Petition for Writ of Certiorarim — Pincham v. Illinois Judicial Inquiry Board

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89-242 |) oS

| JUL 20 1989

No. - SOSEE EE So54'0

la IN THE —

Supreme Court of the United States

OcTOBER TERM, 1988

R. EUGENE PINCHAM,

Petitioner,

vs.

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

” .

SAM ADAM RosBertT E. PINCHAM. JR.

Attorney at Law Attorney at Law

53 West Jackson Blvd. 221 North LaSalle Street

Suite 1430 Suite 2440

Chicago, Illinois 60604 Chicago, Illinois 60601

(312) 236-5543 (312) 782-0100

Attorneys for Petitioner, R. EUGENE PINCHAM

;

QUESTIONS PRESENTED

1. WHETHER, UNDER THE YOUNGER v. HARRIS

(1971), 401 U.S. 37, ABSTENTION DOCTRINE, AND

UNDER MORE RECENT NEW ORLEANS PUBLIC

SERVICE, INC. v. COUNCIL OF THE CITY OF NEW

ORLEANS, (6719/89), NO. 88-348. 49 CCH S.CT. BULL.

P. B3363-3391, THE DISTRICT COURT, IN WHICH

PETITIONER, A JUSTICE OF THE APPELLATE

COURT OF ILLINOIS, SOUGHT DECLARATORY

AND INJUNCTIVE RELIEF, IMPROPERLY AB-

STAINED FROM EXERCISING JURISDICTION AND

ERRONEOUSLY REFUSED TO PROTECT AND EN-

FORCE PETITIONER’S CONSTITUTIONAL RIGHTS

TO FREE POLITICAL SPEECH, EQUAL PROTECTION

AND DUE PROCESS,

when the sole basis for Petitioner’s alleged illegal “polit-

ical activity”, in disciplinary proceedings against Peti-

tioner before the Illinois Courts Commission, was a

hyperbolic statement*in Petitioner’s speech on Black

History in America, in commemoration of Black His-

tory Month, at a weekly community town hall meeting;

and,

where under the Illinois Constitution and the decisions

of the Illinois Supreme Court, the Illinois Courts Com-

mission lacked jurisdiction to interpret, enforce or

protect Petitioner’s said constitutional rights; and,

where under the Illinois Constitution any disciplinary

decision against Petitioner by the Illinois Courts Com-

mission is final and non-appealable; and,

where the District Court was the only forum in which,

Petitioner’s constitutionally protected rights of free

political speech, due process, equal protection could

be invoked, interpreted, enforced and protected?

2. WHETHER THE DISCIPLINARY PROCEEDINGS

AGAINST PETITIONER WERE HARASSMENT, IN BAD

FAITH, AND SELECTIVE PROSECUTION, VIOLATIVE

OF CONSTITUTIONAL EQUAL PROTECTION WHICH

PRECLUDED ABSTENTION AND WARRANTED FED-

ERAL INTERVENTION?

3. WHETHER THE ILLINOIS SUPREME COURT

RULES, WHEN APPLIED TO PETITIONER’S STATE-

MENT IN HIS SPEECH, VIOLATE CONSTITUTIONAL

FREE SPEECH AND DUE PROCESS BECAUSE OF

VAGUENESS AND LACK OF SPECIFICITY, PRE-

CLUDED ABSTENTION, AND WARRANTED FED-

ERAL INTERVENTION?

TABLE OF CONTENTS

PAGE

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SSE 2

CONSTITUTIONAL PROVISIONS INVOLVED.............. 2

STATE CONSTITUTIONAL PROVISIONS

ss ssaninuncanpanons 3-4

I... sccndsenvanavennanenians 4-5

Be TE I aga vanceseccccsccccsccsccccscccansecesess 5-8

REASONS FOR GRANTING THE WRIT ...........ccc00000000-. 8-23

APPENDICES

PIII © nnercencnesssrssace Opinion United States District

Court, Pincham vy. Illinois Judicial

Inquiry Board, 681 F. Supp. 1309

(N.D. Ill, 1988)

Appendix B.................... Opinion United States Court of Ap-

peals, Seventh Circuit, Pincham vy.

Illinois Judicial Inquiry Board, 681

F. 2d 1341 (7th Cir., 1989)

, Petitioner’s Speech

TABLE OF CASES

UNITED STATES SUPREME COURT

PAGE

Bond v. Floyd (1966), 385 U.S. 116.................06 10

Boos v. Barry (1988), 108 S. Ct. 1157.00... 10

Buckley v. Valeo (1976), 424 U.S. Lu......ccccceeeeeeee 10

Chaplinski v. New Hampshire (1942), 315 U.S.

STi ch cesicihicditeisieiediictidiinidhinilnihettininteitiniinianien 9

City of Houston v. Hill (1987), 107 S. Ct. 2502... 11

City of Lakewood v. Plain Dealer Publishing Com-

pate (ITB, FOG S. Ge. BUG i vccsccnerncsascsncsssesess 10, 11 ’

Conally Commission v. General Construction Co. |

PP A I: SEE xcatacetithisiassdasctcaseinnssentensnens 21

Douglas v. Alabama (1965), 380 U.S. 415........... 16

Fort Wayne Books, Inc. v. Indiana (1989), 109 S.

SERRE REA Se rn Foe a 11

Frisby v. Schultz (1988), 108 S. Ct. 2495............. 10

Gibson v. Berryhill (1973), 411 U.S. 564 ............. 14

Gitlow v. New York (1925), 268 U.S. 652............ oi

In Re Primus (1978), 436 U.S. 412..................000 22

Johnson v. Mississippi (1988), 108 S. Ct. 1981... 16

Middlesex County Ethics Committee v. Garden

State Bar Association (1982), 457 U.S. 423 ..... 16-17

N.A.A.C.P. v. Butler (1963), 371 U.S. 415........... 9, 22

New Orleans Public Service, Inc. v. Council of the

City of New Orleans (6/19/89), No. 8-88-348,

49 CHH S.Ct Bull. B. B3363-3391 .................. 17-18

New York Times v. Sullivan (1964), 376 U.S. 254 10

Penzoil Company v. Texaco, Inc. (1987), 107 S.

a, Tee eeisicticiichlcsnses ooshatiiceieectillansenieliaasiebidiianiinnannenesniens 12

Roth v. United States (1957), 454 U.S. 476......... u

Schenck v. United States (1919), 249 U.S. 47...... 9

Smith v. Goguen-€1974), 415 U.S. 566 ............... 21

Sweezy v. New Hampshire (1957), 354 U.S. 234. 9

United States v. Culbert (1978), 435 U.S. 371..... 21

PAGE

Younger v. Harris (1971), 401 U.S. 37.00.00... 7, 8, 12

UNITED STATES COURT OF APPEALS

Sullivan v. City of Pittsburg (3rd Cir., 1987), 811

Aue WM inansnidhiieipienieniaen tt ieleninea ee 11-12

ILLINOIS SUPREME COURT

People ex rel Harrod v. Illinois Court Commission

FF a i ee ctcciteanssietdieainttntittnaanans 7,12-13

People ex rel Judicial Inquiry Board v. The Courts

Commission (1982), 91 Til. 2d 130............000.... 13-14,

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1988

R. EUGENE PINCHAM,

Petitioner,

vs.

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS, et ai.,

Respondents.

PETITION FOR WRIT OF CEKTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PRAYER

Petitioner, R. Eugene Pincham, respectfully prays that a

Writ of Certiorari issue to review and reverse the judgment

and order of the United States Court of Appeals for the

Seventh Circuit, which affirmed the District Court’s absten-

tion and dismissal of Plaintiff's complaint for declaratory and

injunctive relief.

OPINIONS BELOW

The judgment and order of the United States District

Court for the Northern District of Illinois, Eastern Division,

was entered March 4, 1988, appears in 681 F. Supp. 1309,

and is attached hereto as Appendix A. The order and

judgment of the United States Court of Appeals for the

Seventh Circuit was entered April 27, 1989, appears in 872

F.2d 1314, and is attached hereto as Appendix B.

JURISDICTION

The opinion of the United States Court of Appeals was

entered April 27, 1989. A timely filed Petition for Rehearing

with Suggestions In Banc was denied on May 22, 1989. This

petition is filed within sixty (60) days of said denial order.

Jurisdiction is invoked under 28 U.S.C., Section 1254.

UNITED STATES CONSTITUTIONAL

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

The Fourteenth Amendment, Section |, to the United

States Constitution provides:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

ILLINOIS CONSTITUTIONAL

PROVISIONS INVOLVED

The Illinois Constitution, 1970, Article 6, Section 1 5(b)

provides:

(b) A Judicial Inquiry Board is created. The Supreme

Court shall select two Circuit Judges as members and

the Governor shali appoint four persons who are not

lawyers and three lawyers as members of the Board. No

more than two of the lawyers and two of the non-lawyers

appointed by the Governor shall be members of the same

political party. The terms of Board members shall be

four years. A vacancy on the Board shall be filled for a

full term in the manner the original appointment was

made. No member may serve on the Board more than

eight years.

The Illinois Constitution, 1970, Article 6, Section 1 5(c)

provides:

- (c) The Board shall be convened permanently, with

authority to conduct investigations, receive or initiate

complaints concerning a Judge or Associate Judge, and

file complaints with the Courts Commission. The Board

shall not file a complaint unless five members believe

that a reasonable basis exists (1) to charge the Judge

or Associate Judge with willful misconduct in office,

persistent failure to perform his duties, or other conduct

that is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to charge

that the Judge or Associate Judge is physically or mentally

unable to perform his duties. All proceedings of the

Board shall be confidential except the filing of a com-

plaint with the Courts Commission. The Board shall

prosecute the complaint.

The Illinois Constitution, 1970, Article 6, Section | 5(e)

provides:

(e) A Courts Commission is created consisting of

one Supreme Court Judge selected by that Court, who

shall be its chairman, two Appellate Court Judges se-

lected by that Court, and two Circuit Judges selected by

the Supreme Court. The Commission shall be convened

permanently to hear complaints filed by the Judicial

Inquiry Board. The Commission shall have authority

after notice and public hearing, (1) to remove from office,

suspend without pay, censure or reprimand a Judge or

Associate Judge for willful misconduct in office, persis-

tent failure to perform his duties, or other conduct that

is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to suspend, ~

with or without pay, or retire a Judge or Associate Judge

who is physically or mentally unable to perform his

duties.

The Illinois Constitution, 1970, Article 6, Section 15(f)

provides:

(f) The concurrence of three members of the Com-

mission shall be necessary for a decision. The decision

of the Commission shall be final.

The Illinois Constitution, 1970, Article 6, Section 1 3(a)

provides:

(a) The Supreme Court shall adopt rules of conduct

for Judges and Associate Judges.

ILLINOIS STATUTES INVOLVED

Rules of the Supreme Court of Illinois, Code of Judicial

Conduct, Illinois Revised Statutes, 1987, Chapter 110A.

Illinois Supreme Court Rule 67(A) provides:

A Judge may not, except when a candidate for

office or retention, participate in political campaigns or

activities, or make political contributions.

Illinois Supreme Court Rule 67(A)(4) provides:

(4) A judge should not engage in any other political

activity except on behalf of measures to improve the law,

the legal system, or the administration of justice.

STATEMENT OF THE CASE

Petitioner, R. Eugene Pincham, was an invited guest

speaker at Operation PUSH, a Chicago civic community

organization, at its weekly town hall public meeting on Janu-

ary 31, 1987. Petitioner spoke on Black History in America,

which is celebrated throughout the United States during the

month of February. During Petitioner’s 30 minute unwritten

spontaneous speech, the complete text of which was tran-

scribed from an audio tape and is attached hereto as Appendix

C, Petitioner spoke on the struggles of the Black American

slaves for liberation and on the white abolitionists, the free

Blacks and the slaves who were charged, tried and hanged

during the 1741 Spring and Summer New York slave rebellion

for the slaves’ emancipation. Petitioner also spoke on the

struggles and sacrifices during the civil rights movement led

by Dr. Martin Luther King, Jr., the Congressional enactment

of the 1964 Voting Rights Act, the political progress of Blacks

and the election of Black Mayors and other Black public

officials thereunder, on Mayor Harold Washington’s candi-

dacy for Mayor of the City of Chicago in the February 1987

Primary, and, referring to those who had unselfishly given

their lives for freedom in that 1741 New York Slave Rebel-

lion, Petitioner then hyperbolically stated:

“Any man south of Madison Street who casts a vote in

the February 24th election who doesn’t cast a vote for

Harold Washington ought to be hung as those were hung

in New York.”

Because of and based solely upon this hyperbolic state-

ment in Petitioner’s speech, the Illinois Judicial Inquiry

Board filed a complaint against Petitioner with the Illinois

Courts Commission. Under Article 6, Sections 15(b), (c)

and (e) of the Illinois Constitution, a nine member Judicial

Inquiry Board is created to investigate and file with the

Illinois Courts Commission complaints for alleged miscon-

duct and/or violations of the Illinois Supreme Court Rules

by any member of the Illinois Judiciary. The Courts Commis-

sion is empowered to remove, suspend, censor or reprimand

a judge for misconduct and Article 6, Section 15(f) of the

Illinois Constitution mandates that the decision of the Courts

Commission is final and non-appealable.

The sole charge in the complaint against Petitioner was

that the aforementioned statement in his speech constituted

“political activity” allegedly in violation of Illinois Supreme

Court Rules 67(a)(2) and 67(a)(4), which respectively provide:

“A judge may not, except when a candidate for office or

retention, participate in political campaigns or activities

or make political contributions.”

“A judge should not engage in any other political activity

except on behalf of measures to improve the law, the

legal system, or the administration of justice.”

Pursuant to the provisions of 28 U.S.C., Sections 1331,

1343(a(3) and (4), Petitioner filed in the United States

District Court a complaint for declaratory and injunctive

relief against the Judicial Inquiry Board and the Courts

Commission. Petitioner’s District Court complaint alleged

that the filing of the complaint by the Judicial Inquiry Board

and any disciplinary proceedings thereon against Petitioner

by the Courts Commission would violate Petitioner’s consti-

tutional rights to free political speech, due process and equal

protection of the laws and Petitioner’s rights under 28 U.S.C.

Sections 2201-2202, and 42 U.S.C. Sections 1981 and 1983.

Petitioner’s complaint requested the District Court to enjoin

the Inquiry Board and the Courts Commission from proceed-

ing upon any complaint against Petitioner because of or based

upon Petitioner’s aforementioned statement in his speech.

The Inquiry Board and the Courts Commission moved

the District Court to dismiss Petitioner’s complaint on “ripe-

ness” and “abstention” grounds. The District Court made

findings, which included:

“(5) decisions of the [Illinois] Courts Commission are

final in that no review by the Illinois Supreme Court or

lesser Illinois Court is available [to Petitioner];”! :

The District Court then dismissed Petitioner’s complaint

with the following order:

“The defendants’ Motions to Dismiss this action

under the abstention doctrine first articulated by the

United States Supreme Court in Younger v. Harris, 401

U.S. 37 (1971) are granted.” ”

On appeal the United States Court of Appeals for the

Seventh Circuit affirmed the District Court’s order and judg-

ment. On the issue that Petitioner did not have a state

remedy for invocation and protection of his constitutional

rights of free political speech, equal protection and due

process because of (1), the decision of the Illinois Supreme

Court in Harrod v. Courts Commission (1978), 62 Ill. 2d 445,

that the Illinois Courts Commission lacked jurisdiction to

interpret the Federal or State Constitutions or to decide

constitutional issues, and (2) the finality and non-appealabil-

ity of a decision of the Illinois Courts Commission, provided

in Article 6, Section 15(f) of the Illinois Constitution, the

Seventh Circuit completely ignored the District Court’s afore-

mentioned specific finding that “no review by the Illinois

Supreme Court or lesser Illinois courts is available [to

Petitioner].” Although totally unable to identify such a

remedy, the Seventh Circuit nevertheless fallaciously con-

cluded, solely from gossamer cloth, that it was “confident”,

and that “in all probability” the State of Illinois would

‘and ? Pincham v. Illinois Judicial Inquiry Board, et al., (N.D.

Ill., 1988), 681 F. Supp. 13209, 1320 and 1325, Appendix C.

somehow miraculously fashion or create a remedy just for

Petitioner.

The Seventh Circuit also rejected Petitioner’s conten-

tions that there existed in Petitioner’s case and that Petitioner

alleged in his complaint three of the recognized and accepted

exceptions to the Younger abstention doctrine, namely:

(1) The Illinois Supreme Court Rules prohibiting

“political activity” as applied to Petitioner’s

speech, and the disciplinary proceedings against

Petitioner before the Courts Commission based

thereon, flagrantly and patently violated consti-

tutional guarantees of free political speech, due

process and equal protection under law;

(2) The disciplinary procedings against Petitioner

before the Courts Commission were motivated

by a desire to harass Petitioner and were con-

ducted in bad faith and violated constitutional

equal protection, and

(3) There were extraordinary pressing needs for im-

mediate equitable relief.

REASONS FOR GRANTING THE WRIT

THE DECISIONS BELOW (1) TOTALLY DENY PRO-

TECTION OF PETITIONER’S CONSTITUTIONAL

RIGHTS OF FREE POLITICAL SPEECH, DUE PRO-

CESS AND EQUAL PROTECTION OF THE LAW, (2)

IGNORE RECENT COMPELLING AUTHORITIES

OF THIS COURT WHICH PRECLUDE APPLICA-

TION OF THE YOUNGER ABSTENTION DOC-

TRINE WHERE FIRST AMENDMENT CONSTITU-

TIONAL FREE SPEECH VIOLATIONS ARE

ALLEGED, AND (3) INDEED ARE IN CONFLICT

_ WITH YOUNGER, WHICH CLEARLY IS INAPPLI-

CABLE WHEN NO STATE REMEDY IS AVAILABLE,

AS IN THE CASE AT BAR.

