Appendix — Levin v. Attorney Registration & Disciplinary Commission

App. 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 95-1951

MARSHALL LEVIN,

Plaintiff-Appellant,

VU.

ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION

OF THE SUPREME CouRT OF ILLINOIS and

Mary Rosinson, Administrator of the Attorney

Registration and Disciplinary Commission

of the Supreme Court of Illinois,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 94 C 7667—Suzanne B. Conlon, Judge

ARGUED SEPTEMBER 29, 1995—DeEcIDED JANUARY 17, 1996

Before CUMMINGS, FLAUM, and MANIoy Circuit Judges.

FLAUM, Circuit Judge. The plaintiff, Marshall A. Levin,

claims that the Attorney Registration and Disciplinary

Commission of Illinois (“the ARDC’’) and Mary Robinson,

the ARDC administrator, instituted unconstitutional pro-

ceedings to revoke his license to practice law. The plain-

tiff filed a § 1983 suit in federal court, alleging that the

ARDC utilized various Illinois Supreme Court Rules in

violation of the United States Constitution, and requesting

App. 2

declaratory, injunctive, and monetary relief. The district

court dismissed all six counts of the plaintiff's complaint

under Fed. R. Civ. P. 12(b), and the plaintiff appealed.

Finding that the district court lacked subject-matter juris-

diction to entertain any of the plaintiff's claims, we affirm

the district court’s decision to dismiss the suit.

Z

The pertinent facts in this appeal are not disputed. On

March 26, 1993, Robinson filed a twelve count complaint

before the Hearing Board of the ARDC, alleging that

Levin violated the Illinois Supreme Court Rules and the

Illinois Code of Professional Responsibility through various

instances of fraudulent and unprofessional conduct. After

holding a two-day trial the three-member panel of the

Hearing Board recorded its report and recommendation

on September 7, 1993. This report found that Robinson

had proven all twelve counts of the complaint by clear

and convincing evidence and recommended that Levin be

disbarred.!

On November 1, 1993, Levin filed exceptions to the re-

port and recommendation of the Hearing Board with the

Review Board. He did not allege the unconstitutionality

' Tilinois vo Court Rule 753 delineates the procedures that

the Illinois Supreme Court follows for attorney disciplinary pro-

ceedings. The age ay = begin with an investigation by an In-

quiry , which then may vote that a complaint be filed against

the attorney with the yee: Hemyag Once a complaint is filed

with the Hearing Board, it conducts an evidentiary hearing, makes

findings of fact and conclusions of fact and law, and proposes a

recommendation regarding discipline. The attorney or the adminis-

trator may file exceptions to the report and recommendation of

the Hearing Board with a Review Board, which approves or re-

jects the Hearing Board’s report and recommendation. Either

party may then petition the Supreme Court for leave to file ex-

ceptions to the report and recommendation of the Review Board.

r the Illinois Supreme Court considers and rules on the peti-

tion, it enters a order of discipline, unless it accepts the case

for further consideration.

App. 3

of any Supreme Court Rules before the Review Board.

After bri and oral argument, the Review Board filed

its report and recommendation on August 25, 1994, which

concurred with the Hearing Board that Levin should be

disbarred.

On September 27, 1994, Levin filed a pro se motion for

a supervisory order in the Illinois Supreme Court, pur-

suant to Illinois Supreme Court Rule 383.? In his motion,

Levin alleged that Rule 764(b), which prohibits a disci-

plined attorney from occupying an office where the prac-

tice of law is conducted, violated the due process clauses

of the United States and Illinois Constitutions. He also

claimed that the ARDC’s use in his disciplinary proceed-

ings of the procedures embodied in the current Rule 753,

which was adopted after the date of his alleged miscon-

duct, violated his constitutional rights. Levin requested

that the Illinois Supreme Court order the ARDC to con-

duct his disciplinary proceedings constitutionally. After

reviewing Levin’s motion and the ARDC’s objections, the

Illinois Supreme Court denied the motion for a super-

visory order on October 28, 1994.

On September 29, 1994, while his motion for a super-

visory order was pending, Levin petitioned the Illinois

Supreme Court for leave to file exceptions to the Review

Board’s report and recommendation. However, Levin did

not raise any constitutional arguments in his petition. On

Janu 25, 1995, the Illinois Supreme Court denied the

plaintiff's petition for leave to file exceptions, adopted the

report and recommendation of the Review Board, and en-

tered a final order disbarring Levin. Imposing reciprocal

discipline, the United States District Court for the North-

ern District of Illinois has disbarred Levin retroactive to

January 25, 1995.

