Petition — Howell v. State Bar of Texas

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

Supreme Court Of The United States

OCTOBER TERM, 1983

CuaRLEs Ben HowELt,

Petitioner,

Vv.

State Bar or TEXAS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Tom Scorr McCork.e, Jr.

500 Katy Building

701 Commerce Street

Or CounsEL: Dallas, Texas 75202

McCorkle and (214) 742-1411

Westerberg, P.C. Counsel for Petitioner

QUESTIONS PRESENTED

Question One: Having decided on May 3, 1982 that

petitioner had stated a meritorious claim to a federal

forum, did the Fifth Circuit not err by deciding on

August 1, 1983 that federal jurisdiction disappeared or

was extinguished by the state judgment leaving the

United States District Court without the constitutional

power to hear this admittedly meritorious claim?

Question Two: Has the Fifth Circuit not confused

between essential jurisdiction (the constitutional power

of the federal court to act) and proper jurisdiction (pro-

priety in the exercise of federal jurisdiction)? Does res

judicata in this instance truly rise to jurisdictional pro-

portions?

Question Three: If the interpretation placed

thereon by the Fifth Circuit prevails, has not the

England reservation mechanism been severely crippled

if not effectively destroyed?

Question Four: Is there any legitimate basis for

the Fifth Circuit’s unembellished ruling that no

Pullman abstention principles are present and England

has no application to Younger abstention?

gyi sbeBS..

[ ~ 9 a - . a . =z AW , a

ee eee eee ee ee ~~ a eee “te

PARTIES

Charles Ben Howell, the sole petitioner, was the

appellant and the plaintiff in the respective courts

below. Respondents, appellees and defendants below

were the State Bar of Texas, an agency of the State of

Texas; Franklin Jones, Jr. and his successors in office,

president thereof; and Jerry L. Zunker and his suc-

cessors in office, general counsel thereof. The case was

initiated in the United States District Court for the

Northern District of Texas, Dallas Division, before the

Hon. W. M. Taylor, Jr. on February 19, 1976; No.

3-76-0280. On appeal, it was docketed in the United

States Court of Appeals for the Fifth Circuit as No.

81-1,069. The case name before this court was used in

both courts below.

INDEX

QUESTIONS PRESENTED .................... i

is Soa osb oa cdknys helen eeaeninaeen ii

a Se isd cs bec ubbohhenwsvadesins neneh iii

cen notes s Vu sce v owenns weet Menta v

OD © oo 5c pick polo sn vua s¥aruaiemnes 1

EE os ino cewicuccespendeceebeny es 2

oy os 2

STATEMENT OF THECASE ................. 2

REASONS FOR GRANTING THE WRIT .... 7-29

Order of the Fifth Circuit Denying

es Jin ux Calne ka pews Uc one Che PA 20

Judgment of the District Court ......... PA 20

Order [and Opinion of the District Court

Denying Rehearing] ................... PA 21

Order of the District Court Denying

Preliminary Injunction ................ PA 22

_— —— c2° ne

4 «. aot me

CITATIONS

Page

Cases:

Allen v. McCurry, 449 US 90 (80) ........ 17, 23, 24

Atlantic Coast Line v. Engineers,

ee rr 27, fn6

Blunt v. Board, 515F2d951 (5-FL 75) ........... 20

Board of Regents v. Tomanio,

Pl) Te 20, fnll, fn13

Dasher v. Supreme,

658 F2d 1045 (5-TX 81) ............... 22, fnl4

Dist. Col. Ct. v. Feldman,

Acs oie eo wants 1 ff. passim

Edelman v. Jordan, 451 US 651(74) ............ 20

Ellis v. Dyson, 415 US 452 (74) ........... fn5, fn13

England v. Exrs,

376 US 411 (1964) ................ 8 ff. passim

Ex Parte Royall, 117 US 241 (1886) .......... 14, 27

Fay v. Noia, 372 US 391 (68) ...............0.5. 14

FL St. Bd. v. Mack, 401 US 960(71) ............ 20

GA v. Rachel, 384 US 808 (66) .................. 9

Graves v. Olgiatti, 550F2d1327(2-NY 77) ....... 20

Hawkins v. Board, 355 US 839 (57) ...........

Henry v. Bank, 595F2d291 (5-MS 79) ..........

Howell v.TX, 559SW2d432 (TXCVAP77)

Lombard v. Board, 502F2d631 (2-NY 74) ........ 20

Mack v. Board, 430F2d862(5-FL 70) ........... 20

Middlesex County Ethics v. Bar,

lg ee 9,15

MT v. US, 440 US 147(79) ................. 17, 23

Newman v. Board, 508F2d277 (2-NY 75) ........ 20

Pennoyer v. Neff, 95 US 714 (1878) ....... 10, 12, 14

Polk v. Bar, 480F2d998 (5-TX 73) ............. fn4

Railroad Com. v. Pullman,

ES 15 ff. passim

Rooker v. Fidelity,

ee rere 8 ff. passim

In re Ruffalo, 390 US 544 (68) .................. 15

Silverman v. Browning, 414 FS 80

(3-Judge DCCN 76) affd 429 US 876 (76) ..... 20

Tomanio v. Board, 603F2d255 (2-NY 79) ........ 18

Wood v. GA, 450 US 261 (81) .................. 26

Younger v. Harris,

kB Say ee ae ee 10 ff. passim

Constitutional Provisions, Statutes & Rules:

United States Constitution,

Amendment 14 ...........0000055. 12, 14, fn8

vii

Stern & G. S.Ct. Prac. 220-1 (5ed.78) ......... fnl4

Theis, Res Judicata,

70 NWLR 859 (76) ................ 19, 22, fnl3

Supreme Court Of The United States

OCTOBER TERM, 1983

Cuares Ben How,

Petitioner,

Vv.

STaTE Bar or TEXAS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The original opinion of the Fifth Circuit (PA 9)',

filed on May 3, 1982, 674F2d1027, was vacated by the

Supreme Court (PA 19) for reconsideration in the light

of Dist. Col. Ct. v. Feldman, 103SCT1303 (83). The

subsequent opinion of the Fifth Circuit (PA 1), of which

review is sought, was filed August 1, 1983; 710F2d

1075. The order denying rehearing (PA 8) was dated My

September 26, 1983; not to be published. The letter ee

opinion of the District Court (PA 18) was dated July 3

24, 1980; not to be published. The opinion of the Texas i

~tkeioes a

‘In referring to the proceedings below. petitioner will employ the : Z

following abbreviations: (PA) — Petitioner's Appendix attached to this

petition: (Ri — Record in the US District Court.

Unless otherwise indicated, all emphasis has been supplied.

se — Ae torr? Swe |

5 Be bat i oe et

2 .

Court of Civil Appeals in Howell v. TX, a related case,

was filed November 23, 1977; 559SW2d432.

JURISDICTION

Following the judgment of the Court of Appeals on

August 1, 1983 (PA 19), timely petitions for rehearing

were filed by both parties and denied on September 26,

1983 (PA 20). On January 9, 1984, Mr. Justice White

extended the time to petition for certiorari until

January 24, 1984; No. A-546. On January 25, 1984,

Mr. Justice White further extended the time until

February 3, 1984. Jurisdictional Statute 28USC§1254

(1).

STATUTE INVOLVED

42 USC, § 1983: Every person who, under color of

any statute, ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper pro-

ceeding for redress.

STATEMENT OF THE CASE

Petitioner asserts jurisdiction under the Civil

Rights Act, 42 USC §§ 1983-1985, 28 USC §§ 1331,

1343, 1344, 1355 and 1357 (R. 1,190). The fact

statement in the original opinion of the Court of Ap- -

peals being generally adequate, it is here quoted with

certain additional comments:

“On February 19, 1976, Howell filed a civil

rights action pursuant to 42 USC §§ 1983-85

against the State Bar of Texas and three of its offi-

cers, seeking declaratory and injunctive relief to

prevent his disbarment in a then-pending Texas

court proceeding. On March 1, 1976, Howell

moved for a preliminary injunction to enjoin prose-

cution of the state disciplinary action. The district

court, in an order of crucial importance to this ap-

peal, denied Howell's motion. That order, issued

March 4, 1976, states:

‘**Plaintiff’s Motion for Preliminary In-

junction was brought before the Court on

March 1, 1976. After having heard and con-

sidered the affidavits of plaintiff and the oral

and written argument of counsel, this Court is

of the opinion that the preliminary injunction

shovld be denied. Huffman v. Pursue, Ltd.,

420 U.S. 592 [, 95 S.Ct. 1200, 43 L.Ed.2d

482] (197[5])[;] Younger v. Harris, 401 U.S.

37[, 91 S.Ct. 746, 27 L.Ed.2d 669] (1971).

Plaintiff of course has the right to raise federal ‘

constitutional issues in federal court, should &

that prove necessary after the state court pro- ‘s

ceeding is completed. England v. [Louisiana yr

State] Board of Medical Examiners, 375 U.S. M

411[, 84S.Ct. 461, 11 L.Ed.2d 440] (1964)’? 4

‘The district court's order denying « preliminary injunction was .

affirmed by this court in an unpublished, per curiam opinion. Howell v. >.

State Bar of Texas, 551 F.2d 861 (Sth Cir. 1977) (citing Fifth Circuit Rule “4

21). More precisely, no opinion was either written or published. B

“On March 9, 1976, the State Bar of Texas

moved under Rule 12, Fed.R.Civ.P., for dismissal

of Howell’s action. No supporting brief was filed

at the time.

