Opposition Brief — Pincham v. Illinois Judicial Inquiry Board

Supreme Court, U.S.

FILED

aii: 99-242 HOV 3 109

RETF SPANIOL, JR.

CIERK

In The _—

Supreme Court of the United States

October Term, 1989

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R. EUGENE PINCHAM,

Petitioner,

ILLINOIS JUDICIAL INQUIRY BOARD, et al.,

Respondents.

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On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

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BRIEF IN OPPOSITION OF RESPONDENTS ILLINOIS

COURTS COMMISSION AND ITS MEMBERS

4

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Net F. HARTIGAN

Attorney General,

State of Illinois

Rosert J. Ruiz

Solicitor General,

State of Illinois

James R. CARROLL*

MosHe JAcosius

Assistant Attorneys General

100 W. Randolph Street,

13th Floor

Chicago, Illinois 60601

(312) 814-4499

Counsel for Respondents

Illinois Courts Commission

and its Members

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

I.

Whether the U. S. District Court and Seventh Circuit

Court of Appeals properly abstained from interfering

with a pending judicial disciplinary proceeding before

the Illinois Courts Commission implicating important

state interests where petitioner has the opportunity to

raise all available constitutional challenges.

II.

Whether the U. S. District Court and Seventh Circuit

Court of Appeals properly abstained where petitioner

failed to allege any facts supporting a claim of bad faith,

harassment, or irreparable injury arising from the judicial

disciplinary proceedings.

‘a

Whether there is a conflict among the circuits and

whether the Rules of Judicial Conduct are unconstitu-

tionally vague.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .......... i

See Se Hee I eens cicccccucawctdecees iii

SEAR IEE GR BEE MR vee cts ccc ce cecececey 1

REASONS FOR DENYING THE WRIT:............. 2

I.

THE LOWER COURTS PROPERLY ABSTAINED

UNDER THE YOUNGER V. HARRIS DOCTRINE

AND DISMISSED THE COMPLAINT....... Je 2

Il.

THE PETITIONER HAS AN ADEQUATE STATE

REMEDY IN THE ILLINOIS COURTS COMMIS-

POPPE TERETE ee tee ee es as an 5

Il.

THE PETITIONER HAS FAILED TO ESTABLISH

ANY EXCEPTION TO THE YOUNGER DOCTRINE

WOTETVeTrreTir ee ee ee 8

IV.

THE RULES OF JUDICIAL CONDUCT ARE NOT

UNCONSTITUTIONALLY VAGUE ............... 12

V.

THE YOUNGER ABSTENTION DOCTRINE

APPLIES TO CASES INVOLVING FIRST AMEND-

MENT CHALLENGES. THERE IS NO CONFLICT

ADBGRUGS THES CHUTES. 2... cccessccccsusvececs 13

LRT ROCK aN NASR a 00 6 ued waned SRRRORAERG 17

!

iii

TABLE OF AUTHORITIES

Page

Cases

City of Houston, Texas v. Hill, 482 U.S. 451 (1987) .... 14

City of Lakewood v. Plain Dealer Publishing Co., 486

BP BERD os vere cccecccccees RO ere 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .... 15

Fort Wayne Books, Inc. v. Indiana, ___ U.S. ___, 109

ee Bt) ne ipehaeh Cheam sion ts 15

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ..... 4

Grayned v. City of Rockford, 408 U.S. 104 (1972)...... 12

Halleck v. Berliner, 427 F. Supp. 1225 (D.D.C. 1977) .... 13

Hastings v. Judicial Conference of the United States,

829 F.2d 91 (D.C. Cir. 1987), cert. denied, 108

EEG bvcsnbeeconssdspssssacusesccecss 12

Hoffman Estates v. Flipside, Inc., Hoffman Estates,

ST I nc ven ctnncccsasewsssocncoccens 12

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) .......... 2

In Re Elward, 1 Ill. Cts. Comm. 114 (1977)............ 7

In Re Kaye, 1 Ill. Cts. Comm. 36 (1974)............... 7

In Re Teschner, 2 Ill. Cts. Comm. 43 (1983) ........... 7

judieee @. Vel, G50 UB. S27 (1977)... ccc cn vccccees 2

Keiser v. Bell, 332 F. Supp. 608 (E.D. Pa. 1971)....... 13

Kugler v. Helfant, 421 U.S. 117 (1975).............65. 11

Matter of Randolph, 101 N.J. 425, 502 A.2d 533, cert.