2 Rule 383 provides that “{a)] motion requesting the exercise of

the Supreme Court’s supervisory authority shall be supported by

explanatory suggestions and shall contain or have attached to it

the lower court records or other pertinent material that will fully

present the issues... .” Il. Sup. Ct. R. 383(a) (1995).

App. 4

All six counts of Levin’s federal complaint allege that

the disciplinary proceedings that were used to revoke his

law license violated the United States Constitution. Seek-

ing declaratory and injunctive relief, Counts I and II as-

sert that the disci iplinary proceedings violated Levin’s due

process and equal protection rights by forcing him to

abandon his federal bankruptcy practice. Count III alleges

that the application of Illinois Supreme Court Rules 753

and 764(b) to Levin’s disciplinary proceedings violated the

due process and ex post facto clauses of the Constitution.

Count IV requests five million dollars in damages for the

defendants’ prosecution of Levin in the allegedly unconsti-

tutional disciplinary proceedings. Count V contends that,

given the unconstitutional disciplinary proceedings against

Levin, the defendants’ imposition of costs upon Levin for

those proceedings is unconstitutional. Finally, Count VI

asserts that the application of Illinois Supreme Court Rule

771 to Levin’s disciplinary proceedings deprived Levin of

equal protection by failing to provide clear guidelines on

appropriate sanctions.

After Levin’s disciplinary proceedings had been termi-

nated, the defendants moved the district court to dismiss

the complaint, arguing that the district court lacked sub-

ject-matter jurisdiction, res judicata barred Levin’s claims,

and the defendants were entitled to absolute immunity

from the claim for damages. The district court ruled that,

under the Rooker-Feldman doctrine, it lacked subject-

matter jurisdiction over Counts I, II, III, and V because

similar claims were raised before the Illinois Supreme

Court in Levin’s Rule 383 motion. However, the district

court took jurisdiction over Count VI on the ground that

Levin did not raise this claim before the Illinois Supreme

Court. The court also addressed the merits of Count IV

without referencing Rooker-Feldman, apparently as a

result of the ARDC’s decision not to argue that the dis-

trict court lacked jurisdiction over this count. After

reaching the merits, the district court dismissed Count

IV on absolute immunity grounds and held that Count

VI was barred by res judicata.

App. 5

Il.

We must first examine whether the district court had

subject-matter jurisdiction to decide this case. Subject-

matter jurisdiction cannot be waived and may be con-

tested by a party or raised swa sponte at any point in

the proceedings. Hawxhurst v. Pettibone Corp., 40 F.3d

175, 179 (7th Cir. 1994). The Rooker-Feldman doctrine dic-

tates that federal district courts lack jurisdiction to review

decisions of state courts. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker

v. Fidelity Trust Co., 263 U.S. 418, 415 (1923). This limita-

tion on federal court jurisdiction stems from 28 U.S.C. -

§ 1257, which provides “{flinal judgments . . . rendered

by the highest court of a state . . . may be reviewed by

the Supreme Court .. . .” Feldman construed this statute

as preventing any federal court except the Supreme Court

from reviewing final judgments of state courts. 460 U.S.

at 476. A litigant cannot obtain collateral review of a state

court judgment in federal district court absent specific

congressional authorization. See, e.g., 28 U.S.C. § 2241

(habeas corpus).

The Supreme Court in Feldman clarified what consti-

tutes impermissible appellate review by distinguishing be-

tween general challenges to state bar rules and challenges

to specific decisions of state courts:

United States district courts . . . have subject-matter

jurisdiction over general challenges to state bar rules,

promulgated by state courts in nonjudicial proceed-

ings, which do not require review of a final state-

court judgment in a particular case. They do not have

jurisdiction, however, over challenges to state-court

decisions in particular cases arising out of judicial pro-

ceedings even if those challenges allege that the state

court’s action was unconstitutional.

460 U.S. at 486. The claims raised in district court need

not have been argued in the state judicial proceeding for

them to be barred by the Rooker-Feldman doctrine. Feld-

man, 460 U.S, at 483-84 n. 16; Wright v. Tackett, 39 F.3d

App. 6

155, 157 (7th Cir. 1994), cert. denied, 115 S. Ct. 1100

(1995); Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993),

cert. denied, 114 S. Ct. 694 (1994). A district court engages

in impermissible appellate review when it hears claims

that are “inextricably intertwined” with the state court

decision. Feldman, 460 U.S. at 483-84 n. 16; Wright, 39

F.3d at 157. Along those lines, we have distinguished be-

tween plaintiffs who claim their injuries are directly at-

tributable to an erroneous state court decision and plain-

tiffs who claim injury independent of any state court judg-

ment. See Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir.

