Appendix — Strasburg v. State Bar

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93-905 io

In The NOV 10 1993

SUPREME COURT OF THE UNITED STATES...

October Term, 1993 i. ** 7 tes Emm |

JOHN W. STRASBURG and

ELDERCARE ASSET PROTECTION PLANS, INC.,

Petitioners,

V.

STATE BAR OF WISCONSIN,

GERALD C. STERNBERG, et al,

Respondents.

PETITIONERS ’APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

TABLE OF APPENDIX CONTENTS

Opinion of the Court of Appeals la

Order of the Court of Appeals of

May 21, 1992 as to briefing schedule 25a

Order of the Court of Appeals of

July 21, 1992 allowing filing of

brief instanter 27a

Order of the Court of Appeals of

January 2, 1992 as to jurisciational

memoranda 29a

Opinion and Order of the District

Court of November 15, 1991 32a

Order of the District Court

of May 2, 1991 66a

Order of the District Court

of August 5, 1991 7la

Opinion and Order of the District

Court of April 9, 1991 73a

Order of the Court of Appeals of

August 12, 1993 denying rehearing 104a

Order of the District Court of

December 27, 1991 denying motion to

vacate 107a

Order of the District Court of

June 10, 1991 denying motion to

reconsider 115a

Judgment of the Court of Appeals 118a

Judgment of the District Court 120a

In the

United States Court of Appeals

For the Seventh Circuit

No. 91-3860

JOHN W. STRASBURG, and ELDERCARE ASSET

PROTECTION PLANS, INC.,

Plaintiffs-Appellants,

Va

STATE BAR OF WISCONSIN, GERALD C.

STERNBERG, JOHN A. BOLZ, JOHN E. SHANNON,

EDMUND MANYDEEDS, iit, JACQUELINE BOHMAN,

WILBUR W. WARREN III, MICHAEL WHERRY,

MICHAEL FAUERBACH, LISA LOTTE GAMELTOFT,

PATRICIA GROVE, ROBERT J. KAY, CELIA

SERAPHIM, and DIANE ZORE,

Defendants-Appel lees.

Appeal from the United States District

Court for the Western District of

Wisconsin

No. 91 C 018-Barbara B. Crabb,

Chief Judge.

ARGUED JANUARY 25, 1993

- DECIDED JULY 9, 1993

-la-

——

Before CUDAHY and FLAUM, Circuit Judges,

and MIHM, Chief District Judge.”

FLAUM, Circuit Judge. The plaintiffs,

John W. Strasburg and ElderCare Asset

Protection Plans, Inc. filed suit against

the State Bar of Wisconsin and thirteen

members of the Board of Attorneys

Professional Responsibility, alleging

that the defendants attempted to prevent

them from engaging in activities that

non-lawyers could perform, contrary to

the terms of Strasburg’s two-year

suspension from the practice of law. By

filing an untimely notice of appeal from

an adverse decision in district court,

and by refusing to refile once notified

of their mistake, the plaintiffs

The Honorable Michael M.

Mihm, Chief Judge of the Central

District of Illinois, sitting by

designation.

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entangled their appeal in a welter of

jurisdictional problems. We now dismiss

their appeal for want of jurisdiction.

On November 15, 1991, the district

court granted summary judgment in favor

of the defendants. The court determined

that one of the defendants, Gerald C.

Sternberg, was entitled to summary

judgment because his actions were

shrouded in “absolute quasi-judicial

immunity", while the remaining defendants

were entitled to the same result because

they were not served with process within

120 days of the filing of the complaint.

The district court issued an opinion and

order, the latter providing as follows:

"IT IS ORDERED that defendants’

motion for summary judgment is

GRANTED and this case is DISMISSED

with prejudice with respect to

defendant Gerald C. Sternberg, in

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his individual capacity, and without

prejudice with respect to the

remaining defendants. If plaintiffs

believe they have viable claims

against these defendants, they may

have until December 15, 1991, in

which to refile the action and

accomplish service. If plaintiffs

do not do so, the dismissal of the

complaint against remaining

defendants will be amended to be

with prejudice, and final judgment

will be entered in favor of all

defendants."

Strasburg v. State Bar of Wisconsin, No

91-C-018-C, slip op. at 18-19 (N.D.I1ll.

Nov. 15, 1991). The plaintiffs failed to

refile and reserve the remaining

defendants by December 15. Instead, on

December 16, they filed a flurry of

motions in the district court: (1) they

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moved for rehearing and reconsideration

of the November 15 decision, and for

leave to conduct additional discovery;

(2) they moved to refile their complaint

and asked the court to permit service on

the remaining defendants; (3) they filed

a notice of appeal from the November 15

decision.’

The district court responded on

December 27, 1991, with an order denying

all of the plaintiffs’ motions. The

court rejected the plaintiffs’ arguments

Both parties are under the

misconception that the notice

of appeal was filed on December

15, 1991. They were probably

misled by the date typed onto

the notice itself by the

plaintiffs, which reads

“December 15”. The pertinent

date of filing, however, is not

the date the litigant prepares

the document, but the date it

is filed in court. The clerk

of the court stamped “4:15

p.m., December 16, 1991,” on

their notice, and we measure

time from that day.

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for vacating its earlier decision. It

also commented that the motion to refile

the complaint against the remaining

defendants was too late; the plaintiffs

had missed the December 15 deadline and,

in any event, still had not accomplished

service on the remaining defendants. The

court therefore made good on its earlier

threat, dismissing the complaint with

respect to the other defendants with

prejudice, and directing the clerk of

court to enter final judgment

accordingly. On December 30, final

judgment was entered pursuant to Federal

Rule of Civil Procedure 58.

Because the plaintiffs appealed only

from the November 15 order, both the

district court and this court of appeals

have repeatedly questioned the validity

of their notice of appeal. In its

December 27 decision, the district court

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stated that the notice of appeal from the

November 15 order was a “nullity". The

district court explained: "First, there

is no final judgment (or its equivalent)

from which to take an appeal. Second,

even if there were such a judgment, a

notice of appeal has no effect if it is

filed before the disposition of

substantive post judgment motions."

Strasburg v. State Bar of Wisconsin, No.

91-C-018-C, slip op. at 2 (N.D. Ill.[sic]

Dec. 27, 1991). Despite this warning,

the plaintiffs never filed a notice of

appeal from the December 30 final

judgment. On January 2, 1992, we

indicated to the parties that "[a]

preliminary review of the short record

indicates that the order appealed from

may not be a final judgment within the

meaning of 28 0.8.C. Sec. baeks"

Strasburg v. State Bar of Wisconsin, No.

-Ja@

91-3860 (7th Cir. Jan. 2, 1992). We

directed the plaintiffs to file a brief

memorandum by January 17, 1992 explaining

why we should not discuss the case for

lack of jurisdiction. The plaintiffs

never responded to our order. Indeed,

their opening brief contains not a whit

of argument on the question of

jurisdiction, and their cursory

jurisdictional statement does not even

hint that beneath the surface of their

appeal a serious problem lurks.

A notice of appeal must be filed

within thirty days after the entry of

judgment. See Fed. R. App. P. 4(a)(1).

The purpose of this requirement is to

provide certainty to litigants about when

filing requirements for postjudgment

motions and appeals begin to- run.

"Otherwise a litigant is forced to guess

or to do legal research as to whether a

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final decision has been’ rendered."

Smith-Bey v. Hospital Administrator, 841

F.2d 751, 755 (7th Cir. 1988). In this

case, the entry of judgment did not occur

until December 30, 1991, and the

plaintiffs did not file a new notice of

appeal thereatter. Ordinarily, the

consequence of filing a premature notice

of appeal is appellate dismissal. The

Federal Rules of Appellate Procedure do,

however, offer reiief in limited

instances from this harsh result. Rule

4(a)(2) provides:

"Except as provided in (a)(4) of

this Rule 4, a notice of appeal

filed after the announcement of a

decision or order but before the

entry of the judgment or order shall

be treated as filed after such entry

and on the date thereof."

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|

Fed. R. App. P. 4(a)(2).° The rule

allows certain premature appeals to

"relate forward" to the date of the entry

of judgment, thus providing an exception

to the strict requirements of Rule

4(a)(1).

The trouble with Rule 4(a)(2) is

that it is imprecise--it does not tell us

, The exception set out in Rule

4(a)(4) provides that certain

post-judgment motions (namely, those

filed under Rule 50(b), 52(b) or 59 toll

the time for appeal and nullify any

notice of appeal filed before their

disposition. The district court believed

that the plaintiffs’ December 16 motions

canceled their earlier notice of appeal,

but all of those motions were filed more

than ten days after the November 15

decision. They could not, therefore have

been filed under Rule 50(b), 52(b) or 59.

