# Family Division Trial Lawyers of the Superior court-d.c., Inc. v. H. Carl Moultrie, Chief Judge, D.C. Superior Court

> Court of Appeals for the D.C. Circuit · January 6, 1984 · 725 F.2d 695

URL: https://www.frixlaw.com/law-library/cases/9471664

## Case

- **Full name:** FAMILY DIVISION TRIAL LAWYERS OF the SUPERIOR COURT-D.C., INC., Et Al., Appellants, v. H. Carl MOULTRIE, Chief Judge, D.C. Superior Court, Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 6, 1984
- **Citations:** 725 F.2d 695; 233 U.S. App. D.C. 168; 1984 U.S. App. LEXIS 26664
- **Precedential status:** Published
- **Opinion:** Dissent by Starr
- **Judges:** Wald, Mikva, Starr
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471664

## How later opinions describe it (automated extraction)

- finding abstention inappropriate because “plaintiff-appellants were not parties to any pending suit in the local courts in which their constitutional challenges could naturally be resolved.”
- observing that “we might hesitate” to apply claim preclusion to constitutional attacks that a party “could have brought but did not” in litigation over past transactions

## Opinion text

STARR, Circuit Judge,
dissenting:
I respectfully dissent. In my view the District Court was entirely correct in granting summary judgment in this case. The majority’s ruling mandates further proceedings on constitutional claims that, as a matter of law, should be and properly were rejected. Moreover, the court’s ruling inappropriately erodes the stringent adherence to District Court Local Rule l-9(h) required under this court’s rulings in Gardels v. CIA, 637 F.2d 770, 773 (D.C.Cir.1980) and Tarpley v. Greene, 684 F.2d 1, 6-7 (D.C.Cir.1982).
As fully recounted by the majority opinion, this suit was brought against the Chief Judge of the Superior Court of the District of Columbia, the Public Defender Service, and the District of Columbia, alleging that the Family Division appointment process violates the thirteenth amendment’s prohibition against involuntary servitude, the fifth amendment’s prohibition against the taking of private property without just compensation, and the equal protection component of the fifth amendment. The district court granted summary judgment in favor of the defendants, rejecting appellants’ thirteenth and fifth amendment claims and holding that the system of attorney appointments “does not so burden the CJA attorneys that it amounts to a constitutional violation.” 1 Memorandum Opinion at 8. The district court also rejected appellants’ equal protection claims, holding that selecting attorneys who regularly practice before the Family Division to represent indigent parents in Family Division neglect cases is “entirely rational.” Id. at 10 .
In my view, the majority errs in two respects. 2 First, as a matter of law, appellants’ thirteenth amendment, fifth amendment, and equal protection claims are utterly without merit. Second, even assuming, as I do not, that burdensomeness is a relevant inquiry as to the due process claim, appellants nonetheless failed to raise a genuine issue concerning the alleged burden-someness of the appointments.
I.
It is, of course, elementary that summary judgment should be granted only if there is no genuine issue as to any material fact and if the moving party is entitled to prevail as a matter of law. Fed.R.Civ.P. 56(c); Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 776-77 (D.C.Cir.), cert. denied, 393 U.S. 884 , 89 S.Ct. 194 , 21 L.Ed.2d 160 (1968). When a party has properly pleaded and supported a motion for summary judgment under Rule 56(e), the opposing party must set forth specific facts showing that a genuine issue of material fact exists. See Tarpley v. Greene, 684 F.2d 1, 6 (D.C.Cir. 1982); Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 , 1054 n. 7 (D.C.Cir.1981). In addition to the requirements of Rule 56, the District Court’s Local Rule l-9(h) requires the party opposing the motion to file a “concise statement of genuine issues” setting forth all material facts *712 as to which it is contended there are genuine issues. Local Rule l-9(h) further provides that the court “may assume that the facts as claimed by the moving party in his statement .. . are admitted to exist except to the extent that they are controverted in a statement filed in opposition to the motion.” This court has enforced this requirement stringently, stating that failure to file a proper Rule l-9(h) statement “may be fatal to the delinquent party’s position.” Gardels v. CIA, 637 F.2d at 771, 773 (D.C. Cir.1980); Tarpley v. Greene, 684 F.2d at 6 -7 & n. 15. See also 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2719, at 12-13 (2d ed. 1983) (local rules requiring filing of statements of genuine issues are more demanding than Rule 56). It is within this undisputed procedural framework that this case, properly analyzed, should be decided.
A. Thirteenth Amendment Claims
Appellants claim that the appointment system imposes involuntary servitude upon them in violation of the thirteenth amendment. They reason that because the bulk of their practice consists of compensated juvenile appointment cases, they are coerced into accepting the uncompensated neglect appointment cases in contravention of the thirteenth amendment.