1995); Homola v. McNamara, 59 F.3d 647, 650 (7th Cir.

1995); GASH Associates v. Village of Rosemont, 995 F.2d

726, 728 (7th Cir. 1993). We have also held that claims

for relief are barred by Rooker-Feldman if upholding the

claims and granting relief would effectively void the state

court ruling. Landers Seed Co. v. Champaign Nat'l Bank,

15 F.3d 729, 732 (7th Cir. 1994), cert. denied, 115 S. Ct.

62 (1994). However the question is framed, the underlying

inquiry remains whether “the district court is in essence

being called upon to review the state-court decision.” Feld-

man, 460 U.S. at 483-84 n. 16.

We have previously held that Illinois attorney discipli-

nary proceedings are judicial in nature. Greening v.

Moran, 953 F.2d 301, 304 (7th Cir. 1992), cert. denied, 113

S. Ct. 77 (1992); Grossgold v. Supreme Court of Illinois,

557 F.2d 122, 125 (7th Cir. 1977). Indeed, Levin concedes

that his disbarment involved judicial proceedings. Levin

argues, however, that his federal claims are not “inex-

tricably intertwined” with his disciplinary proceedings

because he only raised his constitutional claims before the

Illinois Supreme Court in his motion for a supervisory

order, which he contends was not a judicial proceeding.

Although we question the validity of Levin’s contention

that the Illinois Supreme Court’s supervisory authority

is not a judicial power, the procedural devices employed

by Levin need not concern us. The fact that Levin raised

his constitutional claims in a Rule 383 motion rather than

through Rule 753’s disciplinary procedures cannot be dis-

App. 7

positive, given that claims brought in federal court may

be “inextricably intertwined” with a state court decision

despite never having been raised in state court. See Feld-

man, 460 U.S. at 483-84 n. 16; Wright, 39 F.3d at 157;

Ritter, 992 F.2d at 753. We must examine whether Levin

has effectively asked the district court to review the IIli-

nois Supreme Court’s judgment to disbar him.

We read all six counts of Levin’s complaint as request-

ing the district court to review the Illinois Supreme

Court’s decision to disbar Levin. The gravamen of Levin’s

entire complaint is that his disciplinary proceedings were

unconstitutional. All of Levin’s claimed injuries stem from

the application of allegedly unconstitutional Illinois Su-

preme Court Rules to his disciplinary proceedings, and

he seeks relief to redress these particular injuries. Indeed,

in his reply brief, Levin admits that his complaint is

founded upon the fact that “the [disciplinary] hearings pro-

ceeded on, and punished on, unconstitutional rules and

usage.’’? Levin fails to allege any injury independent of

the Illinois Supreme Court’s disciplinary hearings and

its final decision to disbar him. Levin has thereby im-

permissibly attacked the Illinois Supreme Court’s judg-

ment itself in federal district court.4 See GASH Associ-

ates, 995 F.2d at 728. Indeed, we have previously held

3 Revealingly, Levin’s federal complaint contains similar claims

to those found in his Rule 383 motion, which clearly requested

that the Illinois Supreme Court review Levin’s disciplinary pro-

ceedings.

* Although Count IV of Levin’s complaint seeks damages for the

ARDC’s allegedly unlawful prosecution of him, this claim is merely

another way to contest his disciplinary proceedings and the Illinois

Supreme Court’s decision to fm him. As such, this claim is

barred by Rooker-Feldman. See Homola, 59 F.3d at 651 (holding

district court lacked jurisdiction over claim seeking damages for

execution of inspection order); Landers Seed Co., 15 F.3d at 732

(holding district court lacked jurisdiction over claim seeking dam-

ages for property federal plaintiff had surrendered because of state

court judgment).

App. 8

that claims very similar to Levin’s were blocked from con-

sideration by the Rooker-Feldman doctrine. Leaf v. Su-

preme Court of Wisconsin, 979 F.2d 589, 598-600 (7th Cir.

1992) (holding district court lacked jurisdiction over claims

that disciplinary proceeding applied unconstitutional state

bar rules and disciplinary board improperly investigated

and prosecuted plaintiff), cert. denied, 113 S. Ct. 2417

(1993). Because Levin does not present general challenges

to the Illinois Supreme Court Rules, but rather contests

his disciplinary proceedings, his claims are “inextricably

intertwined” with the Illinois Supreme Court’s decision

to disbar him. See Feldman, 460 U.S. at 486-87. The

district court therefore lacked subject-matter jurisdiction

over the complaint.