Although it is often difficult to

determine whether an unlabeled,

postjudgment motion falls into one of the

Rule 4(a)(4) categories, see generally

Charles W. Adams, The Timing of Appeals

Under Rule 4(a)(4) of the Federal Rules

of Appellate Procedure, 123 F.R.D. 371

(1988), here it is clear that these

motions had no effect on the validity of

the notice of appeal from the November 15

order.

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which announced decisions permit relation

forward. The announced decision must

bear some close relation to the final

judgment, or else litigants would save

themselves the trouble cf determining

which document is the final judgment, and

simply appeal the first decision on any

matter handed down by the district court.

In the past, several circuits, including

Our own, ruled that only announcements of

final decisions (defined as those

decisions that "end [ ]} the litigation on

the merits and leave [ ] nothing for the

court to do but execute the judgment,"

Catlin v. United States, 324 U.S. 229,

233, 65 §&.C&. 631, 633, 89 bce. 2a Bil

(1945) (citation omitted) trigger Rule

4(a)(2). See United States v. Ettrick

Wood Prods., Inc., 916 F.2d 1211, 1217

(7th Cir.1990); United States v. Hansen,

-lla-

795 F.2d 35, 37-38 (7th Cir. 1986); see

also 9 James Wm. Moore et al., Moore's

Federal Practice, Paragr. 204.14, at

4-129 & n.24 (2d ed. 1993) (stating that

Rule 4(a)(2) is clearly inapplicable"

when "the appeal is not taken after the

announcement Of any final decision.") But

cf. Harris v. Milwaukee County Circuit

Court, 886 F.2d 982 (7th Cir. 1989)

(allowing relation forward from a

post-dated judgment, despite the fact

that it was not a final decision). In

effect, these courts ruled that for a

premature notice of appeal to relate

forward, the decision it appeals must

conclude the litigation completely,

except for the essentially clerical step

of entering judgment.

The leading case interpreting the

rule is now FirsTier Mortgage Company v.

-l2a-

Investors Mortgage Insurance Company, 498

U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743

(1991). According to the Supreme Court,

the purpose of Rule 4(a)(2) is to protect

from dismissal the unskilled litigant who

files a notice of appeal from a decision

that he "reasonably but’ mistakenly

believes to be a final judgment, while

failing to file a notice of appeal from

the actual final judgment." Id. at 276,

111 §.Ct. at 652-53. In FirsTier, the

district court announced from the bench

that it was granting the defendant’s

motion for summary judgment. The court

then requested the defendant to submit

proposed findings of fact and conclusions

of law to support the decision, and

stated that it would allow the plaintiff

the opportunity to respond to these

proposals. The plaintiff, however, filed

a notice of appeal without waiting for

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the district court to enter final

judgment. The Supreme Court held that

this notice of appeal could relate

forward to the eventual entry of final

judgment, thereby preserving the appeal.

The Supreme Court decided in

FirsTier that ~the announced decision

under Rule 4(a)(2) need not actually be a

final decision, so long as it was

reasonable for the would be appellant to

think that the case had ended.

Presumably, the Supreme Court did not

literally mean that the litigant must

“reasonably but mistakenly believe [ ]"

that the announced decision was a final

judgment, because judgments have certain

attributes, (for example, "(e)very

judgment must be set forth on a separate

document," Fed. R. Civ. P. 58; see also

Reyblatt v. Denton, 812 F.2d 1042,

1043-44 (7th Cir. 1987) (other

-l4a-

pe Bee Unmet Ho A ARORTIV MND es ROS Hn RES PERDANA ee A

requirements ) that are not- easily

mistaken. Nor did the Court likely mean

that the litigant must reasonably think

that he is appealing a final decision,

since surely it is not reasonable for the

appellant in FirsTier to think that the

litigation was over, when the district

court’s order expressly stated that the

court would entertain further motions by

the parties. Both "final judgment" and

"final decision" are specialized terms

probably unfamiliar to the unskilled

litigant’s ears.

Instead, FissTier appears to save a

notice of appeal filed after a decision

when the litigant could reasonably

believe that the outcome of the case is

settled, even if the district court has

ministerial duties left to complete.

Other passages in the Supreme Court’s

opinion seemingly indicate as much:

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ft a Chee th D6 OLA RNN Lm na AIO Sn il aA ES A RE NS ct BRENT, <<

ee ee eee

"In our view, Rule 4(a)(2) permits a

notice of appeal from a nonfinal

decision to operate as a notice of

appeal from the final judgment only

when a district court announces a

decision that would be appealable if

immediately followed by the entry of

judgment. In these instances, a

litigant’s confusion is

understandable, and permitting the

notice of appeal to become effective

when judgment is entered does not

catch the appellee by surprise."

FirsTier, 498 U.S. at 276, 111 S.Ct. at

653 (emphasis in original). A decision

that would be appealable if immediately

followed by the entry of judgment is one

that effectively resolves all the claims,

even if the litigation is not technically

at an end. In certain situations, it may

be debatable whether a ruling settles the

-l6a-

outcome of the case. See Allan Ides, The

Authority of a Federal District Court to

Proceed After a Notice of Appeal Has Been

Filed, 143 F.R.D. 307, 313-16 (1993).

But patently interlocutory decisions,

such as discovery rulings or sanction

orders, do not merit the saving provision

of Rule 4(a)(2), see FirsTier, 498 U.S.

at 276, 111 S.6t. at 653, while

dispositive rulings such as_— orders

granting default judgments’ do, see

Metropolitan Life Ins. Co. v. Estate of

Cammon, 929 F.2d 1220, 1222 (7th Cir.

1991). The central question is whether

the district court has "“announce[d] a

decision purporting to dispose of all of

the litigant’s claims." FirsTier, 498

U.S. at 277, 111 S.Ct. at 653.”

3 P P

This construction suggests an

alternate reading of Rule 4(a)(2) that

may better fit the Supreme Court’s

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rE Seseree ay) ame Ry

WO Peer erent TINE he Sethe

In this case, the district court’s

November 15 order made clear that the

outcome of the case was still open. The

plaintiffs could not reasonably have

thought that the result was settled; the

order expressly conditioned the final

disposition of the suit. In FirsTier, by

contrast, "the fact remains that the

bench ruling did announce a decision

purporting to dispose of all of

FirsTier's ciaims." Id. Whereas the

district court in FirsTier had only

ministerial functions left to complete

after announcing summary judgment, the

approach. On the alternate reading, the

key terms to be contrasted in the rule

are not decision and judgment, but

announcement end entry. A decision

pernits relation forward if it announces

a final judgment, i.e., forecasts the

final outcome, even if that judgment has

not yet been formally entered. On this

reading, the decision and the judgment

are assumed to be substantively similar.

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district court’s order here notified the

parties that they should expect further

dispositive rulings by the court. The

district court here could not have "set

forth the judgment immediately following

the bench ruling," Id. because it had

already provided thirty days for the

plaintiffs to refile their complaint.

More importantly, FirsTier indicates

that Rule 4(a)(2), at bottom, is

concerned with saving litigants who make

a good-faith effort to comply with the

procedural rules for filing an appeal,

but through inadvertence or ignorance run -

afoul of them. Even if the plaintiffs’

initial belief as to the appealability of

the November 15 order was reasonable when

they filed their notice of appeal, their

refusal to refile became unreasonable

when they were expressly informed by the

district court on December 27 that the

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oe Se We TO

November 15 order was not a final

judgment and that their notice of appeal

was a “nullity”. We believe that a

litigant seeking to take advantage of

Rule 4(a)(2)’s saving provision must

continue to be reasonably "“confus[ed] as

to the status of the litigation," id,

until final judgment is actually entered.

If the litigant becomes aware of the fact

that the notice of appeal is invalid

because no final judgment has yet been

entered, then he or she has both the

knowledge and the opportunity (for thirty

more days) to correct the mistake. This

rule makes sense in light of the fact

that the notice of appeal does not relate

forward and become effective until final

judgment is entered, because up to that

time there is nothing for the notice to

relate forward to. In FirsTier, the

appellants never knew that their initial

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notice of appeal was untimely. Here,

once the plaintiffs were informed that

their notice was a nullity, they only had

to wait for the real final judgment to be

entered three days later, and then file a

new notice of appeal.*

We previously held, in a case

decided prior to FirsTier, that Rule

4(a)(2) allowed a notice of appeal to

relate forward from a district court

order similar to this one. In Harris v.