As the majority correctly concludes, the uncontroverted facts of this case demonstrate that this claim is unmeritorious. First, appellants, by their own admission, are not compelled to place themselves on the list for compensated juvenile cases that subjects them to uncompensated neglect appointments. Involuntary servitude, in contrast, exists only when the individual is unable to avoid continued service. See Flood v. Kuhn, 316 F.Supp. 271, 280-81 (S.D.N.Y.1970), aff’d, 443 F.2d 264, 268 (2d Cir.1971), aff’d on other grounds, 407 U.S. 258 , 92 S.Ct. 2099 , 32 L.Ed.2d 728 (1972); Wicks v. Southern Pacific Co., 231 F.2d 130, 138 (9th Cir.1956). The attorneys here are free to stop practicing before the Family Division or to continue practicing without taking compensated juvenile cases. See Flood v. Kuhn, 316 F.Supp. at 281 . Second, compelling an individual to perform traditional types of public service does not constitute an imposition of involuntary servitude. See Hurtado v. United States, 410 U.S. 578 n. 11 , 93 S.Ct. 1157 n. 11 , 35 L.Ed.2d 508 (1973) (requirement that prisoners serve as witnesses in trial without compensation constitutes public duty and does not constitute involuntary servitude); cf. Powell v. Alabama, 287 U.S. 45, 73 , 53 S.Ct. 55, 65 , 77 L.Ed. 158 (1932) (attorneys are officers of the court and are duty bound to accept appointments to represent indigents charged with capital offenses). Thus, even if appellants were compelled to accept appointments, that service would not amount, under settled law, to involuntary servitude. See Williamson v. Vardeman, 674 F.2d 1211, 1214 (8th Cir.1982) (thirteenth amendment has never been applied to various forms of public service and does not apply to uncompensated appointments an attorney may be required to take). To this extent, I fully agree with the majority opinion. As we move, however, from what I deem to be the patently frivolous thirteenth amendment claim to the due process and equal protection contentions, I am constrained to part company with the majority.
B. "Taking” Claims
The district court held that appellants have suffered no “taking” of their services without compensation in violation of the fifth amendment. Appellants’ primary contention in this regard is that the uncompensated neglect appointments either have reached or could reach a level of burden-someness that would amount to a taking cognizable under the fifth amendment. They argue that the district court improperly granted summary judgment on this issue because their Rule l-9(h) statement set forth the number of uncompensated cases each individual attorney had been required to accept over the years, thus giving rise to a genuine issue of material fact on the issue of burdensomeness. Despite this argument, the district court properly granted summary judgment on this fifth amendment claim.
*713 1. The Majority’s Theory of “Taking”
In my view, the burdensomeness of the uncompensated appointments is not material to determining whether a taking has occurred in this case. This case, unlike the cases relied upon by appellants and the authorities cited by the majority, does not involve conditioning the practice of law on the acceptance of uncompensated appointed cases. Indeed, a majority of the cases dealing with such requirements have squarely held that requiring counsel to serve without compensation as a condition of being permitted to practice law does not constitute a taking. See, e.g., Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir.1982); United States v. Dillon, 346 F.2d 633, 635 (9th Cir.1965), cert. denied, 382 U.S. 978 , 86 S.Ct. 550 , 15 L.Ed.2d 469 (1966); Jackson v. State, 413 P.2d 488, 489-90 (Alaska 1966); MacKenzie v. Hillsborough County, 288 So.2d 200, 201 (Fla.1973); Weiner v. Fulton County, 133 Ga.App. 343 , 148 S.E.2d 143, 147 (Ga.), cert. denied, 385 U.S. 958 , 87 S.Ct. 393 , 17 L.Ed.2d 304 (1966); In re Meizlish, 387 Mich. 228 , 196 N.W.2d 129, 134-35 (Mich.1972); State v. Rush, 46 N.J. 399 , 217 A.2d 441, 446 (N.J.1966). 3 These eases reason, correctly, that the uncompensated representation of individuals in need constitutes an attorney’s duty as an officer of the court. See Williamson v. Vardeman, supra, 674 F.2d at 1214 — 15. Some courts have, to be sure, relaxed this absolute obligation, reasoning that although requiring an attorney to accept uncompensated cases as a condition of practicing law does not normally violate due process, the level of appointments may rise to the level of a taking when an attorney is substantially impaired in his ability to engage in remunerative practice. See People ex rel. Conn v. Randolph, 35 Ill.2d 34 , 219 N.E.2d 337, 341 (Ill.1966); Bradshaw v. Ball, 487 S.W.2d 294, 295, 297-98 (Ct.App.Ky.1972); State v. Green, 470 S.W.2d 571, 572-73 (Mo.1971) (en banc); Honore v. Washington State Board of Prison Terms, 77 Wash.2d 660 , 466 P.2d 485, 496-97 (1970) (en banc); State ex rel. Partain v. Oakley, 227 S.E.2d 314, 318 (W.Va.1976).