Even if we strained to read the complaint as posing only

general challenges to the Illinois Supreme Court Rules,

such general challenges would have been mooted by Levin’s

disbarment. If his disbarment stands, Levin would no

longer have a personal stake in a general declaration that

the Illinois bar rules, which only apply to lawyers, are

unconstitutional.5 Because Levin could not establish more

than a hypothetical possibility that the Illinois bar rules

would be applied to him in the future, any general chal-

lenges that he presented would not be justiciable under

Article III of the Constitution. See City of Los Angeles

v. Lyons, 461 U.S. 95, 105 (1983); Geraghty, 445 U.S. at

396; Harris v. Board of Governors of Fed. Reserve Sys.,

938 F.2d 720, 721 (7th Cir. 1991). Levin can only demon-

strate a personal stake in the constitutionality of the bar

rules by attacking his disbarment. Thus, the justiciability

5 We may conceptualize the mootness doctrine as “ ‘the doctrine

of standing set in a time frame: The requisite personal interest

that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).’”’ United States

Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting

Monaghan, Constitutional Adjudication: The Who and When, 82

Yale L.J. 1363, 1384 (1973)).

App. 9

of Levin’s complaint depends entirely on the allegations

that his disciplinary proceedings injured him. This rein-

forces our conclusion that Levin’s claims are “inextricably

intertwined” with the Illinois Supreme Court’s decision.

Landers, 15 F.3d at 732; GASH Associates, 995 F.2d at

728; Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991).

ITI.

The district court dismissed four counts of the complaint

on jurisdictional grounds, but reached the merits of the

remaining two counts. As stated in the preceding analysis,

the district court lacked jurisdiction over all six counts

of the plaintiff's complaint. The district court’s judgment

is therefore modified to make the dismissal of the complaint

solely jurisdictional, and as so modified is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 10

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

February 20, 1996

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. JoEL M. FLAuM, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

MARSHALL A. LEVIN, fe

Plaintiff-Appellant,

No. 95-1951 Vv.

ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION, of the Supreme Court of Illinois and

MARY ROBINSON, Administrator of the Attorney

Registration and Disciplinary Commission of the Supreme

Court of Illinois,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 94 C 7667—Suzanne Conlon, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause on January 31, 1996, by plaintiff-appellant, no judge

in active service has requested a vote thereon, and all

of the judges on the original panel have voted to deny

a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing and suggestion for rehearing in banc be, and the same

is hereby DENIED.

App. 11

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS

Judge: SUZANNE B. CONLON

Case Number: 94 C 7667 Date: January 19, 1995

Case Title: Marshall A. Levin v.

Attorney Registration and Disciplinary

Commission of The Supreme Court

xx Kk He

(10) & [Other docket entry]

Plaintiff Marshall A. Levin’s petition for prelim-

inary injunction [2-1] is denied. (See reverse for

details.)

/s/ Suzanne B. Conlon

(11) & [For further detail see K order on the reverse

of (J order attached to the original minute

order form.]

x*k*eK

ORDER

Marshall A. Levin sues the Attorney Registration and

Disciplinary Commission of the Supreme Court of Illinois

(“the ARDC”) and ARDC administrator Mary Robinson

under 42 U.S.C. § 1983, alleging that ARDC proceedings

to revoke his law license violate his right to due process

of law and equal protection of the laws. Levin moves for

a preliminary injunction barring defendants from submitting

a disciplinary review board report to the Illinois Supreme

Court and preventing defendants from taking any action

against Levin or his license to practice law.

The party seeking a preliminary injunction must initially

demonstrate (1) a likelihood of success on the merits, and

(2) that no adequate remedy at law exists and that the

App. 12

movant will suffer “irreparable harm” if preliminary relief

is denied. Once this initial showing is made, the court

must (3) balance the irreparable harm suffered by the

moving party if relief is denied against the harm suffered

by the non-moving party if relief is granted, and (4) con-

sider the impact on the public interest. Zorzi v. County of

Putnam, 30 F.3d 885, 895 (7th Cir. 1994); Abbott Labora-

tories v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir.

1992).