Wemten, S7O US. TIGS (USGS)... 2. cece cece ee ceees 13

iv

TABLE OF AUTHORITIES —- Continued

Matter of Seraphim, 97 Wis. 2d 485, 294 N.W.2d 485,

cert. denied, 449 U.S. 994 (1980) .................. 12

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982) ........... 2, 4, 5

Moore v. Sims, 442 U.S. 415 (1979) ............. a, & 1%

Napolitano v. Ward, 317 F. Supp. 79 (N.D. Ill. 1970) .... 13

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

New Orleans, US. __, 109 S.Ct. 2506 (1989) 13, 14

Ohio Civil Rights Commission v. Dayton Christian

Scleeeta, GIF TB. GED CHMOD wins snc cn cewevcccccee ee

Oyler v. Boles, 368 U.S. 448 (1962).................5. 10

Parker v. Levy, 417 U.S. 733 (1974) ...........0.0005: 12

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) ....2, 4, 5

People ex rei. Harrod v. Illinois Courts Commission,

69 Ill. 2d 445, 372 N.E.2d 53 (1977) ............. 5, 6

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

mission, 91 Ill. 2d 130, 435 N.E.2d 486 (1982) . 4, 6, 7

Perez v. Ledesma, 401 U.S. 82 (1971) ..............55. 9

Pincham v. Judicial Inquiry Board, 681 F. Supp. 1309

SS SE EE ch dhine Chtenskdwebed doe cngs ss 7, 8, 14

Pincham v. Judicial Inquiry Board, 872 F.2d 1341-(7th

Gt EE hi GhSatnknnducandnesvasdn eau 1, 7, 9, 11, 15

Railroad Commission of Texas v. Pullman Company,

UE OT ED | Bin dows ce dewsencceccccceccsnce 14

Snowdon v. Hughes, 321 U.S. 1 (1944)................ 10

Sullivan v. City of Pittsburgh, 811 F.2d 171 (3rd Cir.

1987), cert. denied, 108 S.Ct. 148 (1987)............ 16

—

TABLE OF AUTHORITIES —- Continued

Page

United States v. Powell, 423 U.S. 87 (1975) .......... 12

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

CONSTITUTION

Illinois Constitution, 1970, Article 6, Section 15(e)..... 3

.

No. 89-242

&...

—

In The

Supreme Court of the United States

October Term, 1989

A.

,

R. EUGENE PINCHAM,

, Petitioner,

ILLINOIS JUDICIAL INQUIRY BOARD, et al.,

Respondents.

,%

_—

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

+

BRIEF IN OPPOSITION OF RESPONDENTS ILLINOIS

COURTS COMMISSION AND ITS MEMBERS

STATEMENT OF THE CASE

The Respondents, the Illinois Courts Commission

and its members, incorporate by reference the statement

of facts from the opinion of the United States Court of

Appeals for the Seventh Circuit. Pincham v. Judicial

Inquiry Board, 872 F.2d 1341, 1342-46 (7th Cir. 1989)

(Appendix B, pp. 2-9).

%

_

REASONS FOR DENYING THE WRIT

I.

THE LOWER COURTS PROPERLY ABSTAINED

UNDER THE YOUNGER V. HARRIS DOCTRINE

AND DISMISSED THE COMPLAINT

There is a longstanding public policy against federal

court interference with state court proceedings. Younger v.

Harris, 401 U.S. 37 (1971). The underlying considerations

‘are based on principles of comity, which require “a

proper respect for state functions.” Id. at 44. The courts

below gave proper consideration tc those principles and

abstained to allow the state judicial disciplinary system to

operate in accordance with constitutional principles.

While Younger involved a First Amendment challenge

in a state criminal prosecution, the application of its

principles has been extended to civil administrative

actions involving important state interests. See Huffman v.

Pursue, Ltd., 420 U.S. 592 (1975) (civil nuisance proceed-

ings); Juidice v. Vail, 430 U.S. 327 (1977) (contempt pro-

ceedings); Moore v. Sims, 442 U.S. 415 (1979) (state action

involving child abuse); Ohio Civil Rights Commission v.