Milwaukee County Circuit Court, 886 F.2d

982 (7th Cir. 1989), the district court

denied a prisoner’s request to proceed in

forma pauperis. The district court

stated: "Plaintiff shall have twenty (20)

days from the receipt of this order to

If the plaintiffs did not realize

even then that their notice was untimely,

they still had twenty-seven days after we

informed them of the same fact to file a

new notice.

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ice dasetie.

See a BALIN aA: AW eben:

re ee Cee ee eee CCD ms

SRN A ie Stale Ollila I Slt Ramee SS &

pay the required filing fee. If this

deadline passes without the filing fee

paid, this order will ripen into a final

judgment of dismissal without further

order." The prisoner filed a notice of

appeal from the dismissal of the suit

before the twenty days elapsed, and thus

before the order became a final judgment.

We held that under Rule 4(a)(2) the

premature notice of appeal related

forward to the day the order ripened into

a final judgment.

We do not decide today whether

Harris survives FirsTier. In any event,

we believe that our decision in this case

can peacefully coexist with Harris.

There, the district court’s statement

that "this order will ripen into a final

judgment of dismissal without further

order" could easily have misled the

appellant into thinking that the decision

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disposed of the case without further

action by the court--that the outcome was

already settled. The appellant in Harris

never knew that his notice of appeal was

premature. Here, contrastingly, the

district court made clear that additional

action to dispose of the case was still

necessary, and later told the plaintiffs

that their notice of appeal was

ineffective. Their behavior in pursuing

this appeal was thus unreasonable.

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The appeal is DISMISSED for want of

jurisdiction.

A true copy;

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

-24a-

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

May 21, 1992

By the Court:

JOHN W. STRASBURG

and ELDERCARE ASSET

PROTECTION PLANS,

for INCORPORATED,

Plaintiffs-Appellants,

Appeal from the

United States

District Court

for the Western

District of

Wisconsin

No. 91-3860 Vv. No. 91 C 18,

Barbara B.

Crabb, Judge

STATE BAR OF WISCONSIN

GERALD C. STERNBERG,

JOHN A. BOLTZ, et al.,

)

)

)

)

)

)

)

)

)

)

)

|

Defendants-Appellees. )

ORDER

The court, on its own motion, orders

that the briefing in this appeal shall

proceed as follows:

1. The plaintiffs-appellants shall

file their joint brief and required short

appendix on or before June 24, 1992.

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Za The defendants-appellees shall

file their joint brief on or before July

24; . 2332:

3. The plaintiffs-appellants shall

file their joint reply brief, if any, on

or before August 7, 1992.

NOTE: The parties are advised that

Federal Rules of Appellate

Procedure, 26(c), which allows

for three additional days after

service by mail, does not apply

when the due dates of briefs

are set forth by order of this

court. All briefs are due by

the dates ordered.

-26a-

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Dated: July 21, 1992

By the Court:

No. 91-3860

JOHN STRASBURG and ELDERCARE ASSET

PROTECTION PLANS, INCORPORATED,

Plaintiffs-Appellants

Vv.

STATE BAR OF WISCONSIN, GERALD C.

STERNBERG, JOHN A. BOLTZ, et al.,

Defendants-Appellees

Appeal from the United States

District Court for the

Western District of Wisconsin

No. 91 C 18, Judge Barbara B. Crabb

This matter comes before the court

for its consideration of the MOTION FOR

LEAVE TO FILE BRIEF INSTANTER filed

herein on 7/29/92 by the appellants. On

consideration thereof,

IT IS ORDERED that said motion is

GRANTED and the clerk of this court is

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directed to file instanter che tendered

copies of the brief and the required

short appendix of the appellant.

IT IS FURTHER ORDERED that the brief

of the appellees will be due by 8/21/92

and the reply brief of the appellants, if

any, will be due by 9/4/92.

NOTE: The parties are advised that

Rule 26(c) of the Federal Rules of

Appellate Procedure, which allows for

three additional days after service by

mail, shall not apply when the due dates

of briefs are specifically set forth by

order of this court. All briefs are due

by the dates ordered.

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United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 2, 1992

By the Court:

JOHN W. STRASBURG

and ELDERCARE ASSET

PROTECTION PLANS,

INCORPORATED,

Appeal from the

United States

District Court

for the Western

)

)

)

)

Plaintiffs-Appellants,) District

) of Wisconsin.

No. 91-3860 Vv. ) Mo. $1 C 18

) Barbara B.

) Crabb, Judge

STATE BAR OF WISCONSIN)

GERALD C. STERNBERG, )

JOHN A. BOLTZ, et al.,)

)

Defendants-Appellees.

ORDER

A preliminary review of the

short record indicates that the order

appealed from may not be a final judgment

within the meaning of 28 U.S.C. Sec.

1291. In the present case, the district

court dismissed the case with prejudice

with respect to defendant Gerald C.

Sternberg, in his individual capacity,

and without prejudice with respect to the

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other defendants. Plaintiffs were given

until December 15, 1991 to refile the

action and accomplish service. The

district judge did not dismiss the

action, and did not state the order would

become a final judgment if an amended

complaint was not filed. Instead, the

district judge stated that if no amended

complaint is filed "the dismissal of the

complaint against remaining defendants

will be amended to be with prejudice and

final judgment will be entered in favor

of all defendants.” On December 16, 1991,

plaintiffs-appellants filed a notice of

appeal which appears to be premature.

Brekke v. Morrow, 840 F.2d 4 (7th Cir.

1988); cf. Harris Vv. Milwaukee County

Circuit Court, 886 F.2d 892 (7th Cir.

1989) (district court’s order stated its

order would become a final judgment on a

specified date unless a specified

-30a-

contingency occurred; appealable).

Accordingly,

Se Is ORDERED that

plaintiffs-appellants shall file, on or

before January is 1992, a brief

memorandum stating why this appeal should

not be dismissed for lack of

jurisdiction. A motion for voluntary

dismissal pursuant to Fed. R. App. P.

42(b) will satisfy this requirement.

Briefing shall be held in abeyance

pending further court order.

NOTE: Caption document

“JURISDICTIONAL MEMORANDUM.” The filing

of a Circuit Rule 3(c) Jurisdictional

Statement does not satisfy your

obligation under this order.

-3la-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

OPINION AND

Vv. ORDER

91-C-018-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON,

EDMUND MANYDEEDS, III, JACQUELINE

BOHMAN, WILBUR W. WARREN III,

MICHAEL WHERRY, MICHAEL FAUERBACH,

LISA LOTTE GAMELTOFT, PATRICIA

GROVE, ROBERT J. KAY, CELIA SERAPHIM,

DIANE ZORE, AND THE SUPREME COURT

OF THE STATE OF WISCONSIN,

Defendants.

This is a civil suit for money

damages and declaratory and injunctive

relief. Jurisdiction is asserted under

16 U.S.C. Secs. 1, 15, 26 and 28 U.S.C.

Secs. L3S3h, 1337 and 1343, and the

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iia i

doctrines of pendent and supplemental

jurisdiction. Plaintiffs allege that

defendants have attempted to prevent them

from engaging in activities that may be

performed by non-lawyers and that

defendants have done this on the asserted

ground that such activities constitute

the practice of law, in violation of the

terms of plaintiff Strasburg’s two-year

suspension from the practice of law.

Plaintiffs set forth seven counts of

wrongdoing on defendants’ part. In Count

I they contend that defendants’

prohibition of plaintiffs’ representation

of Medical Assistance recipients and

applicants violates 42 U.S.C. Sec. 19 and

the Supremacy Clause of the United States

Constitution, unlawfully preventing

plaintiffs from conducting legitimate

business. In Count II, they allege that

defendants have restrained trade in

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Milwaukee, the states of Wisconsin and

Illinois and elsewhere, and that in doing

so, defendants have combined to restrict

trade or commerce among the states in

yiolation of Section 1 of the Sherman

Act, 15 U.S.C. Sec. l. In Count III they

allege that defendants have combined to

restrict trade or commerce in violation

of Wis. Stat., Sec. 133.03(1) by

preventing plaintiffs from conducting 4a

legitimate business. In Count IV,

plaintiffs allege that defendants have

»-*

oO

“<

violated Wis. Stat. Sec. 134.0

174111

~ -

combining for the purpose of willfully or

viciously injuring plaintiffs in their

reputation, trade or profession In

Count V, plaintiffs allege that

communicating freely with their customers

and others in violation of the First

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oe

Amendment to the United States

Constitution.