It appears unlikely that this court will be able to ad-

dress the merits of Levin’s claims. Levin seeks to enjoin

ongoing state bar disciplinary proceedings before the IIli-

nois Supreme Court has had an opportunity to review the

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

States Supreme Court ruled that principles of comity and

federalism should lead a federal court to abstain from inter-

fering with state proceedings in which the state has a

compelling interest. The Supreme Court subsequently recog-

nized that a state’s interest in bar disciplinary proceedings

is sufficiently compelling to warrant Younger abstention.

Middlesex County Ethics Committee v. Garden State Bar

Assn., 457 U.S. 423, 4385 (1982).

Levin’s petition does not suggest any reason why Younger

would not prevent this court from reaching the merits of

his claims.’ It therefore appears unlikely that Levin’s suit

will succeed on the merits. Accordingly, Levin’s petition

for preliminary injunction must be denied.

/s/ Suzanne B. Conlon

' Younger abstention will not apply if the plaintiff has no oppor-

a to raise constitutional arguments in the state p gs.

lesex County Ethics Commission, 457 U.S. at 435. However,

ye provides no reason to conclude that he will be unable to

present his constitutional claims to the Illinois Supreme Court,

which has yet to rule on the ARDC’s recommendations.

App. 13

[Filed January 30, 1995]

At a Term of the Supreme Court, begun and held in

Springfield, on Monday, the ninth day of January, 1995.

Present: Michael A. Bilandic, Chief Justice

Justice Benjamin K. Miller

Justice Charles E. Freeman

Justice Mary Ann G. McMorrow

Justice James D. Heiple

Justice Moses W. Harrison II

Justice John L. Nickels

On the 25th day of January, 1995, the Supreme Court

entered the following judgment:

In re: )

)

M.R. 10551 ) Atty. Reg. &

) Disc. Comm.

Marshall Aaron Levin ) 91 CH 597

4647 Davis St. )

Skokie, IL 60076-1579 )

IT IS ORDERED that the petition by respondent Mar-

shall Aaron Levin for leave to file exceptions to the report

and recommendation of the Review Board is denied. The

report and recommendation of the Review Board is ap-

proved and confirmed. Respondent is disbarred.

As the Clerk of the Supreme Court of the State of IIli-

nois and keeper of the records, files and Seal thereof, |

certify that the foregoing is a true copy of the final order

entered in this case.

App. 14

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed the

Seal of said Court this 25th day of

January, 1995.

/s/ Juleann Hornyak, Clerk,

Supreme Court of the

State of Illinois

App. 15

[Filed October 28, 1994]

No. 77877

IN THE

SUPREME COURT OF ILLINOIS

MARSHALL A. LEVIN, )

)

Movant, )

) Motion for

vs. ) Supervisory Order

)

ATTORNEY REGISTRATION and )

DISCIPLINARY COMMISSION, )

)

Respondent. )

ORDER

This cause coming to be heard on the motion of the

movant, objections having been filed by the respondent,

and the court being fully advised in the premises;

IT IS ORDERED that the motion for supervisory order

is denied.

App. 16

[Dated March 20, 1995]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARSHALL A. LEVIN, =

Plaintiff,

Vv.

ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION OF THE SUPREME COURT OF ILLINOIS

and MARY ROBINSON, Administrator of The Attorney

Registration and Disciplinary Commission of The Supreme

Court of Illinois,

Defendants.

No. 94 C 7667—Suzanne B. Conlon, Judge.

MEMORANDUM OPINION AND ORDER

Marshall A. Levin sues the Attorney Registration and

Disciplinary Commission of the Supreme Court of Illinois

(“the ARDC”) and ARDC administrator Mary Robinson

under 42 U.S.C. § 1983 (“section 1983”). Levin alleges that

ARDC proceedings to revoke his law license violated the

United States Constituticn. The complaint contains six

counts. Defendants move to dismiss Counts I, II, III, V,

and VI of the complaint for lack of subject-matter juris-

diction under Fed. R. Civ. P. 12(bX1) and on res judicata

grounds. Defendants move to dismiss Count IV for failure

to state a claim upon which relief can be granted under

Fed. R. Civ. P. 12(bX6).

iin clita

acetic tiniest 8s no scence Pe oat ae

App. 17

BACKGROUND

I. The Complaint

For purposes of a motion to dismiss, the court accepts

all well-pleaded allegations in the complaint as true. See,

e.g., Dawson v. General Motors Corp., 977 F.2d 369, 372

(7th Cir. 1992). Levin is presently an attorney practicing

in Cook County, Illinois. Complaint ¢ 1. For the most part,

Levin practices before the United States Bankruptcy Court

for the Northern District of Illinois, Eastern Division. Jd.

q 2.