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

Amendment issues in state administrative proceedings);

and Pennzoil Co. v. Texaco, 481 U.S. 1 (1977) (civil judg-

ment enforcement proceeding). The petitioner has pre-

_sented no authority which detracts from the continued

validity of the Younger doctrine.

The Seventh Circuit specifically relied on this Court’s

analysis of the Younger abstention doctrine in a state

attorney disciplinary action as a basis for its decision. In

Middlesex County Ethics Commission v. Garden State Bar

Association, 457 U.S. 423 (1982), this Court applied a

three-prong test in order to determine whether Younger

abstention was appropriate. The three relevant questions

are:

1. Do judicial nae marert hearings, within the

jurisdiction of the Judicial Inquiry Board and the

Courts Commission, constitute an ongoing state

judicial proceeding?;

2. Do the judicial disciplinary hearings involve

important state interests?; and,

3. Will the petitioner have the opportunity to

protect his constitutional rights in the state

proceeding?

Each of these questions must be answered in the

affirmative.

There is an ongoing state proceeding which is judi-

cial in nature. The Illinois Constitution, 1970, Article 6,

Section 15(e) provides:

A Courts Commission is created consisting of

one Supreme Court Judge selected by that

Court, who shall be its chairman, two Appellate

Court Judges selected 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 , censure or

reprimand a Judge or Associate fedee for willful

misconduct in office, persistent failure to per-

form his duties, or other conduct that is prejudi-

cial 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

4

or Associate Judge who is physically or men-

tally unable to perform his duties.

The Illinois Courts Commission (Commission) has the

indicia of any other court and utilizes the Illinois Code of

Civil Procedure and civil rules of evidence. (Appendix A,

pp. 25a-6a, n. 11). Clearly, there was an ongoing state

proceeding because the Judicial Inquiry Board had voted

to file a complaint with the Commission. (Appendix A, p.

25a).

The state’s interest in regulating its judiciary is suffi-

ciently important and vital to invoke Younger abstention.

The entire system of justice in any state hinges upon the

judges that are entrusted with the authority to enforce its

laws. This Court has already found that the State of New

Jersey had an “extremely important interest” in maintain-

ing the professional conduct of the attorneys it licenses.

Middlesex, 457 U.S. at 435. The conduct of judges, even

more so than lawyers, is “essential to the primary func-

tion of administering justice.” Goldfarb v. Virginia State

Bar, 421 U.S. 773 (1975).

It is the petitioner’s burden to show that he will not

have the opportunity to raise his constitutional claims in

the Courts Commission. Pennzoil Co. v. Texaco, Inc., 481

U.S. 1 (1987). In People ex rel. Judicial Inquiry Board v.

Courts Commission, 91 Ill. 2d 130, 435 N.E.2d 486, 489

(1982), the Illinois Supreme Court concluded “that its

[Courts Commission] constitutional authority to hear and

determine disciplinary cases necessarily includes the

power to interpret the rules it applies in deciding cases

before it.” The power to interpret the Illinois Supreme

Court Rules of Judicial Conduct would necessarily

include the authority to review those rules in light of a

constitutional challenge. The petitioner will have an

opportunity to present his constitutional claims in a hear-

ing before the Commission. (See also discussion in part II,

infra) The courts below properly relied upon the Younger

abstention doctrine as applied in Middlesex to dismiss the

complaint.

II.

THE PETITIONER HAS AN ADEQUATE STATE

REMEDY IN THE ILLINOIS

COURTS COMMISSION

The petitioner argues that no state remedy exists

because he would be denied the opportunity to invoke

and protect his constitutional rights. Both the District

Court and the Seventh Circuit, however, found that peti-

tioner does have ample opportunity to present his consti-

tutional claims before the Commission.

It is the petitioner’s burden to show that it is state

procedure that would bar the presentation of his constitu-

tional claims. Moore v. Sims, 442 U.S. at 433 (1979). Where

there has been no attempt to present federal claims in a

state proceeding, a federal court should assume, absent

unambiguous authority to the contrary, that state pro-

cedure will afford an adequate remedy. Pennzoil Co. v.