1. THE CONSTITUTIONAL GUARANTEE OF FREE POLITICAL

SPEECH

The First Amendment constitutional guarantee of free

speech has been held to be applicable to the States through

the Due Process Clause of the Fourteenth Amendment, at

ieast since Gitlow v. New York (1925), 268 U.S. 652, and this

Court held in Sweezy v. New Hampshire, (1957), 354 U.S.

234, 250-251:

“Our form of government is built on the premises that

every citizen shall have the right to engage in political

expression and association. This right was enshrined

in the First Amendment of the Bill of Rights... Any

interference with the freedom of a party is simultaneously

an interference with freedom of its adherents. . . . History

has amply proved the virtue of political activity by

minority, dissident groups...”

Petitioner is an elected Justice of the Appellate Court of

Illinois. He is also an American citizen who has been

constitutionally guaranteed the right to freely speak his mind

in political-historical matters. “Freedom of expression em-

braces more than the right of an individual to speak his mind.

It includes also his right to advocate and his right to join with

his fellows in an effort to make that advocacy effective.”

N.A.A.C.P. vy. Butler (1963), 371 U.S. 415, 452.

Petitioner did not speak from the bench or in any way

use the trappings of his judicial office to promote a cause.

No “political activity” is alleged against Petitioner other than

the statement in the speech. While this Court has held that

certain speech may not be constitutionally protected and may

be regulated, e.g. obscene speech’, “fighting words”, a “clear

and present danger” etc. this Court however has never ap-

> Roth v. United States (1957), 554 U.S. 476.

* Chaplinsky v. New Hampshire (1942), 315 U.S. 568.

* Sheneck v. United States (1919), 249 U.S. 47.

proved restrictions upon political discussions or debate.®

Indeed, historically this Court has enthusiastically encour-

aged such dialogue. Illinois Supreme Court Rules 67(A)(2)

and 67 (A)(4), however, when applied to Petitioner, whose

only alleged violation thereof is that he made a “political”

statement, violate Petitioner’s First Amendment free speech

guarantees, and, concomitantly the free speech guarantee of

every other judge throughout America.

This is the very “self-censorship” so recently resoundedly

condemned by this Court in City of Lakewood v. Piain Dealer

Publishing Company (1988), 108 S. Ct. 2138; 2144. The case

at bar, while not identical, bears a striking similarity to Bond

v. Floyd (1966), 385 U.S. 116, where the Georgia House of

Representatives sought to exclude Julian Bond, an elected

legislator from membership in the Georgia Legislature, not

for what he said, (criticism of the Government’s Viet Nam

War policies), but solely because he was an elected Georgia

State Representative when he said it. The State of Georgia

in Bond, and the Illinois Judicial Inquiry Board and Court’s

Commission in this case have, sought to “apply a stricter

standard of speech to its legislator”, and judge, than to other

citizens. 385 U.S. at 133. This Court without dissent rejected

Georgia’s thesis and, quoting from New York Times

v. Sullivan (1964), 376 U.S. 254, 270, said, “ ‘DEBATE ON

PUBLIC ISSUES SHOULD BE UNINHIBITED, ROBUST

AND WIDE OPEN.’ ”’

Though these and other authorities were cited to the

Court of Appeals, that Court “abstained” from deciding the

merits of the alleged violations of Petitioner’s First and

Fourteenth Amendment Constitutional rights.

Petitioner respectfully urges that Illinois Supreme Court

Rules 67(A)(2) and 67(A)(4) are facially and flagrantly in

~ © See Buckley v. Valeo (1976), 424 U.S. 1; Boos v. Barry (1988)

108 S. Ct. 1157, 1164.

’ Most recently quoted in Frisby v. Schultz (1988), 108 S. Ct.

2495, 2499.

derogation of the First and Fourteenth Amendment guaran-

tees to free speech when application of said rules are sought

against Petitioner solely on the ground that Petitioner made

a “political” statement.

2. RECENT AUTHORITIES OF THIS CouRT HAVE CON-

STRICTED APPLICATION OF THE Youncer ABSTENTION

DOCTRINE IN First AMENDMENT CHALLENGES.

In the case at bar the Court of Appeals ignored other

recent decisions of this Court which limit abstention and

compel federal intervention. It overlooked City of Houston

v. Hill (1987), 107 S. Ct. 2502, 2514, which held that “.. .WE

HAVE BEEN PARTICULARLY RELUCTANT TO AB-

STAIN IN CASES INVOLVING FACIAL CHALLENGES

BASED ON THE FIRST AMENDMENT. .. when a statute

is not ambiguous, there is no need to abstain, even if the state

courts have never interpreted the statute.” Also ignored by

the Court of Appeals was City of Lakewood v. Piain Dealer

Publishing Company (1988), 107 S. Ct. 2138, 2151, fn. 11,

which stated:

“But we have never held that a federal litigant must await

a state-court construction or the development of an

established practice before bringing the federal suit. . .

[T]hus, waiting for an alleged abuse before considering

a facial challenge would achieve nothing except to allow

the law to exist temporarily in a limbo of uncertainty and

to risk censorship of free expression during the interim.”

(Emphasis added)

While not involving the precise issue of “abstention”,

. _ just this very term this Court stated, “Adjudicating the proper

scope of First Amendment protections has often been recog-

nized by this Court’s “federal policy” that merits application

of an exception to the general finality rule.” Fort Wayne

Books, Inc. v. Indiana (1989), 109 S.Ct. 916, 923.

The opinions below also conflict with the recent decision

of the Court of Appeals for the Third Circuit, Sullivan v. City

of Pittsburg (1987), 811 F. 2d 171, 179, which held that

federal intervention is justified even in the absence of bad

faith or harassment by state officials if there is an “extraordi-

nary need for federal equitable relief.” Such “need” is justi-

fied “in order to afford adequate protection of constitutional

rights.”

3. No STaTE REMEDY Exists

The underpinning of Younger v. Harris (1971), 401

U.S. 37, is comity. But where, as here, there exists no state

remedy, comity considerations are irrelevant, and federal

intervention is appropriate and is indeed required.

The Court of Appeals in the instant case lifted a state-

ment, and then ignored the complete statement of this Court

from Penzoil Co. v. Texaco Inc. (1987), 481 U.S. 1, (which

did not involve an alleged First Amendment violation), that:

“lA] federal court should assume that state procedures

will afford an adequate remedy in the absence of unambi-

guous authority to the contrary.” (Emphasis added.)

The Court of Appeals in the case at bar should not

have assumed that state procedure would afford Petitioner

a remedy for protection and enforcement of Petitioner’s

constitutional rights, not only because the District Judge

made an express contrary finding, but also because there

was overwhelming unambiguous Illinois Supreme Court and

Illinois Constitutional authority to the contrary, which the

Court of Appeals ignored. The state procedure not only did

not afford Petitioner a remedy, but conversely and more

importantly, the state procedure affirmatively denied Peti-

tionér any remedy for enforcement and protection of his

constitutional rights.

The Supreme Court of Illinois held in People ex rel

Harrod v. Illinois Courts Commission (1978), 69 Ill. 2d 445,

458 that under the Illinois Constitution, (1) the Illinois Courts

Commission did not have the authority to interpret any

provision of the Constitutions of the United States, the State

of Illinois, or any Illinois statutes, (2) all judicial power in

the State of Illinois is vested in the Supreme, Appellate and

Circuit Courts, and (3) the Courts Commission was not a co-

equal branch of government or a court within the meaning

of the Illinois Constitutional Judicial article. The Supreme

Court further held in Harrod:

“The judicial power in the State is vested solely in

the courts. This power includes, among other things, the

authority to judicially interpret and construe constitu-

tional provisions and statutes when necessary. [citations]

Inasmush as the Commission is not a part of the tripartite

court system in this State, it possessed no power to

interpret statutory ambiguities. . . This limitation is par-

ticularly dictated inasmuch as this court is without the

authority to review the correctness of the Commission's

orders. To intepret the Constitution as granting the

Commissions such power would do violence to the in-

tended constitutional scheme of government in this state.

To grant the Commission such authority would interfere

with an independent judicial system... The ‘framers

of the constitution sought to promote certainty and

uniformity in the interpretation and declaration of the

law. To that end they committed the exercise of these

judicial functions to the judicial department.’ [citation]

\ The function of the Commission is one of fact

finding.” 69 Ill. 2d 445, 472-73. (Emphasis added.)

, Subsequent to Harrod, the Supreme Court of Illinois

held in People ex rel The Judicial Inquiry Board v. The

Courts Commission (1982), 91 Ill. 2d 130, 134-236,

“In Harrod, the [Illinois Supreme]court considered

the Commission’s authority to interpret an Illinois stat-

ute. The Court held that the Commission’s constitutional

authority did not extend to making ‘its own independent

interpretation and constuction of a statute, and that

insofar as the Commission purported to do so it exceeded

its authority. A decision of the Commission based

on such an independent interpretation was beyond its

jurisdiction. . .

*. * *

[I]t is thus established that the law which the Com-

mission is to apply in deciding disciplinary cases is the

Supreme Court Rules.

‘ [I]n carrying out its constitutional responsibility to

decide disciplinary cases, the Courts Commission must

determine, based upon its understanding of the rule,

whether the standards of counduct have been violated

and whether under the circumstances discipline should

be imposed.”

By reason and under Harrod and Judicial Board, Peti-

tioner in the instant case had no state remedy and abstention

was therefore improper. As this Court held in Gibson v.

Berryhill (1973), 411 U.S. 564,

“Younger v. Harris contemplates the outright dismissal

of the federal suit, and the presentation of all claims,

both state and federal, to the state courts. Such a course

naturally presupposes the opportunity to raise and have

timely decided by a competent state tribunal the federal

issues involved.” 411 U.S. at 577. (Emphasis added.)

The opportunity to raise and have timely decided by a

competént state tribunal the federal issues involved, stated

\o be a natural presupposition in Gibson, was totally and

affirmatively absent and denied Petitioner in the instant case

by the Illinois Constitution and the decisions of the Illinois

Supreme Court.

On the issue of the finality and non-appealability of the

Courts Commission’s decision, the Illinois Supreme Court

held in People ex rel The Judicial Inquiry Board that

“(Section 15(f) of Article 6 of the Illinois] Constitu-

tion mandates that the [Courts] Commission’s deci-

eT ye NR J

sions shall be final, the finality of the Commission’s

decisions is an important part of a constitutional

arrangement designed to create an independent and

autonomous system of judicial discipline that would

be both effective and fair. [citation]. We note that

even before the Constitution of 1970 elevated the

finality of the Commission’s decision to a Constitu-

tional principle, this Court refused to hear appeals

from its decisions. [citations].”

Despite these aforestated Illinois Supreme Court author-

ities of affirmitive disclaimers of the Courts Commission’s

jurisdiction to decide constitutional questions, and the final-

ity and non-appealability of the Court’s Commission’s deci-

sions, the Court of Appeals in the instant case conversely and

contrarily speculated and conjectured:

“In its ruling upon Justice Pincham’s case the Courts

Commission. .. would be construing the constitutional-

ity of Supeme Court Rules. .. we are CONFIDENT that

the Illinois courts would in all PROBABILITY construe

their Constitution so as to permit the Courts Commission

to consider federal constitutional mandates when inter-

preting the Supreme Court Rules during the course of a

judicial disciplinary proceeding.” (Emphasis added.)

872 F. 2d, 1341, 1349

Thus, the Court of Appeals “confident[ly]” conjectured

that “in al! probability” the courts of Illinois would uniquely

permit the Courts Commission to consider federal constitu-

tional mandates when interpreting the Supreme Court Rules

during the disciplinary proceedings against Petitioner. In

fact, the Court of Appeals’ naked “confidence” in this “proba-

bility” so soared that the Court erroneously “convinced” itself

that Petitioner failed to present “unambiguous authority”

that the Courts Commission would not provide an adequate

remedy. 872 F. 2d at 1347. But when Petitioner clearly

established that the Illinois Constitution and Illinois case law

hold that the Courts Commission lacked such authority—and

the District Court specifically so found, certainly Petitioner

sustained any reasonable burden of demonstrating the lack

of a state remedy. The Court of Appeals’ requirement

that Petitioner somehow dispell that Court’s imaginative

“probabilities” regarding the future, probabilities which have

never previously existed, has placed an unreasonable and

~ unconstitutional burden upon Petitioner, surely a burden

never contemplated by Younger.

But even if the “confident” prediction of the Court of

Appeals, that the Courts Commission will somehow assume

the power to interpret the Federal Constitution, haphazardly

turns out to be an accurate one, who will then teil the Courts

Commission whether its rulings and interpretations were

erroneous or correct? Under Article 6, Section 15(f) and

People ex rel Judicial Board, 91 Ill. 2d 130, all decisions

of the Courts Commissions are “final” and nonappealable.

Assumption by the Courts Commission of an authority to

finally interpret the Federal Constitution and rule on alleged

violations thereof, unreviewable by any judiciary, would

create a fourth branch of government in Illinois, and erect

an insurmountable state procedural bar to assertions of viola-

tions of federal constitutional rights.*

In reality, nothing in the Illinois Constitution, the Su-

preme Court Rules, or the decisions of the Illinois Supreme

Court remotely substantiates or justifies the Court of Appeals’

“confidence”, or prognostications of “probability.” The deci-

sion of the Court of Appeals in the case at bar, affirming

the District Court’s abstention and dismissal of Petitioner’s

complaint has left Petitioner without any forum within which

to invoke and protect his constitutional rights.

Middlesex County Ethics Committee v. Garden State

Bar Association (1982), 457 U.S. 423, in which Younger

® But “the adequacy of state procedural bars to the assertion

of federal questions is itself a federal question.” Douglas v. Alabama

(1965), 380 U.S. 425, 432; Johnson v. Mississippi (1988) 108 S. Ct.

1981, 1987.

abstention was approved and on which the Court of Appeals

mistakenly relied, is clearly distinguishable from the instant

case. Middlesex, unlike Petitioner herein, “had abundant

opportunity to present his constitutional challenges in the

state disciplinary proceedings”, as well as in the New Jersey

Supreme Court. 457 U.S. at 458.

The Court of Appeals also mistakenly held in the case at

bar that Petitioner’s complaint did not set forth an exception

to the Younger abstention doctrine. Petitioner’s complaint

clearly alleged existence of the Younger exceptions. The

Younger exceptions alleged in Petitioner’s complaint were

that the disciplinary proceedings against Petitioner before the

Courts Commission (1) violated Petitioner's constitutional

rights of free speech and due process (2) were motivated by

a desire to harass Petitioner, were conducted in bad faith

and violated constitutional equal protection, (3) presented

extraordinary pressing needs for immediate equitable relief

and that Petitioner did not have an adequate state remedy.

But this Court just recently held that existence of a Younger

exception is not required to preempt abstention and for

federal intervention.

In New Orleans Public Service, Inc. v. Council of the City

of New Orleans, 6/19/89, No. 88-348, 49 CCH S. Ct. Bull

p. B3363, 3378, 3382, which did not involve cherished

constitutional free poktical speech, but rather only utility

rates, this Court held:

“There is no greater interest in enforcing the suprem-

acy of federal statutes than in enforcing the supremacy

of explicit constitutional guarantees, and constitutional

challenges to state actions...

»*. *« &

[I}t has never been suggested that Younger requires

abstention in deference to a state judicial proceeding

reviewing legislative or executive action. Such a broad

abstention requirement would make a mockery of the

Oo OO OOOO Ot

rule that only exceptional circumstances justify a federal

court’s refusal to decide a case in deference to the State.

[citations] (‘We do not remotely suggest that every pending

proceeding between a State and a federal plaintiff justifies

abstention unless one of the exceptions to Younger ap-

plies’.)” (Emphasis added.)

This foregoing holding of this Court in New Orleans

Public Service is precisely the opposite erroneous holding of

the Court of Appeals in Part III of its Opinion in the case at

bar, 872 F. 2d 1341, at pages 1349-1350, Appendix B.

4. THE DISCIPLINARY PROCEEDINGS AGAINST PETITIONER

i BY THE JUDICIAL INQUIRY BOARD BEFORE THE COURTS

COMMISSION WERE FOR HARASSMENT, IN BAD FAITH,

AND VIOLATE CONSTITUTIONAL EQUAL PROTECTION,

WHICH PRECLUDED ABSTENTION AND REQUIRED FED-

ERAL INTERVENTION.

Contrary to the Judicial Inquiry Board and the Courts

Commission’s admissions, as a matter of law by their Motion

to Dismiss Petitioner’s District Court complaint, the Court

of Appeals contrarily and conversely concluded that the

proceedings against Petitioner were not for harassment, were

not in bad faith and did not violate constitutional equal

protection. The Court of Appeals statement that Petitioner

“Does not argue that state judicial disciplinary action was

brought against him either with the desire to harass him,

much less in bad faith”, simply is not true. Also, the Court

of Appeals characterization of the allegations of Petitioner’s

complaint, that the Judicial Inquiry Board and the Courts

Commission’s proceedings against Petitioner, were unconsti-

tutional selective prosecution of Petitioner, as “sketchy at

best” is likewise clearly inaccurate.

Petitioner’s complaint alleged with certainty and specifi-

city, (and the Inquiry Board and Courts Commission admit-

ted as a matter of law by their Motion to Dismiss Petitioner’s

fees

complaint) that the proceedings against Petitioner con-

stituted:

“invalid selective prosecution and violate Plaintiff's 14th

Amendment constitutional right to equal protection of

the law in that the Illinois Judicial Inquiry Board and

the Illinois Court’s Commission has not taken any action

for engaging in political activity in violation of said

Illinois Supreme Court Rules arising out of:

(A) Cook County Circuit Court Judges Joseph

(B)

Wosik and Joseph Powers attending and sitting

on the platform next to Mayor Richard J. Daley

and participating in a political rally in the 11th

Ward of the City of Chicago.