Although appellants contend, and the majority now holds, that they should be permitted to prove that the Family Division appointments have risen to this level of burdensomeness, this analysis is, in my judgment, inapposite inasmuch as appellants, unlike the attorneys in all of the cases in which a taking has been found, have in no wise been drafted to perform such services. By accepting compensated juvenile cases, appellants agreed each and every month to accept uncompensated neglect cases as well. Only by their voluntarily seeking compensated cases were they then required to take on uncompensated cases. Moreover, appellants made no claim that they were required to continue uncompensated representations in the face of a request to withdraw. As a matter of law, I would conclude that no level of burden-someness could rise to the level of a taking as long as appellants have volunteered their services. In short, the element of voluntar-iness, which the majority fully concedes is present in this case, vitiates any fifth amendment claim of taking just as it does the even more far-fetched claim of involuntary servitude under the thirteenth amendment.
Although the majority concedes that “proving a taking in a situation like this one is obviously a formidable task,” its outline of the circumstances that would have to be shown in this case reveals that the appellants’ task is not only formidable but impossible. The majority states that appellants would have to demonstrate, on remand, that the attorney’s “expectations of pursuing a specialty practice before the Family Division are sufficiently established within the norms and traditions of legal practice to constitute a property interest.” Majority Op. at 707. It would be easier for the proverbial camel to pass through the *714 eye of a needle than to satisfy this fanciful standard.
First, the notion that an attorney can have a property right in pursuing a specialty practice, as opposed to a property right in pursuing his profession, is completely without precedent. It should thus be emphatically clear that the majority has departed completely from the precincts of pri- or decisional law. See supra p. 713 (citing cases discussing attorneys’ property right in pursuing profession). Second, even assuming that precedential support for the majority’s notion exists, the majority fails to take into account the fact that the system involved here in no way prevents these attorneys from pursuing a specialty practice in the Family Division. To the contrary, only those attorneys who seek compensation from the public are even governed by the system at issue here. Finally, matters handled by the Family Division include not only child neglect and in-trafamily disputes, but also juvenile matters, domestic relations, and mental health matters. See 1982 Annual Report of the District of Columbia Courts 68. The majority therefore considers far too narrow a proportion of the types of cases encompassed by Family Division practice in suggesting that the number of compensated cases may be “so small that withdrawing from the market of government compensated cases would effectively be a decision to withdraw from practice before the Family Division.” In sum, I do not believe there is any legal basis for the majority’s theory that the District of Columbia is putting Family Division lawyers to a Hobson’s choice of either not working or working under such a great burden as to amount to a taking.
More fundamentally, this court recently has repudiated the approach advocated by the majority in defining property under the taking clause of the fifth amendment. In Kizas v. Webster, 707 F.2d 524 (D.C.Cir. 1983), this court rejected a claim by FBI employees that special preferences for a training program could give rise to a property right. Id. at 539-40 . In that case, the plaintiffs attempted to analogize their interest in the benefits of the training program to a property interest such as that protected from deprivation without due process procedures. Id. at 538-39 . Judge Bazelon, writing for the court, squarely rejected the notion that “a claim of deprivation of property, without due process of law [can] be blended as one and the same with the claim that property has been taken for public use without just compensation.” Id. at 539 (emphasis in original). Yet, the majority premises the possibility of appellants’ taking claim on the same erroneous analogy by seeking to import Family Division attorneys’ expectations of practicing before the Family Division into its analysis of property protected by the taking clause.
2. Standards for Granting Summary Judgment
But assuming arguendo that the burdensomeness analysis is apposite, appellants nonetheless failed to demonstrate the presence of a genuine issue of material fact. As the district court correctly stated, “[n]othing in the record supports an allegation that ‘great personal hardship and sacrifice has been imposed upon’ Plaintiffs by their appointment to neglect cases.” Memorandum Opinion at 7. Appellants failed to contest the appellees’ statements in their Rule l-9(h) statement that neglect cases do not involve substantial research or investigation and that the burden imposed by such appointments neither impairs the attorneys’ ability to engage in remunerative practice nor results in substantial out-of-pocket expenditures. Thus, under the well-established law of this circuit — which the majority does not question but chooses to ignore— the district court properly assumed the truth of those statements and, accordingly, granted summary judgment for the appellees. See Tarpley v. Greene, 684 F.2d 1, 6-7 (D.C.Cir.1982); Gardels v. CIA, 637 F.2d 770, 773 (D.C.Cir.1980). As this court stated in Gardels , the failure to challenge statements contained in a Rule 1—9(h) statement may be fatal to the delinquent party. 637 F.2d at 773 . The majority, by reversing the district court’s grant of summary judgment, *715 has failed to adhere to this court’s admonishments that the requirements of Rule 1-9(h) be strictly enforced.