Texaco, Inc., 481 U.S. at 15 (1987). Here, petitioner brought

this action after a complaint was voted, but before it was

actually filed by the Judicial Inquiry Board to attempt to

preempt any proceeding before the Commission.

The petitioner’s reliance on People ex rel. Harrod v.

Illinois Courts Commission, 69 Ill. 2d 445, 372 N.E.2d 53

(1977), as unambiguous authority in support of his posi-

tion is misplaced. In Harrod, the Illinois Supreme Court

determined that the Courts Commission lacked authority

under the Illinois Constitution to apply its own indepen-

dent construction to a previously uninterpreted criminal

sentencing statute in a judicial disciplinary proceeding.

Since the Commission was not part of the tripartite court

system:

To grant the Commission such power would

interfere with an independent judicial system

and would place trial judges in an untenable

position. If, as here, the statutory interpretation

of the Commission differed from that of the

appellate courts, trial judges who followed, as

mandated, the guidance of the courts of review,

would be subject to sanction by the

Commission.

People ex rel. Harrod, 372 N.E.2d at 66.

The Illinois Supreme Court’s principal concern was that

mere errors of law or simple abuses of judicial discretion

should not be the subject of judicial disciplinary proceed-

ings. The holding of the Harrod case was very narrow and

clearly does not stand as authority for the proposition

posited, that the Commission may not interpret the Code

of Judicial Conduct in light of a federal constitutional

challenge.

In People ex rel. Judicial Inquiry Board v. Courts Com-

mission, 91 Ill. 2d 130, 435 N.E.2d 486 (1982), the Illinois

Supreme Court clarified Harrod and affirmatively stated:

The Courts Commission is the body with the

constitutional responsibility for applying the

Rules of Judicial Conduct to particular cases. We

conclude that its constitutional authority to hear

and determine disciplinary cases necessarily

includes the power to interpret the rules it

applies in deciding cases before it.

People ex rel. Judicial Inquiry Board, 435 N.E.2d at 488.

The Commission has also interpreted the Illinois Supreme

Court Rules in light of constitutional claims on more than

one occasion.! See Pincham v. Illinois Judicial Inquiry Board,

872 F.2d 1331, 1348 (7th Cir. 1989) (Appendix B, p. 15). It

would be anomalous to argue that the Commission could

not construe its own constitutional and statutory man-

date in light of federal constitutional principles. Cf. Ohio

Civil Rights Commission v. Dayton Christian Schools, 477

U.S. 619 (1986).

The petitioner’s argument that the District Court

mede an express finding that state procedure would not

afford a remedy for protection of his constitutional rights

is unsubstantiated. (Petition at p. 12). To the contrary, the

District Court in discussing the finality of the Commis-

sioners’ decisions held:

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 consti-

tutional arguments. (citation omitted)

Pincham v. Judicial Inquiry Board, 681 F. Supp. 1309, 1323

(N.D. Ill. 1988). (Appendix A, p. 26a).

The District Court went on to note:

That the members of the Courts Commission,

state court judges all [one Supreme Court Judge,

1 The Commission has considered constitutional chal-

lenges in judicial disciplinary hearings in the following cases:

In re Kaye, 1 Ill. Cts. Comm. 36 (1974); In Re Elward, 1 Ill. Cts.

Comm. 114 (1977); and, In Re Teschner, 2 Ill. Cts. Comm. 43

(1983).

8

two Appellate Court Judges and two Circuit Court

Judges. All selected by the Illinois Supreme Court],

have sworn to uphold the rights guaranteed by

the United States Constitution. The Court con-

cludes 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.

(emphasis added)

Pincham, 681 F. Supp. at 1324. (Appendix A, p. 27a).

Clearly, the Courts Commission provides an adequate

state forum where petitioner may invoke his constitu-

tional claims.

Ii.

THE PETITIONER HAS FAILED TO ESTABLISH

ANY EXCEPTION TO THE YOUNGER DOCTRINE.