Levin is the subject of disciplinary proceedings initiated

by the Illinois ARDC. Complaint 43. The ARDC com-

plaint filed against Levin alleges ethics violations in 1988

and 1989. Id. The ARDC’s complaint was considered by

an Inquiry Board, a Hearing Board, and a Review Board

as required by Ill. Sup. Ct. Rule 758 (collectively “the

disciplinary proceedings”). Jd. Each Board issued a recom-

mendation that Levin’s law license be revoked. Jd. Defen-

dants supervised or participated in all aspects of the dis-

ciplinary proceedings. Jd.

The complaint’s seven counts challenge the disciplinary

proceedings on various constitutional grounds. Count I

seeks declaratory relief, asserting that the disciplinary

proceedings threaten to deprive Levin of his property

without due process or equal protection of the law insofar

as they might require him to abandon his law offices and

his bankruptcy practice in the federal courts. Count II

asserts the same claim contained in Count I, requesting

injunctive relief. Count III contends that Levin’s dis-

ciplinary proceedings violated the due process and ex post

facto clauses of the United States Constitution. Count III

asserts that Levin’s rights under Ill. Sup. Ct. Rule 753

(“Rule 753”) were altered between the time of his alleged

App. 18

ethical violations and the time of the disciplinary proceed-

ings noting that:

(1) Rule 753 formerly provided for an Inquiry Board

composed of lawyers alone while it now permits one

non-lawyer to serve for every two lawyers;

(2) Rule 753 formerly provided a Review Board of

nine members, five of whom constituted a quorum

but now provides for a three-person Review Board,

two of whom constitute a quorum; and

(3) Rule 753 formerly provided an unqualified right

to file exceptions to a Review Board order with the

Illinois Supreme Court but now provides only that

an attorney may petition for leave to file exceptions.

Count V asserts that the ex post facto application of

amended Rule 753 renders any imposition of costs upon

Levin under Ill. Sup. Ct. Rule 773 unconstitutional. Count

VI contends that Ill. Sup. Ct. Rule 771 is unconstitutional

because it fails to provide clear guidelines governing the

imposition of disciplinary sanctions. Finally, Count IV

asserts that defendants took actions “knowingly and in-

tentionally . . . to prosecute the plaintiff for alleged ethical

violations in total disregard of plaintiff's constitutional

rights”; Count IV seeks damages of $5,000,000.

II. Defendants’ submissions

Defendants submit nine exhibits in support of their mo-

tion to dismiss. The exhibits are certified copies of plead-

ings and orders entered in the disciplinary proceedings.

The materials are directly relevant both to defendants’

claim that this court lacks subject matter jurisdiction over

Levin’s action and to the claim that Levin’s suit barred

by res judicata. The submission of evidentiary materials

does not convert a motion to dismiss for lack of subject

— —i(<‘—~S

App. 19

matter jurisdiction into one for summary judgment. Barn-

hart v. United States, 884 F.2d 295, 296 (7th Cir. 1989),

cert. denied, 495 U.S. 957 (1990); Crawford v. United

States, 796 F.2d 924, 927-28 (7th Cir. 1986). The court is

: permitted to take judicial notice of a prior court action

to evaluate a motion to dismiss on grounds of res judicata.

; Mandarino v. Pollard, 718 F.2d 845 (7th Cir. 1983), cert.

denied, 469 U.S. 830 (1984). Levin does not dispute the

accuracy of the exhibits.

Defendants’ exhibits establish that Levin did not raise

any constitutional objections during the disciplinary pro-

ceedings or in his petition to the Illinois Supreme Court

for leave to file exceptions to the report and recommen-

dation of the ARDC Review Board. Def. Exs. 2-5, 8. How-

ever, on September 26, 1994, Levin filed a motion for

; supervisory order with the Illinois Supreme Court pur-

suant to Illinois Sup. Ct. R. 383 (“the Rule 383 motion’’).

Def. Ex. 6. In the Rule 383 motion, Levin asserted that

the disciplinary proceedings were procedurally defective

and raised due process and ex post facto objections to the

application of amended Rule 753. Def. Ex. 6. The Illinois

Supreme Court denied the Motion for Supervisory Order

on October 28, 1994. Def. Ex. 7.

Defendants’ exhibits also establish that the Illinois

Supreme Court entered final judgment in the disciplinary

proceedings after Levin filed his action in this court. On

January 25, 1995, the Illinois Supreme Court denied

Levin’s petition for leave to file exceptions to the Review

| Board report and disbarred Levin. Def. Ex. 9.