Illinois Appellate Court Justice Michael

Bilandic’s political activity in attending and

sitting on the stage with Mayor Harold Wash-

ington at the political function of the induc-

tion of Mayor Harold Washington, the same

Mayor Harold Washington that Plaintiff alleg-

edly endorsed for mayor but for which a com-

plaint is made only against Plaintiff.

the political function of raising funds for Mayor

Washington’s campaign at the Westin Hotel in

Chicago, Illinois on or about May |, 1987.

(D) DuPage County Chief Judge Carl Henninger’s

alleged attendance and political activity

at DuPage County Board President Jack

Knueffer’s fund raiser on or about May 3, 1987.”

The bad faith and harassment of Petitioner by the Inquiry

Board and the Court’s Commission was thoroughly briefed

and argued by Petitioner in the District Court in opposition

to the Board and the Commission’s abstention-dismissal

motions.

The Court of Appeals in the instant case majestically

created an original diabolical ambivilant imbroglio when it

held:

“Even if we accept Justice Pincham’s allegations that

other judges engaged in activity equivalent to his and

were not disciplined, we refuse to conclude that there was

‘bad faith’ absent allegations that the state agencies had

some awareness of the other judges’ activities and treated

them more favorably than Justice Pincham as a part of a

campaign that used prosecution, regardless of outcome,

to suppress speech.” (Emphasis added)

The state agencies, i.e. the Judicial Inquiry Board and

the Courts Commission, admitted that they were aware of

the other judges political activities which Petitioner alleged

in his complaint and that they were aware of it before

Petitioner filed his complaint in the District Court. Of

course, those judges have been more favorably treated than

Petitioner. The Inquiry Board and the Court’s Commission

have not brought any complaints or proceedings against any

of those judges for their flagrant and notorious partisan party

political activity, which did not involve precious constitution-

ally protected political free speech, Petitioner’s alleged “polit-

ical” activity.

For the Court of Appeals to require that Petitioner

allege and prove, particularly when he has been denied an

evidentiary hearing by the trial court and by that court,

that the Judicial Inquiry Board and the Courts Commission

treated other judges “MORE FAVORABLE THAT JUSTICE

PINCHAM AS A PART OF A CAMPAIGN THAT USED

PROSECUTION, REGARDLESS OF OUTCOME, TO

SUPPRESS SPEECH,” is an unprecedented, prerequisite for

the sucessful assertion of a denial of Fourteenth Amendment

equal protection constitutional right, and the proposition is

totally unsupported by any authority. The proposition is also

a counterfactual which absolutely defies proof.

Petitioner’s complaint adequately alleged harassment,

bad faith and constitutional equal protection violations, ex-

ceptions to the Younger abstention doctrine.

5. THE ILLINOIS SUPREME COURT RULES WHEN APPLIED

TO PETITIONER'S STATEMENT VIOLATE CONSTITUTIONAL DUE

PROCESS AND FREE SPEECH BECAUSE OF VAGUENESS AND LACK

OF SPECIFICITY.

Perhaps the aforementioned judges participated in the

political activity of attending partisan party fundraising polit-

ical rallys, etc., which did not involve constitutionally pro-

tected speech, because they, like Petitioner, were not in-

formed by Illinois Supreme Court Rules 67(a)(2) and 67(a)(4)

what conduct the rules prohibited. This, however, does not

explain why the Inquiry Board and the Court’s Commission

treated them so favorably and refused to file charges against

them for violating said rule because of their partisan party

political activity, which did not involve speech, while filing

such charges against Petitioner, whose alleged political activ-

ity was constitutionally protected speech.

The Rules provide that “a judge may not... . participate”

and a “judge should not engage” in “political activity.” “Polit-

ical activity” is not defined in the rules. The rules are

unconstitutionally vague, uncertain and not specific. This

Court held as far back as, and has consistently held since

Connally Commission v. General Construction Company

(1926), 269 U.S. 385, 391, that “[a] statute which forbids or

requires the doing of an act in terms so vague than men of

common intelligence must necessarily guess at its meaning

and differ as to its application, violate the first essentia! of

due process of law.” 269 U.S. at 395. “Due process requires

that all be informed as to what the state commands or

forbids.” Smith v. Goguen (1974), 415 U.S. 566, 574; United

States v. Culbert (1978), 435 U.S. 370, 374.

As applied to Petitioner’s statement in his speech, the

said Illinois Supreme Court rules violate constitutional free

22 =

speech, as did the disciplinary rules and statutes in NAACP

v. Butler (1963), 371 U.S. 415, in which the NAACP and its

staff attorneys were found guilty of unlawfully soliciting

litigants for the filing of suits by the attorneys. This Court

closely examined the Virginia Canons of Legal Professional

Ethics and the Virginia statutes to determine if their language

sufficiently described the prohibited conduct with specificity,

or if the provisions were so broad that they included within

their coverage both constitutionally protected and unpro-

tected speech aid conduct. This Court held that said provi-

sions when construed as applicable to Petitioner violated

modes of expression and inhibited freedom of expression

protected by the First and Fourteenth Amendments and

which Virginia could not prohibit under its power to regulate

the legal profession through its Cannon of Professional Ethics.

This Court likewise so held in passing upon the applicability

of the First Amendment free speech guarantee to disciplinary

rules of the legal profession in Jn Re Primus (1978), 436 U.S.

412, and stated, “Where political expression or association

is at issue, this Court has not tolerated the degree of imprecis-

sion that often characterizes government regulation of con-

duct of commerical affairs.” 430 U.S. at 434.

For the foregoing reasons abstention in the case at bar

was improper and inappropriate, and federal intervention

was warranted and required. All that Petitioner has sought,

and all that Petitioner now seeks is an opportunity to, and a

judicial forum within which Petitioner may assert, and which

is authorized to and will interpret, protect and enforce Peti-

tioner’s constitutional rights of free speech, due process and

equal protection. Such judicial forum has been denied Peti-

tioner and such denial will be permanent absent the issuance

‘ 23

of this Courts’? Writ of Certiorari as prayed. Accordingly,

Petitioner respectfully and earnestly urges that the Writ of

Certiorari should be granted.

Respectfully submitted,

SAM ADAM

53 West Jackson Blvd.,

Suite 1430

Chicago, Illinois 60604

(312) 236-5543

ROBERT E. PINCHAM, JR.

221 North LaSalle Street,

Suite 2440

Chicago, Illinois 60601

(312) 782-0100

Attorneys for Petitioner,

R. EUGENE PINCHAM

APPENDIX A

Appendix A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

R. EUGENE PINCHAM, >

Plaintiff,

THEILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS: ROBERT P.

CUMMINS, CHAIRMAN, DARRELL

McGowen, Vice CHAIRMAN,

HONORABLE PHILIP B. BENEFIEL,

HONORABLE EDWARD H. MARSALEK,

Mary Sue Hus, WILLIAM J. KuuFuss, [ No. 87 C 5058

PATRICK F. MUDRON, JON R. WALTZ HONORABLE ILANA

AND Ray F. BREEN, EXECUTIVE DIAMOND ROVNER

DIRECTOR, AND THE ILLINOIS COURTS

COMMISSION AND ITS MEMBERS:

HONORABLE THOMAS J. MORAN,

CHAIRMAN, HONORABLE ALLAN L.

STOUDER, AND HONORABLE RODNEY A.

SCOTT,

Defendants. |

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This is a civil rights action brought by Justice R. Eugene

Pincham, Justice of the Appellate Court of Illinois, First

District. The defendants are the Illinois Judicial Inquiry

Board, its members and executive director (hereinafter “In-

quiry Board”) and the Illinois Courts Commission and three

of its members (hereinafter “Courts Commission”). Presently

pending before the Court are: 1) Justice Pincham’s motion for

the impanelment of a three-judge court; 2) Justice Pincham’s

motion to file a Second Amended Complaint adding a federal

voting rights claim; and 3) the Inquiry Board and Courts

Commission’s motions te dismiss the action.

Il. AMENDED COMPLAINT

The current complaint is Justice Pincham’s Amended

Complaint filed on August 14, 1987. Justice Pincham was

granted leave to file his Amended Complaint on June 18,

1987. Although the actual filing did not take place until

two months later, the Court understands that copies of the

Amended Complaint were distributed to the defendants on

or about June 18, 1987. Also on August 14, 1987, Justice

Pincham filed a motion for leave to further amend his com-

plaint by adding a federal voting rights claim in a second

count. Without waiting for the Court to rule on his motion

for leave to amend, Justice Pincham filed his proposed new

complaint. The proposed complaint, found at docket entry

37, is improperly titled. It should be entitled “Second

Amended Complaint.” The propriety of Justice Pincham’s

proposed Second Amended Complaint is discussed in part

IV below. The current pleading before the Court is the

Amended Complaint.

A. Facts Alleged in Amended Complaint

Justice Pincham is a black state court appellate judge. —

On January 31, 1987, Justice Pincham spoke at an Operation

P.U.S.H. Saturday Forum. The Amended Complaint states

that the following incomplete sentence was extracted from

that speech and highly publicized: “‘Any man south of

Madison Street who cares to vote in the February 24th

election who doesn’t cast a vote for Harold Washington,

ought to be hung. . . .” ” (Amended Complaint at {| 24).

According to the Amended Complaint, on February

23, 1987, Justice Pincham received a letter from defendant

Robert B. Cummins, then Chairman of the defendant Inquiry

Board. The letter enclosed a transcript of Justice Pincham’s

remarks at the Forum and stated that the Inquiry Board

proposed charges that his participation in and remarks at the

Forum constituted political activity in violation of Illinois

Supreme Court Rules 62, 67(A)(2) and 67(A)(4) and the

introductory paragraph to Rule 61.'' Paragraph 27 of the

Amended Complaint quotes the letter as stating that Justice

Pincham’s conduct at the Forum constituted “ ‘willful mis-

conduct in office and conduct that is prejudicial to the

administration of justice and brings the judicial office into

disrepute, in violation of Article VI, Section !5 of the Illinois

Constitution.”” In addition, the letter informed Justice

Pincham that before the 'nquiry Board determined whether

there existed a reasonable basis to file a complaint against

him with the defendant Courts Commission, he was being

notified of the charges and was required to respond to them

before the Inquiry Board on March 13, 1987. (Amended

Complaint at 4] 27).

The Amended Complaint alleges that Justice Pincham

and his attorneys did appear before the Inquiry Board on

March 13, 1987, and presented certain constitutional argu-

ments. They argued that Illinois Supreme Court Rules 61,

62, 67(A)(2), and 67(A)(4) did not prohibit Justice Pincham’s

Operation P.U.S.H. speech and that if the rules were applied

or construed to prohibit his speech, then the rules violate

constitutional guarantees of freedom of speech. In addition,

they argued before the Inquiry Board that the rules violated

due process and ex post facto prohibitions because of their

vagueness, ambiguity, and uncertainty. Furthermore, they

maintained that no reasonable basis existed to file a complaint

against Justice Pincham with the Courts Commission.

(Amended Complaint at 28). Subsequently, Justice Pin-

cham submitted a written memorandum of authorities to

' These Rules are part of the Illinois Code of Judicial Conduct,

Ill. Rev. Stat. ch. 110A, 1] 61-71, effective January 1, 1987.

the Inquiry Board supporting his claims. A copy of the

memorandum was attached to the original Complaint in this

action and remains incorporated as part of the Amended

Complaint. (Amended Complaint at 4 29).

B. Legal Claims

The Amended Complaint charges that the filing of a

complaint by the Inquiry Board with the Courts Commission

would violate Justice Pincham’s “Constitutionally protected

right of free speech, Equal Protection of the Law, Due Process

and is further violative of 42 U.S.C. Section 198! and 42

U.S.C. Section 1983.”2 (Amended Complaint at 4 50). The

Amended Complaint further alleges that the Supreme Court

Rules at issue and the proceedings before the Inquiry Board

and Courts Commission have restrained and continue to

restrain Justice Pincham in the exercise of his constitutional

right of free speech and in his association with members of

his political party and race. In addition, Justice Pincham

accuses the Inquiry Board and Courts Commission of selec-

tive prosecution and violation of his right to equal protection

under the Fourteenth Amendment by not taking action

against certain other judges for engaging in political activity.

(Amended Complaint at 459). Justice Pincham asks the

Court to declare Illinois Supreme Court Rules 67(A)(2) and

67(A)(4) unconstitutional on their face, and as applied, on

the grounds that they violate his rights of free speech, equal

2 Justice Pincham does not mention his purported 42 U.S.C.

§ 1981 claim in his response to the defendants’ motions to dismiss.

In fact, in that brief Justice Pincham describes his claim as follows:

“[t]he complaint in the case at bar filed by Justice Pincham chal-

lenges the constitutional validity of these Illinois Supreme Court

rules, the proceedings before the Board and any potential proceed-

ings before the Illinois Courts Commission under the free political

speech guarantee of the First Amendment to the Constitution of

the United States.” (Plaintiff's “Answer” to motions to dismiss at

2). The Court holds that Justice Pincham abandoned his § 1981

claim by not pursuing it in response to the motions to dismiss.

- |

protection, and due process. Justice Pincham also asks the

Court to enjoin the Inquiry Board and its members and

the Courts Commission and its members from “filing or

proceeding upon any Complaint against Plaintiff premised

upon the Plaintiff's January 31, 1987 Operation P.U.S.H.

speech. .. .” (Amended Complaint at Prayer For Relief).

Ill. MOTION FOR IMPANELMENT OF THREE

JUDGE COURT

On August 14, 1987, Justice Pincham filed a motion for

the impanelment of a three-judge court. The basis for this

request was Justice Pincham’s contemporaneous motion to

further amend his complaint by adding a federal voting rights

claim in a second count. The complete text of the motion

for impanelment of a three-judge court is set out in the

margin.> The motion to further amend is discussed in part

IV of this opinion.

As can readily be seen, Justice Pincham’s motion does

not identify a specific statutory basis for the impanelment of

a three-judge court. And, neither the proposed Second

Amended Complaint, nor the written motion for leave to

amend, discloses the specific statutory basis or bases for

Justice Pincham’s voting rights claim. It was not until the

Court received Justice Pincham’s untimely memorandum in

response to the defendants’ written objections to the further

amendment that the Court was provided with a written

* “Now comes the Pi.intiff, R. Eugene Pincham, by and through

his attorneys, Robert E. Pincham, Jr., Ltd. and T. Lee Boyd, Jr.,

and Associates, Ltd., and moves this Honorable Court to enter an

Order Impanelling a Three Judge Court as provided by the Voting

Rights Act [sic], 42 U.S.C. Sec. 1971, et seq.”

confirmation of the nature of the new federal statutory

claims.*

Unfortunately, receipt of Justice Pincham’s written re-

sponse to the defendants’ objections did not completely end

the mystery. Justice Pincham identified the specific statutory

provisions in the following unedited sentence:

[t]he Voting Rights Act, 42 USC Section 1971(a) and

Section 1973(a), and (i)(b) protect the rights of all citizens

to freely participate in the electoral process and guaran-

tees that black citizens not suffer a punishment or restric-

tion upon their participation which is not also imposed

upon white citizens similarly situated.

(Plaintiffs Response Brief at 2). There is, however, no

§ 1973(i)(b) within Title 42. The Court therefore assumed

that Justice Pincham was referring to § 1973i(b) which is

found within Title 42. In summary, the Court has concluded

that Justice Pincham has asserted 42 U.S.C. §§ 1971(a),

1973(a) and 1973i(b) as the three bases for his proposed

voting rights claims against the defendants.

Returning to the three-judge court question, not all

actions brought pursuant to the federal voting rights statutes,

42 U.S.C. § 1971 et seg., provide for the impanelment of

three-judge courts. With regard to Justice Pincham’s

§ 1971(a) claim, assuming arguendo that a private right of

action exists under this subsection, the provisions of subsec-

tions 1971(c) and (d) describe the nature of the cause of '

* When the motions to amend and for a three-judge court were

presented on August 14, 1987, the Court ordered the parties to file

cross briefs on both motions. Justice Pincham failed to file the

required brief and instead requested leave to file a response to the

defendants’ written objections. By order dated August 31, 1987,

the Court denied Justice Pincham’s request to file a response brief.

On February 22, 1988, the Court sua sponte reconsidered its

decision and granted Justice Pincham’s motion for leave to file the

response brief. The Court took this step to ensure that Justice

Pincham’s only written explanation of the nature of his voting

rights claim became part of the record.

———————————————————

action and the jurisdiction of the federal courts. Neither

subsection provides for the impanelment of a three-judge

court. Indeed, the sole three-judge provision in § 1971 can

be invoked only in actions instituted by the United States

and only when the Attorney General requests the court to

find that a deprivation of rights has occurred pursuant to a

pattern or practice. Even after giving Justice Pincham’s

§ 1971(a) claim the broadest possible reading, the Court is

unable to conclude that the three-judge provision found in

§ 1971(g) has been triggered. Therefore, Justice Pincham’s

§ 1971(a) claim does not allow for the impanelment of a

three-judge court.

As to Justice Pincham’s § 1973(a) and § 1973i(b) claims,

and again assuming arquendo that private rights of action

exist under these subsections, the provisions of § 1973) de-

scribe the nature of the causes of action and the jurisdiction

of the federal courts. Section 1973j simply does not provide

for the impanelment of a three-judge court.

The Court cannot order the impanelment of a three-

judge court unless there is a statutory basis for that action.