The Seventh Circuit found that petitioner failed to

sustain his burden of demonstrating that the state pro-

ceeding was brought in bad faith or in an effort to harass

petitioner. It further determined that petitioner failed to

adequately plead a selective enforcement claim. The

Court stated:

We agree with the district court that Justice

Pincham has failed to establish, either in his

pleadings or his argument, that the Judicial

Inquiry Board and Courts Commission “were

‘using or threatening to use prosecutions,

regardless of their outcome, as instrumentalities tc

suppress speech.’ ” Collins, 807 F.2d at 101 (quo-

ting Sheridan v. Garrison, 415 F.2d 699, 706 (5th

Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct.

9

685, 24 L.Ed.2d 685 (1970) (emphasis in origi-

nal)). See Pincham, 681 F. Supp. at 1324. We are

also in agreement with the trial court that Jus-

tice Pincham’s allegations of selective prosecu-

tion are “sketchy at best and clearly insufficient

to make the requisite showing oi bad faith or

harassment.” Id. Even if we accept Justice

Pincham’s allegation that other judges engaged

in activity equivalent to his and were not disci-

plined, 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 favora-

bly than Justice Pincham as part of a campaign

that used prosecutions, regardless of outcome,

to suppress speech. Justice Pincham does not

make such allegations.

Pincham, 872 F.2d at 1350. (Appendix B, p. 17).

Petitioner alleges that the Seventh Circuit’s conclusion

was erroneous. He claims that his First Amended Com-

plaint did allege acts of harassment, bad faith and selec-

tive enforcement “with certainty and specificity.”

(Petition at p. 18).

In order to come within the bad faith exception to the

Younger abstention doctrine, this Court has held that a

plaintiff must demonstrate “proven harassment or pros-

ecutions undertaken by state officials in bad faith without

hope of obtaining a valid conviction. . . .” (emphasis added)

Perez v. Ledesma, 401 U.S. 82, 85 (1971).

Set forth at page 19 of the Petition is the entirety of

petitioner’s allegations regarding the bad faith question.

Petitioner has merely alleged that other judges partici-

pated in political events and that the Commission “has

not taken any action.” Petitioner did not allege that the

—

10

Judicial Inquiry Board or the Commission had any

knowledge of these actions, that any complaint had been

filed or even that an investigation was conducted by the

Board. Petitioner -does not allege that . - Commission

had any intention to harass him or that it acted in bad

faith with the intent of suppressing his right to free

speech. Thus, the First Amended Complaint is totally

devoid of any facts establishing such a claim.

inexplicably, petitioner concludes without founda-

tion that the Board and the Commission “admitted that

they were aware of other judges’ political activities.”

(Petition at p. 20). One combs the record in vain for any

such admission.

A close reading of petitioner’s allegations reveals

that, at best, petitioner has attempted to allege a case of

selective enforcement. This Court has been clear that such

a claim must be supported by a showing of “intentional

or purposeful discrimination.” Snowdon v. Hughes, 321

U.S. 1, 8 (1944). This Court has stated that “” . . . [T]he

conscious exercise of some selectivity in enforcement is

not in itself a federal constitutional violation.” Oyler v.

Boles, 368 U.S. 448, 456 (1962). The finding must be based

on an impermissible or arbitrary classification. Yet,

nowhere in his First Amended Complaint does petitioner

allege such deliberate discrimination. Nor could such an

allegation be made, as pointed out by the Seventh Circuit,

when petitioner cannot even ascribe any knowledge of

the alleged political activities of other judges to the

respondents.

In addition to the harassment exception to the Youn-

ger abstention doctrine, courts have carved out two other

11

exceptions to this doctrine. Younger abstention may not

apply when a litigant might suffer irreparable injury cre-

ating “an extraordinary pressing need for equitable

relief.” Kugler v. Helfant, 421 U.S. 117, 124-25 (1975). Such

irreparable injury, which provides a basis for the other

Younger exception, may be established by a showing that

the “challenged provision is flagrantly and patently vio-

lative of express constitutional prohibitions.” Moore v.

Sims, 442 U.S. at 423 (1979). Petitioner ‘cannot establish

either exception in this case.

He has attempted to establish irreparable injury by

arguing that the ongoing proceeding before the Commis-

sion might have an effect on his First Amendment rights.

A chilling effect on First Amendment rights, however, has

not been established as a sufficient basis to show irrepar-

able injury. Younger, 401 U.S. at 51. In addition, the Sev-

enth Circuit pointed out that a single state judicial

disciplinary proceeding is insufficient to demonstrate a

chilling effect on petitioner’s free speech rights. 872 F.2d

at 1350. (Appendix B, p. 18).

