# Petition for Writ of Certiorarim — Pincham v. Illinois Judicial Inquiry Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0134%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorarim - **Published:** January 1, 1989 - **Citation:** 493 U.S. 975 ## Text 89-242 |) oS | JUL 20 1989 No. - SOSEE EE So54'0 a la IN THE — y 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 ed a ; 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 i ad cnenanbnlaensen my a .. snaeuosomuanndbastinsnie iv ce cbenbesanansotasion ! a colaneunntons 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 ~~ iv 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 2 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. 3 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: 4 (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. 5 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 6 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. 7 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. 8 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. 10 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. 1] 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 12 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 13 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 14 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 15 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 16 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. | 17 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 18 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 19 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. (C) The attendance and participation of judges at 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. 20 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. 21 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 la Appendix A IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION R. EUGENE PINCHAM, > Plaintiff, v. 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 2a 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 3a 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. 4a 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. - | Sa 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.” 6a 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. ——————————————————— Ta 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. 8a 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). 9a 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. (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 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 a 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, v. 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. I. 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 ee 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 Ss 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. © Middlesex Cou Ethics Commission v. Garden State Bar 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0134%3A1. Public record. Not legal advice.