In Count VI, plaintiffs allege that

defendants have prohibited them from

engaging in certain conduct while

expressly allowing others in the employ

of a "commercial employer" to engage in

identical conduct, in violation of

plaintiffs’ right to equal protection of

the law under the Fourteenth Amendment.

In Count VII, plaintiff Strasburg alleges

that defendants’ acts have interfered

with his business without legal

justification or governmental privilege,

causing injury to the business.

Plaintiffs request temporary and

permanent injunctive relief restraining

defendants and their agents from carrying

out any of the policies and practices

having the effect of continuing or

renewing the violations alleged in the

-35a-

complaint; from imposing any sanction

against plaintiff Strasburg or any

members of the State Bar of Wisconsin

grounded upon the plaintiffs conduct of

his business; from executing any criminal

complaint against plaintiff Strasburg or

taking any action with the object of

obtaining a criminal prosecution of

plaintiff Strasburg for unauthorized

practice of law for the conduct of

business as described in the Complaint;

and from executing any contempt citation

or affidavit in support thereof and

taking any action to procure Or urge a

contempt citation in connection with any

conduct of business as described in the

complaint. Plaintiffs seek compensatory

damages, treble damages as provided under

the Clayton Act, reasonable attorney’s

fees, and a declaration that defendants

have violated 15 U.S.C. Sec. l, the First

-36a-

ar ener

and Fourteenth Amendments to the United

States Constitution, 42 C.F.R. Secs.

431.206 and 435.908, and Wis. Stat.

Secs. 133.034 and 134.01.

Defendants Supreme Court of the

State of Wisconsin, the Board of

Attorneys Professional Responsibility and

Gerald C. Sternberg acting in his

official capacity were dismissed from

this case in an order dated April 9,

1991, because they were found to be

immune from suit under the Eleventh

Amendment. The case is now before the

court on the motion for summary judgment

of the remaining defendants. Defendants

State Bar of Wisconsin and individual

members of the Board of Attorneys

Professional Responsibility assert that

the complaint against them should be

dismissed because they were not served

-37a-

within 120 days of the filing of the

cause of action. Plaintiffs do not

contend otherwise. Defendant Sternberg,

in his official capacity, moves to

dismiss the cause of action against him

on the bases of absolute quasi-judicial

immunity and state action immunity.

Plaintiffs argue only that defendant

Sternberg should not be granted summary

judgment on the ground of quasi-judicial

immunity because there is a factual

dispute about the role in which defendant

Sternberg was acting as the administrator

of the Board of Attorneys” Professional

Responsibility.

To succeed on a motion for summary

judgment, the moving party must show that

there is no genuine issue of material

fact and that the moving party is

entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Celotex Corp. Vv.

-38a-

Catrett, 477 U.S. 317, 322 (1986);

Indiana Grocery, Inc. Vv. SuperValu

Stores, Inc., 864 F.2d 1409, 1412 (7th

Cir. i983). When the moving party

succeeds in showing the absence of a

genuine issue as to any material fact,

the opposing party must set forth

specific facts showing that there is a

genuine issue for trial. Fed. R. Civ. P.

56 (e); Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586

(1986); Bank Leumi Le-Israel, B.M. v.

Lee, 326 F.2da 232, 236 (7th Cir. 1991).

The affirmative defense of absolute

quasi-judicial immunity is appropriately

considered by the court on = summary

judgment because it is an immunity from

suit. Mitchell v. Forsyth, 472 U.S. 51l,

526 (1985).

I conclude that defendants State Bar

-39a-

of Wisconsin and individual members of

the Board of Attorneys Professional

Responsibility are entitled to summary

judgment because they were not served

with process within 120 days of the

filing of the complaint, as required by

Fed. R. Civ. P. 4(j)- I conclude also

that summary judgment should be granted

to defendants Sternberg; he is entitled

to absolute quasi-judicial immunity

because the acts he is alleged to have

taken in violation of plaintiffs’ rights

are acts comprising lawful duties of an

administrator of the Board of Attorneys

Professional Responsibility.

For the purpose only of deciding

defendants’ motion for summary judgment,

I find from the parties’ proposed

findings of fact that the following

material facts are undisputed.

-40a-

FACTS

Plaintiff John W. Strasburg is the

principal shareholder and president of

plaintiff, ElderCare Asset Protection

Plans, Inc. Defendant Gerald Ss

Sternberg is the administrator of the

Board of Attorneys Professional

Responsibility, an agency of the Supreme

Court of the State of Wisconsin.

In March of 1990, the Supreme Court

of Wisconsin suspended plaintiff from the

practice of law in Wisconsin for two

years. In the Matter of the Disciplinary

Proceedings Against John W. Strasburg,

154 Wis.2d 90, 452 N.W.2d 152 (1990). On

March 23, 1990, defendant Sternberg wrote

to plaintiff, telling him that he could

no longer perform legal services or

services that were related in any way to

the legal work he had been doing in the

-4la-

past. Defendant Sternberg referred

specifically to the language of SCR

22.26(2), which prohibits attorneys under

suspension from performing any work

normally done _ by paralegals or law

students. Sternberg stated specifically

that plaintiff was prohibited from doing

legal research or drafting legal forms,

wills, trust documents, divestitures or

doing any kind of financial planning that

required legal expertise to qualify

people for Title 19 funds. He added that

"the Board may consider noncompliance

with either the Court order or with the

Supreme Court Rules to be an act in

contempt of court and may proceed

accordingly.... During the period of

suspension, this agency continues to have

jurisdiction over your conduct." In

addition, defendant Sternberg stated that

plaintiff should "avoid placing (himself)

-™

-42a-

in situations where members of the public

or legal profession might construe that

(he was) continuing to practice law."

As administrator of the Board of

Attorneys Professional Responsibility,

defendant Sternberg is required to

"“(ijnvestigate any possible

misconduct....of an attorney and report

his or her findings and recommendations

to the board." Wis. SCR 21.02. This

includes routine monitoring of lawyers

who are under order of suspension by the

Wisconsin supreme court, to determine

whether they are complying with the

court’s suspension order. If a suspended

lawyer is found to be in noncompliance,

the administrator may inform the lawyer

of this fact, or oppose a petition for

reinstatement when one is filed. Shortly

after plaintiffs suspension, defendant

ternberg received a letter from a board

-43a-

member advising him that plaintiff was

advertising services similar if not

identical to those he had offered clients

before his suspension: estate planning,

asset protection, preparation of wills,

trusts, and divestitures, and research

into the changing rules and laws

regarding Title 19.

Defendant Sternberg exchanged

several letters with plaintiff

Strasburg’s attorney. The letters

demonstrated a difference of opinion

between defendant and plaintiff over the

interpretation of Wis. SCR 22.26(2)..

1 Wis. SCR 22.26(2) states that

"(a) suspended or disbarred attorney

may not engage in the practice of

law or in any law work activity

customarily done by law students,

law clerks or other paralegal

personnel, except that he or she may

engage in law related work for a

commercial employer not itself

engaged in the practice of law.’

-44a-

Plaintiff Strasburg informed defendant

Sternberg that he wanted to operate a

company, ElderCare Asset Protection

Plans, Inc, which would provide Title 19

estate planning for customers. The

company would provide such services for

customers through plaintiff Strasburg’s

appearance as an advocate at medical

assistance hearings before the Department

of Health and Social Services, as well as

through the preparation of will and trust

documents and the giving of Title 19

advice. Defendant Sternberg responded in

his letter of August 28, 1990, that he

did not believe that “the functions

[contemplated by plaintiff can be

separated in such a way as to keep Mr.

Strasburg out of practicing law and

solely in the realm. of financial

consultant if he operates ElderCare." In

the same letter, defendant Sternberg

-45a-

.

3

é

3

B |

x

2

wrote: "That is not to say that Mr.

Strasburg is prohibited from changing

focuses entirely and functioning as a

financial consultant or adviser in the

traditional sense where legal advice,

preparation for clients of documents

requiring knowledge of legal principles

not possessed by ordinary laypersons, and

appearing as an advocate are not

involved."

In response to defendant Sternberg’s

August 28 letter, plaintiffs attorney

asked for Sternberg’s interpretation of

Wisconsin statutory and case law

regarding the activities plaintiff wished

to pursue in his business. Specifically,

plaintiff sought clarification whether

plaintiff could appear at hearings on

behalf of clients before the Department

of Health and Social Services, compute

and estimate taxes, use forms such as

-46a-

nan

statutory wills and trusts, and dispense

advice concerning the disposition of

assets pursuant to Title 19. Plaintiffs

view was that these were activities that

did not constitute the unauthorized

practice of law, and that he could do

them without further sanction from the

Board of Attorneys Professional

Responsibility.