“After trial, Howell was found guilty of pro-

fessional misconduct and reprimanded by the

state court. While his appeal of the reprimand was

pending before the Texas Court of Civil Appeals,

Howell again moved the federal district court for

@ preliminary injunction. On April 15, 1977, the

district court denied that motion and reaffirmed

its March 4, 1976 order. The Texas Court of Civil

Appeals affirmed the judgment of the lower court

in the disbarment action, a decision the Texas

Supreme Court declined to review. Howell v.

State, 559S.W.2d432 (Tex.Civ.App. 1977 — writ

ref'd n.r.e.). Howell presented no federal consti-

tutional claims in the state proceedings at either

the trial or appellate level’ (PA 9-11).

Petitioner’s allegation that he fully complied with

England at every stage of the state court proceedings

and fully reserved his federal rights for federal

litigation has never been challenged.

“On June 30, 1978, Howell returned to federal

court, again seeking a preliminary injunction, this

time to enjoin the Texas courts from giving effect

to the judgment in the disbarment action. The

district court granted Howell’s motion on July 10,

* “We have not examined the entire state court record, but note thet

cuanedl Sr tho Shese Sty ensenthd 0s ereh nga Me ewe manana “4

raise his federal claims in the state disciplinary proceeding.” ws ia

f ‘ 7

‘06 0, phew t, 5 hae * ae

1978. Howell’s case then went through a one-and-

a-half year period of dormancy until February 5,

1980, at which time the State Bar of Texas moved ‘

the court to dissolve the preliminary injunction

and dismiss the action for want of prosecution. The

district court denied the State Bar’s motion to

dismiss on February 25, 1980.

“On April 22, 1980, the State Bar submitted

a brief in support of the Rule 12 motion to dismiss

that it had filed four years earlier. The State Bar's

arguments were both jurisdictional and claim-

related. Before ruling on the State Bar’s motion

to dismiss, the district court granted Howell's

June 27, 1980 motion for leave to amend his com-

plaint. Howell’s second amended complaint, filed

that same day, sought a declaration that the state

disciplinary proceeding violated the United States

Constitution and an injunction barring the State

Bar and certain of its officers from enforcing the

state judgment” (PA 11).

By his most recently amended complaint (R 190),

petitioner alleged that he suffered federal deprivations

as follows:

(1) Through state law, petitioner was provided

with the right of jury trial. Disbarment actions are

punitive or quasi-criminal in nature. Both due process

and equal protection concepts prohibit a state court

judge from disregarding a jury verdict in cases of this

nature.

(2) The regulatory provision prohibiting conduct

“prejudicial to the administration of justice,’ under

which petitioner was punished, @s applied and as con-

strued, is both void for vagueness and is unconstitu-

tionally over-reaching.

(3) Petitioner was brought to trial upon one charge

and convicted of another. Such action precluded a fair

opportunity to present the express defense of good

faith. The unconstitutional switch deprived petitioner

of a fundamentally fair trial.

(4) Petitioner’s refusal to give names of attorneys

consulted by him was urged by the State not to be con-

duct of a professional nature when petitioner was before

the Texas Court of Criminal Appeals and the

contention was adopted. The holding estops the State

to now argue that such refusal constitutes professional

misconduct.

(5) Under Texas law, grievance committee pro-

ceedings are comparable to grand jury action and no

formal complaint may be filed against an attorney un-

less a majority vote is secured. Also, under Texas law,

the presence of seven members was required in order to

constitute a quorum. No constitutionally valid quorum

was present when the committee voted to proceed

against petitioner Howell because 4 of the 10 members

physically present were disqualified, and the remaining

6 did not constitute a quorum with respect to the busi-

ness at hand (R. 192-195).

“On December 22, 1980, the district court dis-

solved its earlier preliminary injunction and

granted the State Bar’s Rule 12 motion to dismiss.

The court’s order failed to specify which ground or

grounds it relied upon in granting the motion to

dismiss. On January 13, 1981, the district court

denied Howell’s Rule 60 (b) motion for reconsidera-

tion and cited Kimball v. Florida Bar, 632 F.2d

1283 (5th Cir. 1980), evidently as authority for its

earlier grant of the Rule 12 motion to dismiss. The

court's explicit reliance on Kimball leads *1s to con-

clude that the district court’s dismissal was prem-

ised on jurisdictional grounds.

‘Howell now appeals the district court’s grant

of the State Bar’s motion to dismiss and that

court’s denial of his reconsideration motion. We

reverse the district court’s dismissal and remand

for disposition of Howell’s federal constitutional

claims on their merits” (PA 11-12).

Respondent State Bar petitioned for certiorari, No.

82-397, which, as already stated, resulted in this

Court's order for re-consideration (PA 19). On August

1, 1983, the Fifth Circuit affirmed the action of the Dis-

trict Court in major part, holding that the District

Court was without jurisdiction to consider any of the

petitioner's claims except for No. (2) (PA 1). Hence,

this petition.

REASONS FOR GRANTING THE WRIT

In effect, the Court of Appeals by its second deci-

sion has declared, ‘‘It matters not how meritorious the

petitioner's case. Our hands are tied. The United States

District Court has no jurisdiction.”’ Contrariwise:

(1) Dist. Col. Ct. v. Feldman, supra, does not

control this case. In that case, the Supreme Court ex-

pressly declared, ‘This case is not like England v.

Medical Examiners, 376 U.S. 411 (1964), which arose in

the abstention context.” Jd. n. 14. Petitioner Howell’s

case, now before the court, did in fact arise in the ab-

stention context and all questions now in bar involve

the effect of abstention, a topic expressly left

untouched in Feldman.

The key to the situation is that Feldman was in the

state court by choice. The choice may not have been en-

tirely free. Few choices in life are utterly free. Even a

child in a candy store is limited by the money given to

him by his parents. Nevertheless, Feldman’s situation

was totally different from petitioner Howell who was

hailed into state court against his will.

(2) Following the District Court’s abstention

order, petitioner invoked the reservation mechanism in

England v. Exrs, supra. But, the Court of Appeals

ruled England applies only to Pullman type abstention

inferentially declaring, ‘This is not a Pullman case.”

We urge both legs of this proposition as error.

(3) Invoking Feldman and the 60 year old case of

Rooker v. Fidelity, 263 U.S. 413 (23), the Court below

held, in substance, that the state judgment entered

against petitioner while the federal court was in absten-

tion is res judicata, inferentially declaring ‘Res judi-

cata is a jurisdictional matter. Federal district court

jurisdiction disappeared when the state court judgment

was entered.’’ We urge both legs of this proposition as

bw OR eee

ical

error. Abstention only postpones federal district court

jurisdiction.

(4) The Doctrine of Disappearing Jurisdiction is

anathema. What happened to the classic rule that juris-

diction, once acquired, is not divested by subsequent

events? We doubt the wisdom of applying the Doctrine

of Disappearing Jurisdiction to cases where the in-

choate or potential jurisdiction of federal district court

has not yet been invoked, but the proposition is un-

necessary to the case in hand. None of the cases from

Rooker to Feldman holds that jurisdiction already in-

voked has been extinguished, but such is the precise

holding of the Fifth Circuit. Such is an unwarranted

extension of the Doctrine of Disappearing Jurisdiction.

(5) On February 19, 1976, when the within federal

lawsuit was filed, no state court judgment had been en-

tered, and no jurisdictional type of res judicata could

have then existed. Of course, it would have been fla-

grant error, but we believe the U.S. District Court was

then possessed of the raw, naked power (i.e. jurisdic-

tion in its fundamental sense, strictly defined) to cause

the entire case to be removed to the federal courts, GA

v. Rachel, 384 U.S. 808 (66), 28 USC § 1443.

Likewise, the subsequent case of Middlesex

County Ethics v. Bar, 102 SCT 2515 (82) indicates that

the District Court below would have erred, had he not

invoked abstention,‘ but that proposition has nothing

to do with jurisdiction when such term is strictly and

‘Petitioner originally urged that abstention should not be invoked

primarily on the strength of Polk v. Bar, 480 F2d 996 15-TX73).

properly defined. Beyond doubt, during February of

1976, the District Court was clothed with ample power

to enjoin prosecution of the state court disbarment

action on any federal ground perceived, including hypo-

thetical grounds (e.g. that the state court might refuse

to follow a jury verdict in favor of the accused) and its

ruling could not have been collaterally attacked — the

ultimate test for a judgment entered without jurisdic-

tion, Pennoyer v. Neff, 95 U.S. 714 (1878). The only

recourse of the state authority would have been an

appeal to the appropriate higher federal court.

(6) What happened to federal jurisdiction which

clearly existed on the date of the abstention order be-

low? Younger v. Harris, 401 U.S. 37 (71), upon which

the abstention order was bottomed, and numerous

other authorities, holds that federal jurisdiction is

merely deferred and not abdicated by abstention.