Justice Pincham’s only attempt to delineate a statutory basis

was his general citation to federal voting rights statutes.

Because, as discussed above, those sections of the voting

rights statutes upon which Justice Pincham relies in support

of his motion to further amend the Amended Complaint do

not provide for the impanelment of three-judge courts, the

Court holds that it lacks the power to grant Justice Pincham’s

motion. Therefore, Justice Pincham’s motion requesting the

impanelment of a three-judge court is denied.

IV. MOTION TO FURTHER AMEND THE

AMENDED COMPLAINT

On August 14, 1987, Justice Pincham filed a motion

seeking leave of court to further amend his Amended Com-

plaint by adding a federal voting rights claim. The complete

text of the motion is set out in the margin.* The proposed

Count II would add four paragraphs to the allegations of the

Amended Complaint. The complete text of the new proposed

paragraphs is also set out in the margin.® The defendants

have raised a number of objections to Justice Pincham’s

motion for leave to further amend.

5 “Now comes the Plaintiff, R. Eugene Pincham, by and through

his attorneys, Robert E. Pincham, Jr., Ltd., and T. Lee Boyd, and

Associates, Ltd., and moves this Honorable Court to grant leave to

file Count II and to add Count II to the Amended Complaint.”

6“1) The aforesaid speech delivered by R. Eugene Pincham at

Operation P.U.S.H. in January, 1987 was delivered io a raciaily

integrated group of potential voters.

2) R. Eugene Pincham advocated, during the course of his

speech, that the racially integrated group of potential voters cast

their ballot for a biack candidate.

3) It is Plaintiff's contention that the VOTING RIGHTS ACT,

42 U.S.C. Section 1971 et seq., prohibits and precludes the imposi-

tion of punishment upon and against black voters for the exercise

of free political speech, when such punishments are not imposed

upon white citizens similarily situated engaged in political speech

or activities.

4) Defendants have represented to this Court that the portion |

of the speech delivered by R. Eugene Pincham in which he advo-

cated that potential voters cast their election ballot for a black

candidate is the basis for the implementation of disciplinary pro-

ceedings against R. Eugene Pincham by Defendants, and Defendants

have made no showing that any similar disciplinary action or

punishment has ever been contemplated or imposed by Defendants

against any white judge for engaging in any political activity or

speech which advocated that potential voters cast their ballot for a

black or white candidate.” (Emphasis added).

The Inquiry Board and Courts Commission’s objections

fall into two general categories. Both defendants argue that

1) Justice Pincham’s conduct has been dilatory throughout

this case and that the proposed amendment is brought in bad

faith with the improper motive of causing further delay to

the detriment of the defendants, and 2) that the proposed

amendment would be futile because the asserted voting rights

claims fail to state claims and are meritless.

The standard governing amendments is set out in Federal

Rule of Civil Procedure 15(a) which provides in part that

“leave [to amend] shall be freely given when justice so re-

quires.” While it is certainly true that Justice Pincham’s

counsel has demonstrated an inability to comply with briefing

schedules, the Court cannot conclude based on their past

conduct that the present motion has been brought for im-

proper motives. Nor can the Court conclude that the pro-

posed amendment, given the present posture of the case, will

unduly delay the resolution of this case. Therefore, the

Court rejects the defendants’ dilatoriness, bad faith, improper

motive, and undue delay objections to the amendment. How-

ever, the Court finds a great deal of merit in the defendants’

futility of amendment arguments as they relate to Justice

Pincham’s voting rights claims.

As discussed above in part III, Justice Pincham has

asserted claims pursuant to three provisions of the federal

voting rights statutes—42 U.S.C. §§ 1971(a), 1973(a) and

1973i(b).’ It is certainly true that Rule | 5(a) evidences a policy

within the federal courts of freely permitting amendment. As

an exercise of its discretion, however, a district court may

’ As noted in part III, Justice Pincham failed to specify the

sections of the voting rights statutes upon which he was relying

until well after he filed his motion for leave to amend. Indeed, at

the August 14, 1987, hearing, Justice Pincham’s counsel was unable

to specify the sections upon which his proposed second count was

based. The language of proposed Count II, quoted in footnote 5,

suggests that Justice Pincham’s voting rights claim is limited to an

10a

“ ‘deny leave to amend where the proposed amendment fails

to allege facts which would support a valid theory of liability,

. . or where the party moving to amend has not shown

that the proposed amendment has substantial merit... .”

Goulding v. Feinglass, 811 F.2d 1099, 1103-1104 (7th Cir.

1987) cert. denied ___ U.S. —__, 107 S.Ct. 3215 (quoting

Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th

Cir. 1979)). The Court will apply this standard to each of

Justice Pincham’s three statutory claims.

Section 1971(a) of Title 42 provides in relevant part:

(a1) All citizens of the United States who are otherwise

qualified by law to vote at any election by the people

in any State, Territory, district, county, city, parish,

township, school district, municipality, or other territo-

rial subdivision, shall be entitled and allowed to vote at

all such elections, without distinction of race, color, or

previous condition of servitude; any constitution, law,

custom, usage, or regulation of any State or Territory,

or by or under its authority, to the contrary

notwithstanding.

(2) No person acting under color of law shall—

(A) in determining whether any individual is quali-

fied under State law or laws to vote in any election,

apply any standard, practice, or procedure different

from the standards, practices, or procedures applied

under such law or laws to other individuals within

the same county, parish, or similar political subdivi-

sion who have been found by State officials to be:

qualified to vote;

*- * *

(e) ... When used in the subsection, the word “vote”

includes all action necessary to make a vote effective

equal protection analysis. He decries limitations on conduct only

when similar limitations are not placed on white citizens, or more

specifically white judges. The Court believes that Justice Pincham’s

designation of §§ 1971(a), 1973(a), and 1973i(b) was in actuality an

afterthought. Even so, the Court will analyze the merits of his

claims under each section.

lla

including, but not limited to, registration or other action

required by State law prerequisite to voting, casting a

ballot, and having such ballot counted and included

in the appropriate totals of votes cast with respect to

candidates for public office and propositions for which

votes are received in an election;....

The essence of a § 1971(a) action is a denial or abridgement

of the right to vote. Nowhere in the Amended Complaint as

it stands, or in the proposed additional paragraphs, has Justice

Pincham alleged that his right to vote has been denied or

abridged by the actions of the defendants. Justice Pincham

has not, in fact, alleged that anyone’s right to vote has been

impacted.

Justice Pincham cited to six cases in his response memo-

randum in support of his voting rights claims: 1) United

States v. McLeod, 385 F.2d 734 (Sth Cir. 1967); 2) United

States v. Bruce, 353 F.2d 474 (Sth Cir. 1965); 3) United

States v. Wood, 295 F.2d 772 (Sth Cir. 1961) cert. denied 369

U.S. 850 (1962); 4) United States v. Beaty, 288 F.2d 653 (6th

Cir. 1961); 5) United States v. Bibb County Democratic

Executive Committee, 222 F.Supp. 493 (M.D. Ga. 1962); and

6) United States v. Raines; 189 F.Supp. 121 (M.D. Ga. 1960).

Bruce, McLeod, Beaty, and Wood were all actions brought by

the government pursuant to § 1971(b) and provide no support

for Justice Pincham’s § 1971(a) or his § 1973(a) claims. Bibb

County and Raines were § 1971(a) actions that alleged specific

activities by the defendants that directly interfered with black

citizens’ rights to vote. In Bibb County, the defendants

maintained a system of segregated polling places and segre-

gated voting machines. The defendants also published the

election results on a racially designated basis. Bibb County,

222 F.Supp., at 494-495. In Raines, the defendants main-

tained a voter registration system that 1) used different

colored registration applications for black and white voters,

2) kept registration and voting records segregated by race,

3) delayed black voters’ registration applications, 4) gave

prospective black voters different and more difficult-literacy

12a i

tests, 5) allowed white applicants to take literacy tests in

groups while requiring black applicants to take literacy tests

individually, and 6) required a higher literacy standard for

black voters than for white voters. Raines, 189 F.Supp., at

133-134. Justice Pincham has not alleged any conduct by

the defendants’ that is even remotely similar to the abhorrent

actions of the defendants in Bibb County or Raines. There-

fore, neither of these two cases provides any support for his

§ 1971(a) claim.

The Court holds that Justice Pincham has failed to allege

facts that would support a theory of liability under § 1971(a).

The Court further holds that Justice Pincham has failed to

show that his proposed § 1971(a) claim has substantial legal

merit. Therefore, Justice Pincham’s motion to further amend

the Amended Complaint to include a 42 U.S.C. § 1971(a)

claim is denied.

Section 1973 of Title 42 provides in relevant part:

(a) No voting qualification or prerequisite to voting or

standard, practice, or procedure shall be imposed or

applied by any State or political subdivision in a manner

which results in a denial or abridgement of the right of

any citizen of the United States to vote on account of

race or color, . . . as provided in subsection (b) of this

section.

(b) A violation of subsection (a) of this section is estab-

lished if, based on the totality of circumstances, it is

shown that the political processes leading to nomination ,

or election in the State or political subdivision are not

equally open to participation by members of a class of

citizens protected by subsection (a) of this section in that

its members have less opportunity than other members

of the electorate to participate in the political process

and to elect representatives of their choice. The extent

to which members of a protected class have been elected

to office in the State or political subdivision is one

circumstance which may be considered: Provided, that

nothing in this section establishes a right to have mem-

bers of a protected class elected in numbers equal to their

proportion in the population.

13a

(Emphasis in original). As with a § 1971(a) action, the essence

of a § 1973(a) action is a denial or abridgement of the right

to vote. Justice Pincham’s failure to allege that he or anyone

else has had their right to vote denied or abridged by the

actions of the defendants is fatal to a § 1973(a) action. Justice

Pincham has cited not a single case in support of his proposed

§ 1973(a) claim. None of the six cases discussed above were

brought pursuant to § i973.

The Court holds that Justice Pincham has failed to allege

facts that would support a theory of liability under § 1973(a).

The Court further holds that Justice Pincham has failed to

show that his proposed § 1973(a) claim has substantial legal

merit. Therefore, Justice Pincham’s motion to further amend

the Amended Complaint to include a 42 U.S.C. § 1973(a)

claim is denied.

Section 1973i(b) of Title 42 provides:

(b) No person, whether acting under color of law or

otherwise, shall intimidate,-threaten, or coerce, or at-

tempt to intimidate, threaten, or coerce any person for

voting or attempting to vote, or intimidate, threaten, or

coerce, or attempt to intimidate, threaten, or coerce any

person for urging or aiding any person to vote or attempt

to vote, or intimidate, threaten, or coerce any person for

exercising any powers or duties under section 1973a(a),

1973d, 1973f, 1973g, 1973h, or 1973j(e) of this title.

This section proscribes conduct that amounts to intimidation,

threats, or coercion. As discussed in footnote 6, Justice

Pincham’s proposed additional count is phrased in equal

protection terms. His new allegations are therefore inconsis-

tent with the language of this section which is not aimed at

disparate treatment. Justice Pincham’s reference to this

section is particularly indicative of how the horse came after

the cart with regard to his voting rights claims.

Beyond the general inconsistency between Justice Pin-

cham’s allegations of disparate treatment and the provisions

of this section, there is also no allegation that the defendants

14a

intended to intimidate, threaten, or coerce Justice Pincham.

Allegations and later proof of such an intent is an essential

element of a § 1973i(b) claim. Olaques v. Russoniello, 797

F.2d 1511, 1522 (9th Cir. 1986) vacated on other grounds

tan 108 S.Ct. 52 (1987). Additionally, Justice

Pincham has cited not a single case in his response to the

defendants’ objections that even mentions § 1973i(b).

The Court holds that Justice Pincham has failed to allege

facts that would support a theory of liability under § 1973i(b).

The Court further holds that Justice Pincham has failed to

show that his proposed § 1973i(b) claim has substantial legal

merit. Therefore, Justice Pincham’s motion to further amend

the Amended Complaint to include a 42 U.S.C. § 1973i(b)

claim is denied.

Having determined that Justice Pincham has not met his

burden with regard to any of his three purported statutory

claims, the Court denies his motion to further amend his

Amended Complaint by adding a second count.®

® On August 14, 1987, the Court denied the petition of Opera-

tion P.U.S.H. to intervene in this action as a plaintiff. In response

to the defendants’ standing argument, Justice Pincham asks the

Court to reconsider its decision to deny intervention. (Plaintiff's

Response brief at 2). The Court did not reject Justice Pincham’s

§ 1971(a), § 1973(a), and § 1973i(b) claims for lack of standing.

Nevertheless, the Court wishes to specifically note that Operation

P.U.S.H.’s Intervention would not have saved the voting rights

claims. Along with its petition to intervene, Operation P.U.S.H.

filed a document entitled “Notice of Adoption of Pleadings” the

entire text of which is as follows: “[n]ow comes the plaintiff

OPERATION P.U.S.H., by and through its attorney, Lewis Myers,

Ltd., and to avoid unnecessary delay in these proceedings, respect-

fully adopts the pleadings filed in the cause by plaintiff R. Eugene

Pincham and further adopts the pleadings filed on his behalf by all

amicus curiae.” The wholesale adoption contemplated by Opera-

tion P.U.S.H. obviously would have failed to rectify the deficiencies

in Justice Pincham’s pleadings and arguments that led to the Court’s

holdings against the voting rights claims.

15a

Vv. MOTIONS TO DISMISS

Both the Inquiry Board and the Courts Commission have

moved to dismiss this action on ripeness grounds, under the

abstention doctrine first articulated in Younger v. Harris, 401

U.S. 37 (1971), and under the Pullman abstention doctrine.

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941). As set out below, the Court finds Justice Pincham’s

claims to be ripe for adjudication, but agrees with the defen-

dants that the Younger abstention doctrine requires the dis-

missal of this action in favor of the state proceedings. Because

the Younger doctrine is controlling, the Court does not reach

the applicability of the Pullman doctrine. Before turning to

an examination of the applicability of the Younger doctrine

to this case, it is appropriate to discuss both the nature and

posture of the state proceedings about which Justice Pincham

complains.

A. The State Proceedings

(1) Their Nature

Both the Inquiry Board and the Courts Commission were

created and empowered by the 1970 Illinois Constitution:

(b) A Judicial Inquiry Board is created. The Supreme

Court shall select two Circuit Judges as members and

the Governor shall appoint four persons who are not

lawyers and three lawyers as members of the Board. No

more than two of the lawyers and two of the non-lawyers

appointed by the Governor shall be members of the same

political party. The terms of Board members shall be

four years. A vacancy on the Board shall be filled for a

full term in the manner the original appointment was

made. No member may serve on the Board more than

eight years.

authority to conduct investigations, receive or initiate.

complaints concerning a Judge or Associate Judge, and

file complaints with the Courts Commission. The Board

l6a

shall not file a complaint unless five members believe

that a reasonable basis exists (1) to charge the Judge

or Associate Judge with willful misconduct in office,

persistent failure to perform his duties, or other conduct

thai is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to charge

that the Judge or Associate Judge is physically or mentally

unable to perform his duties. All proceedings of the

Board shall be confidential except the filing of a com-

plaint with the Courts Commission. The Board shall

prosecute the complaint.

(d) The Board shall adopt rules governing its proce-

dures. It shall have subpoena power and authority to

appoint and direct its staff. Members of the Board who

are not Judges shall receive per diem compensation

and necessary expenses; members who are Judges shall

receive necessary expenses only. The General Assembly

by law shall appropriate funds for the operation of the

Board.

(e) A Courts Commission is created consisting of

one Supreme Court Judge selected by that Court, who

shall be its chairman, two Appellate Court Judges se-

lected by that Court, and two Circuit Judges selected by

the Supreme Court. The Commission shall be convened

permanently to hear complaints filed by the Judicial

Inquiry Board. The Commission shail have authority

after notice and public hearing, (1) to remove from office,

suspend without pay, censure or reprimand a Judge or

Associate Judge for willful misconduct in office, persis-

tent failure to perform his duties, or other conduct that’

is prejudicial to the administration of justice or that

brings the judicial office into disrepute, or (2) to suspend,

with or without pay, or retire a Judge or Associate Judge

who is physically or mentally unable to perform his

duties.

(f) The concurrence of three members of the Com-

mission shall be necessary for a decision. The decision

of the Commission shall be final.

(g) The Commission shall adopt rules governing its

procedures and shall have power to issue subpoenas.

ell

17a

The General Assembly shall provide by law for the

expenses of the Commission.

ILL. CONST. 1970 art. VI, § 15(b)-(g). These provisions of

the Illinois Constitution create “a comprehensive system of

judicial discipline.” Owen v. Mann, 105 Ill. 2d 525, 475

N.E.2d 886, 890 (1985).

The interrelationship between the Inquiry Board, the

Courts Commission, the Illinois Supreme Court, and the

Illinois trial and appellate courts has come before the Illinois

Supreme Court twice since the 1970 Constitution took effect.

In People ex rel. Harrod vy. Illinois Courts Commission,

69 Ill.2d 445, 372 N.E.2d 53 (1977), the Illinois Supreme

Court analyzed the extent of the Courts Commission’s author-

ity under the Illinois Constitution. The Court ordered the

Courts Commission to expunge a sanction against a Judge

which the Courts Commission had entered after determining

that the Judge had misapplied a Illinois criminal sentencing

statute. The Court noted that “[i]Jnasmuch as the Commission

is not a part of the tripartite court system in this State, it

possesses no power to interpret statutory ambiguities or

to compel Judges to conform their conduct to any such

interpretation.” Jd., 372 N.E.2d, at 66. The Court also held

that “only conduct violative of the Supreme Court Rules of

judicial conduct may be the subject of a complaint before the

Commission.” Jd., 372 N.E.2d, at 64.

