# Appendix — Levin v. Attorney Registration & Disciplinary Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1360%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1020

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1360%3A2. Public record. Not legal advice.