Defendant Sternberg wrote back again

on October 10, 1990, stating that “it is

my view” that plaintiff’s “appearance at

Department of Health and Social Services

hearings, preparation of wills and

trusts, and advice concerning disposition

of assets.... are all proscribed"

activities for suspended lawyers under

Wisconsin case law. Further, he stated

that I believe both the case law and SCR

22.26(2) would prohibit Mr. Strasburg’s

operation of Eldercare Asset Protection

-47a-

Plans if that operation includes the type

of work set forth in your {previous

memorandum and letter)’

OPINION

I. DEFENDANTS STATE BAR OF WISCONSIN AND

INDIVIDUAL MEMBERS OF THE BOARD OF

ATTORNEYS PROFESSIONAL RESPONSIBILITY

These defendants move to dismiss the

iw

complaint against them because they were

not served with process within 120 days

of the filing of the complaint. Fed. R

"11 P. 4(3j) provides that

i jf a service I the summons and

-omplaint is not made within i«

lays after the filing f the

moplaint and the party n whose

per 3 f r eo Y's ¢ was a: ‘ ron

3 } rvi 3 requir

‘annot show g j ause wr suct

service was not madcé¢ witnl!r that

period, the actior shall be

discussed as to that defendant

without prejudice upon the court’s

own initiative with notice to such

party or upon motion."

The complaint was filed on January

3, 1991; the rule required service on

defendants by May 3, 1991. In the May 6,

1991 pretrial conference order, I noted

that defendants other than Sternberg had

not been served. Plaintiffs did not

attempt to show good cause at that time

why service had not been made, and have

not done so in response to the present

motion to discuss. Therefore, the motion

to dismiss of defendants State Bar of

Wisconsin and all individual members of

the Board of Attorneys Professional

Responsibility except for Sternberg will

be granted.

II. DEFENDANT STERNBERG

-49a-

EE

Absolute immunity is an entitlement

to immunity from suit, rather than 4

defense to liability; it is "effectively

lost if a case is erroneously permitted

to go to trial." Mitchell v. Forsyth, 472

U.S. at 526. "Absolute immunity defeats

the suit at the outset so long as the

official's actions were within the scope

of the immunity." Imbler v. Pachtman, 424

U.S. 409, 419, n.13 (1976). The question

of immunity is a question of law for the

court, not for the jury. Alvarado v.

Picur, 859 F.2d 448, 451 (7th Cir. 1988).

Absolute immunity has been

recognized soaringly by the federal

courts. Burns v. Reed, 111 S.Ct. 1934,

1935 (1991) (noting that "(tjhe

presumption is that qualified rather than

absolute immunity is sufficient to

protect government officials in the

-50a-

exercise of their duties"). However,

"judges and other officials functionally

comparable to judges have long enjoyed

absolute immunity from liability for

damages." Eisenberg v. Sternberg, 641

F.Supp. 620, 625 (W.D. Wis. 1986) (citing

Butz v. Economou, 438 U.S. 478, 496

(1978). Prosecutors have been held to

perform a "quasi-judicial" function,

entitling them to the same absolute

immunity as judges when their activities

are “intimately associated with the

judicial phase of the criminal process."

Id. Two courts of appeals have held that

bar officials charged with the duties of

investigating, drawing up, and presenting

cases involving attorney discipline are

in quasi-judicial positions analogous to

prosecutors, and therefore are entitled

to absolute immunity from damages claims

for performing those functions. Kissell

-5la-

v. Breskow, 579 F.2d 425, 428-30 (7th

Cir. 1978); Clulow v. State of Oklahoma,

700 F.2d 1291, 1298 (10th Cit. 10983).

In Eisenberg v. Sternberg, 641 F.

Supp. at 620, 626, this court found that

in Wisconsin, the administrator of the

Board of Attorneys Professional

Responsibility serves aS an arm of the

court and performs functions that belong

to the judiciary. "The judicial nature

of the work and the similarity of the

work to that of a prosecutor and grand

jury point to a finding that they are

functionally comparable to these quasi-

judicial entities," and so are deserving

of absolute immunity. Id. For instance,

the administrator is appointed by the

Board of Attorneys Professional

Responsibility to "investigate possible

misconduct and report findings’ and

-52a-

|

recommendations to the Board" Id.

The absolute immunity of a

prosecutor has been curtailed somewhat.

In Burns v. Reed, 111 S.Ct. at 1939, the

Supreme Court held that although

prosecutors have only qualified immunity

in their roles as administrators or

investigating officers, they have

absolute immunity for conduct in

initiating a prosecution and in

presenting the state’s case. The Court

held that a prosecutor had absolute

immunity for conduct in a probable cause

hearing where he was appearing before a

judge and presenting evidence in support

of a motion for a search warrant, because

his actions involved his rule as an

advocate for the state. Id. at 1942.

However, he or she had only qualified

immunity in the role of providing legal

advice to the police. Id. at 1944. In

-53a-

ee a eT

determining whicn kind of immunity

attached to a particular act, the proper

inquiry is “whether the prosecutor’s

actions are closely associated with the

judicial process." Id.

Plaintiffs contend that a factual

dispute exists whether defendant

Sternberg was investigating a case

involving lawyer discipline, which would

entitle him to absolute quasijudicial

immunity, or whether he was advising

plaintiff about activities he could

pursue during his suspension, which

plaintiff contends would not entitle

defendant to quasi-judicial immunity.

Although plaintiff bases his entire and

incomplete argument on his

characterization of the question as a

factual dispute, the question of which

type of immunity attaches to defendant

Strasburg [sic] is not a question of fact

-54a-

but rather a question of law for the

court to determine, and thus appropriate

for summary judgment. Alvarado v. Picur,

859 F.2d at 451.

In the order and opinion of April 9,

1991, I withheld a grant of absolute

quasi-judicial immunity to defendant

Sternberg because

"“(pjlaintiffs contend that

defendant Sternberg is not entitled

to this immunity when his action is

not one of ‘investigating, drawing

up, and presenting cases involving

attorney discipline" Because it is

possible to construe the complaint

as alleging that defendant Sternberg

is using Rule 22.26 to interfere

with plaintiffs’ business for

improper reasons having nothing to

do with his lawful duties = as

administrator of the Board, I will

-55a-

deny defendants’ motion to dismiss

the complaint against defendant

Sternberg on the ground of judicial

immunity."

It is explicit in this holding, and

uncontested by plaintiffs that defendant

Sternberg is eligible for quasi-judicial

immunity if he was "investigating,

drawing up, or presenting a case

involving attorney discipline." The

question is whether the undisputed facts

establish that the challenged acts of

defendant Sternberg fall into’ this

category of prosecutorial activity.

It is part of defendant Sternberg’s

responsibilities as administrator of the

Board of Attorneys Professional

Responsibility to "[iJnvestigate any

possible misconduct.... of an attorney

and report his or her findings and

recommendations to the Board." SCR 21.02

-56a-

This includes routine monitoring of

lawyers who are under order of suspension

by the Wisconsin supreme court, to

determine whether they are complying with

the court’s suspension order. If a

suspended lawyer is found to be in

noncompliance, the administrator may

inform the lawyer of this fact, or oppose

a petition for reinstatement when one is

filed.

At the time of the events leading to

this lawsuit, plaintiff had been

suspended very recently from the practice

of law. There were several things he was

required to do to comply with the terms

of his suspension. See SCR 22.26.

Plaintiff had been directed to close his

law offices and to discontinue performing

legal services or services related in any

way to the legal work he had done in the

past. Shortly thereafter, defendant

-57a-

—————

Sternberg received a letter from a board

employee, informing him that plaintiff

was advertising services that seemed

similar to what he had been doing as

lawyer: estate planning, asset

protection, preparation of wills, trusts

and divestitures, and legal research into

the changing rules and laws regarding

Title 19. These activities were related,

if not identical, to the work plaintiff

had been doing prior to his suspension,

and the type of work done in law offices

by paralegals, law students, and lawyers.

Further, plaintiff informed defendant

Sternberg that he was intending to

represent a client before the Department

of Health and Social Services at 4a

medical assistance hearing,

representation precluded by both

Wisconsin case law and supreme- court

rule. See State ex rel. State Bar v.