Nonetheless, the Fifth Circuit has ruled that in this

case, the abstention order has forever precluded peti-

tioner of his right to § 1983 review. Why? Because the

Fifth Circuit invoked the Doctrine of Disappearing Jur-

isdiction. Relying on Rooker, the Court of Appeals has,

in substance, intoned: “State judgments are not only

res judicata upon federal courts, but they are also juris-

diction-ousting . We have power to relieve from res judi-

cata and would do so in this case except for the fact that

federal jurisdiction has been obliterated by the state

court judgment.’’ What a non sequitur! What a harsh i

result!! : é

Oe Pe eet hs

Tue So-caLLep Rooker Doctrine SHOULD BE ReE-

VISITED AND RE-DEFINED

The most troublesome of precedents are those

cases where an obviously correct result was reached on

the basis of an inappropriate or an unnecessary hold-

ing. Who can argue but that a correct result was

reached in Rooker v. Fidelity? It is equally obvious that

the result could have been easily reached upon then well

accepted principles of res judicata and the like. We fur-

ther suggest that a holding to the effect that, ‘there

may be no appeal from a state court to a lower federal

court,’’ while obviously true as a general proposition,

was both unnecessary and inappropriate.

Assume that a judgment be rendered in North

Dakota and that the same or similar subject matter be

thereafter litigated between the same parties in the

courts of South Dakota. For the South Dakota court to

declare, ‘‘We have no appellate jurisdiction over the

courts of North Dakota’”’ would be no more than a

statement of the obvious. At the same moment, such a

ruling might be employed in avoidance of the task of

analyzing the rules of res judicata and preclusion which

should govern the case.

Of course, an unsuccessful litigant in a North

Dakota case cannot give notice that he hereby appeals

to the courts of South Dakota and proceed to file his

transcript in South Dakota. The notion is idiotic. A

declaration that, ‘‘only the United States Supreme

Court has appellate jurisdiction over the state courts”

is equally simplistic. The statement, while patently

true, does not establish that the lower federal courts

have no jurisdiction (power) in a proper case, to

_ ae

examine a state court decision for compliance with the

Constitution and laws of the United States. Such raw

common naked power (i.e. jurisdiction) has, without

question, existed since the adoption of the /4th

Amendment and the Civil Rights Act in implementa-

tion thereof. The existence of such power (jurisdiction)

has not been subject to question since Pennoyer v.

Neff, supra. Pennoyer lays down the proposition that a

judgment entered without jurisdiction may be collater-

ally attacked. In Sosna v. JA, 419 U.S. 393 (75), the

parties had previously litigated the same subject mat-

ter in state court. The unsuccessful party, rather than

follow the established avenues of appeal through the

state system to the United States Supreme Court, com-

menced litigation anew in the United States District

Court. When the latter case reached the Supreme

Court, this Court held that it would not examine the

question of the res judicata effect of the state action as

not being properly raised by either party.

It is well established that an appellate court only

has the jurisdiction of the court from which an appeal

has been taken. If the lower federal courts are jurisdic-

tionally barred from the examination of state court

judgments, it follows that the United States Supreme

Court erred in Sosna because the federal courts, being

courts of limited jurisdiction, are under an obligation to

notice questions of jurisdiction on their own motion.

Furthermore, on principles of Pennoyer, if Rooker es-

tablishes that prior state judgments act as a jurisdic-

tional limitation upon lower federal courts, it follows

that the Supreme Court was without jurisdiction in

Dt bes i ~ PP

. A A ake vee Ory) &

Sosna and the Court's decision in that case is subject to

collateral attack.’

It is submitted that no policy consideration and no

precedent before or since Rooker justifies dressing up

questions of res judicata and its ilk in the clothes of jur-

isdiction.* Rooker only serves to cloud an already com-

plicated subject matter, i.e. the inter-relation between

state and federal litigation relating to the same or

similar subject matter, particularly under the Civil

Rights Act. Rooker invokes no prior precedent trans-

posing questions of res judicata into principles of juris-

diction and we know of none. The Supreme Court

should disclaim the proposition and put the Doctrine of

Disappearing Jurisdiction to rest.

Similarly, inEllis v. Dyson, 415 U.S. 452 (74), those individuals had

pleaded no contest in state court before filing their § 1989 action. The

majority brushed aside res judicata claims and remanded to determine if

there was a threat of future prosecution. Clearly, if res judicata is of juris-

dictiona] proportions when state judgments are involved, the Supreme

Court was obligated to examine the question and dismiss unless jurisdic-

tion was established.

*We cannot accept the notion that Atlantic Coast Line v. Engineers,

398 U.S. 281 (70), heavily relied upon in Feldman. is truly a jurisdictional

authority. The Supreme Court expressly held that state and federal juris-

diction was ‘concurrent. Jd. 295 citing England as authority. Could the

federal injunction have been collaterally attacked as void, the ultimate

test of jurisdiction? Clearly not! Ergo, the case does not involve jurisdic-

tion, strictly construed. In our view, Atlantic is a comity declaration com-

parable to Younger and Pullman. However, Atlantic cannot be labelled as

an abstention case because the principle of deferred adjudication was ab-

sent.

Consider Henry v. Bank, 595 F2d 291, 298n. (5-MS79), where the

NAACP secured a federal injunction against enforcing a state judgment.

If Atlantic, Rooker and Feldman are jurisdictional, then the Doctrine of

Disappearing Jurisdiction elaborated therein. establishes that the injunc-

tion in Henry was subject to collateral attack: a proposition which we

The 14th Amendment contained broad and sweep-

ing limitations upon the power of state authorities,

from the least to the greatest, to act against the indi-

vidual citizen. The Civil Rights Act established the

lower federal courts as the primary forum to determine

claims for the deprivation of civil rights. Now one

hundred years later, many persons would still argue

against such enactments. However, such is the law of

the land; the argument long since barren and unfruit-

ful.

Following Pennoyer, the case of Ex Parte Royall,

117 U.S. 241 (1886) made it clear; judicial restraint

rather than jurisdiction was the true limitation upon

lower federal courts with respect to matters involved in

state litigation. Those views were updated and rein-

forced in Fay v. Noia, 372 U.S. 391 (63) and Younger v.

Harris, supra.

As applied to criminal cases, any contention that

the lower federal courts are exercising ‘‘appellate review

of state court decisions” when considering habeas peti-

tions was put to rest long ago. We cannot conceive why

the power of lower federal courts to review state civil

decisions should be more limited by jurisdictional re-

strictions than criminal decisions. Any distinguishing

limitations should only spring from the law of res judi-

cata.’ The Fifth Circuit has held that petitioner has not

had a full and fair opportunity to litigate his federal

claims and that, for such reason, res judicata cannot be

The absence of the Doctrine of Disappearing Jurisdiction in criminal

cases reinforces our belief that the doctrine was born out of res judicata,

that it rests only on res judicata principles and that it is no more than a re-

statement of the law of res judicata in the language of jurisdic.ion.

invoked to deny him a forum. The jurisdictional

grounds perceived by the Court for denying that forum

do not exist.

PETITIONER PRESERVED FEDERAL Review THROUGH A

Va.ip ENGLAND RESERVATION

Without explication, the Fifth Circuit brushed

aside petitioner's claims of right to federal review under

England declaring that such “‘is an incident of Pullman

abstention”’ and the District Court “erroneously”

promised subsequent federal review (PA 15).

First of all, the essential holding in Railroad Com.

v. Pullman, 312 U.S. 496 (41) is essentially the same as

the ruling of the District Court below: The actions of

state authorities should first be challenged in the state

courts. The federal courts should abstain from exercis-

ing their jurisdiction until the state courts have spoken.

We present that Pullman abstention considerations

apply to this case equally with Younger . In final analy-

sis, there is no distinction. In Pullman, the Court de-

clared a policy of non-intervention with state authority

acting in the civil sphere and in Younger, the Court de-

clared a policy of non-intervention with state authority

in the criminal sphere. As held in In re Ruffalo, 390

US 544 (68), and again in Middlesex County Ethics,

supra, disciplinary actions against occupational license

holders can no more be categorized as strictly civil than

as strictly criminal. The attributes are hybrid. It fol-

lows they are governed as much by one as the other.

Neither is there any distinction between

England and the case at cases involve the

rights of occupational license holders. In England, the

occupational license holders elected the federal forum

for the vindication of federal rights in the first instance

and they were relegated to the state forum against their

will. In such circumstances, the Supreme Court de-

clared in England that the right to eventual federal

review of federal claims is not to be denied so long as

those claims are reserved while the individual, who is in

state court against his will, does not unreservedly pre-

sent those claims for state court review.

There is no distinction in the present case, save

that Judge Howell was hailed into state court at the

outset. He was nevertheless in state court against his

will and, when he petitioned for federal review of his

federal claims, he was relegated back to state court.

Any distinction between England and Howell is

without substance.’

England declares:

““***the litigant is in no event to be denied his

right to be returned to the District Court unless it

clearly appears that he voluntarily *** and fully

litigated his federal claims in the state courts.

When the reservation has been made, however, his

right to return will in all events be preserved.”

Ibid. 421-422.

*Some of the authorities consider that Pullman abstention only

applies if the validity of a state statute or regulation is challenged. If so,

petitioner fulfilled that test by pleading the state bar rules to be ‘void as

repugnant” to the 14th Amendment and by challenging the same for

“vagueness and overbreadth” (R. 36-7, 41-2).

In three successive cases of recent vintage, MT v.

US,* 440 U.S. 147 (79), Allen v. McCurry, *° 449 U.S.