C. Equal Protection Claims
Finally, the district court correctly granted summary judgment on appellants’ claims that the appointment system violates the equal protection component of the fifth amendment. 4 Economic classifications such as those at issue here merit, under settled authority, only the mildest standard of review. Craig v. Boren, 429 U.S. 190, 207 , 97 S.Ct. 451, 462 , 50 L.Ed.2d 397 (1976); Dan-dridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970). The classifications at issue here distinguish between lawyers who are compensated by public funds for Family Division appointments and those who are not; they also distinguish between those who are plainly and indisputably familiar with practice and procedure in the Family Division and those who are not. Each of these classifications bears a reasonable relation to legitimate governmental interests. See United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-75 , 101 S.Ct. 453, 459-60 , 66 L.Ed.2d 368 (1980); Dandridge v. Williams, 397 U.S. 471, 483-86 , 90 S.Ct. 1153, 1160-62 , 25 L.Ed.2d 491 (1970). The District of Columbia clearly has a legitimate interest in providing counsel to indigent parents in child neglect cases. A classification resulting in the selection of attorneys familiar with Family Division practice and who have voluntarily sought compensated appointments by placing their names on the Family Division’s list each month is an entirely rational means of furthering this interest. In sum, on the undisputed facts of this case, appellants have not made out an equal protection violation. 5
II.
There is undoubtedly genuine wisdom in much of the majority’s expressions of concern and reservation about the Family Division appointments system at issue in this case. The appointments system may indeed be one crying out for reform, as the majority goes to some lengths to suggest in the latter part of its opinion. It is perhaps unenlightened and unsound public policy to perpetuate a system which results in cases arguably being given short shrift, as stated by the District of Columbia Bar Report on which the majority relies. But whatever discomfort on our part may reasonably attend the continuation of a system which treats such highly sensitive and important issues of family relations, that discomfort does not warrant a strained solicitousness for bizarre constitutional claims advanced by self-interested lawyers who could promptly opt out of the system they decry.
Our mission is not, under the guise of entertaining constitutionally based claims for attorneys’ fees, to constitute ourselves as a Council on Judicial Reform. It is, in my judgment, cases such as this, where a request for reform comes clothed in constitutional garb, that to an unfortunate degree render the increasing workload of the federal judiciary a proximate result of the judiciary’s own imaginative handiwork.
I respectfully dissent.
. The district court also concluded that the fact that the court appoints counsel for some nonin-digent parents did not affect this result. Memorandum Opinion at 5-6. The court reasoned that the superior court’s Neglect Rule 20(b) and D.C.Code § 16-2326 (1981) provide avenues of relief for attorneys that are appointed to represent parents that the court later determines are not indigent. Id.
. 1 agree fully with the majority that the District Court properly refused, under the specific circumstances of this case, to abstain from deciding the federal constitutional issue. Unlike Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971), and its civil progeny, in this case there was no pending proceeding in the District of Columbia courts. Moreover, as the majority correctly observes, any remedial order would not, as in O’Shea v. Lit-tleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), impinge upon the day-to-day operations of the superior court.
. In a minority of jurisdictions, requiring an attorney to accept uncompensated appointments as a condition of granting a license to practice law has been considered a taking. See, e.g., State v. Bell, 244 Ind. 701 , 195 N.E.2d 464, 466 (1964); Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193, 195 (1968).
. Equal protection concepts, as the majority correctly notes, are inherent in the fifth amendment’s due process guarantee. See Weinberger v. Wiesenfeld, 420 U.S. 636 , 638 n. 2, 95 S.Ct. 1225 , 1228 n. 2, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954); Washington v. United States, 401 F.2d 915, 922 (D.C.Cir.1968). Equal protection analysis under the fifth amendment follows that under the fourteenth amendment. Buckley v. Valeo, 424 U.S. 1, 93 , 96 S.Ct. 612, 670 , 46 L.Ed.2d 659 (1976).
. Appellants also claim that the district court erred in not finding an equal protection violation because the system discriminates between attorneys who are appointed to represent children and those who are appointed to represent parents in that only attorneys who are appointed to represent children receive compensation. Appellants’ Brief at 19. As appellants concede, however, the existence of such a disparity was not brought to the district court’s attention and thus may not properly be considered by this court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471664. Public record. Not legal advice.