Nor can the mere contention that a statute is uncon-

stitutional on its face provide a basis for an injunction

against good faith efforts to enforce it. Younger, 401 US.

at 54. Here, it is possible that the Courts Commission may

construe the rules in a manner compatible with the Con-

stitution as petitioner himself has admitted. Petitioner

has, therefore, failed to establish that the rules in question

are “flagrantly and patently” unconstitutional.

No cognizable claim establishing any exception to the

Younger abstention doctrine has been shown by petitioner.

12

IV.

THE RULES OF JUDICIAL CONDUCT

ARE NOT UNCONSTITUTIONALLY VAGUE

Petitioner argues that the rules applied against him

are vague, uncertain and not specific. He asserts that the

term “political activity” is imprecise and does not give

judges adequate notice of the conduct which the rule

seeks to prohibit.

A civil statute violates due process only if it is vague

in all its applications. Hoffman Estates v. Flipside, Inc.,

Hoffman Estates, 455 U.S. 489, 495 (1982). The general rule

for determining vagueness is whether a person of ordi-

nary intelligence is given “a reasonable opportunity to

know what is prohibited so he may act accordingly.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). It is

also permissible to look at the class of individuals to

which the regulation is directed when determining

whether the statute is unconstitutionally vague. Matter of

Seraphim, 97 Wis. 2d 485, 294 N.W.2d 485, cert. denied, 449

U.S. 994 (1980). Hastings v. Judicial Conference of the United

States, 829 F.2d 91, 106 n. 59 (D.C. Cir. 1987), cert. denied,

108 S.Ct. 1487 (1988). In positing a vagueness argument, a

litigant may only challenge the conduct as applied to

him; he may not challenge the rule as it might be applied

to the conduct of third parties. Parker v. Levy, 417 U.S. 733,

756 (1974). See also United States v. Powell, 423 U.S. 87, 93

(1975).

Under the challenged rules, judges are prohibited

from engaging in “political activities.” This term is capa-

ble of being understood by judges who are trained in

interpreting legal requirements. The disciplinary rules in

13

question were specifically adopted by the Illinois

Supreme Court to regulate conduct by judges. It is unrea-

sonable to conclude that the term “political activity” is

vague. Certainly, it cannot be said to be vague in all its

applications.

As demonstrated above, interpretation of the rules in

question, in light of petitioner’s activity, should be made

by the tribunal designated by the Illinois Constitution to

hear this matter. Numerous courts have upheld removal

of judges based upon the same or similar language as that

challenged by petitioner as imprecise.2 The language at

issue is not constitutionally vague.

V.

THE YOUNGER ABSTENTION DOCTRINE APPLIES

TO CASES INVOLVING FIRST AMENDMENT

CHALLENGES. THERE IS NO CONFLICT

AMONG THE CIRCUITS.

The petitioner’s challenge to Younger abstention must

stand or fall on whether the state action is the type of

proceeding to which Younger applies. New Orleans Public

Service, Inc. v. Council of City of New Orleans, ___ U.S. __,

109 S.Ct. 2506, 2517 (1989). The mere assertion of a

2 See, e.g., Matter of Randolph, 101 N.J. 425, 502 A.2d 533

(1986) (upheld “political activity” as a basis for removal of

judges); Halleck v. Berliner, 427 F. Supp. 1225, 1240 (D.D.C.

1977) (upheld the removal of judges for conduct which is

prejudicial to the administration of justice as not unconstitu-

tionally vague); Napolitano v. Ward, 317 F. Supp. 79 (N.D. IIl.

1970) (“for cause”); Keiser v. Bell, 332 F. Supp. 608 (E.D. Pa.

1971) (removal of magistrate for bringing judicial office into

“disrepute” ).

14

substantial constitutional challenge to a state action will

not alone compel the exercise of federal jurisdiction. Id. at

- 2516. Here, petitioner argues that recent opinions of this

Court have constricted the application of Younger absten-

tion in cases involving First Amendment challenges.