90 (80) and most recently in Dist. Col. Ct. v. Feldman,

supra, the Supreme Court, while restricting the right of

recourse to the federal district court subsequent to pro-

ceedings in state court, has upheld the continuing

validity of the England reservation mechanism. Even if

res judicata is truly a jurisdictional concept, as held

below, England is ample authority for the proposition

that when an England reservation has been carved out,

the state court does not acquire jurisdiction over the

litigant’s federal claims. Without such holding, Eng-

land perishes.

“Younger, without doubt, is expanding i in all

conceivable directions. ***

‘Surely the range of state civil proceedings in

which federal courts will refuse to intervene will

continue to broaden.*** Indeed, *** [it] may be

expanded to the point where federal courts will

refuse to intervene in any litigation brought by

state officials to advance any important state

policy.

Eiaded ee eae

*We *** invoke England simply to dispel any inference that the

same result would obtain if the Federal Government had been forced into

state court and had reserved its federal claim. Jd. 164. n.

\9'%% England *** is inapposite [to this case} ***. Where a plaintiff

properly invokes federal court jurisdiction in the first instance on a federal

claim, the federal court has a duty to accept that jurisdiction ***. Absten-

tion may serve only to postpone, rather than abdicate. jurisdiction. ***."

Id. 101-2, n.

Pe ae

“If Younger principles continue to expand and

if broad res judicata effect is given to state court

judgments, then the promise of the Civil Rights

Act that one with a constitutional grievance shall

have his choice of federal court or state court will

become empty. ***

“In Younger itself***; the Court merely

forbade injunction during the course of the trial.

*** In reviewing *** [a subsequent] petition for

habeas corpus, the federal court need not give res

judicata effect***. Federal courts *** retain full

right to re-litigate federal constitutional questions

in the context of habeas corpus.

“Tf relitigation in habeas corpus after ex-

haustion of state remedies is permissible, then re-

litigation in a Civil Rights Act suit should also be

permissible. As it becomes increasingly more

difficult to avoid state court litigation, ***only full

relitigation in federal court will preserve the ele-

ment of choice embodied in the 1871 Act.***

“The Supreme Court *** indicated its

concern for the litigant who has been forced into

state court*** [in England where] the District

Court abstained*** in accordance with the Pull-

man doctrine.***

ee se see

“This concern should be equally great where

the abstention is of the Younger variety .*** The

federal courts clearly have a congressional man-

date to hear suits for deprivations of civil rights.

Expansion of the Younger abstention doctrine ***

must be tempered through a restrained application

of res judicata principles. England suggests that

the Court will follow a middle road: allowing initial

state resolution but retaining a final check.’’ Theis,

Res Judicata, 70 NWLR 859, 870-875 (76).

While recent decisions, notably Allen v. McCurry,

supra, and Dist. Col. Ct. v. Feldman, supra, have not

bee in accord with the commentator’s view that a re-

strained version of res judicata should apply under the

Civil Rights Act, they have served to underscore the

problem. On strength thereof, petitioner urgently sug-

gests that the England reservation mechanism is the

only recourse available to the individual citizen hailed

into court against his will. Unless the same be express-

ly held applicable to Younger type abstention, the

promise of a federal forum to litigate federal issues

becomes vain and empty.

It is true that England only discusses abstention

under the Pullman case; necessarily so because Eng-

land antedates Younger by several years. We know of

neither authority nor logical principle for restricting the

England reservation mechanism to cases where absten-

tion is invoked on authority of Pullman.

Most certainly, the right to labor and earn a living

at one’s chosen occupation, particularly when a large

amount of money, training and effort has gone into the

preparation to follow that occupation, touches upon the

most important and fundamental of human rights. In

Silverman v. Browning, 414 FS 80 (3-Judge DCCN 76)

affd 429 U.S. 876 (76), England principles were held

applicable in an occupational license case. Other occu-

pational license cases invoking the England rule are

Mack v. Board, 430 F2d 862 (5-FL 70), Lombard v.

Board, 502 F2d 631 (2-NY 74), Newman v. Board, 508

F2d 277 (2-NY 75), Graves v. Olgiatti, 550 F2d 1327

(2-NY 77), Board v. Tomanio, 603 F2d 255 (2-NY 79),

rvsd.oth.gds. 446 U.S. 478 (80), and Blunt v. Board,

515F2d 951, 956 (5-FL 75)."'

Tomanio is of particular interest because the Su-

preme Court there assumed as correct the lower court

holding that England was applicable to occupational

license cases with no Pullman abstention principles

involved. Similarly, the denial of certiorari in FL St.

Bd. v. Mack, 401 U.S. 960 (71) is of significance be-

cause it drew two dissenting opinions thereby

indicating that a substantial majority of the Supreme

Also, the summary affirmance in Silverman constitutes

a ruling upon the merits. Edelman v. Jordan, 415 U.S.

651, 670-1 (74).

In summary, petitioner duly invoked the England

reservation mechanism while before the state court.

The right to do so is not limited to those cases where

abstention was invoked by the federal court on

‘Tf the Doctrine of Disappearing Jurisdiction as viewed in the opin-

ion below be upheld. it follows that most of these occupational license

decisions are subject to collateral attack for want of jurisdiction. The

same would apply to the Supreme Court decision in Tomanio .

authority of Pullman. Neither logic nor authority will

sustain that proposition. Even if res judicata be viewed

as a jurisdictional limitation on the power of lower

federal] courts, England mandates a holding that once

the reservation mechanism is invoked, jurisdiction of

federal claims passes to the federal court and does not

disappear when the state court rules. Without proposi-

tion, England becomes a nullity. England, standing

alone, demands reversal hereof.

Tuts Case AROSE IN THE ABSTENTION CONTEXT AND IS

THEREFORE UNLIKE FELDMAN

‘This case is not like England v. Medical Ex-

aminers, 375 U.S. 411 (1964), which arose in the

abstention context, and discussed a litigant’s right

to reserve his federal claims for consideration by a

federal court ***.’’ Dist. Col. Ct. v. Feldman, su-

pra, n. 14

The Court of Appeals held Feldman to be control-

ling even though this case arose “‘in the abstention con-

text."’ We think this is the first application of the Doc-

trine of Disappearing Jurisdiction to a pending federal

case."

''The Doctrine of Disappearing Jurisdiction presupposes that the

federal district court would have had jurisdiction of the particular claim

but for the fact that the claim was raised or could have been raised in the

state court before that court went to judgment. Of course, we speak only

of the federal court's unexercised or potential jurisdiction not yet invoked.

Putting the matter another way, the Rooker line of cases seizes upon the

preclusive effect of prior state litigation as grounds for foreclosing federal

district court consideration of an alleged breach of the Constitution and

laws of the United States (Jurisdiction has disappeared). Thusly stated,

the res judicata nature of the Doctrine is plain.

One: Petitioner suggests that the Doctrine of Dis-

appearing Jurisdiction does no more than add un-

necessary complications to an extremely complex sub-

ject, the law of res judicata.'* It further deprives the

lower courts of the power to grant relief, even to the

most meritorious case, precisely the present dilemma.

Theis, Res Judicata, supra, questions the extent to

which Rooker has made res judicata principles jurisdic-

tional. ;

“The question is more than an academic one. A res

judicata defense must be raised by appropriate

pleading, ***and can be waived by failure to do so.

An objection to the court’s subject matter jurisdic-

tion cannot be waived by the parties. The court

may consider any objections of this sort on its own

motion at any time in the proceedings.’ Jd. 879, n.

114.

Two: The Fifth Circuit Court exhibited greatest

concern with footnote 16 of Feldman wherein this Court

labelled Dasher v. Supreme, 658 F2d 1045 (5-TX 81) as

“flawed,” and stated that by failing to raise federal

claims in state court, a petitioner may forfeit his right

''The Supreme Court itself has experienced continuing difficulty. In

Hawkins v. Board, 355 U.S. 839 (57), an unsuccessful applicant for law

school admission sought certiorari to the Florida courts and this Court

denied certiorari without prejudice to his right to seek “relief in an appro-

priate United States District Court.” Was the Supreme Court not casting

him into the black hole of the Doctrine of Disappearing Jurisdiction from

which the federal courts are powerless to retrieve? See discussion in Theis,

Res Judicata, supra, 880 n. Also, see petitioner's previous discussion of

Sosna v. 1A, supra, Ellis v. Dyson, supra and Board v. Tomanio, supra.

a ee eee

to review “‘in any federal court.’”*

To the contrary, the availability of certiorari is not

decisive. As numerously held, the right to petition for

certiorari is not a practical alternative to the right to

prosecute a § 1983 claim in the federal district court.

How are footnotes 14 and 16 to be reconciled? The

only means occurring to us is to hold that different

rules apply to the ‘‘abstention context”. Inasmuch as

Judge Howell’s case involves the ‘‘abstention context”’

and Feldman does not, footnote 16 has little or no effect

upon the case at hand.

Three: In three successive cases, MT v. US,

supra, Allen v. McCurry, supra, and now in Feldman,

the Supreme Court has upheld the England mechan-

ism. Even if England be exclusively “an incident of

Pullman abstention,’’ it remains as direct precedent for

reversal hereof. The England petitioners acted erron-

"The respective Courts of Appeals in Feldman and in Dasher held

the turning point of those cases to be that the respective claimants had no

means to obtain Supreme Court review because they had no opportunity

to lay the required foundation for certiorari by urging federal claims in

state court. In footnote 16, the Supreme Court appeared to accept this

premise, but we believe the Supreme Court's own analysis to be somewhat

flawed.