The Illinois Supreme Court expanded upon its analysis

of the state constitutional system of judicial discipline in

People ex rel. Judicial Inquiry Board v. Courts Commission,

91 Ill. 2d 130, 435 N.E.2d 486 (1982). In that case, the

Inquiry Board sought a writ of mandamus from the Illinois

Supreme Court to compel the Courts Commission to reinstate

a complaint filed by the Inquiry Board which the Courts

Commission had dismissed. The Inquiry Board argued that

the Courts Commission had exceeded its state constitutional

authority by interpreting the Supreme Court Rules of judicial

18a

conduct. The Court completely rejected the Inquiry Board’s

arguments and held that: —

[t]he Courts Commission is the body with the constitu-

tional responsibility for applying the Rules of Judicial

conduct to particular cases. We conclude that its consti-

tutional authority to hear and determine disciplinary

cases necessarily includes the power to interpret the rules

it applies in deciding cases before it.

Id. 435 N.E.2d, at 488. After reiterating its holding in Harrod

that the Illinois Constitution vested the Illinois Supreme

Court with the responsibility for promulgating standards of

judicial conduct, and that therefore, the Courts Commission’s

decisions must be based on the Illinois Supreme Court Rules,

the Court described the constitutional role of the Courts

Commission:

[t]he Commission’s function is adjudicative, and inter-

pretation of the legal rule the tribunal is applying is an

inherent and inescapable part of the adjudicative process.

* *

The trial court, which, like the Commission, decides

cases by finding the facts and applying the law to them,

must first read the relevant statute and appellate cases

and based on its understanding of them determine what,

on the facts before it, the law requires.

People ex rel. Judicial Inquiry Board, 435 N.E.2d, at 489

(emphasis in original). The Court also addressed the finality

of the Courts Commissions’ decisions:

[ijn asking this court to hold that the Commission has

misinterpreted Rule 62, the Board is actually asking

that we review the correctness of the Commission’s

application of the rule in a particular decision. This

we cannot do. The Constitution mandates that the

Commission’s decisions shall be final. The finality of

the Commission’s decisions is an important part of a

constitutional arrangement designed to create an inde-

pendent and autonomous system of judicial discipline

that would be both effective and fair.

19a

* *«

We point out that this court is not without power to affect

the decisions of the Commission and its interpretation of

our rules, but according to the constitutional arrange-

ment we do so not by reviewing the Commission’s deci-

sions, but by amending the rules which it applies.

id. Based upon its discussion of the state constitutional

principles, the Illinois Supreme Court concluded that it had

improvidently granted leave to file the petition for mandamus

and denied the writ.

The provisions of the Illinois Constitution quoted above,

coupled with the three cited Illinois Supreme Court decisions

construing those provisions, lead this court to make the

following findings:

1) the Inquiry Board is the constitutionally author-

ized body empowered to investigate, charge, and

prosecute Illinois judges accused of misconduct;

2) the Courts Commission is the constitutionally

authorized body empowered to adjudicate com-

plaints filed by the Inquiry Board;

3) violations of the Illinois Supreme Court Code of

Judicial Conduct must form the basis of any

complaint filed with the Courts Commission;

4) the Courts Commission is vested by the Illinois

Constitution with the authority to interpret and

apply the rules of judicial conduct in the cases

before it;

5) decisions of the Courts Commission are final in

that no review by the Illinois Supreme Court or

lesser Illinois courts is available; and

6) the Illinois Supreme Court is empowered to

ensure that the Courts Commission acts only

within its state constitutional authority.

These findings lead the Court to further conclude that in the

Illinois constitutionally created system of judicial discipline,

the Illinois Supreme Court serves in effect as the legislative

aac acacia asia

20a

body in enacting the rules of judicial conduct, the Inquiry

Board serves in effect as the executive body charged with

investigating and prosecuting violations of the rules of judicial

conduct, and the Courts Commission serves in effect as the

judicial body charged with interpreting and applying the rules

of judicial conduct when it adjudicates the complaints filed

by the Inquiry Board. The Court will examine just how

the Illinois system of judicial discipline comports with the

Younger doctrine in subpart B below.

(2) Their Posture

In paragraph 47 of his Amended Complaint, Justice

Pincham alleges that the Inquiry Board “intends to and will

file a complaint with the defendant Illinois Courts

Commission....” On June 8, 1987, during the hearing

on Justice Pincham’s request for a Temporary Restraining

Order, counsel for the Inquiry Board informed the Court that

the Inquiry Board had indeed determined to file a complaint

with the Courts Commission. Counsel also pledged that his

clients would not actually file the complaint until the matters

pending in this Court were resolved.

On January 28, 1988, the Court held a status hearing for

the purpose of inquiring of the Inquiry Board’s counsel

whether the recent change in the membership of the Inquiry

Board (five new members had been appointed) had affected

the decision to file the complaint. Counsel contacted his

clients and reported back to the Court on February 2, 1988,

that the newly constituted Inquiry Board had voted to proceed

with the action against Justice Pincham and that they were

refraining from filing their now drafted complaint only be-

cause of the pledge made to this Court at the inception of

this case.

Therefore, the posture of the state proceedings is that

the Inquiry Board has voted to file a complaint against Justice

Pincham with the Courts Commission, the Inquiry Board has

2la

prepared a draft complaint, and the only reason the Inquiry

Board has refrained from filing its complaint is to honor the

pledge made to this Court.

B. The Younger Abstention Doctrine

In Younger v. Harris, 401 U.S. 37 (1971), the appellee,

Harris, was charged in state court with violating the California

Criminal Syndicalism Act. While the criminal case was

pending in state court, Harris brought a federal action

challenging the prosecution and the Act itself on constitu-

tional grounds. A three-judge district court found the Act to

be unconstitutional and enjoined the prosectution of Harris.

The Supreme Court reversed, holding that the district court

should have abstained from enjoining the state court

proceedings.

The Supreme Court spoke of the “long-standing public

policy against federal court interference with state court

proceedings...,” Jd., 401 U.S., at 43, and found that the

“normal thing to do when federal courts are asked to enjoin

pending proceedings in state courts is not to issue such

injunctions.” Jd., 401 U.S., at 45. The vital consideration

behind such deference is the notion of comity, defined by the

Court as:

a proper respect for state functions, a recognition of the

fact that the entire country is made up of a Union of

-separate state governments, and a continuance of the

belief that the National Government will fare best if the

States and their institutions are left free to perform their

separate functions in their separate ways.

Id., 401 US., at 44.

In keeping with this doctrine, the Supreme Court ob-

served that it had long held that federal courts should not

interfere with state prosecutions, barring extraordinary cir-

cumstances where the danger of irreparable injury is both

22a

great and immediate. /d., 401 U.S., at 46. An accused should

first be required to rely upon his defenses in state court, even

though it may involve a challenge to the validity of a statute,

unless it is clear that this would not provide the accused

adequate protection. J/d., 401 U.S., at 45. The Supreme

Court held that the possible unconstitutionality of a statute

on its face cannot alone justify an injunction against good

faith attempts to enforce it and that Harris had failed to

demonstrate bad faith, harassment, or some other unusual

circumstance that would require federal equitable relief. Jd.,

401 US., at 54.

Although Younger involved the issue of federal court

intervention in state criminal prosecutions, the doctrine has

since been extended to cover other actions where important

state interests are at stake. See, e.g., Pennzoil Co. v. Texaco,

Inc., __— U.S. ——_; 107 S.Ct. 1519 (1987) (state court

civil judgment enforcement proceedings); Ohio Civil Rights

Commission v. Dayton Christian Schools, 477 U.S. 619 (1986)

(state administrative civil rights proceedings); Moore v. Sims,

442 U.S. 415 (1979) (state proceedings related to child abuse);

Trainor v. Hernandez, 431 U.S. 434 (1977) (state civil action

seeking a return of welfare payments alleged to have been

wrongfully received); Juidice v. Vail, 430 U.S. 327 (1977)

(contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S.

592 (1975) (civil nuisance proceeding). See also Brunken vy.

Lance, 807 F.2d 1325 (7th Cir. 1986) (child protective cus-

tody dispute). |

The Supreme Court has also applied the Younger absten-

tion doctrine in an attorney disciplinary action. In Middlesex

County Ethics Comm. v. Garden State Bar Assn., 457 U.S.

423 (1982), an attorney was served with a formal statement -

of charges of violating certain New Jersey Supreme Court

disciplinary rules. Instead of filing an answer to the charges,

the attorney and three organizations of attorneys filed suit in

federal district court contending that the disciplinary rules

violated their First Amendment rights and were facially vague

nT ay TT

23a

and overbroad. The Supreme Court held that abstention was

proper. In reaching this conclusion, the Supreme Court broke

its analysis into three components:

first, do state bar disciplinary hearings within the consti-

tutionally prescribed jurisdiction of the State Supreme

Court constitute an ongoing state judicial proceeding;

second, do the proceedings implicate important state

interests; and third, is there an adequate opportunity in

the state proceedings to raise constitutional challenges.

Id., 457 U.S., at 432 (emphasis in original). These three

components also provide the proper framework for the

Younger analysis in the instant case. Transposed to the facts

of this case, the three questions are:

1) do judicial disciplinary hearings within the con-

stitutionally prescribed jurisdiction of the

Inquiry Board and the Courts Commission con-

stitute an ongoing state judicial proceeding;

2) do the state judicial disciplinary proceedings im-

plicate important state interest; and

3) is there an adequate opportunity for Justice

Pincham to raise his constitutional challenges in

the state disciplinary proceedings.

(1) Ongoing State Judicial Proceedings

As discussed above, the Inquiry Board has completed its

investigation of Justice Pincham and has voted to file a

complaint with the Courts Commission.’ The Inquiry Board

has also prepared a draft complaint which it is prepared to

* Justice Pincham has repeatedly admitted that a decision by

the Inquiry Board not to file a complaint with the Courts Commis-

sion would have mooted this entire case.

If the Board has not voted and has no intention to file a

complaint against Justice Pincham with the Courts Commis-

sion, the instant suit as well as the defendants’ abstention

motions are moot. If such is the case, the attorneys herein and

—

24a

prosecute in the Courts Commission proceedings. Justice

Pincham was notified on February 23, 1987, of the pending

investigation and was required to appear before the Inquiry

Board. (Amended Complaint at 91/27 and 28). Justice

Pincham was given an opportunity to argue before the Inquiry

Board both that his conduct was not violative of the rules

of judicial conduct and that his conduct was protected by

provisions of the United States Constitution. (Jd.) Justice

Pincham also submitted a lengthy brief to the Inquiry Board

setting forth his legal arguments.'° (Amended Complaint at

4] 29; Brief attached as an exhibit to the Complaint).

this court are engaged in useless litigation and Justice Pincham

would join in the abstention motion and everyone can return

home happily.

(Plaintiff's “Answer” to Motions to Dismiss at 14).

Defendants offer that three of the Board’s eight members terms

expire on December 14, 1987 and the term of another Board

member:expires on December 27, 1987.

ss. * *

Indeed, if the new Board members determine that no complaint

should be filed by Defendants against Plaintiff, there is no

reason for this Court [to] rule in these matters and both

Plaintiff's Complaint and Defendant’s Motion to Dismiss may

become moot on or about December 27, 1987.

(Plaintiffs Response to Defendants’ Motion to Set Matter for

Ruling at 918 and Il). This admission further undercuts Justice

Pincham’s purported federal voting rights claims by recognizing

that the investigation by the Inquiry Board would not in and of

itself infringe upon any statutory rights. It was only the decision

of the Inquiry Board against him that he finds objectionable, not

the process leading up to the decision.

'© Although Justice Pincham has had an opportunity to present

his constitutional arguments to the Inquiry Board, it is not essential

that such an opportunity exist before the Younger doctrine becomes

applicable. The Supreme Court addressed this point in Ohio Civil

Rights Commission, supra:

Dayton also contends that the administrative proceedings do

not afford the opportunity to level constitutional challenges

against the potential sanctions for the alleged sex

discrimination.

25a

The Inquiry Board proceedings must be viewed as only

one part of the two-part state judicial discipline system. The

second step, the adjudication before the Courts Commission

has not yet begun. Because the Inquiry Board has voted to

file its draft complaint with the Courts Commission and has

delayed only to keep its pledge to this Court, there is no

question that the state proceedings are “ongoing.” Indeed,

Justice Pincham has not argued otherwise. What Justice

Pincham does argue, in essence, is that the Illinois Courts

Commission is not a judicial body.

Justice Pincham does not argue that the procedures

before the Courts Commission are themselves unfair nor does

he argue that the Courts Commission will not consider his

constitutional arguments. He argues that this Court cannot

abstain in favor of an entity that is, pursuant to the provisions

of the Illinois Constitution, independent of the regular state

judicial system.

In subpart A above, the Court analyzed the state judicial

discipline system. The Court concludes that the Courts

Commission is, in fact, an independent state court with

a very limited jurisdiction.'' Its jurisdiction is limited to

*.- *« *

In any event, it is sufficient under Middlesex, supra, 457 U.S..,

at 436, 102 S.Ct., at 2523, that constitutional claims may be

raised in state court judicial review of the administrative

proceeding.

Ohio Civil Rights Commission v. Dayton Christian Schools, 106

S.Ct., at 2724 (1987).

'' The Rules of Procedure of the Courts Commission, | IIl.

Cts. Com. pp. XXIV-XX VIII (1980) (effective July 17, 1972), afford

the procedural safeguards that are the hallmarks of American courts.

Formal proceedings are commenced by the filing of a complaint

which “shall specify in plain and concise language the charges

against the judge and the allegations of fact upon which such charges

are based...” (Rule 3). The respondent judge has twenty-one days

to file responsive pleadings to the complaint. (Rule 3). The

respondent judge is entitled to a hearing. (Rule 9). Except where

teil

26a

adjudicating complaints against state judges brought by the

Inquiry Board for alleged violations of the Illinois Supreme

Court Code of Judicial Conduct. The fact that no superior

court will review the decisions of the Courts Commission

does not serve to invalidate the system. Under the New

Jersey attorney disciplinary system analyzed in Middlesex,

only one court—the New Jersey Supreme Court—would hear

and decide constitutional arguments. Middlesex, 457 U.S..,

at 427, n. 4.

None of the parties has cited any case or other authority

that discusses the significance of the independence of the

Courts Commission from the remainder of the state judicial

system. Indeed, it is not clear. that the parties have even

recognized the existence of this issue. Nonetheless, this is

the issue that confronts the Court. The Court holds that

the principles of comity and federalism first enunciated ip

Younger require this Court to abstain in favor of an indepen-

dent state court, established by the Illinois Constitution for

the express purpose of adjudicating judicial discipline cases,

so long as the other requirements for abstention are met. The

fact that the state tribunal is independent of the other parts

of the state court system is no impediment to the application

of the Younger doctrine.

(2) State Interests

‘Under this component of the Younger analysis, the Court

must determine whether the state proceedings involve an

important state interest. The Middlesex court found that the

State of New Jersey had “an extremely important interest in

inappropriate, the provisions of the Illinois Code of Civil Procedure

and civil rules of evidence shall govern. (Rule 11). The allegations

in the complaint must be proven by clear and convincing evidence.

(Rule 11). The respondent judge may obtain compulsory process

for the attendance of witness and may cross-examine any witness

against him. (Rules 15 and 23). The hearing is public. (Rule 12).

A verbatim transcript of the proceedings is kept. (Rule 22). And,

a written order is preserved at the conclusion of the hearing. (Rule

21).

27a

maintaining and assuring the professional conduct of the

attorneys it licenses.” Middlesex, 457 U.S., at 434. See also

Goldfarb v. Virginia State Bar, 421 U.S., 773, 792 (1975);

Sekerez v. Supreme Court of Indiana, 685 F.2d 202, 205 (7th

Cir. 1982).

A state’s interest in assuring the integrity and professional

conduct of its judiciary is certainly at least as important as its

interest in assuring the professional conduct of the attorneys it

licenses. Coruzzi v. State of New Jersey, 705 F.2d 688, 691

(3rd Cir.1983). Although state disciplinary proceedings must

protect the constitutional rights of the individual subject to

discipline, “it is equally clear that a state’s interest in regulat-

ing its judiciary is so compelling that a federal district court

should not intervene, unless one of the Younger exceptions

applies.” Dostert v. Neely, 498 F.Supp. 1144, 1153 (S.D.

W.Va. 1980). This Court agrees that Illinois’ interest in

maintaining the integrity of its judiciary is a vital and compel-

ling one.

(3) Opportunity to Raise Constitutional Challenges

With regard to this component of the Younger analysis,

Justice Pincham has the burden of showing that he will not

have the opportunity to raise his constitutional claims before

the Courts Commission. Pennzoil Co. v. Texaco, Inc.,

US. , 107 S.Ct. 1519, 1528 (1987). As noted above

in subpart B.(1), Justice Pincham has never argued that the

Courts Commission will not hear and carefully consider his

constitutional arguments. In addition, the Court notes that

the members of the Courts Commission, state court judges

all, have sworn to uphold the rights guaranteed by the United

States Constitution. The Court concludes based upon its

review of the Rules of Procedure of the Courts Commission

as well as based upon the Court’s findings with regard to the

Courts Commission’s state constitutional authority, that the

Courts Commission will hear and resolve Justice Pincham’s

constitutional claims.

28a

Because all three components of the Younger abstention

analysis support the defendants’ motions asking this Court

to abstain in favor of the state proceedings, this Court must

abstain unless one of the exceptions to the Younger doctrine

applies.

C. Exceptions to the Younger Doctrine

Middlesex and Younger hold that, even when the three-

part analysis is met, certain exceptional circumstances may

render abstention unwarranted. Abstention is not appro-

priate if: (1) the disciplinary proceedings were brought in

bad faith or to harass the plaintiff; or (2) the state rules are

“flagrantly and patently” unconstitutional no matter how

they may be applied. Middlesex, 457 U.S., at 437; Younger,

401 U.S., at 53-54. Justice Pincham argues that both excep-

tions apply to the instant case.

