defendant with certain information relating to those activities, plaintiff was summoned to appear before .defendant to receive an informal admonition
The Anti-Injunction Statute, 28 U.S.C. § 2283, poses no statutory bar to the issuance of the requested injunction in this case since plaintiff’s claim is based on 42 U.S.C. § 1983. See Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Nevertheless, the restraints on federal equitable power imposed by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) here preclude the issuance of an injunction.
In Younger, the Supreme Court prohibited federal injunctive relief against pending state criminal prosecutions unless the plaintiff could establish certain extraordinary circumstances permitting such relief. These prohibitions were extended in Huffman to at least certain types of pending state civil proceedings. At issue in Huffman were Ohio civil proceedings instituted by a county prosecutor under a civil statute proscribing obscene films. Huffman v. Pursue, Ltd., supra, 420 U.S. at 598, 95 S.Ct. 1200. The Supreme Court, noting the similarity in purpose and standards between the Ohio civil and criminal obscenity statutes,
Lower courts have considered the applicability of Younger principles to disciplinary proceedings against lawyers. In Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972) the Second Circuit held that a bar disciplinary proceeding was “quasi-criminal” and therefore fell within Younger’s prohibitions on federal court interference with pending state criminal prosecutions. Id. at 1209.
Furthermore, we do not find the proposed interference in the pending civil case is “comparable to the disruption in Huffman of the state’s interest in maintaining the standards of its criminal laws,” Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427, 432 (2d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975). The bar disciplinary proceeding at issue in this case, unlike the civil proceeding in Huffman, see note 6 supra, cannot be considered “in aid of” or “closely related to” st.ate criminal statutes. Huffman v. Pursue, Ltd., supra, 420 U.S. at 604, 95 S.Ct. 1200. As the Fifth Circuit has said,
we think it abundantly clear that when a Grievance Committee, by administrative action, undertakes to upbraid a local attorney for conduct deemed to be violative of the ethical standards of the profession, it is not in any sense acting in aid of the enforcement of Texas’ criminal laws.
Polk v. State, supra, 480 F.2d at 1002.
There remains for us to consider plaintiff’s claim that even if the Younger doctrine applies to. disciplinary proceedings his requested relief may still be granted on the basis of an exception to the Younger doctrine which permits federal intervention on a showing of bad faith by the state. The bad faith at issue here, it is alleged, stems from certain of the Disciplinary'Rules of the Supreme Court of the State of Hawaii which plaintiff claims expose him to more severe sanctions than the informal admonition which he is already scheduled to receive should he decide to appeal defendant’s decision. We need not pause to assess whether the Disciplinary Rules in fact have this effect, and if they do, whether they are legal. Any such rules, which apply equally to all members of the Hawaii bar, cannot constitute the type of selective bad faith prosecution which justifies an exception to Younger. See Younger v. Harris, supra, 410 U.S. at 48, 91 S.Ct. 746. Moreover, any threat which these procedures pose to plaintiff’s federal rights may be eliminated by his presentation of his contentions to the Supreme Court of the State of Hawaii and thus does not constitute the irreparable injury required before we may interfere with pending state proceedings. Id. at 46, 91 S.Ct. 746.
Since the pending state civil proceedings come within the scope of the Younger doctrine and plaintiff has not made a satisfactory showing that any exception to the Younger doctrine should be applied, defendant’s motion to dismiss
. DR 2-101(A) provides:
2-101 Publicity in General
(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, “public communication” includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book.
. DR 2-101(B) provides:
(B) A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103. This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:
(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.
(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than attraction of potential clients.
*134 (3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
(4) In and on legal documents prepared by him.
(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.
. Rule 9 of the Disciplinary Board Rules (which, along with the Disciplinary Rules of the Supreme Court of the State of Hawaii provide the procedures for disciplinary proceedings) empowers the Chief Disciplinary Counsel to issue an informal admonition to an attorney if misconduct on the part of the attorney is found but is not sufficiently serious to warrant the institution of formal disciplinary proceedings. “Informal admonition” is nowhere defined in either the Disciplinary Rules or the Disciplinary Board Rules but we gather that it amounts to a stern warning to the attorney being admonished.