-58a-

i

Keller, 16 Wis.2d 377, (1962), vacated

and remanded on other grounds 374 U.S.

102 (1963), 21 Wis.2d 100, 104 (1963);

SCR 22.26(2).

When faced with the report of what

plaintiff might be doing and intending to

do while under suspension, defendant had

to make a decision similar to one a

prosecutor would make. He had to decide

whether plaintiff was in contravention of

the rules governing his activities while

his license was suspended. If plaintiff

was in noncompliance, defendant Sternberg

had an obligation to report such activity

to the supreme court. Rather than acting

outside his legal duties, as plaintiff

contends, defendant Sternberg was doing

specifically what his job required him to

do: investigating the conduct of a

suspended lawyer, a case involving lawyer

discipline. Quasi-judicial immunity

-59a-

Seb nhs 8 th TEMES

applies to defendant Sternberg in the

exercise of these duties.

Plaintiff asserts that defendant

Sternberg was not acting in his

quasi-judicial role of investigating

lawyer conduct, but rather, like the

prosecutor in Burns, was advising

plaintiff about the activities he could

pursue in his business, a role not

covered by quasi-judicial immunity.

However, the prosecutor in Burns was

acting as the attorney for the police

department when he gave them advice.

Defendant Sternberg was not acting as

plaintiff’s attorney in this case.

Indeed, his correspondence was with

plaintiff's attorney. Defendant

Sternberg was not advising plaintiff

about what plaintiff should do, he was

informing him of his opinion of what

would constitute noncompliance with

-60a-

plaintiff’s suspension order, and the

standard upon which further possible

action against plaintiff might be taken.

This left plaintiff free to decide, in

consultation with his attorney, whether

to continue with his plans.

A consideration of the purpose of

absolute judicial immunity underscores

the propriety of extending the immunity

to defendant Sternberg in this case.

Absolute immunity extends to judges “for

the benefit of the public, whose interest

it is that judges should be at liberty to

exercise their functions with

independence and without fear of

consequences." Pierson v. Ray, 386 U.S.

547, 554 (1967). “Extending such

immunity to the Board and its

administrator serves the same purpose.

It helps ensure that the administrator

and board will act vigorously to protect

-6la-

the public from incompetent, impaired, or

unethical lawyers." Eisenberg Vv.

Sternberg, 641 F. Supp. at 626.

Plaintiff advertised that he was

continuing many of the services he had

offered his clients prior to his

suspension. He submitted a memo to the

board detailing services he intended to

offer his clients, He informed the board

that he intended to represent a client

before an administrative agency.

Defendant Sternberg’s job required him to

investigate plaintiff's activities in

order to protect the public, especially

when plaintiff planned to engage in

exactly the same activities he had been

pursuing when he was sanctioned for

misconduct.

Plaintiff offers no evidence

whatsoever that defendant Sternberg was

acting outside his official role as

-62a-

|

administration of the board, a role that

required him to determine when to "bring

charges" that plaintiff was violating the

conditions of his suspension. The fact

that defendant Sternberg communicated

with plaintiff regarding the point at

which the board would consider that

plaintiff was in noncompliance does not

alter the fact that defendant Sternberg

was investigating plaintiff’s possible

misconduct during suspension. As

defendant Sternberg was investigating a

case involving lawyer discipline, he is |

entitled to absolute quasi-judicial

immunity.

ORDER

IT IS ORDERED that defendants’

motion for summary judgment is GRANTED

and this case is DISMISSED with prejudice

-63a-

with respect to defendant Gerald C.

Sternberg, in his individual capacity,

and without prejudice with respect to the

remaining defendants. If plaintiffs

believe they have viable claims against

these defendants, they may have until

December 15, 1991 in which to refile the

action and accomplish service. If

plaintiffs do not do so, the dismissal of

the complaint against remaining

defendants will be amended to be with

prejudice, and final judgment will be

entered in favor of all defendants.

-64a-

Entered this 15th day of November, 1991.

BY THE COURT:

s /

BARBARA B. CRABB

District Judge

-65a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

ORDER

91-C-018-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON,

EDMUND MANYDEEDS, III, JACQUELINE

BOHMAN, WILBUR W. WARREN III,

MICHAEL WHERRY, MICHAEL FAUERBACH,

LISA LOTTE GAMELTOFT, PATRICIA

GROVE, ROBERT J. KAY, CELIA SERAPHIM,

DIANE ZORE, AND THE SUPREME COURT

OF THE STATE OF WISCONSIN,

Defendants.

A preliminary pretrial conference

was held in this case on May 2, 1991,

before United States District Judge

Barbara B. Crabb. Plaintiffs appeared by

Stephen Crocker. Warren Weinstein

-66a-

appeared for defendant Gerald a

Sternberg. The remaining defendants have

not been served.

This case is set for jury trial

during the week beginning September 3,

A99i « Counsel, estimate the case will

take two to three days to try.

A final pretrial conference will be

held on August 29, 1991 at 4:00 p.m. (A

copy of the final pretrial order is

enclosed. )

Plaintiffs may have until May 10,

1991 in which to move for clarification

of the order entered April 10, 1991.

Defendant may have until May 17, 1991 in

which to oppose the motion.

Any amendments to the pleadings are

to be filed and served by June 10, 1991.

NOTE: Before filing a proposed amended

complaint, counsel shall attempt to

obtain opposing counsel's agreement to

-67a-

the filing of the proposed amendment. If

counsel is unable to obtain opposing

counsel’s consent to the amendment, the

proposed amendment must be accompanied by

a motion for leave to amend along with a

statement that counsel has been unable to

obtain opposing counsel’s consent.

All discovery in the case is to be

completed on or before August 30, 1991.

The names, addresses and general subject

matter of testimony of all expert

witnesses to be called at trial are to be

disclosed by plaintiffs no later than

June 24, 1991, and by defendant no later

than July 8, 1991. As to any expert

witnesses named, the parties are to

provide opposing parties with copies of

any reports prepared by such experts at

the time the expert is disclosed and

thereafter make the expert available for

deposition. The names, addresses, and

-68a-

ee ee

general subject matter of testimony of

all lay witnesses are to be disclosed by

plaintiffs no later than July 22, 1991,

and by defendant no later than July 29,

1991.

Counsel are reminded to work

together in scheduling all discovery so

as to accommodate each other’s schedules

and to avoid unnecessary discovery

disputes.

On or before July 8, 1991, each

lawyer is to send Joseph Skupniewitz,

United States Magistrate Judge, a written

statement of the terms upon which his or

her client would agree to settlement of

the case. Any submission regarding

settlement should be in an envelope

clearly marked "CONFIDENTIAL," and will

not become part of the public file. (The

statement need not be sent to opposing

counsel.) Upon receipt of the statements,

-69a-

er Rae:

Mr. Skupniewitz will initiate discussions

with counsel concerning settlement.

All dispositive motions are to be

served and filed with supporting briefs

no later than July 15, 1991. The

opposing party may have until August l,

1991, in which to serve and file a brief

in opposition. The moving party may have

until August 8, 1991, in which to serve

and file a reply brief. If a motion for

summary judgment is filed, the parties

are to follow this court’s Procedures for

the filing of Summary Judgment Motions, a

copy of which is attached.

Entered this 2nd day of May, 1991.

BY THE COURT:

BARBARA B. CRABB

District Judge

-70a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

ORDER

Vv. 91-C-018-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON,

EDMUND MANYDEEDS, III, JACQUELINE

BOHMAN, WILBUR W. WARREN III,

MICHAEL WHERRY, MICHAEL FAUERBACH,

LISA LOTTE GAMELTOFT, PATRICIA

GROVE, ROBERT J. KAY, CELIA SERAPHIM,

DIANE ZORE, AND THE SUPREME COURT

OF THE STATE OF WISCONSIN,

Defendants.

Plaintiffs have moved for an adjournment

of the trial date. The motion is

granted. A scheduling conference will be

held once the pending motion for summary

judgment has been decided unless

-7la-

resolution of the motion disposes of the

entire case.

Entered this 5th day of August,

1991.

BY THE COURT:

BARBARA B. CRABB

District Judge

-~72a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

OPINION AND ORDER

Vv. 91-C-018-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON,

EDMUND MANYDEEDS, M JACQUELINE

BOHMAN, WILBUR W. WARREN III,

MICHAEL WHERRY, MICHAEL FAUERBACH,

LISA LOTTE GAMELTOFT, PATRICIA

GROVE, ROBERT J. KAY, CELIA SERAPHIM,

DIANE ZORE, AND THE SUPREME COURT

OF THE STATE OF WISCONSIN,

Defendants.