The bad faith exception is a narrow one and is to be

granted parsimoniously. Hensler v. District Four Grievance

Committee, 790 F.2d 390, 392 (Sth Cir. 1986). A plaintiff

alleging that a state proceeding has been initiated against him

in bad faith must allege specific facts to support an inference

of bad faith. More than a mere allegation or a ‘conclusory’

finding is required to bring a case within the Younger harass-

ment exception. Specific evidence must demonstrate that

state prosecution “ ‘was brought in bad faith for the purpose

of retaliating for or deterring the exercise of constitutionally

protected rights.”” Collins v. County of Kendall, Ill., 807

F.2d 95, 98 (7th Cir. 1986) cert. denied ___. U.S. ____., 107

S.Ct. 3228 (1987) (quoting Wilson v. Thompson, 593 F.2d

1375, 1383 (Sth Cir. 1979)). See also Grandco Corp. vy.

Rochford, 536 F.2d 197, 203 (7th Cir. 1976).

In affirming the district court’s dismissal of the complaint

in Collins, the Seventh Circuit held that the complaint did

not allege facts demonstrating bad faith prosecution. In

reaching this conclusion, the Seventh Circuit stated that the

29a

complaint did not show that state officials were “ ‘using or

threatening to use prosecutions, regardless of their outcome,

as instrumentalities to suppress speech.’ ” Collins, 807 F.2d,

at 101 (quoting Sheridan v. Garrison, 415 F.2d 699, 706 (Sth

Cir. 1969) (emphasis in original). Nor, the court continued,

had the complainants showed that a statute was enforced

against them merely to discourage the exercise of protected

rights with no expectation of convictions. Jd.

Justice Pincham has failed to allege that the Inquiry

Board and Courts Commission have no expectation of taking |

action on the charges against him. Furthermore, he has failed

to allege or argue that the sole reason for the initiation of the

proceedings was to prevent him from exercising his protected

rights. Collins, 807 F.2d, at 101. In his complaint, Justice

Pincham merely alleges that the proceedings constitute “selec-

tive prosecution” and makes reference to the alleged failure

of the Inquiry Board and Courts Commission to take action

against certain other judges in connection with alleged politi-

cal activity. (Amended Complaint at 9 59). However, the

instances of alleged political activity described by Justice

Pincham can all be distinguished from the instant action in

that none of these allegations involve public speaking. The

Court finds that Justice Pincham’s allegations are sketchy at

best and clearly insufficient to make the requisite showing of

bad faith or harassment.

The final issue is whether the Illinois Supreme -Court

Rules at issue'* are “ ‘flagrantly and patently’ ” unconstitu-

‘2 The Rules challenged in the complaint are:

Rule 61 “An independent and honorable judiciary is indispens-

able to justice in our society. A judge should participate in

establishing, maintaining, and enforcing, and should himself ob-

serve, high standards of conduct so that the integrity and indepen-

dence of the judiciary may be preserved. The provisions of this

Code should be construed and applied to further that objective. ...”

Rule 62(A): “A judge should respect and comply with the law

and should conduct himself at all times in a manner that promotes

public confidence in the integrity and impartiality of the judiciary.”

30a

tional. Middlesex, 457 U.S., at 437 (citing Younger, 401 U.S..,

at 53).

The Court finds that the Rules at issue cannot be said to

be “ ‘flagrantly and patently violative of express constitutional

prohibitions in every clause, sentence and paragraph,” no

matter how they are applied and against whomever they are

applied. Younger, 401 U.S., at 53-54 (quoting Watson v.

Buck, 313 U.S. 387, 402 (1941)). As the Supreme Court has

stated, “the possible unconstitutionality of a statute ‘on its

face’ does not in itself justify an injuction against good-faith

attempts to enforce it....” Younger, 401 U.S., at 54.

In addition, Justice Pincham has conceded that the

rules are susceptible to a constitutional construction. Justice

Pincham and his attorneys appeared before the Inquiry Board

and urged that the rules “did not prohibit plaintiff's constitu-

tionally protected January 31, 1987 Operation P.U.S.H.

Community Forum Black History speech....” (Amended

Complaint at {| 28). Moreover, in his reponse to the defen-

dants’ motions to dismiss, Justice Pincham notes that the

Rules “have not yet been construed, interpreted or applied”

by the Courts Commission. (Plaintiffs “Answer” at 5).

Therefore, the Court finds that there is no basis for concluding

that the rules are totally incapable of a construction that does

not violate constitutional rights.

Because, as noted in subpart V. B, the three components

of the Younger analysis require abstention, and because no

exception to Younger applies, this Court must abstain in

_ favor of the state proceedings.

Rule 67(A)(2): “A judge may not, except when a candidate for

office or retention, participate in political campaigns or activities,

or make political contributions.”

Rule 67(A)(4): “A judge should not engage in any other politicai

activity except on behalf of measures to improve the law, the legal

system or the administration of justice.”

Pies i oath inn i nets Satin

hh el TL, Py eet a ih ices AAD Ae AOS. Tens nh oem oh eee

3la

D. Ripeness

Both the Inquiry Board and the Courts Commission

argue that this case is not ripe for adjudication. “[A] reason-

able threat of prosecution for conduct allegedly protected by

the Constitution gives rise to a sufficiently ripe controversy.”

Ohio Civil Rights Commission, 106 S.Ct., at 2722, n.1 (citing

Steffel v. Thompson, 415 U.S. 452 (1974)). In the instant

case, the Inquiry Board has completed its investigatory func-

tion, has voted to file a complaint against Justice Pincham

and has prepared a draft complaint. All that prevents the

Inquiry Board from filing the complaint with the Courts

Commission is the pledge that counsel for the inquiry Board

made to this Court to forbear from further action until the

instant case was resolved. The Court holds in accordance

with the principles set out in Steffel v. Thompson that this

case is ripe for adjudication.

32a

VI. CONCLUSION

For the reasons set forth above, the plaintiff's motion for

impanelment of a three-judge court is denied. The plaintiff's

motion to further amend his Amended Complaint by adding

a federai voting rights claim in a second count is denied.

The defendants’ motions to dismiss this action under the

abstention doctrine first articulated by the United States

Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), are

granted. The Clerk is directed to enter judgment in favor of

all the defendants and against the plaintiff.

ENTER:

/s/ ILANA D. ROVNER

ILANA DIAMOND ROVNER

United States District Judge

DATE: March 4, 1988

APPENDIX B

EEE

Appendix B

3n the

United States Court of Appeals

For the Seventh Circuit :

No. 88-1592

R. EUGENE PINCHAM,

Plaintiff-Appellant,

THE ILLINOIS JUDICIAL INQUIRY BOARD

AND ITS MEMBERS, et al.,

Defendants-Appellees.

eee gee ee oe

for the Northern District of Illinois, Eastern Division.

No. 87 C 5058—Ilana D. Rovner, Judge.

ARGUED SEPTEMBER 26, 1988—DecIDED APRIL 27, 1989

Before COFFEY, EASTERBROOK and KANNE, Circuit

Judges.

Pg eet rer dimissng cea aint rights

ict court’s order a ci ts

scien Sealed ietiaien teedit, téninet. the is Judicial

Inquiry Board, the Illinois Courts Commission and the

Pind GALAN th Capting prosandings ‘a the Juckeia

ongoing in u

I Board and the Courts Commission would deprive

him of rights guaranteed under the First and Fourteenth

Amendments of the United States Constitution. The dis-

trict court’s dismissal of Pincham’s case rested upon the

2 No. 88-1592

principles of federalism and comity the United States Su-

preme Court enunciated in Younger v. Harris, 401 U.S.

37 (1971). We affirm.

Facts

This case arises from a speech Justice R. Eugene Pin-

cham of the Illinois Appellate Court, First District deliv-

ered on January 31, 1987. The plaintiff-appellant’s speech

was given at an Operation P.U.S.H. Saturday Forum and,

in the words of Pincham’s First Amended Complaint, was

“an unwritten contemporaneous speech commemorating

Black History in America, celebrated during February-

Black History Month.” First Amended Complaint at { 17.

During Justice Pincham’s speech, dealing with themes of

racial unity and solidarity, he referred to a number of

blacks and whites who were hanged in a 1741 New York

slave rebellion and stated that “we are here on the shoul-

ders” of those who died in that rebellion. In the last

of the speech Justice Pincham applied this theme to b

candidates involved in mayoral races across the country,

stating that “the black leaders are our candidates and

they ride on our shoulders.” After enumerating a list of

these candidates, he focussed on the Chicago mayoral elec-

tion, stating:

“Harold Washington is running for mayor of the City

of Chicago. And he got here on our shoulders. You’ve

got to decide here and now whether or not your

shoulders are broad enough to carry him in another

time.

*-_ *£ *& *#

And those of us who might be inclined to be trai-

tors—you see, there is some who have slave mental-

ities—those of us who are inclined to be traitors who

suspect that because you going to the secrecy of a

a booth that you can vote for who you want to

vote for, we know who you are. And be not confused

No. 88-1592 3

about it. When the ballot comes out, we going to

count. And 100 percent. Not 99 percent of the votes

cast. Not 90 percent of the votes cast. Any man

south of Madison Street who casts a vote in the Feb-

Hh erage a gg dg ty ie opeaphg

Washington ought to be hung as those were hung in

New York.

* * & &

He rides on our shoulders and the movement. You

see, we’re not talking about an election. We’re talk-

ing about a crusade. We’re talking about a move-

ment. We’re talking about an emancipation. We’re

talking about lifting the mentality of—the slave men-

tality—of those who still have it.”

(Emphasis added).

: ic ;

On February 23, 1987, the plaintiff-appellant received

| a letter from Robert B. Cummins, a of the IIli-

nois Judicial Inquiry Board, enclosing a copy of the speech

and stating that:

“The Judicial Inquiry Board proposes charges that

ro participation in and remarks at the January 31

orum constitute political activity in violation of

_Supreme Court Rule 62, Rule 67(2) and (4) and the

introductory paragraph to Rule 61.!

| *-_ * * *

eed oe oe

1 The introductory paragraph of Supreme Court Rule 61 provides:

“An independent and honorable judiciary is indispensable to

justice in our society. A should participate in establish

ing, maintaining and , and d himself observe,

as diy ees oe era ad. The | Suns of this Code

may provisions

should be construed and applied to further that objective.”

Supreme Court Rule 62(A) states:

“A judge should and comply with the law and should

conduct himself st all times in the manner that promotes public

confidence in the integrity and impartiality of the judiciary.”

(Footnote continued on following page)

eel

4 No. 88-1592

It is charged that your conduct in this regard con-

stitutes willful misconduct in office and conduct that

is prejudicial to the administration of justice and

brings the judicial office into disrepute, in violation

of Article VI, Section 15 of the Illinois Constitution.”?

The letter also stated that prior to the Judicial Inquiry

Board’s determination of whether there was a reasonable

basis to file a complaint against Justice Pincham with the

Courts Commission, he was directed to appear and re-

spond to the charges on March 13, 1987 at the Board’s

Chicago office.

Article VI of the Illinois Constitution creates the

Judicial Inquiry Board and the Courts Commission and

provides these agencies with the authority to resolve

judicial disciplinary matters. The Judicial Inquiry Board

is composed of two circuit judges, appointed by the Su-

preme Court, —— with the governor’s seven ap-

pointees, four non-lawyers, and three lawyers. Illinois Con-

stitution, Art. VI, Sec. 1b). After a finding of reasonable

cause to believe that the conduct complained of is violative

of Supreme Court rules is reached by five members of

the Judicial {nquiry Board, a complaint can be filed with

the Courts Commission. The Courts Commission consists

of a justice of the Supreme Court, two justices of the Ap-

1 continued

Supreme Court Rule 67(AX2) provides:

Supreme Court Rule 67(AX4) states:

“A judge should not engage in any other political activity ex-

cept on behalf of measures to improve the law, the ve | sys-

tem or the administration of justice.”

2 Article VI, Section 15 of the Illinois Constitution establishes

the Judicial Inquiry Board and the Courts Commission and pro-

vides them with the authority to discipline ju for the reasons

including those set forth in the last paragraph of the quotation.

PN eB OE NEP NAR MOM REO

hed dab SB

No. 88-1592 5)

pellate Court and two Circuit Court judges. Concurrence

of three members of the Courts Commission is required

before disciplinary measures may be imposed upon a

judge. The Illinois Supreme Court described the respon-

sibilities of these respective bodies in the following

manner:

“The Courts Commission is the adjudicatory arm of

the system of judicial discipline established by arti-

cle VI, section 15, of our constitution. Section 1Xe)

vests the Commission with the authority to hear and

determine complaints filed against judges by the Ju-

dicial Inquiry Board, which is the investigatory and

charging arm of the disciplinary system and with the

authority to impose sanctions for ‘willful misconduct

in office, persistent failure to perform [theix’ duties,

or other conduct that is prejudicial to the administra-

tion of justice or that — the judicial office into

disrepute.’ (Ill. Const. 1970, art. VI, sec. 15(e).)”

People ex rel. Judicial Inquiry Board v. Courts Commis-

sion, Be Ill.2d 180, 485 N.E.2d 486, 488 (1982) (citation

omitted).

The decision of the Courts Commission in judicial dis-

ciplinary matters is final and a direct appeal of the Courts

Commission decision through the Illinois court system is

not provided within the statutes. Nonetheless, a party

may commence indirect review of certain orders of the

Courts Commission by requesting the courts to invoke

their jurisidiction to issue writs of mandamus in cases

where the Courts Commission has allegedly exceeded its

constitutionally delegated authority, such as when the

Courts Commission authoritively construes state statutes

(rather than the Supreme Court rules it is responsible for

enforcing). See Harrod, 372 N.E.2d at 65-66.

On March 13, 1987, the plaintiff-appellant appeared be-

fore the Judicial Inquiry Board, with counsel, and ed

that his January 31 speech did not violate Supreme Court

Rules 61, 62, 67(AX2) and 67(AX4). Further, Justice Pincham

contended that if the rules were construed to prohibit his

6 No. 88-1592

speech they would be in violation of his right to free

speech and his right to be free from vague restrictions

on speech guaranteed under the First and Fourteenth

Amendments to the United States Constitution. He urged

that the Judicial Inquiry Board would thus be acting with-

out a reasonable basis were it to file a complaint with

the Courts Commission challenging his speech. Justice Pin-

cham submitted a written memorandum of authorities to

the Judicial Inquiry Board in support of his position.

In June 1987, the Justice filed an action in the district

court seeking to enjoin the Judicial Inquiry Board and the

Courts Commission from “filing or proceeding upon any

Complaint against [Justice Pincham] premised upon [Pin-

cham’s] January 31, 1987 ae PUSH speech.’ Jus-

tice Pincham alleged that the Judicial Inquiry Board “‘in-

tends to and will file a complaint with the . . . Courts

Commission inst [Justice Pincham] because of [Pin-

cham’s} PUSH speech which the . . . Judicial Inquiry

ee will contend violated . . . Illinois Supreme Court

es.”

3 Complaint and First Amended Complaint, Prayer for Relief.

Pincham filed his ve ag complaint on June 5, 1987, and, on

August 14, 1987, filed his First iseaiied Complaint, the document

considered by the district court in ruling upor the motion to dis-

miss. The district court noted that copies of the Amended Com-

plaint were circulated to the defendants on or about June 18, 1987,

almost two months pacer to the Amended Complaint’s filing. Pin-

cham v. Illinois Judicial Inquiry Board, 681 F. Supp. 1309, 1311

(N.D. Til. 1988).

)

« Complaint and First Amended Complaint at { 47. The district

court’s queries of counsel for the Judicial iry Board confirmed

Pincham’s allegation that a complaint would be filed against Pin-

ing its June 8, ; ing on Pincham’s request for a temporary

restraining order, Temes olgh e iry Board informed the

Court that the Inquiry Board had i determined to file a com-

plaint with the Courts Commission.” Pincham, 681 F. Supp. at

1320. However, the district court also noted that counsel for the

(Footnote continued on following page)

enemas

No. 88-1592 7

The Judicial Inquiry Board and Courts Commission

moved to dismiss Justice Pincham’s complaint, alleging

that Pincham’s action was not ripe for determination,

because he had not yet been found guilty of a violation

and disciplined. Furthermore, the Courts Commission and

the Judicial Inquiry Board alleged that federal courts

should not interfere with the ongoing state proceedings

under the principles of federalism and comity enunciated

in Younger v. Harris, 401 U.S. 37 (1971), and that absten-

tion was required under Railroad Commission v. Pull-

man Co., 312 U.S. 496 (1941). Pincham, 681 F. Supp. at

1317-18. After the district court ruled that the case was

ripe for adjudication, Jd. at 1318, 1325, it dismissed the

case on the basis of the Younger doctrine.’

In discussing the Younger doctrine, the district court

specifically considered the analysis the United States Su-

preme Court had utilized in pain peel in the at-

torney disciplinary area,* and concluded that this analysis

was yo in the context of judicial discipline. Pincham,

681 F. Supp. at 1321-22. The district court enunciated the

following questions to be considered in determining whether

Younger abstention applies to Illinois judicial disciplinary

proceedings:

4 continued

Inquiry Board pledged that the complaint would not be filed until

the resolution of the district court Ppt had been resolved.

Id. In a subsequent February 2, 1988, communication the Inquiry

5 Id. at 1318, 1320-24. In YY of its view that Younger was con-

trolling, the district court did not find it necessary to decide the

Pullman abstention issue. Jd. at 1318.