None of the cases cited by petitioner overcomes the

strong public policy considerations enunciated in Youn-

ger. This Court has consistently held that federal courts

must not interfere with ongoing state proceedings.

In City of Houston, Texas v. Hill, 482 U.S. 451, 467

(1987), the city urged this Court to abstain for reasons

underlying its decision in Railroad Commission of Texas v.

Pullman Company, 312 U.S. 496 (1941), rather than based

on Younger abstention.? In City of Houston, a First

Amendment overbreadth analysis was applied by the

Court. The pivotal question in determining whether to

abstain under Pullman was whether the statute was:

Fairly subject to an interpretation which will

render unnecessary or substantially modify the

federal constitutional question.

City of Houston, 482 U.S. at 468.

In this case, petitioner conceded and the courts below

found that the Supreme Court Rules involved were sus-

ceptible of a construction consistent with First Amend-

ment principles. Pincham v. Illinois Judicial {nquiry Board,

3 The Courts Commission also sought to dismiss the com-

plaint in the District Court under Pullman abstention princi-

ples. That court held that since the principles of Younger

abstention were controlling, there was no need to reach the

applicability of the Pullman doctrine. (Appendix A, p. 15a).

15

681 F. Supp. at 1325 (Appendix A, p. 30a) Pincham v.

Judicial Inquiry Board, 872 F.2d at 1350 (Appendix B, p.

19).

A First Amendment facial challenge to a statute

which gave unbridled authority to a city mayor to issue

or deny a license for newspaper dispensing devices was

at issue in City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988). The Court concluded that the news-

paper could facially challenge the overly restrictive

licensing ordinance because of the possibility of signifi-

cant self censorship involving freedom of the press. This

case has no relevance to an analysis of abstention under

Younger principles because there was no state proceeding

at issue.

Fort Wayne Books, Inc. v. Indiana, __ U.S. __, 109

S.Ct. 916 (1989), involved jurisdiction of this Court under

28 U.S.C. § 1257, limiting review to “final judgments or

decrees” of state courts in the context of criminal cases.

Id. at 922. In finding an exception to the finality rule

under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975),

this Court held:

Petitioners’ challenge to the constitutionality of

the use of RICO statutes to criminalize patterns

of obscenity offenses calls in question the legit-

imacy of the law enforcement practices of sev-

eral states as well as the Federal Government.

(footnote omitted) Resolution of this important

issue of the possible limits the First Amendment

places on state and federal efforts to control

organized crime should not remain in doubt.

Fort Wayne Books, Inc., at 109 S.Ct. 923.

16

Again, Younger abstention was not relevant because

there was no state proceeding involved.

Finally, the case of Sullivan v. City of Pittsburgh, 811

F.2d 171 (3rd Cir. 1987), cert. denied, 108 S.Ct. 148 (1987),

creates no conflict among the circuits. In Sullivan, the

Third Circuit distinguished the comity issues underlying

Younger because “where the plaintiff in a federal action is

not a party to the state proceeding, Younger concerns

‘about federal adjudication do not arise.” Sullivan, Id. at

177. The Seventh Circuit also distinguished Sullivan

because it did not find a sufficient basis for “ ... an

extraordinary pressing need for immediate equitable

relief.” (Appendix B, p. 19).

Therefore, petitioner presents no support for his

argument that this Court has recently constricted applica-

tion of Younger abstention principles in First Amendment

challenges. Further, there is no conflict among the

circuits. ‘

Abstention under Younger is clearly applicable here

because of the vital state interests involved in judicial

disciplinary proceedings. The notion of comity remains

unchallenged and this Court’s policy against federal

intervention absent extraordinary circumstances should

be applied to the facts of this case.

Aap.

aA

—

a ee

17

CONCLUSION

Because petitioner

thy of plenary review,

Court to deny the pet

* Counsel of Record

has not identified any issue wor-

respondent respectfully urges this

ition for writ of certiorari.

Respectfully submitted,

Nett F. HarticAN

Attorney General, State of Illinois

Rosert J. Ruiz

Solicitor General, State of Illinois

James R. CarRRo.*

MOosHE JAcosius

Assistant Attorneys General

100 West Randolph Street,

13th Floor

Chicago, Illinois 60601

(312) 814-4499

Counsel for Respondents

Illinois Courts Commission

and its Members