A petition for rehearing will not ordinarily satisfy the requirement

that in order to obtain review on certiorari, the federal question must have

been presented in the state court. However, the rule does not apply where

the federal question is first introduced into a state court proceedings by

the ruling of the state’s highest court. Stern & G. S.Ct. Pract. 220-1 (5 ed.

78) and citations therein. If Feldman (and Dasher) was as surprised by

the ruling of the state-equivalent court as he claimed to be, it follows that

he (and Dasher) could indeed have established the right to petition for cer-

tiorari had he only stated his federal questions in a petition for rehearing

to the D.C. court.

eously in the state court by arguing their claims instead

of reserving them, but they were not precluded because

they were only doing what the federal district court had

declared as a predicate to its review.

Likewise, Judge Howell withheld his federal ques-

tions on the basis of federal assurance that those claims

had been reserved. England holds that insofar as peti-

tioner Howell relied on an erroneous federal district

court ruling, that he should nevertheless have the fed-

eral review promised to him. He may not be prejudiced

by the federal error. If the matter needs statement in

jurisdictional language, it must be held that the United

States District Court, by invoking abstention, whether

or not doing so erroneously, carved out and retained

jurisdiction of all federal claims. It’s that simple!!

Four: The Fifth Circuit indicated an opinion that

the England reservation cannot apply where Younger

applies, even by way of overlap; a massive narrowing

and the potential demise of the England doctrine.

On theory, the mechanism is just as applicable to

Younger abstention as to Pullman. The underlying

principles are identical being the entitlement to a

federal forum for federal questions. Abstention does

not abdicate but merely postpones federal jurisdiction,

Allen v. McCurry, supra. We emphasize: McCurry

involved Younger, not Pullman, abstention principles.

Unless the fundamental concept of postponed jurisdic-

tion is to be abandoned in Younger -type cases, England

must be made available. Again, Younger is a product

of the criminal law where res judicata has no applica-

tion and federal habeas is freely available after state

remedies are exhausted. However, now that Younger

has been applied to cases where federal habeas is not

available, either the England doctrine or some similar

procedure must be devised to preserve the right of

eventual federal review.

Five: The “abstention context” contains three

essential ingredients: (1) the individual citizen must be

in litigation with state authority. (2) the citizen must be

in state court. (3) the citizen must be in that court

against his will.

Whie the first two elements were arguably present

in Feldman, the third element was clearly absent. Feld-

man alone initiated the litigation and inasmuch as he

elected to commence his litigation in state-equivalent

court, the “abstention context’’ cannot be present.

England must be recognized as an exception to the

usual rules relating to the finality of state court litiga-

tion. Otherwise, England is both a snare and a delu-

sion. The ‘‘abstention context” was not present in

Feldman and the Supreme Court has so held. Neither

was it present in Rooker or in Feldman or in Dasher,

and those cases are not inapplicable.

Six: The term “no jurisdiction” is often employed

to mean ‘‘no venue”’ or as a shorthand expression of the

fact that it would be procedurally erroneous for the

court to act.

For the United States Supreme Court to accept a

case for argument and rule that the state court has

failed to follow its own law would clearly exceed the

constitutional powers of our highest court, even grant-

ing palpable error by the state court.'* On the other

hand, neither the Constitution nor any federal statute

declares the Supreme Court to be without constitution-

al power (jurisdiction) to consider, on certiorari directly

from a state’s highest court, the claim that a federal

right was deprived, unless that claim was made

throughout the state court proceedings. Such rule has

existed from earliest times, but it is a rule of comity, a

rule of practice, a procedural requirement which the Su-

preme Court has imposed upon those who would invoke

its jurisdiction. Strictly speaking, it is not a constitu-

tional limit on the Supreme Court’s power and it there-

fore is not a jurisdictional matter. See Wood v. GA,

450.U.S. 261 (81). Wherever the term “jurisdiction” is

used, it is necessary to analyze the sense in which the

term has been applied.

Should the Supreme Court ever decide in petition-

er’s favor, a federal claim not raised below, could that

decision later be attacked collaterally? Of course not!!

The term ‘“‘venue’’ on the other hand presupposes the

existence of two courts, each with the constitutional

power to proceed and inquires in which of the two would

‘This was the substance of the claim in Rooker v. Fidelity, supra,

wherein the petitioner urged that the state denied due process by failing to

follow clearly established precedent. To our knowledge, 14th Amendment

protection has never been extended so far in a private civil litigation such

as Rooker. In state habeas cases, which are exempt from res judicata and

to which the Doctrine of Disappearing Jurisdiction has never been ap-

plied, it has been held that a habeas petitioner must show that a mani-

festly unfair trial resulted from the state court's failure to follow estab-

lished procedures.

a case be more appropriately lodged. While jurisdic-

tional claims may be raised at any time, even on appeal,

and a court must raise them on its own motion, venue

claims are waived unless expeditiously asserted.

The term “‘venue”’ is ordinarily employed only in a

geographical sense, but we submit that the search for

the line of cleavage between those federal claims which

must be relegated to state court and those federal

claims which may be heard in federal district court is in

reality an inquiry as to venue rather than an inquiry as

to the constitutional power of federal district courts to

proceed. Atlantic Coast Line v. Engineers, supra. As

previously submitted, the raw, naked constitutional

power of a U.S. District Court to act springs from the

Fourteenth Amendment and the Civil Rights Act. Ex

parte Royall, supra, Pullman, Younger, Rooker, and

England are all of them venue decisions and we submit

the same as to Feldman. They spell out the situations

under which it would be inappropriate or improper for a

federal district court to act, but none of them should be

construed as strict limitations upon the power to pro-

ceed. In Younger and Pullman the distinction is made

plain whereas the distinction is not so precisely drawn

elsewhere.

In Feldman, the Supreme Court held that certain

claims stated in the complaint could proceed in District

Court and certain claims could not. Is the Supreme

Court to be construed as holding that certain of Feld-

man’s federal claims are within the constitutional

power of the district court whereas others are so far be-

yond its constitutional power that any ruling thereon

would be void and subject to collateral attack? Ridicu-

lous!! Feldman, we submit, is primarily a venue deci-

sion.

Seven: As long as the England reservation

remained in effect, jurisdiction over petitioner Howell’s

federal claims remained with the federal court and not

with the state court. This is the heart of the abstention

doctrine, in all abstention cases from Pullman forward.

An abstention order by its very nature creates

divided jurisdiction. After the entry of an abstention

order, a state court is without jurisdiction (constitu-

tional power) to pass upon federal claims. Error, if any,

of the federal court does not affect its power to reserve

federal claims. If the state court proceeds to rule upon

federal claims, its rulings are void and subject to col-

lateral attack. This is the essence of England doctrine

wherein the Supreme Court held express state court

rulings upon federal issuesto be void and of no effect.

Neither the England doctrine nor the entire abstention

concept can operate unless this fundamental concept be

recognized. The lack of jurisdiction lays in the other

direction. The state court was without power to fore-

close petitioner’s claims.

In diversity litigation, a removal of the case to

federal court makes any further state court rulings ut-

terly void and subject to collateral attack and the same

principles apply here. Beyond doubt, the abstention

order was within the constitutional powers of the U.S.

District Court. As long as the federal case remained

pending,'* the cause of action as a whole could not have

become final because the state court had no power to

dispose of the federal aspects of the case.

CONCLUSION

Feldman has no application or, at least, it is not

controlling because the case sub judice arose in the ab-

stention context whereas Feldman did not. The Doc-

trine of Disappearing Jurisdiction, emanating from

Rooker v. Fidelity, supra, is strictly a creature of the

courts and as such, can be limited or renounced out-

right by the courts as easily as they fashioned that

doctrine in the first instance. It should not be held con-

trolling in this abstention case because it is destructive

of the proposition that abstention only postpones the

exercise of federal jurisdiction. Feldman merely holds

that the inchoate or potential or un-invoked jurisdiction

of the federal district court disappeared when the state-

equivalent court went to judgment. Presently, the

Fifth Circuit has held that Federal District Court juris-

diction which had actually been invoked by petitioner

and which the District Court had expressly reserved

“should that prove necessary” (PA 22) was ousted by

the state court judgment. Such an expansive applica-

tion of the Doctrine of Disappearing Jurisdiction is un-

necessary and should not be countenanced. The juris-

diction of the United States District Court had already

attached when the state court went to judgment and it

‘“*We point out that the District Court did not dismiss at the time of

its abstention order (PA 22) or at any other relevant time. Even if it erred

by failing to do so, such error could not cause its jurisdiction to disappear.

vo we

was beyond the power of the state court to destroy fed-

eral jurisdiction already vested and exercised. Cer-

tainly, the state court could not have done so by fiat.

Neither should it be held to have done so by operation

of law, an even more insidious proposition.

Certiorari should be granted to explore the proper

application, if there be one, of the Doctrine of Disap-

pearing Jurisdiction.

Respectfully submitted,

Tom Scorr McCorke, Jr.

Attorney for Respondent

may

Supreme Court Of The United States

CuHARLES Ben HowEL,

Petitioner,

Strate Bar or TEXAS, ET AL.,

Respondents.

PETITIONER’S APPENDIX

US COURT OF APPEALS, FIFTH CIRCUIT,

CHARLES BEN HOWELL v. STATE BAR OF

TEXAS, Et Al; No. 81-1069.