Association, 457 U.S. 423, 482 (1982).

8 No. 88-1592

“1) (Do judicial disciplinary hearings within the con-

Stitutionally prescribed jurisdiction of the Inquiry

Board and the Courts Commission constitute an ongo-

ing state judicial proceeding{?]

2) [Do the state judicial disciplinary proceedings im-

plicate important state interests(?]

3) [I]s there an adequate opportunity for Justice Pin-

cham to raise his constitutional challenges in the state

disciplinary proceedings{?]” —

Id. at 1322.

The district court concluded that each of these three

requirements were met, and found the Courts Commis-

sion to be, in effect, an “independent state court, estab-

lished by the Illinois Constitution for the express purpose

of adjudicating judicial discipline cases,” Jd. at 1323, and

a proper recipient of abstention under Younger. Pro-

ceedings in the Courts Commission were in progress and

“ongoing’”’ as the Judicial Inquiry Board had previously

voted to file a complaint with the Courts Commission. /d.

at 1822. With respect to the second question, the district

court reasoned that the “‘state’s interest in assuring the

integrity and professional conduct of its judiciary is cer-

y at least as important as its interest in ing the

professional conduct of the attorneys it licenses.”’ Jd. at

1323. The district court also ruled that “based upon its

review of the Rules of Procedure of the Courts Commis-

sion as well as [its] findings with regard to the Courts

Commission’s state constitutional authority, . . . the

Courts Commission will hear and resolve Justice Pin:

cham’s constitutional claims.” Jd. at 1324.

The district court, after reviewing the record, also found

that the involved facts and circumstances could not rea-

sonably be interpreted as an exception to the application

of Bre Bia gi Since ee ets not

initia merely for the purpose of discouraging the ex-

ercise of protected rights, the court reasoned that the pro-

ceedings were neither brought in bad faith nor to harass

OA de atl

No. 88-1592 a

Justice Pincham. Jd. Justice Pincham’s allegations of selec-

tive prosecution also fell short of providing a basis for

a finding of bad faith or harassment, as they failed to

specifically compare Pincham to others who had been in-

volved in public speaking. Jd. Because Justice Pincham

had himself argued that the Supreme Court rules could

be construed harmoniously with the exercise of protected

rights, the exception to Younger for laws which are fla-

tly and patently unconstitutional also did not apply.

d. at 1325. The district court in its Ppa se of the

Younger doctrine dismissed the plaintiff-appellant’s com-

plaint without reaching the merits of the constitutional

issues.”

IT.

Application of the Younger Abstention Doctrine

We agree with the district court that the Supreme

Court’s decision in Middlesex County Ethics Commit-

tee v. Garden State Bar Association, 457 U.S. 423, 482

(1982), sets forth the a analysis when determin-

ing whether or not Younger required the district court

to abstain from interfering with the judicial disciplinary

p ings. In Middlesex, 457 U.S. at 482, the Supreme

Court held that, in acertaining whether to abstain from

interfering with state attorney disciplinary proceedings:

aan question . . . is oer first, do a bar

isciplinary hearings within the constitutionally pre-

scribed jurisdiction of the State Supreme Court con-

stitute an ongoing state judicial proceeding; second,

7 Although Pincham cited 42 U.S.C. § 1981 in his —y ome ap-

parently ing racial discrimination, the district court determined

that Pincham med this claim by failing to argue it in his

response to the motions to dismiss. 681 F. Supp. at 1312 n.2. The

district court also rejected Pincham’s attempt to amend his com-

laint to all violations of federal voting rights statutes, 42

U.S.C. §§ 1971(a), 1973(a), and 1973i(b). Jd. at 1314-17. Pincham

does not raise either of these issues on appeal.

10 No. 88-1592

do the proceedings implicate important state interests;

and third, is there an adequate opportunity in the

state proceedings to raise constitutional challenges.”’

Our first inquiry, then, is whether the district court

preueey concluded that the proceedings inst Justice

incham were ongoing state judicial proceedings. See 681

F. Supp. at 1322. As our previous discussion made clear,

Justice Pincham has presented a legal argument in re-

sponse to the Judicial Inquiry Board's proposed charges

and the Inquiry Board has informed the district court

“that the Inquiry ..-.+ indeed determined to file

a complaint Toamhent Justice Pincham] with the Courts

Commission.” Jd. at 13820. Under these facts the state pro-

ceedings against Justice Pincham are “ongoing.” In ad-

dition, the Courts Commission, the body that will hear

the charges to be filed ae Justice Pincham, is “judicial

in og on as it is a duly saat of cues ig oo

cises coercive responsibility o ing upon alle

violations of Illinois Supreme Court rules subject to pro-

cedural limitations like those found in courts. See 681 F.

Supp. at 1318-20, 1323.

Our conclusion that the proceedings against Justice Pir'-

cham are “ongoi and “judicial in nature” finds sup-

port in the United States reme Court’s decision in a

similar case, Ohio Civil Rights Commission v. Dayton

Christian Schools, 477 U.S. 619, 623-25, 626-29 (1986). In

Dayton Christian Schools, an administrative agency con-

ducted an investigation of the Dayton Christian Schools’

personnel practices, and filed a complaint initiating a for-

mal administrative proceeding against the school. Here,

as in Dayton Christian Schools, the Judicial Inquiry Board

conducted an investigation and has decided to file a com-

plaint against Justice Pincham with the Courts Commis-

sion. In cases the formal proceedings commenced are

coercive rather than remedial, as the imposition of back

pay liability was possible in Dayton Christian Schools and

judicial discipline may be imposed in this case. The Su-

preme Court in Dayton Christian Schools relied in par-

ticular upon the “coercive” rather than “remediai” nature

; No. 88-1592 ll

} of the peat Bho ang ath in holding that Younger re-

quired a federal district court to abstain from interfer-

ing with state civil rights proceedings that were “ongo-

| ing’ and “judicial in nature.” The proceedings t

i Justice AE roerng like the proceedings in Dayton Chris-

tian Schools, are “ongoing,” and are even more clearly

“judicial in nature,” because they take place before a duly

| constituted body composed of state court judges rather

1 than before an administrative agency.

We also agree with the trial court that the state judicial

disciplinary proceedings brought against Justice Pincham

involve the lomottaad state interest of preserving a fair

and impartial judiciary. See 681 F. Supp. at 1823. As the

trial court observed: “A state’s interest in assuring the

meg and professional conduct of its judiciary is cer-

at least as important as its interest in the

professional plore aes of the attorneys it licenses.” Id. See

‘oa Caeetnilio’ asenaet” 705 F.2d 688, oy at

1 important state interest in state j

ree hee Indeed, the state of Illinois must be

permitted to pursue its vital interest in ing ihe Fspet a fair

and impartial judiciary capable of mainta:

of its citizens through the avenue of vudiciat discin

p "

. Although we have determined that the judicial disciplin-

| ary actions brought against the plaintiff. cn aga con-

stitute ongoing state judicial proceedings ursue a

vital state interest, application of the Younger ntion

doctrine would still not Pwr muster unless the plaintiff-

appellant has the opportuni de raise his constitutional

in the state judicial proceedings. See Siddieser,

457 U.S. at 632. “{Tyhe eg ej on [Justice

cham] to show ‘that state procedural law bar{s] presén-

tation of [his constitutional] claims.’ ” Pennzoil Co. v. Tez-

oe ee YE Ft

en et ae OC aan OB a

® See Dayton Christian Schools, 477 U.S. at 627-28 n.2 (citing “co-

ercive” rather than “remedial’’ nature of state proceedings as a

factor supporting abstention).

12 No. 88-1592

aco, Inc., 107 S. Ct. 1519, 1528 (1987) (quoting Moore v.

Sims, 442 U.S. 415, 432 (1979)). As the Supreme Court

further observed in Pennzoil:

‘“‘We cannot assume that state judges will interpret

ambiguities in state procedural law to bar presenta-

tion of federal claims. Accordingly, when a litigant

has not attempted to present his federal claims in

related state court proceedings, a federal court should

assume that state procedures will afford an adequate

remedy in the absence of unambiguous authority to

the contrary.”

107 S. Ct. at 1528 (citation omitted).

Justice Pincham, in an attempt to meet his burden of

demonstrating the unavailability ofa state forum to deter-

mine his constitutional claims, cites Illinois Supreme Court

precedent that allegedly precludes the Courts Commis-

sion from resolving the constitutional tions which

might be presented by the application to Justice Pincham

of the 9 Court rules. In People ex rel. Harrod v.

Illinois Courts Commission, 69 Ill. 2d 445, 372 N.E.2d

53, 65-66 (1977), the Illinois Supreme Court determined

that the Courts Commission senate authority to indepen-

dently construe an Illinois statute. The court stated:

“(TJhe judicial power in this State is vested solely

in the courts. This power includes, among other

things, the authority to judicially interpret and con-

strue constitutional provisions and statutes when

necessary. Inasmuch as the Commission is not a part

of the tripartite court system in this State, dahon

sesses no power to interpret statutory ambiguities

or to compel judges to conform their conduct to any

such interpretation. This limitation is particularly dic-

tated insasmuch as court is without the author-

ity to review the correctness of the Commission’s

orders. ... To grant the Commission such authority

would interfere with an independent judicial system

and would place trial judges in an untenable position.

If, as here, the statutory interpretation of the Com-

Papthy 4st ete a

No. 88-1592 13

mission differed from that of the appellate courts,

trial judges who followed, as mandated, the guidance

of the courts of review, would be subject to sanction

by the Commission. The ‘framers of the constitution

sought to promote certainty and uniformity in the in-

terpretation and declaration of the law. To that end

they committed the exeicise of these judicial func-

tions to the judicial department.’ People v. Bruner,

(1931), 343 Ill. 146, 159, 175 N.E. 400, 405.

The function of the Commission is one of fact finding.

Its function in this case was to apply the facts to the

determined law, not to determine, construe, or inter-

pret what the law should be.” ;

a N.E.2d at 65-66 (citations omitted, emphasis in orig-

inal).

The Illinois Supreme Court has tempered its determina-

tion in Harrod with a subsequent decision in People ex

rel. Judicial Inquiry Board v. Courts Commission, 91 II.

2d 130, 435 N. 2d 486, 488-89 (1982). In that case the

court rejected the argument that the Courts Commission

lacked the authority to interpret the Supreme Court rules

it applies in disciplinary proceedings. court stated:

“The Courts Commission is the body with the con-

stitutional responsibility for applying the Rules of Ju-

dicial Conduct to particular cases. We conclude that

its constitutional authority to hear and determine dis-

ciplinary cases n ily includes the power to in-

terpret the rules it applies in deciding cases before it.

*- * & *

It is . . . established that the law which the Com-

mission is to apply in deciding disciplinary cases is

the supreme court rules.

The issue, then, is whether the Courts Commission,

in the exercise of its duty to apply the rules of ju-

dicial conduct to the case before it, has the author-

| to construe the rules. We conclude that it does.

e Commission’s function is adjudicative, and inter-

14 No. 88-1592

pretation of the legal rule the tribunal is applying

is an inherent and inescapable part of the adjudicative

process.

x * *

This conclusion is not inconsistent with Harrod’s

holding that the Commission does not have the au-

thority to make an independent interpretation of a

statute which has been given a different interpreta-

tion by a court. Since the Commission is the tribunal

with final responsibility for applying the rules of

judicial conduct to disciplinary cases, there is no

possibility that its interpretation of a rule will be at

odds with an interpretation by a court. Thus the pos-

sibility referred to in Harrod of conflicting interpreta-

tions creating a dilemma for trial and appellate judges

does not arise.”

435 N.E.2d at 488-89 (citation omitted). The Illinois Su-

preme Court in Judicial Inquiry Board, thus, made clear

that the reason for Harrod’s limitation upon the Courts

rage sae fe authority vA oss wees provisions

is the need to prevent ility of conflicting con-

structions of sckotantivs law in decisions rendered by the

Courts Commission and the Illinois courts. In Judicial In-

quiry Board, the Illinois Supreme Court recognized that

this conflict in all probability will not arise in cases where

the Courts Commission is called upon to interpret Su-

preme Court rules, because, subject to the limited excep-

tion ¢ a manna ee 7” yp Lage ogg ye

the ultimate “respo ity for applying es 0

judicial conduct to discipli patos which means that

its interpretation of a rule usually be final and, thus,

not in conflict with a court’s interpretation of a rule. See

435 N.E.2d at 489. .

As we previously emphasized, “when a litigant has not

attempted to present his federal claims in related state

® 435 N.E.2d at 489.

No. 88-1592 15

court proceedings, a federal court should assume that

state procedures will afford an adequate remedy in the

absence of unambiguous authority to the contrary.’”’ Penn-

zoil, 107 S. Ct. at 1528. The record in this case fails to

reflect facts that tend to demonstrate that the Courts

Commission would decline to entertain the constitutional

uestions Justice Pincham might conceivably present. See

incham, 681 F. Supp. at 1822, 1324. Indeed, the Courts

Commission has considered a constitutional challenge to

the application of the Supreme Court rules to a judge on

at least one previous occasion. See In re Elward, 1 Ill.

Cts. Comm. 114, 117-20 (1974). See also P. Wassenberg,

A Search for Accountability: Judicial Discipline Under

the Judicial Article of the 1970 Illinois State Constitu-

tion, 8 Northern Illinois University Law Review 781, 798-

99 (1988) (discussing Elward and Courts Commission con-

struction of constitutional questions).

We recognize that Harrod raises some question concern-

ing the Courts Commission’s authority to entertain con-

stitutional challenges. We emphasize, however, that Jus-

tice Pincham’s case differs from Harrod. In ruling unon

Justice Pincham’s case the Courts Commission is cailed

upon to address legal questions arising from the rules it

is charged with enforcing, rather than rules over which

it exercises no authority. Yet, this case also differs from

People ex rel. Judicial Inquiry Board v. Courts Commis-

sion, 91 Ill. 2d 130, 185 N.E.2d 486 (1982) in that the

Courts Commission is required to do more than simply

interpret the meaning of a Supreme Court rule. In this

instance, the Courts Commission would be construing the

constitutionality of Supreme Court Rules, over whose ap-

plication it exercises exclusive jurisdiction. Because Illinois

state courts are barred from applying the Supreme Court

Judicial Disciplinary Rules, we are convinced that the

Courts Commission’s rulings on constitutional issues in

this limited area would not conflict with those of the

courts. Based _ the foregoing discussion, we are con-

fident that the Illinois courts would in all probability con-

strue their constitution so as to permit the Courts Com-

16 No. 88-1592

mission to consider federal constitutional mandates when

interpreting the Supreme Court rules during the course

of a judicial ry eed proceeding. Cf. Ohio Civil Rights

Commission v. Dayton Christian Schools, 477 U.S. 619,

629 (1986) (“{E]ven if Ohio law is such that the Commis-

sion may not consider the constitutionality of the statute

under which it operates, it would seem an unusual doc-

trine .. . to say that the Commission could not construe

its own statutory mandate in the light of federal constitu-

tional principles”). Thus, we are convinced that Justice

Pincham has failed to present the “unambiguous author-

ity’ that Courts Commission proceedings would provide

an inadequate forum for his constitutional claims that is

necessary to preclude abstention under Younger. See

Pennzoil, 107 S. Ct. at 1528-29. .

ITI.

Application of Exceptions to

the Younger Doctrine

We must next determine whether the complaint sets

forth an exception to the Younger doctrine. See Jacob-

son v. Village of Northbrook Municipal Corp., 824 F.2d

567, 569-70 (7th Cir. 1987). In Jacobson, F.2d at

569-70, we held that Younger does not require that a

federal court abstain from enjoining a state proceeding if

“(1) the ‘state pone is motivated by a desire

to harass or is condu in bad faith,’ Hu n v.

Pursue, Ltd., 420 U.S. 592, 611, 95 S. Ct. 1200, 1212,

43 L. Ed.2d 482 (1975); (2) there is ‘an extraordinarily

pressing need for immediate equitable relief,’ Kugler

v. Helfant, 421 U.S. 117, 124-25, 95 S. Ct. 1524,

1530-31, 44 L.Ed.2d 15 (1975); or (3) the ‘challenged

provision is flagrantly and patently violative of ex-

ress constitutional prohibitions,’ Moore [v. Sims, 442

S. 415, 423, 99 S. Ct. 2371, 2377 (1979)}.”

Justice Pincham does not argue that the state judicial

disciplinary action was brought against him either with

the desire to harass him, much less in bad faith. As we

No. 88-1592 17

stated in Collins v. County of Kendall, 807 F.2d 95, 98

(7th Cir. 1986):

“A plaintiff asserting bad faith prosecution as an

exception to Younger abstention must allege speci-

fic facts to support an inference of bad faith. “The

Younger rule, as oR in Hicks [v. Miranda, 422

U.S. 332, 95 S. Ct. 2281, 45 L.Ed.2d 223 (1975)], re-

quires more than a mere allegation and more than

a “conclusory” finding to bring a case within the

harassment exception.’ Grando Corp. v. Rochford, 536

F.2d 197, 203 (7th Cir. 1976). This specific evidence

must show that state prosecution ‘was brought in bad

faith for the purpose of retaliating for or deterring

the exercise of constitutionally protected rights.’

Wilson (v. Thompson, 593 F.2d 1375, 1383 (5th Cir.