This is a civil suit for money

damages and declaratory and injunctive

relief Jurisdiction is asserted under 15

U.S.C. Secs. 1, 15, 26, and 28 U.S.C

Secs. h3sie 1337 and 1343 and the

-73a-

doctrines of pendent and supplemental

jurisdiction. Plaintiffs allege that

defendants have attempted to prevent them

from engaging in activities that may be

performed by non-lawyers on the ground

that such activities constitute the

practice of law, in violation of the

terms of plaintiff Strasburg’s two year

suspension from practice.

Plaintiffs set forth seven counts of

wrongdoing on defendants’ part. In Count

I they contend that defendants’

prohibition of plaintiffs’ representation

of Medical Assistance recipients and

applicants violates 42 U.S.C. Title 19

and the supremacy clause of the United

States Constitution, unlawfully

preventing plaintiffs from conducting

legitimate business. In Count II, they

allege that defendants have restrained

trade in Milwaukee, the states of

~74a-

Wisconsin and Illinois and elsewhere, and

that in doing so, defendants have

combined to restrict trade or commerce

among the states in violation of Section

1 of the Sherman Act, 15 U.S.C. Sec. 1.

In Count III, they allege that defendants

have combined to restrict twrade or

commerce in violation of Wis. Stat., Sec.

133.03(1) by preventing plaintiffs from

conducting a legitimate business. In

Count IV, plaintiffs allege that

defendants have violated Wis. Stat., Sec.

134.01 by combining for the purpose of

willfully or viciously injuring

plaintiffs in their reputation, trade or

profession. In Count V, plaintiffs

allege that defendants’ conduct has

prohibited plaintiffs from communicating

freely with their customers and others in

violation of the First Amendment to the

-75a-

United States Constitution.

In Count VI, plaintiffs allege that

defendants have prohibited plaintiffs

from engaging in certain conduct while

expressly allowing others in the employ

of a “commercial employer" to engage in

identical conduct, in violation of

plaintiffs’ right to equal protection of

the law under the Fourteenth Amendment.

In Count VII, plaintiffs allege that

defendants’ acts have interfered with

plaintiffs’ business without legal

justification or governmental privilege

causing injury to plaintiffs’ business.

Plaintiffs request temporary and

permanent injunctive relief restraining

defendants and their agents from carrying

out any of the policies and practices

having the effect of continuing or

renewing the violations alleged in the

complaint; from imposing any sanction

-J6a-

against plaintiff Strasburg or any

members of the State Bar of Wisconsin

grounded upon the plaintiffs’ conduct of

his [sic] business; from executing any

criminal complaint against plaintiff

Strasburg or taking any action with the

object of obtaining a criminal

prosecution of plaintiff Strasburg for

unauthorized practice of law for the

conduct of business as described in the

complaint; and from executing any

contempt citation or affidavit in support

thereof and taking any action to procure

Or urge a contempt citation in connection

with any conduct of business as described

in the complaint. Plaintiffs seek

compensatory damages, treble damages as

provided under the Clayton Act and

reasonable attorney’s fees, and a

declaration that defendants have violated

a3 7.6.€. Sec. he the First and

-77a-

Fourteenth Amendments to the _ United

States Constitution, 42 C.F.R. Secs.

431.206 and 435.908, and Wis. Stat.

Secs. 133.034 and 134.01.

Defendants Supreme Court of the

State of Wisconsin, the Board of

Attorneys Professional Responsibility and

Gerald C. Sternbe.g have moved for

dismissal of the complaint on_— two

grounds: 1) the court lacks jurisdiction

because the constitutional issues raised

in the complaint are intertwined

inextricably with the review of a

disciplinary order of the Supreme Court

of the Supreme Court of the State of

Wisconsin and the Eleventh Amendment bars

the complaint against the state supreme

court; and 2) the complaint fails to

state a claim against the moving

defendants who are insulated from both

state and federal antitrust liability

-78a-

under the “state action" doctrine, enjoy

absolute judicial immunity, are not

persons under 42 U.S.C. Sec. 1983, and,

with respect to the defendant court,

enjoy legislative immunity.

I conclude that this court lacks

subject matter jurisdiction over the

Board and the state supreme court because

they are immune from suit under the

Eleventh Amendment that the Eleventh

Amendment also precludes an _- action

against defendant Sternberg for money

damages for acts done in his official

capacity.

For the sole purpose of deciding the

motions to dismiss, I find that the

complaint fairly alleges the following

against the moving defendants.

-79a-

ALLEGATIONS OF COMPLAINT

Plaintiff John W. Strasburg is a

resident of the State of Wisconsin

engaged in business as the principal

stockholder and president of plaintiff,

ElderCare Asset Protection Plans, Inc, a

for-profit corporation organized and

existing under the laws of the State of

Wisconsin with its principal place of

business in Milwaukee, Wisconsin.

Defendant State Bar of Wisconsin is

a business association, membership in

which is compelled as a condition of

obtaining and retaining a license to

practice law in the State of Wisconsin.-

' In their brief, plaintiffs state

that membership in the State Bar of

Wisconsin is voluntary at the present

time, which casts doubt on the accuracy

of this allegation that bar membership is

a condition of practicing law in

Wisconsin.

-80a-

Defendant Supreme Court of Wisconsin

is a governmental entity of the State of

Wisconsin and is a body politic and

corporate with principal offices in

Madison, Wisconsin. Defendant Board of

Attorneys Professional Responsibility is

a governmental entity of the State of

Wisconsin and is a body politic and

corporate with principal offices in

Madison, Wisconsin. Defendant Gerald C.

Sternberg is a resident of Wisconsin and

administrator of the defendant Board.

The remaining individual defendants are

residents of Wisconsin and members of the

defendant Board. All of the defendants

have acted, failed or refused to act

under color of state law during all times

relevant to this complaint, in that all

their actions were taken or not taken

under color and pretext of policies,

procedures, acts, usages, and customs of

-8la-

the State of Wisconsin.

While plaintiff Strasburg was a

member of the State Bar of Wisconsin, he

began to render services in the nature of

medical assistance representation and

advising and related financial planning

to medical assistance recipients,

applicants, and those contemplating

medical assistance applications.

Eventually, plaintiff Strasburg founded a

corporation (plaintiff ElderCare), to

provide Title 19 Medical Assistance

planning, to make determinations of the

availability of Title 19 benefits for

particular customers and to - advise

customers on qualifications for such

benefits. Plaintiff ElderCare also

prepares applications for Medical

Assistance benefits for customers and

represents them at hearings and advises

customers concerning the disposition of

-82a-

assets in compliance with Medical

Assistance legislation.

Services such as those that

plaintiff ElderCare provides are provided

by trust companies and financial planning

companies, whose employees are not

required to be members of the bar.

Plaintiff ElderCare does not engage in

the practice of law or accounting.

Matters that would constitute the

practice of law are referred to lawyers

and those requiring accounting skills are

referred to accountants. As trust

companies do, plaintiff ElderCare

provides recommendations of the types of

trust services that would be available

based upon the financial and personal

needs of its customers. These include

testamentary, living, revocable and

irrevocable trusts. Plaintiff ElderCare

computes and estimates taxes and

-83a-

recommends tax reduction strategies to

customers. Plaintiff ElderCare never

custom drafts for its customers any

documents other than Medical Assistance

documents. It fills out preprinted forms

authorized by statute or administrative

rule or available commercially to the

public or prepared by lawyers.

In a disciplinary action captioned

"In the Matter of Disciplinary

Proceedings against John W. Strasburg,

Case No. 89-0457-D," defendant Board

suspended plaintiff Strasburg’s license

to practice law for a two-year period,

effective April 9, 1990. On March 23,

1990, defendant Sternberg wrote to

plaintiff Strasburg, demanding that he

not continue .... services that are in

any way related to the legal work that

you have been doing in the past", and

cited Supreme Court Rule 22.26(2), which

~84a-

provides, among other things, that a

suspended lawyer may not engage in "any

law work activity customarily done py law

Students, law clerks, or other paralegal

personnel except that he or she may

engage in law related work for a

commercial employer not itself engaged in

the Practice of Law." Sternberg added

"In other words, we are informing

you that contrary to the recent

newspaper advertisements for your

office, you are prohibited from

doing paralegal work or research,

legal forms, wills, trust documents,

divestitures or any kind of

financial planning to qualify people

for Title 19 that requires legal

expertise. Not only are you

prohibited from doing any of this

work, but other lawyers are

prohibited by SCR - 22.267 from

-85a-

permitting you to perform this work

during your suspension."