[OPINION]

[ Delivered August 1, 1983; 710F2d1075]

ON REMAND FROM THE SUPREME

COURT OF THE UNITED STATES

Before CLARK, Chief Judge, THORNBERRY

and GARZA, Circuit Judges.

CLARK, Chief Judge:

In our prior opinion in this case, 674 F.2d 1027, we

reversed the district court’s ruling that it lacked sub-

ject matter jurisdiction. The Supreme Court, ___._ U.S.

PA 2

___, 103 S.Ct. 1515, 75 L.Ed.2d 942, vacated our

judgment and remanded the case to us for further con-

sideration in light of its recent decision in District of

Columbia Court of Appeals v. Feldman, __._ U.S.

____., 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). With the

benefit of the Court’s analysis in Feldman, we now

conclude that the district court lacked jurisdiction to

decide most of Howell’s claims. But because the court

did have jurisdiction over one of Howell’s claims, we

partially reinstate our prior decision to remand.

In our original opinion, we began our analysis by

noting that, as a general rule, federal district courts

have no authority. to review state court disciplinary

proceedings. Feldman confirmed that observation, 103

S.Ct. at 1311. See also Atlantic Coast Line R. Co. v.

Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26

L.Ed.2d 234 (1970); Rooker v. Fidelity Trust Co., 263

U.S. 413, 415, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362

(1923); Kimball v. Florida Bar, 632 F.2d 1283, 1284

(5th Cir. 1980); Sawyer v. Overton, 595 F.2d 252, 252

(5th Cir. 1979). Our opinion, however, went on to

discuss the exception to the general rule created in

Dasher v. Supreme Court of Texas, 658 F.2d 1045 (5th

Cir. 1981). In that case, this court held that federal

district courts have jurisdiction to decide certain fed-

eral claims that have not been presented in the state

court. Id. at 1049-50. We reasoned:

The record gives no indication that [the plaintiff]

the basis of her § 1983 action . . . in the Texas Su-

preme Court. Since 28 U.S.C. § 1257(3) authorizes

‘

ae .

Mig ek

(ne ee PA

PA 3

the Supreme Court to review only judgments in

state court cases in which a federal issue was raised

and adjudicated, . . . it is apparent that [the plain-

tiff’s] case could not have been reviewed on a writ

of certiorari from the United States Supreme Court

following the Texas Supreme Court’s denial of her

motion. Since [the plaintiff's] § 1983 complaint

states claims for relief grounded in federal consti-

tutional rights, claims which were not presented

to the Texas Supreme Court, her § 1983 suit does

not constitute an impermissible effort to seek re-

view of a state court judgment in a lower federal

court.

Id. at 1051.

The court in Feldman branded the Dasher reason-

ing as ‘‘flawed.’”’ Jd. 103 S.Ct. at 1315-16 n. 16. It ex-

plained:

As we noted in Atlantic Coast Line R. Co. v.

Engineers, 398 U.S. 281 [90 S.Ct. 1739, 26

L.Ed.2d 234] (1970), ‘‘lower federal courts possess

no power whatever to sit in direct review of state

court decisions.”’ Id. at 296 [90 S.Ct. at 1748]. If

the constitutional claims presented to a United

States District Court are inextricably intertwined

with the state court’s denial in a judicial proceed-

ing of a particular plaintiff's application for ad-

mission to the state bar, then the District Court is

in essence being called upon to review the state :

PA 4

Moreover, the fact that we may not have

jurisdiction to review a final state court judgment

because of a petitioner’s failure to raise his consti-

tutional claims in state court does not mean that a

United States District Court should have jurisdic-

tion over the claims. By failing to raise his claims

in state court a plaintiff may forfeit his right to ob-

tain review of the state court decision in any

federal court. This result is eminently defensible on

policy grounds. We have noted the competence of

state courts to adjudicate federal constitutional

claims. See, e.g., Sumner v. Mata, 449 U.S. 539,

549[101 S.Ct. 764, 770, 66 L.Ed.2d 722] (1981);

Allen v.McCurry, 449 U.S. 90, 105[101 S.Ct. 411,

420, 66 L.Ed.2d 308] (1980); Swain v. Pressley,

430 U.S. 372, 383[97 S.Ct. 1224, 1230, 51 L.Ed.2d

411] (1977). We also noted in Cardinale [v.

Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22

L.Ed.2d 398] that one of the policies underlying

the requirement that constitutional claims be

raised in state court as a predicate to our certiorari

jurisdiction is the desirability of giving the state

court the first opportunity to consider a state

statute or rule in light of federal constitutional

arguments. A state court may give the statute a

saving construction in response to those argu-

ments. 394 U.S. at 439[89 S.Ct. at 1163].

Finally, it is important to note in the context

of this case the strength of the state interest in

regulating the state bar. As we stated in Goldfarb

v. Virginia State Bar, 421 U.S. 773 [95 S.Ct. 2004,

44 L.Ed.2d 572] (1975), the interest of the States

PA 5

in regulating lawyers is especially great since

lawyers are essential to the primary governmental

function of administering justice, and have his-

torically been ‘officers of the courts.’’’ Id. at 792

[95 S.Ct. at 2016]. See also Middlesex County

Ethics Committee v. Garden State Bar Assn.,

supra [___. U.S. ____] at ____ [102 S.Ct. 2615,

2523, 73 L.Ed.2d 116]; Leis v. Flynt, 439 U.S.

438, 442 [99 S.Ct. 698, 700, 58 L.Ed.2d 717]

(1979). In Mackay v. Nesbett, 412 F.2d 846 (CA9

1969), the court stated:

[ O]rders of a state court relating to the admis-

sion, discipline, and disbarment of members

of its bar may be reviewed only by the Su-

preme Court of the United States on certiorari

to the state court, and not by means of an

original action in a lower federal court. The

rule serves substantial policy interests arising

from the historic relationship between state

judicial systems and the members of their

respective bars, and between the state and

federal judicial systems. Id. at 846.

Id.

In the instant case, all but one of the constitutional

claims Howell presented to the district court are “in-

extricably intertwined”’ with the Texas State Court’s

reprimand of Howell in a judicial proceeding. For ex-

ample, he alleged that he was deprived of his right to a

jury trial as well as his right to a fundamentally fair

trial. With respect to these claims, Howell has done

PA 6

nothing more than ask the district court to sit as an ap-

pellate court and review the state court judgment. As

the Supreme Court perfunctorily stated, ‘{t]his the

District Court may not do.”

Howell also mounted a general constitutional chal-

lenge to the state’s disciplinary scheme. In his original

complaint, Howell alleged: ‘‘The said [disciplinary]

rules upon their face are void as repugnant to Due

Process, the Equal Protection and the Privileges and

Immunities Clauses of the Fourteenth Amendment to

the United States Constitution.”

In Feldman, the court stated:

Challenges to the constitutionality of state bar

rules, therefore, do not necessarily require a

United States District Court to review a final state

court judgment in a judicial proceeding. Instead,

the District Court may simply be asked to assess

the validity of a rule promulgated in a non-judicial

proceeding. If this is the case, the District Court

is not reviewing a state court judicial decision. In

this regard, 28 U.S.C. § 1257 does not act as a bar

to the District Court’s consideration of the case

and because the proceedings giving rise to the rule

are non-judicial the policies prohibiting United

States District Court review of final state court

judgments are not implicated. United States Dis-

trict Courts, therefore, have subject matter juris-

diction over general challenges to state bar rules,

promulgated by state courts in non-judicial pro-

PA7

ceedings, which do not require review of a final

state court judgment in a particular case.

Feldman, 103 S.Ct. at 1316-17. This language conclu-

sively demonstrates that the district court has juris-

diction to address Howell’s general constitutional

attack on the Texas disciplinary scheme.

Howell argues that the jurisdictional principles set

out in Feldman should not be applied in this case be-

cause, when the district court first denied his motion

for a preliminary injunction, it said: “Plaintiff of course

has the right to raise federal constitutional issues in

federal court, should that prove necessary after the

state court proceeding is completed. England v.

[Louisiana State] Board of Medical Examiners, 375

U.S. 411[, 84S.Ct. 461, 11 L.Ed.2d 440] (1964).”” We

ry ted out in our original opinion that the district

_vurt’s statement was wrong. The England reservation

mechanism applies only in the event of a Pullman ab-

stention. This was not such a case. A district court’s

erroneous interpretation of the law, even when com-

bined with a litigant’s asserted reliance on the error,

cannot create federal jurisdiction where it would not

otherwise exist.

For the reasons discussed in part III of our original

opinion, which we will not repeat here, Howell is not

collaterally estopped from pressing his facial attack on

the validity of the Texas disciplinary scheme. In con-

clusion, we remand only with respect to the general

challenge to the disciplinary scheme and direct the dis-

trict court to dispose of that claim on the merits. With

PA 8

respect to all other claims presented by Howell, the

district court lacks subject matter jurisdiction. The

judgment appealed from is

AFFIRMED IN PART and REVERSED IN

PART.

[ Same court and case as above)

[OPINION ON REHEARING]

[ Delivered Sept. 26, 1983; Not to be Published]

Before CLARK, Chief Judge, THORNBERRY

and GARZA, Circuit Judges.