App. 20

DISCUSSION

I. Counts I, II, Ill, V, and VI.

A. Subject Matter Jurisdiction

Counts I, II, III, V, and VI assert that the disciplinary

proceedings were constitutionally deficient. Defendants

contend that the court lacks subject matter jurisdiction

over these counts under the Rooker-Feldman doctrine.

In Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923),

and again in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482 (1983), the United States

Supreme Court held that federal district courts lack juris-

diction to review the judicial decisions of the highest court

of a state. Under the Rooker-Feldman doctrine, a district

court does not have subject matter jurisdiction to review

challenges to a state bar proceeding if (1) the proceeding

was judicial in nature and (2) the claim in federal court

is so “inextricably intertwined” with the state proceeding

as to make consideration of the claim an impermissible

review of the state judicial proceedings. Leaf v. Supreme

Court of Wisconsin, 979 F.2d 589, 596 (1992), cert. denied,

113 S. Ct. 2417 (1993).

The state disciplinary proceedings are judicial in nature.

Attorney disciplinary proceedings are generally judicial.

Greening v. Moran, 953 F.2d 301, 305 (7th Cir.), cert.

denied, 113 S. Ct. 77 (1992). As alleged by Levin and es-

tablished in defendants’ exhibits, the disciplinary proceed-

ings applied laws already in existence to present and past

facts; these activities classify the proceedings as judicial.

Leaf, 979 F.2d at 597.

The claims raised in Counts I, II, III, and V are also

so “inextricably intertwined” with the disciplinary pro-

ceedings as to render any consideration of these counts

App. 21

by this court an impermissible review of the Illinois Su-

preme Court’s decision. In Counts I and II, Levin asserts

that the disciplinary proceedings deprived him of due proc-

ess; Levin’s Rule 383 motion contained a similar argu-

ment. In Counts III and V, Levin asserts that the ap-

plication of amended Rule 753 to his disciplinary proceed-

ings made both the proceedings themselves and any re-

sulting punishment unconstitutional; the Rule 383 motion

contained an identical claim. In denying Levin’s motion

for Supervisory Order, the Illinois Supreme Court re-

jected the constitutional challenges contained in Counts

I, II, III, and V. While Levin may seek review of the

Illinois Supreme Court’s decision by the United States

Supreme Court, the Rooker-Feldman doctrine prevents

this court from revisiting his claims.

Levin contends that he avoided “{nextricably intertwining”

his constitutional claims with the disciplinary proceedings

by raising them only in his Rule 383 motion. Levin argues

that this tactic kept his constitutional arguments “pure

and separate” from issues presented in the disciplinary

proceedings. Levin’s argument is meritless. Supervisory

orders under Rule 383 resolve issues in pending cases;

Rule 383 does not provide a mechanism for rendering ad-

visory opinions. People ex rel. Partee v. Murphy, 133 Tl.

2d 402, 550 N.E.2d 998, 1003 (1990). Indeed, Levin’s Rule

383 motion identified the disciplinary proceedings as the

pending case over which the Illinois Supreme Court

should exercise supervisory authority. Def. Ex. 6 at 1,

5-6. The Rule 383 motion was therefore inseparable from

the disciplinary proceedings. Accordingly, the court lacks

subject matter jurisdiction over Counts I, II, III, and V.

App. 22

B. Res Judicata

Count VI asserts that Illinois Supreme Court Rule 771

provides inadequate guidelines for the imposition of dis-

ciplinary sanctions, rendering the rule unconstitutional on

its face. The Rule 383 motion did not contain any refer-

ence to Rule 771, and there is no evidence that the IIli-

nois Supreme Court ever considered this claim; the Rooker-

Feldman doctrine therefore does not prevent this court

from considering Count VI. However, Count VI is barred

by the doctrine of res judicata.

Under the doctrine of res judicata, a final judgment on

the merits of an action precludes the parties from reliti-

gating issues that were or could have been raised in that

action. Leaf, 979 F.2d at 600. In applying res judicata,

‘a federal court must give to a state-court judgment the

same preclusive effect as would be given that judgment

under the law of the State in which the judgment was

rendered.” Jd. (citing Migra v. Warren City School

District Board of Ed., 465 U.S. 75, 81 (1984)).

Under Illinois law, the doctrine of res judicata applies

when there is (1) a final judgment on the merits in an

earlier suit; (2) an identity of parties in the earlier and

later suits; and (3) an identity of causes of action in the

two suits. Yaw v. Beeghly, 109 Ill. App. 3d. 627, 440

N.E.2d 1066, 1069 (1982). A final judgment is conclusive

not only as to those matters actually litigated, but also

as to claims that could have been decided in the earlier

suit. Id.; Torres v. Rebarchak, 814 F.2d 1219, 1222 (7th

Cir. 1987).