1979)].”’

failed’ vo establish, either in hi § eags or is peared

iled to ish, ei in hi ings or his argument,

that the Judicial Inquiry ot and Courts Commission

“were ‘using or threatening to use prosecutions, regard-

less of their outcome, as instrumentalities to suppress

7 eee ” Collins, 807 F.2d. at 101 (quoting Sheridan v.

rrison, 415 F.2d 699, 706 (7th Cir. 1969), cert. denied,

396 U.S. 1040 (1970) (emphasis in original)). See Pincham,

681 F. Supp. at 1824. We are also in agreement with the

trial court that Justice Pincham’s allegations of selective

prosecution “are sketchy at best and clearly insufficient

to make the requisite showing of bad faith or harass-

ment.” Id. Even if we accept Justice Pincham’s allega-

tion that other judges engaged in activity equivalent to

his and were not disciplined, we refuse to conclude that

there was “bad faith” absent allegations that the state

agencies had some awareness of the other judges’ activ-

ities and treated them more favorably than Justice Pin-

cham as part of a campaign that used prosecutions, re-

ess of outcome, to suppress speech. Justice Pincham

oes not make such allegations.

18 No. 88-1592

An “extraordinarily pressing need for immediate equi-

table relief’ is a second possible exception to Younger.

Jacobson, 824 F.2d at 570. Justice Pincham argues that

“he threat of self-censorship resulting from the enforce-

ment of this ordinance justifies immediate equitable relief

and cites Sullivan v. City of Pittsburgh, 811 F.2d 171,

179-80 (8rd Cir. 1987), in which the Third Circuit applied

this sage in granting a preliminary injunction pre-

venting the closing of an alcoholic treatment center in an

equal protection based challenge to a zoning ordinance.

However, Younger itself disposes of Justice Pincham’s

argument in this case. In Younger it was determined that

“‘a ‘chilling effect,’ even in the area of First Amendment

rights, has never been considered a sufficient basis, in and

of itself, for prohibiting state action.” 401 U.S. at 51. The

mere presence of “political speech” has no effect upon

this analysis. Because Justice Pincham alleges nothing

more than that a single state judicial disciplinary pro-

ceeding has had a “chilling effect” on his free speech

rights, he has failed to establish that “extraordinarily

ressing need for immediate equitable relief’ required

ore coming within the purview of this exception to the

Younger doctrine. Compare Wooley v. Maynard, 430 U.S.

705, 712 (1977) (An exception to Younger applies where

“three successive prosecutions were undertaken against

Mr. Ma in the of five weeks. This is quite dif-

ferent from a claim for federal equitable relief when a

prosecution is threatened for the first time’’).

The final exception to Younger occurs in a case in which

the challenged provision is “flagrantly and patently

violative of express constitutional prohibitions in evéry

clause, sentence and paragrap® and in whatever manner

and against whomever an effort might be made to apply

it.”” Younger, 401 U.S. at 53-54 (quoting Watson v. Buck,

313 U.S. 387, 402 (1941)). However, “the possible uncon-

maul at of a statute bp fia pot = not in med

justify an injunction against -fai orts to enforce

it.” Id. at ne As the district court noted, Justice Pincham

himself “appeared before the Inquiry .Board and urged

No. 88-1592 19

that the rules ‘did not prohibit [his] constitutionally pro-

tected January 31, 1987 Operation P.U.S.H. Community

Forum Black History Speech.’” 681 F. Supp. at 1325

(quoti.ig Amended Complaint at { 28). Further, our ex-

amination of the rules Justice Pincham challenged reveals

that they do not inherently prohibit constitutionally pro-

tected speech. Thus, the Courts Commission could well

construe the rules in a manner compatible with the con-

stitution. In these circumstances Justice Pincham’s allega-

tions are insufficient to satisfy a facial challenge to these

rules, and certainly do not establish that the rules are

flagrantly and patently unconstitutional.

Because ing required the district court to abstain

from enjoining the state judicial disciplinary proceedings

brought against Justice Pincham, the district court’s dis-

missal of Justice Pincham’s complaint is

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co., Inc., Chicago—4-27-89—500

APPENDIX C _

Appendix C

OPERATION PUSH SATURDAY FORUM

SPEAKER: R. EUGENE PINCHAM

JANUARY 31, 1987

R. EUGENE PINCHAM: First I want to say to all of

those in the radio listening audience, in the beauty parlors

and barber shops and in the restaurants, to take a moment

of your time and call at least three people and tell them to

turn on the radio to Operation Push. When you do that, you

increase our listening audience. When you do that, you

broaden our base. When you do that, you improve our

awareness and you increase our concern. So turn to your

telephone and dial three people and ask them to turn their

radios on and listen to Push.

Second, to Rev. Barrow, Rev. Reddick, Senator

Brookins, and my colleague, Judge Holt, Rev. Jackson and

Ben Chaffers. I just feel tremendously honored just to be in

the company, the presence, of a man like Ben Chaffers. He

is one of the soldiers who has given his all for the struggle,

and we want you to know that there are those of us who

remember. There are those of us who appreciate you and are

aware of your contribution. We say thank you.

Next, I want to say I appreciate the invitation to be here

this. morning to share a few of my thoughts with you. I feel

at home here because this is where the heart of the struggle

is. I’m glad to be here to continue to do God’s work. Rev.

Barrow, there is a new radio-T V commercial that’s on the air

now and that commercial says “the best part of waking up is

some coffee in your cup.” Now that’s a lie. That’s not true..

The best part of waking up is waking up, and I’m glad to be

here. >

Another thing I want to say is that wher we do this

building remodeling, the first thing we are going to ask the

reveren« to put in here is a podium. I’m going to talk directly

to the architect and see if we can’t get a podium up here that

will accommodate what we’re trying to do up here. The best

part of waking up is waking up.

Next, I want to say there are some of you out there in

radio land—of course, there’s no such person here in Push

this morning—who still is not a registered voter. There are

still some people out there who are too embarrassed, too

ashamed, too afraid, too ignorant to register to vote. To

those of you out there who are in that category, you can

minimize exposure of your ignorance and your stupidity by

realizing that you cannot vote in the February 24 primary if

you're not registered to vote; but you still can go downtown

and register up to March 9 to vote in the mayoral general

election. You will not be embarrassed because nobody will

know you’ve been down there. You can sneak in. I know

you don’t want anybody in the community to know that

you're not a part of the struggle by registering to vote and

that you’re ashamed, so one day when you're downtown

between now and March 9, 1987, go to the Board of Election

office, sneak in, hide your face and register to vote in the

mayoral primary, which will be April 7, 1987.

There’s still hope for you. You still have a chance. We

are reasonably certain the Lord is not going to strike you

dead because you haven’t registered to vote, providing you

Next, I want to say to those in radio land, to the lawyers,

to the teachers, the dentists and the doctors, the firemen, the

police, the secretaries and the plumbers and electricians, the

carpenters, the high falutin, the hoity-toity, to the bourgeoisie

-out there, the office workers, the factory workers.

Let me back up a minute because I too fit every qualifica-

tion for being bourgeoisie. So, to those of you out there who

think you are on top, understand that you didn’t get there by

yourself. You got there on sombody else’s shoulders. You

got there on Ben Chaffer’s shoulders, and you owe it to others

to participate and contribute to this struggie. The truth is,

all of us are in the same soup line. It just happens that some

are closer to the counter than others. We've got to stop this

nonsense of thinking that because we’ve had a paycheck

regularly for the last ten years, that we are on top. We are

just a little further from the counter in the soup line. We’ve

got to reach up and give those a helping hand that need our

aid and assistance.

Now, I really didn’t come here to arouse your emotions

this morning. There is not going to be any ~' ~uting in here

today. I came here to enhance your awareness. i didn’t come

here to make you feel good. I came here to make you feel

informed. I didn’t come here to excite your heart but to

inspire your mind. There is not going to be any shouting in

here today. When you shout, you are shouting because you

are emotional. I’m not opposed to shouting. I do it sometimes

myself. But I first want to be informed before I become

emotional. So I didn’t come here today to shout.

Tomorrow, February Ist, is the beginning of Black His-

tory Month in America. Tomorrow, February Ist is the

beginning of Black History Month in America. The first thing

we need to do about that is to change the name. We need to

change the name from Black History Month to Afro American

History Month. We ought to call it what it is. You see, there

is no such thing as a White History Month. If the Irishmen

and the Scotch and the English and the French and the

Italians and the Greek and the Polish, if they decided they

were going to have a White History Month, we would be the

first to say we don’t approve of that.

But when we change the name to what it ought to be and

call it an Afro American History Month, there are going to

be some who are going to say, “Well there are some white

folks in Africa, too, but they are not the ones who came to

America, so we know we’re not taking about them.”

So we first ought to begin to call it what it is, Afro

American History Month. Now, to celebrate Afro American

History Month, Senator, demands an awareness of history

and a sensitivity to our past. Years ago when I was being

reared down in Alabama, just a small tot, we used to go out

into the fields with our relatives. One of my relatives was a

lady by the name of Ada, Cousin Ada. She was as close to

me as a mother. Down home, in those days, a family was a

close knit unit. Cousins were like sisters and cousins were

like brothers and aunts were like mothers.

We would go out into the field, in the cotton field, and I

would walk behind her as she did her rows. Being only three

or four years of age, I would get tired before the sun rose in

the sky. Get hot. And I would say to Cousin Ada “Ada, tote

me. Ada, tote me.” And Cousin Ada would say “Let me

finish this row and I will tote you.”

Of course, I was asking her to carry me. When Ada

would get to the end of the row, she would put me on her

shoulders, my feet around her neck, and with one hand she

would hold my two feet and two hands in her hand and she

would walk me to the edge of the cotton field which bordered

the woods. There she would clean out an area and lay me

down where I could go to sleep. And she would say to me,

when I would say, “Well I’m scared, Ada, to be here”, she

would say, “Well, God will look after you.” Then she would

go back out in the field. -

I’m now a justice of the Appellate Court of Illinois

because Ada toted me. I didn’t get here on my own. I’m still

riding on her shoulders. You see, we Afro Americans must

be aware that we got here on somebody else’s shoulders. We

need to be aware of history. History is a word. In fact, it is

two words. His story. His story.

And so it is I’m going to take just a few moments of your

time this morning to talk about our story. Our story. Paul

Finkleman has authored 2 book entitled Slavery In The

Courtroom. Slavery In The Courtroom. Of course it attracted

my attention because I am in the courtroom. The book is an

annotated bibliography of American cases of slavery in the

courtroom. Wouldn’t you know, Sandy, it’s Published by

the Library of Congress, 1985, and that gives it a certain

authenticity. If I wrote it, the first thing folks would say, “It

didn’t happen. That’s just R. Eugene Pincham talking.” But

the Library of Congress put it out.

During slavery, the slave master attempted to philosophi-

cally justify slavery by contending that blacks were inferior

and that he was doing the black a favor by bringing him from

Africa to America to feed him. The slave master attempted

to convey the thought that slaves were happy being slaves.

Now there may have been some happy slaves but not all

of them were happy. The fact of the matter is, some were

so unhappy that they revolted. We haven’t been told too

much about the revolts. We know about the Stoner rebellion

in 1739 in South Carolina. We know about the Nate Turner

rebellion of 1831 in Virginia. But in fact the Stoner rebellion

and Nate Turner rebellion were not even written and recorded

at the time they occurred.

There was another great slave rebellion in New York, in

New York in 1741. Most of us didn’t even know that there

were slaves in New York, in the Big Apple. But New York

has its history about slavery and the rebellion occurred in

1741.

The City of New York between March 17 and April 6 of

1741 became engulfed in a series of fires. There were ten

fires in a single week. There were four fires in a single day.

One of these fires destroyed much of the city and destroyed

a good portion of Fort George. Fort George was the seat of

the Colonist government. Fort George was the residence of

the governor. That fire occurred on March 18, 1741.

Simultaneously with these fires there were...

The officials believed the fires were part of a large plot

by slaves, Spanish agents, captured Spanish seamen, and a

few greedy whites to overthrow the city in a general slave

rebellion. While attempts were being made to put out the

fires on April 6, 1741, a slave was seen running from a burning

building; and when you see us running, it always alarms other

folks. An alarm went out that the Negroes had arrived and

were going to burn down New York.

This cry combined with other events led to mass arrests

and trials of slaves in New York. As early as March Ist a

slave was arrested for theft. That same week a white woman

known as Peggy was also arrested. Peggy was notorious for

prostitution and consorting with the black slaves. She was

charged with aiding in the theft of silver items and other

goods.

It was not until the fires of March and April, however,

that the officials in New York connected the fires with the

robberies and the thefts. On April 8, 1741 a white tavern

owner and his wife—his name was John and her name was

Sara—their last name was Hughson, H-U-G-H-S-O-N. John

and Sara Hughson were arrested and charged as accessories

to felonies and misdemeanors. The prostitute, Peggy, had

rented a room from the Hughsons and it appeared that they

were connected to numerous robberies and the fires.

On April 11, the common counsel of New York met and,

concluded that the recent fires were occasioned and set by

some felonious confederacy of latent enemies and slaves, and

for that reason two more slaves were arrested on April [3th

and another on the ! 7th.

A grand jury met on April 12 to consider the fires and

the robberies. It also met to consider the legal selling of

liquor to slaves. The grand jury began to examine witnesses

on April 23. The prostitute, Peggy, had been in jail for almost

two months, and although she was given a chance to turn

states evidence with a promise of a recommendation to the

governor for a pardon, Peggy positively denied knowing

anything about the fires or about any slave rebellion.

On April 24 the Hughsons and Peggy and two slaves

were indicted and their trials were set for the following day.

However, their trials were postponed until May Ist and on

that date the two slaves were tried and convicted. The trials

resumed May 6th and the Hughstons were convicted of

receiving stolen property.

On May i Ith the first two slaves convicted of robbery

were hanged while wearing their chains. I’m reading now

from Slavery In The Courtroom. The next day the Hughsons

and Peggy the prostitute were brought to trial on the new

charges of conspiracy, confederating and consorting with

slaves to rebel and to burn the city of New York. From that

date untit August 31st, the city saw a long series of arrests,

trials and executions. Ultimately 20 whites and 154 black

slaves were arrested. Four of the whites—the Huglsons,

Peggy, and a purported Catholic priest—were hanged.

John and Sara Hughson owned a white indentured slave.

Her name was Mary Burton. It was because she informed

on John and Sara Hughson that they convicted and hanged

John and Sara Hughson. The common counsel of New York

appropriated a reward for this white indentured servant of

John and Sara Hughson. They appropriated an award for

Mary Burton. But Mary Burton never got the reward because

it was used to buy her indentured contract from the Hughsons.

And so it was. she became a stool pigeon against her master

for nothing.

Seven other whites were discharged or pardoned on the

grounds that they be compelled to leave the jurisdiction, but

the slaves faced a worse fate. Thirteen slaves were burned to

death at the stake and another 18 were hanged. 17 were

transported out of the colony, most of them going to the

Caribbean islands to work on the sugar plantations where

their life expectancy would be short. Most of the slaves might

have been executed or imprisoned had existing facilities

allowed it, but the jails overran. Slaves were confessing to

their guilt in hopes of pardons and others were pardoned for

some things that they had not done, in order to get evidence

against others. The jailors feared, considering the season of

the year, that the numbers in the jails closely confined might

breed an infection, and thus 41 were chosen for transportation

out of the colony.

That same day, however, another black was taken from

the jail and sentenced to die and hanged all within one day.

He was burned to death and the hangman, raised up his legs,

laid it upon the fire and with the man screaming for his life,

he named out some other slaves who he said were also in this

conspiracy plot. Later that evening those slaves were arrested.

The last burning at stake took place on July 18 but blacks

were hanged in New York as late as August 15, 1741, arising

out of the slave rebellion. The daughter of John and Sara

Hughson was also convicted and she turned states evidence

to save her life.

There was a white man in New York by the name of

John Yurie who was indicted for conspiring with the siaves

to rebel. The prosecution argued that Yurie was a priest, that

he had baptized the Hughsons, that he had also baptized the

prostitute, and that he told the Negroes that he would forgive

them of their sins if they rebelled. The white man Yurie

never admitted that he was in fact a Catholic or a priest.

Others testified that he was. Some of the most damaging

testimony came from the daughter of John and Sara Hughson.

John Yurie was convicted on August 29 three weeks after

he commenced trial and he was hanged the following day,

five weeks after his trial began.

And so it is Push, Afro American history, we are here on

—.the shoulders of Peggy the prostitute. We are here on the

shoulders of Sara and John Hughson, who aided and assisted

us in our efforts for freedom at the cost of their lives. We

are here on the shoulders of John Yurie. And we are here on

the shoulders of hundreds of unnamed slaves, who were

hanged and burned alive at the stake in the New York

rebellion.

We did not get here alone. We did not get here by

ourselves. The civil war ended slavery, as you know, but,

Judge Holt, it didn’t end slave mentality. There is still slave

mentality prevailing in Chicago today. It’s unfortunate that

that is so, but it is.

The last two Wednesday evenings at 9:00 o’clock on

Channel 11 there was a television program, Eyes On The

Prize. We ought to give credit where credit is due for that

title. That title, Eyes On The Prize, originated right here at

Push by Rev. Jessie Jackson. These two television series that

went on for one hour from 9:00 to 10:00—and I tried to tape

it but I can’t work that thing. I just can’t work that thing. I

have to call Scooter to help me do that, but he was not at

home. I’m going to get the tape.

These two tapes was telling us about the civil rights

movement and, quite frankly, it told us some things that we

had forgotten. It told us some things we need to be reminded

of. In 1954 Dr. King had completed his courses for his PhD

at Boston University, in the school of theology. He had been

offered several jobs to teach but he chose instead to accept

the pastorship of the Dexter Avenue Baptist Church in Mont-

gomery. Dr. King succeeded a pastor there whose name was

Vernon Johns. Rev. Vernon Johns had a brilliant record of

protesting segregation in Montgomery.

During Dr. King’s first year as pastor at Dexter Avenue

Church, he finished his dissertation on his PhD., Dr. King’s

dissertation was entitled, A Comparison Of The Conceptions

of God In The Lives of Paul Tillet

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