PER CURIAM:

In holding that Howell alleged a general constitu-

tional challenge to the state’s disciplinary scheme, we

incorrectly referred to the original complaint. We

should have considered Howell’s amended complaint

since it displaced his original complaint. The error is

one of form not substance since the amended complaint

asserts a similar general constitutional attack based on

the first and fourteenth amendments. District of Col-

umbia Court of Appeals v. Feldman, __. U.S. ___.,

103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), establishes that

the district judge has jurisdiction to decide this con-

stitutional challenge to the Texas disciplinary proce-

dure. The petitions for rehearing are DENIED.

’

b>:

‘ .

> be

PAQ

[Same court and case as above]

[ OPINION)

[ Delivered May 3, 1982; 674F2d1027]

Before CLARK, Chief Judge, THORNBERRY

and GARZA, Circuit Judges.

CLARK, Chief Judge:

Charles Ben Howell appeals the district court’s

dismissal of his civil rights action challenging the result

of a state court disciplinary proceeding against him.

We reverse the district court’s dismissal and remand

with instructions that the district court dispose of

Howell’s federal claims on their merits.

On February 19, 1976, Howell filed a civil rights

action pursuant to 42 U.S.C. §§ 1983-85 against the

State Bar of Texas and three of its officers, seeking dec-

laratory and injunctive relief to prevent his disbarment

in a then-pending Texas court proceeding. On March 1,

1976, Howell moved for a preliminary injunction to en-

, join prosecution of the state disciplinary action. The

district court, in an order of crucial importance to this

appeal, denied Howell’s motion. That order, issued

March 4, 1976, states:

Plaintiff's Motion for Preliminary Injunction

was brought before the Court on March 1, 1976.

After having heard and considered the affidavits of

PA 10

plaintiff and the oral and written argument of

counsel, this Court is of the opinion that the pre-

liminary injunction should be denied. Huffman v.

Pursue, Ltd., 420 U.S. 592[, 95 S.Ct. 1200, 43

L.Ed.2d 482] (197[5])[;] Younger v. Harris, 401

U.S. 37[, 91 S.Ct. 746, 27 L.Ed.2d 669] (1971).

Plaintiff of course has the right to raise federal con-

stitutional issues in federal court, should that

prove necessary after the state court proceeding is

completed. England v. [Louisiana State | Board of

Medical Examiners, 375 U.S. 411[, 84 S.Ct. 461,

11 L.Ed.2d 440] (1964).

On March 9, 1976, the State Bar of Texas moved under

Rule 12, Fed.R.Civ.P., for dismissal of Howell's action.

No supporting brief was filed at the time.

After trial, Howell was found guilty of professional

misconduct and reprimanded by the state court. While

his appeal of the reprimand was pending before the

Texas Court of Civil Appeals, Howell again moved the

federal district court for a preliminary injunction. On

April 15, 1977, the district court denied that motion

and reaffirmed its March 4, 1976 order.* The Texas

Court of Civil Appeals affirmed the judgment of the

lower court in the disbarment action, a decision the

Texas Supreme Court declined to review. Howell v.

"The district court's order denying a preliminary injunction was af-

firmed by this court in an unpublished. per curiam opinion. Howell v.

State Bar of Texas, 551 F.2d 861 (5th Cir. 1977) (citing Fifth Circuit Rale

21).

‘Howell's appeal of the district court's order was +ismissed for want

of prosecution due to Howell's failure to file a brief. Howell v State Bar of

Texas, No. 77-1806 (Sth Cir. Feb. 10, 1978).

PA 11

State, 559 S.W.2d 432 (Tex.Civ.App.1977 — writ ref’d

n. r. e.). Howell presented no federal constitutional

claims in the state proceedings at either the trial or ap-

pellate level.’

On June 30, 1978, Howell returned to federal

court, again seeking a preliminary injunction, this time

to enjoin the Texas courts from giving effect to the

judgment in the disbarment action. The district court

granted Howell’s motion on July 10, 1978. Howell's

case then went through a one-and-a-half year period of

dormancy until February 5, 1980, at which time the

State Bar of Texas moved the court to dissolve the pre-

liminary injunction and dismiss the action for want of

prosecution. The district court denied the State Bar’s

motion to dismiss on February 25, 1980.

On April 22, 1980, the State Bar submitted a brief

in support of the Rule 12 motion to dismiss that it had

filed four years earlier. The State Bar’s arguments were

both jurisdictional and claim-related. Before ruling on

the State Bar’s motion to dismiss, the district court

granted Howell’s June 27, 1980 motion for leave to

amend his complaint. Howell’s second amended com-

plaint, filed that same day, sought a declaration that

the state disciplinary proceeding violated the United

States Constitution and an injunction barring the State

Bar and certain of its officers from enforcing the state

judgment. On December 22, 1980, the district court

dissolved its earlier preliminary injunction and granted

*We have not examined the entire state court record, but note that 3

counsel for the State Rar conceded at oral argument that Howell did not

raise his federal claims in the state disciplinary proceeding.

— t< ke

7 tes s 7 —_ ie 6 ates eas cE baie

PA 12

the State Bar’s Rule 12 motion to dismiss. The court’s

order failed to specify which ground or grounds it relied

upon in granting the motion to dismiss. On January 13,

1981, the district court denied Howell’s Rule 60(b! mo-

tion for reconsideration and cited Kimball v. Florida

Bar, 632 F.2d 1283 (5th Cir. 1980), evidently as auth-

ority for its earlier grant of the Rule 12 motion to dis-

miss. The court’s explicit reliance on Kimball leads us

to conclude that the district court’s dismissal was

Howell now appeals the district court’s grant of

the State Bar’s motion to dismiss and that court’s

denial of his reconsideration motion. We reverse the

district court’s dismissal and remand for disposition of

Howell's federal constitutional claims on their merits.

[1] The State Bar urges affirmance on the ground

that Howell’s suit seeks review of a state bar discipli-

nary action, review of which may be had exclusively in

the United States Supreme Court. According to recent

Fifth Circuit precedent, relied upon by the State Bar

and the district court alike, the federal district courts

are without jurisdiction to review state court disciplin-

ary proceedings. See Kimball v. Florida Bar, supra;

Sawyer v. Overton, 595 F.2d 252 (5th Cir. 1979). In

Sawyer the attorney-plaintiff had been suspended by

the Florida Supreme Court for three months. This

court, in affirming the lower court’s dismissal of the

PA 13

hold no warrant to review final judgments of the

Florida Supreme Court. That power is reserved to

the Supreme Court of the United States. Com-

plaining of constitutional violations, Mr. Sawyer

has cast his complaint in the form of a civil rights

suit. What he seeks, however, is simply reversal

of the state court judgment. . . . [T]he state pro-

ceedings . . _ could have been reviewed in the Su-

preme Court. Mr. Sawyer hae boarded the wrong

flight.

Sawyer v. Overton, 595 F.2d at 252 (citation omitted).

But for an odd quirk in this case, Sawyer and Kimball

would be controlling.

The rule of Sawyer and Kimball is necessarily

premised on the availability of Supreme Court review of

an offensive state court judgment.‘ Supreme Court

review of Howell's disciplinary proceeding was impos-

sible. Since Howell raised no federal claims in the Texas

courts, due no doubt to the federal district court’s as-

surance that he could return to federal court with his

‘The unmentioned but obvious antedecent of Sawyer and Kimball is

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362

(1923), the case that spawned the so-called Rooker doctrine. Rooker held

that only the Supreme Court can entertain jurisdiction of a proceeding to

reverse or modify a state court judgment. /d. at 415-16, 44 S.Ct. at 150,

68 L.Ed. at 365. A panel of this court recently disputed that Rooker still

stands, if it ever stood, for that proposition. See Gresham Park Commun-

ity Org. v. Howell, 652 F .2d 1227, 1233-36 (1981). One recent commenta-

31 Hastings L.J. 1337, 1344 & n. 46, 1375-77 (1980). But see Develop

ments in the Law — Section 1983 and Federalism, 9 Harv.L.Rev. 1133,

1334 n. 14 (1977).

PA 14

federal claims, Supreme Court review was unavailable.

Our holding that the unavailability of Supreme Court

review distinguishes this case from Sawyer and

Kimball and obliges the district court to assume juris-

diction of Howell's action is mandated by a recent deci-

sion of this court.

In Dasher v. Supreme Court of Texas, 658 F.2d

1045 (5th Cir. 1981), the plaintiff brought a civil rights

action in federal court challenging the Texas Supreme

Court's decision not to admit her to the Texas bar as

violative of the United States Constitution. The

plaintiff had not raised any federal constitutional

claims before the Texas Supreme Court, thus, render-

ing the state court’s decision unreviewable by the

United States Supreme Court under 28 U.S.C. § 1257

(3). This court noted that the availability of Supreme

Court review “has served as a predicate for numerous

decisions in the lower federal courts holding that dis-

trict courts have no jurisdiction to review, under the

guise of a § 1983 suit, state court decisions in cases in-

volving individuals’ applications for admission to the

state’s bar.’’ Dasher, 658 F.2d at 1049-50. The court

held that the piaintiff’s suit was within the district

court's jurisdiction since her federal claims were not

presented in the state court and thus review was not

available in the Supreme Court. Jd. at 1051.*

28 U.S.C. § 1257 (3) provides, in part, that “[f]inal judgments. . .

rendered by the highest court of a State... may be reviewed by the Su-

preme Court . . where any title, right, privilege or immunity is specially

set up or claimed under the Constitution.”