. A three judge court was convened pursuant to 28 U.S.C. § 2281 since plaintiff seeks, inter alia, an injunction restraining a state officer from enforcing a state regulation of statewide applicability on the ground that it violates the United States Constitution. It is of no significance that a regulation, rather than a statute, is the subject of the plaintiffs complaint. See, e. g., Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941) and Doe v. Wohlgemuth, 376 F.Supp. 173 (W.D.Pa. 1974).
. These restraints apply equally to plaintiffs request for declaratory relief. See Samuels v. Mackell, 401 U.S. 68, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) and cf. Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
. The definition of obscenity in the Ohio civil statute is identical to the definition of obscenity in the Ohio criminal statute. See Huffman v. Pursue, Ltd., supra, 420 U.S. at 596, n. 4, 95 S.Ct. 1200.
. Whether Younger restraints apply to any other types of civil proceedings was a question left explicitly unanswered by the Supreme Court, see id. at 607, 95 S.Ct. 1200, and we need not answer that question for purposes of this case. But cf. Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973) (Younger applies to all pending state proceedings, civil and criminal).
. See also Anonymous v. Association of the Bar of the City of New York, 515 F.2d 427, 432 (2d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975) and Goodrich v. Supreme Court of South Dakota, 511 F.2d 316, 318, n. 4 (8th Cir. 1975). Erdmann, Anonymous and Goodrich all derived the “quasi-criminal” label from In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) in which the Supreme Court used the “quasi-criminal” appellation in determining the procedural requisites for disbarment proceedings.
. We have no occasion in this case to determine the extent to which, if any, Younger applies to ordinary state administrative proceedings. Compare Gibson v. Berryhill, 411 U.S. 564, 575-77, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) with Geiger v. Jenkins, 401 U.S. 985, 91 S.Ct. 1236, 28 L.Ed.2d 525 (1971). Defendant Lowe is the agent of the Supreme Court of the State of Hawaii; his inquiry, and any appeals from it, are part of the Supreme Court’s judicial function. Compare Anonymous v. Association of the Bar, supra, 515 F.2d at 432, n. 3, with Polk v. State, supra, 480 F.2d at 1001 and cf. Taylor v. Kentucky Bar Association, 424 F.2d 478, 482 (6th Cir. 1970). Conventional administrative agencies, even when they adopt quasi-judicial procedures, derive their delegated authority not from the courts but from the legislature, see Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908), and thus may present different Younger considerations. Compare Polk v. State Bar of Texas, 480 F.2d 998, supra, at 1001.
. To the extent it is relevant at all, the informal admonition process is not surrounded by the procedural protections required by In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) and therefore presumably does not come within the “quasi-criminal” rubric. We note that the disciplinary proceeding is pending, however, since plaintiff has neither appeared to receive his informal admonition nor notified the Chief Disciplinary Counsel of his intention to appeal pursuant to DR 16.
. Under our reading of Disciplinary Board Rule 9 and DR 16 once an attorney is notified that he is scheduled for an informal admonition there is no possibility of disbarment proceedings regarding the same offense. Therefore, the facts in this case are similar to the facts in Polk, where the plaintiff was seeking a federal injunction against state disciplinary proceedings involving sanctions less severe
. See Wallace v. Kern, 520 F.2d 400, 405 (2d Cir. 1975). Compare, e. g., Joiner v. City of Dallas, 380 F.Supp. 754 (N.D.Tex. 1974), aff’d, 419 U.S. 1042, 95 S.Ct. 614, 42 L.Ed.2d 637 (1975) (Younger inapplicable to eminent domain proceedings) with Fisher v. Federal National Mortgage Association, 360 F.Supp. 207 (D.Md. 1973) (Younger applicable to foreclosure proceedings).
Reference
- Full Case Name
- Dennis NILES v. Jung Y. LOWE, Individually and in his capacity as Chief Disciplinary Counsel of the Supreme Court of the State of Hawaii
- Cited By
- 1 case
- Status
- Published