The elements of res judicata are met in this case. The

Illinois Supreme Court’s January 25, 1995 order denying

Levin’s petition for leave to file exceptions and revoking

Levin’s law license constitutes a final judgment on the

App. 23

merits in the disciplinary proceedings.! The parties are

identical: Robinson and the ARDC initiated the discipli-

nary proceedings against Levin; Levin sues Robinson and

the ARDC in the present suit. Finally, there is an iden-

tity of claims. Levin’s Rule 383 motion raised the same

constitutional challenges presented in Counts I, II, III,

and V of his present suit.

The claims contained in Counts I, II, III, and V were

litigated in the disciplinary proceedings; these claims

would therefore be res judicata even if the court had sub-

ject matter jurisdiction over them. Levin did not raise

the constitutional challenge to Rule 771 found in Count

VI during the disciplinary proceedings. However, Levin

is precluded from raising this claim because the claim

could have been litigated in the disciplinary proceedings.

Illinois attorney disciplinary proceedings permit a lawyer

to challenge both the constitutionality of disciplinary rules

and the adequacy of disciplinary proceedings. See, e.g., In

re Doyle, 144 Ill. 2d 451, 581 N.E.2d 669 (1991) (due proc-

ess challenge to disciplinary hearing); In re Samuels, 126

Ill. 2d 509, 535 N.E.2d 808 (1989); (ex post facto challenge

of disciplinary rule). Because Levin had the opportunity

to present his constitutional challenge to Rule 771 dur-

ing the disciplinary proceedings, his failure to do so

precludes Levin from raising the claim in Count VI of

* Levin contends that no “final judgment” was reached as to his

constitutional claims because the denial of the Rule 383 motion

was not a final order. Levin’s argument incorrectly assumes that

the Rule 383 motion is separable from the underlying disciplinary

proceedings. Because the Rule 383 motion was part and parcel of

the discipli proceedings, the Illinois Supreme Court’s January

25 order finally disposed of any issues raised in the Rule 383

motion.

App. 24

his present complaint. Count VI is therefore properly dis-

missed on res judicata grounds.

Il. Count IV

Count IV asserts that defendants instituted the discipli-

nary proceedings “knowingly and intentionally . . . to

prosecute the plaintiff for alleged ethical violations in total

disregard of the plaintiff's constitutional rights” and seeks

monetary damages of $5,000,000. Defendants contend that

Count IV fails to state a claim because defendants are

entitled to immunity from damages under section 1983.

The ARDC and its staff function as agents of the IIli-

nois Supreme Court in administering attorney disciplinary

proceedings. In re Mitan, 75 Ill. 2d 118, 387 N.E.2d 278,

cert. denied, 444 U.S. 916 (1979). The ARDC and its per-

sonnel are immune from suits for damages under section

1983 based on the adjudication or prosecution of attorney

disciplinary proceedings. Lawline v. American Bar Ass’n,

956 F.2d 1378, 1385 (7th Cir. 1992), cert. denied, 114 S.

Ct. 551 (1993); Kissell v. Bresklow, 579 F.2d 425, 430 (7th

Cir. 1978).

Levin notes that judicial officers are not immune from

suit for declaratory or injunctive relief when promulgating

a code of conduct for attorneys. Supreme Court of Virginia

v. Consumers Union of the United States, 446 U.S. 719,

736-37 (1980). Judicial officers are also not immune from

suit for damages when they perform purely administrative

functions such as hiring or firing court officers. Forrester

v. White, 484 U.S. 219, 229 (1988). However, the complaint

does not identify any instance where the ARDC or Robin-

son either performed purely administrative functions or

promulgated a code of conduct. Instead, Count IV clearly

alleges that defendant acted “‘knowingly and intentional-

App. 25

ly .. . to prosecute the plaintiff for alleged ethical viola-

tions.’ Because Count IV seeks to hold defendants liable

for damages for their actions in prosecuting Levin, defen-

dants are entitled to immunity under section 1983. Accord-

ingly, Count IV fails to state a claim against defendants.

CONCLUSION

Defendants’ motion to dismiss is granted. This action

is dismissed with prejudice.

ENTER:

/s/ Suzanne B. Conlon

Suzanne B. Conlon

United States District Judge

March 20, 1995