*The undropped shoe in Dasher is res judicata. The opinion does not

mention res judicata and we presume that it was not pleaded in the dis-

PA 15

[2] Howell withheld his federal constitutional ar-

guments from the state courts after the federal district

court relegated him to the state system with a promise

that he could return with his federal claims pursuant to

England v. Louisiana State Board of Medical Examin-

ers, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

The district court held out that promise erroneously,

since the England reservation mechanism is an inci-

dent of Pullman abstention.’ The district court more

properly should have dismissed Howell’s action and

relegated him to the state courts to present all of his

claims. Instead, the district court’s citation to England

assured Howell that he could present his state claims in

state court and then, if necessary, return to federal

court with his federal claims. As a result, the Texas

disbarment action could not have been reviewed by the

United States Supreme Court. Thus, Dasher estab-

lishes that the district court has jurisdiction over Ho-

well’s federal claims.

Ill

The State Bar, as an alternative argument for af-

firmance, claims that res judicata forbids litigation of

claims in federal court that might have been litigated in

state court. While we agree that in the normal case res

judicata would apply, the facts of this case once again

fall outside of the general rule.

Unct court as an affirmative defense. Thus, we note that in the ordinary ,

case res judicata would apply where state and federal legal theories are is %

“eplit” between two forums. ‘ 4

‘Railroad Comm'n v. Pullman Co., es SO Tees > oe , a

PA 16

[3] Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411,

66 L.Ed.2d 308 (1980), has settled most of the ground

rules with respect to the preclusive effect of a state

court judgment in a subsequent civil rights action in

federal court. Traditional rules of preclusion are gen-

erally applicable in the cross-forum context. However,

rules of preclusion and the mandate of 28 U.S.C. §

1738 can still be suspended under the England reser-

vation mechanism or when the federal party against

whom preclusion is asserted did not have a full and fair

opportunity to litigate his federal claims in state court.

Id. at 101 &n. 17, 101 S.Ct. at 418 & n. 17, 66 L.Ed.2d

at 317 & n. 17; see also Montana v. United States, 440

U.S. 147, 163-64, 99 S.Ct. 970, 978-79, 59 L.Ed.2d 210,

223 (1979). Although both McCurry and Montana

involved collateral estoppel, we are confident that the

same exceptions apply to suspend application of res

judicata in a federal civil rights action. We hold that a

hybrid of the England and full-and-fair-opportunity

exceptions requires that res judicata not apply in this

case. This decision is based on federal law exceptions to

both res judicata and the normal rule that a state court

judgment's preclusive effect is determined by reference

to the law of the judgment-rendering state.

We have already noted that the district court’s

promise to Howell that England offered a road back to

federal court was not supported by the law. Nonethe-

less, that promise induced Howell to hold back his fed-

'28 U.S.C. § 1738, the Pull Faith and Credit Act, provides that the

“judicial proceedings of any court of any .. . State . . . shall have the same

full faith and credit in every court within the United States . . . as they

nave by law or usage in the courts of [the] State . . . from which they are

taken.”

PA 17

eral claims once he was relegated to state court. As a

result, he could hardly be said to have had a full and

fair opportunity to present his federal claims in state

court even though such an opportunity was in theory

present. Had Howell lodged his federal claims in state

court, he would have forsaken the chance he had been

offered to return to federal court. We are unwilling to

punish Howell for his reliance on the federal district

court’s guidance.’ His federal claims are not barred by

res judicata.

In sum, there is neither a jurisdictional nor a pre-

‘clusive bar to Howell’s presentation of his federal

claims in federal court. Insofar as those bars have

fallen, we reverse the district court’s order of dismissal

and remand this case to the district court for disposi-

tion on the merits.

REVERSED and REMANDED.

*This opinion should not be construed as an endorsement of the type

of “simple justice” or “public policy” exception to res judicata that the

Supreme Court spurned in Federated Dep't Stores v. Moitie, 452 US.

394, 399, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 110-11 (1981). The court

in Moitie found Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054

(1932), to be controlling. In Reed, the court noted that the party trying to

escape res judicata was in a “predicament . . . of his own making.” Jd. at

198, 52 S.Ct. at 533, 76 L.Ed. at 1056. On the contrary, Howell’s predi-

cament resulted from the district court's faulty ruling. Rather than carve

out a “simple justice” exception to res judicata, we rely on a hybrid of the

two exceptions (England and the full-and-fair-opportunity) expressly

noted in McCurry and Montana.

PA 18

US DISTRICT COURT, ND TEXAS, CHARLES

BEN HOWELL v STATE BAR OF TEXAS, Et Al;

No. CA-3-76-0280-C

[LETTER OPINION ]

[ Dated July 24, 1980; Not to be Published}

W. M. TAYLOR, JR., District Judge:

I have concluded that the State Bar’s Motion to

Dismiss should be granted.

It is clear to me that Polk v. State Bar of Texas,

480 F.2d 998 (5th-Cir. 1973) is inapplicable. Not only

because of footnote 11, but because it did not involve an

attack on a state court judgment. I also do not believe

that England v. Medical Examiners, 375 U.S. 411

(1968), is applicable. Plaintiffs there were told to file a

lawsuit in state court for an authoritative construction

of a state statute so that a constitutional claim would

not be decided if the statute were construed in Plain-

tiff’s favor. Plaintiff here was not the Plaintiff in the

state court suit here and was not seeking the construc-

tion of a state statute. He was the Defendant in a case

in which the Plaintiff there won an affirmative

judgment against him. His constitutional claims were

more of the nature of a compulsory defense in that suit.

See Moore v. Sims, 442 U.S. 415 (1979).

[ Not included in record by District Clerk;

copied from Pet. Cert. No. 82-397,

US S.Ct.; as filed by Respondents]

PA 19

[ORDER OF THE SUPREME COURT]

[ Filed April 4, 1983]

The petition for a writ of certiorari is granted. The

judgment is vacated and the case is remanded to the

United States Court of Appeals for the Fifth Circuit for

further consideration in light of District of Columbia

Court of Appeals v. Feldman, 460 U.S. ______ (1983).

[ JUDGMENT OF THE FIFTH CIRCUIT]

[Same judges, case name and numbering as before;

filed August 1, 1983]

Appeal from the United States District Court

for the Northern District of Texas

e-—lUlcll—C iC Sls—~“ié‘ SS

JUDGMENT ON REMAND FROM THE

UNITED STATES SUPREME COURT

This cause came on to be heard on remand from the

Supreme Court of the United States;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judg-ment appealed from is affirmed in part; and re-

versed in part;

IT IS FURTHER ORDERED that costs be taxed

equally against plaintiff-appellant and defendants-ap-

PA 20

[ORDER OF THE FIFTH CIRCUIT DENYING

REHEARING]

[ Same judges, case name and numbering as before;

filed September 26, 1983]

[ The office of the Clerk of the Court of Appeals advises

that the only order of the Court on rehearing is con-

tained within its Opinion on Rehearing; PA 8 supra]

[JUDGMENT OF THE DISTRICT COURT]

[Same district, judge, case name and numbering

as above; filed Dec. 22, 1980]

The above-styled and numbered cause having

come before the Court regularly to be heard and con-

sidered upon the briefs submitted to the Court and the

argument of counsel for the parties upon the motion of

the Defendants to dismiss; and it appearing to the

court that such motion should be granted, it is accord-

ingly

ORDERED that the Defendant’s Motion to Dis-

miss Pursuant to Rule 12 be, and it is hereby granted,

as to all Defendants and the Plaintiff's complaint is dis-

missed.

PA 21

It is further ORDERED that the preliminary in-

junction heretofore entered by this Court on July 10,

1978, be, and the same is dissolved.

[R. 210]

[ORDER AND OPINION OF THE DISTRICT

COURT DENYING REHEARING]

[Same district, judge, case name and numbering

as above; filed January 13, 1981]

The Court having considered Plaintiff's Motion for

Reconsideration under Rule 60 (b), F.R.C.P., of

December 31, 1980, erroneously designated a Motion

for New Trial, the response of Defendants, and the case

of Kimball v. The Florida Bar, et al, ___ F2d__,

Slip Opinion p. 2168 (5th Dir., December 18, 1980), is

of the opinion that Plaintiff's motion is without merit;

It is therefore ORDERED that Plaintiff's Motion

for Reconsideration is denied.

[R. 216

PA 22

[ORDER OF THE DISTRICT COURT

DENYING PRELIMINARY INJUNCTION]

[Same district, judge, case name and numbering

as above; filed March 4, 1976]

Plaintiff's Motion for Preliminary Injunction was

brought before the Court on March 1, 1976. After hav-

ing heard and considered the affidavits of plaintiff and

the oral and written argument of counsel, this Court is

of the opinion that the preliminary injunction should be

denied. Huffman v. Pursue, Ltd., 420 U.S. 592 (1974),

Younger v. Harris, 401 U.S. 37 (1971). Plaintiff of

course has the right to raise federal constitutional

issues in federal court, should that prove necessary

after the state court proceeding is completed. England

v. Board of Medical Examiners, 375 U.S. 411 (1964).

It is therefore ORDERED, ADJUDGED and DE-

CREED that Plaintiff's Motion for Preliminary Injunc-

tion be and hereby is denied.

[R. 53]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.