In the same letter defendant

Sternberg threatened plaintiff Strasburg

that his license to practice law would

not be reinstated if he failed to submit

to the restraints upon his trade and

threatened both plaintiffs with contempt

of court for failing to submit. In this

manner, defendants threaten and

intimidate practicing lawyers with

disciplinary action if they engage in

trade with plaintiffs, even if only as

consultants to plaintiffs or plaintiffs’

customers. Defendants’ restraints upon

plaintiffs’ rights to conduct legitimate

business will continue throughout

plaintiff Strasburg’s suspension period

and will be permanent if he is not

reinstated after the term has run.

In a letter dated August 28, 1990,

-86a-

defendant Sternberg advised plaintiffs on

behalf of the defendant Board that

plaintiffs were precluded from engaging

in their former activities and that

conduct of business involving any such

activities would constitute the

unauthorized practice of law.’

Upon plaintiffs’ information and

belief, all of the individual defendants

and officers and employees of the

defendant entities communicated with each

other concerning plaintiffs, their

business, and the suspension of plaintiff

Strasburg.

. Although plaintiffs state that

the two Sternberg letters are appended to

their complaint as Exhibits A and B, the

letters have not been submitted to the

court.

-87a-

OPINION

The threshold question is whether

this court has authority to review the

actions in dispute. Citing District of

Columbia Court of Appeals v. Feldman, 460

U.S. 462 (1983), defendants contend that

review is barred because actions relating

to the discipline of individual members

of the bar are judicial actions of the

state supreme court that can be reviewed

only by the United States Supreme Court.

In Feldman, the Supreme Court held that

although the lower federal courts may

entertain challenges to the

constitutionality of state bar rules that

are enacted by state courts in

nonjudicial proceedings, the federal

courts lack subject matter jurisdiction

over complaints seeking review of state

-88a-

court decisions denying applications for

admission to the bar, even if the

challengers contend that the _ state

court’s action is unconstitutional.

Plaintiffs contend that Feldman has

no application to this case, because they

are not contesting the state supreme

court’s decision to discipline plaintiff,

only defendant Sternberg’s actions based

on his interpretation of SCR 22.26 as

prohibiting plaintiffs from providing

help to Medical Assistance recipients and

applicants. So stated, plaintiffs’

challenge seems to be one within this

court’s jurisdiction because it 1s 4

challenge to the constitutionality of the

rule as applied. I would have no doubt

about this conclusion were it not for the

perplexing statement that plaintiffs make

in their brief to the effect that they

are not “challenging Rule 22.46."

-89a-

Plaintiffs’ Memorandum in Opposition to

Motion to Dismiss, P. 19. I can

understand that plaintiff might not wish

to challenge Rule 22.26 on its face, but

underlying all of plaintiffs’ claims is

the implicit proposition that Rule 22.26

is unconstitutional if it is applied to

prohibit the performance of tasks that

federal law specifically permits

non-lawyers to perform. Plaintiffs may

intend to allege that defendant

Sternberg’s interpretation of Rule 22.26

is such an unreasonable interpretation

and so far beyond the bounds of any

interpretation the state supreme court

would give the rule that he does not

share in any of the state’s immunity to

Suit. A number of arguments in their

brief leave the impression that this is

the position they are taking. If so, it

answers some questions about the theory

-90a-

of their case but leaves unanswered some

others, such as why the state supreme

court is named as a defendant in the

action and charged with combining with

defendant Sternberg to cause injury to

plaintiffs.

Because it is unclear, and because

the litigation is only at an initial

stage, I will assume that plaintiffs are

challenging the constitutionality of Rule

22.26 as applied. Such a challenge is

not beyond this court’s jurisdiction.

Feldman 460 U.S. at 487.

Defendants contend that even if this

court has jurisdiction generally, to hear

a challenge to Rule 22.26, the Eleventh

Amendment deprives it of jurisdiction

over the moving defendants, who are

either entities of the state or, in the

case of defendant Sternberg, a state

official acting in his official capacity.

-9la-

To the extent that the complaint seeks

relief of any kind against the state

Supreme court and the Board for the

violation of the federal constitution or

federal and state laws, it is barred by

the Eleventh Amendment, which prohibits

suits brought against a state by one of

its citizens. Penhurst State Schools &

Hosp. v. Halderman, 465 U.S. 89, 98, 120

(1584) (principle of sovereign immunity

is constitutional limitation of the

federal judicial power established in

Art. III that applies to pendent claims

as well as well [sic] as to federal

claims).

Plaintiffs do not contend that

either the Board or the supreme court is

not a part of the state for the purpose

of determining the applicability of

sovereign immunity.

They make only the cryptic

allegation that, in taking the actions

complained of, the Board and the Court

were engaged in "proprietary conduct as a

trade restraining business association."

Complaint, pars. 8, 22. Plaintiffs do

not explain the import of “proprietary

conduct" in relation to the Eleventh

Amendment. It may be that plaintiffs are

attempting to bring their complaint under

’ According to the preamble of the

Supreme Court Rules, Wis. Stat. ch. 21,

the Board of Attorneys Professional

Responsibility was established as an arm

of the Supreme Court of Wisconsin to

assist the court in the discharge of the

court’s responsibility to regulate the

practice of law and to discipline members

of the bar for professional misconduct.

The Board has twelve members appointed by

the court. SCR 21.01(4)(a). With the

approval of the supreme court, it

appoints a professional responsibility

administrator whom it supervises in the

performance of his or her duties. SCR

21.04(4)(b). Defendant Sternberg is the

current administrator.

-93a-

the holding in Parden v. Terminal Railway

Co., 377 U.S. 184 (1964), in which the

Court held that when Congress conditions

engagement in a regulated interstate

enterprise to acceptance of a regulatory

scheme, states that engage in that

enterprise do not have the protection of

sovereign immunity. This holding is

premised on the presumption that in

granting Congress the commerce power, the

states agreed that Congress could subject

them to suits in federal court arising

out of their engagement in enterprises

regulated by Congress in statutes such as

the Fair Labor Standards Act. Employees

v. Missouri Public Health Dep't, 411 U.S.

279, 301 (1973) (Brennan, Jas

dissenting). However, the holding in

Parden has been limited to its facts.

Id. at 285. More recent cases have made

-94a-

it plain that waivers of state sovereign

immunity will not be inferred from

legislation; Congress must make its

intention clear. See, e.g., Atascadero

State Hosp. v. Scanlon, 473 U.S. 234

(1985) (requirement that Congress

unequivocally express intention to

override Eleventh Amendment ensures that

federal courts can be certain of

congressional intent to abrogate states’

sovereign immunity). See also Delmuth v.

Muth, U.S. , 109 S.CE. 2397,

2401 (1989) (congressional intent to

abrogate immunity must be unmistakably

clear in statute, otherwise rule of

Atascadero not met.).

The statutes under which plaintiffs

are proceeding, 42 U.S.C. Sec. 1983,15

U.S.C. Secs. 1, i5 and 26, contain no

language from which an inference of

-95a-

abrogation of state sovereign immunity

could be drawn. See e.g., Quern v.

Jordan, 440 U.S. 332, 342 (1979) (no

support for "conclusion that Congress

intended by the general language of the

[Civil Rights Act of 1871] to overturn

the constitutionally guaranteed immunity

of the several states); Parker v. Brown,

317 U.S. 341, 351 (1943) (“Sherman Act

makes no mention of the state as such and

gives no hint that it was intended to

restrain state action or official action

directed by a state"); Laude Local Lines,

Inc. v. Bi-State Development Agency of

Missouri-Illinois Metropolitan Dist., 433

F.2d 131, 135 (8th Cir.1970) (antitrust

laws do not apply to state government).

In the absence of any showing by

plaintiffs why the Board and state

supreme court are not immune from suit

-96a-

under the Eleventh Amendment, defendants’

motion to dismiss the complaint against

these defendants will be granted.

To the extent that plaintiffs are

suing defendant Sternberg in his official

capacity for money damages, that action

is barred as well. Ford Motor Co. v.

Dept. of Treasury, 323 U.S. 459, 462

(1945) (Eleventh Amendment bars suit

against state officer in his official

Capacity and constituting a action

against the state). Ex Parte Young, 209

U.S. 123 (1908) permits federal court

actions for money damages against state

officials only when they are sued in

their individual capacities for actions

allegedly outside the scope of their

duties. Although plaintiffs have not

stated expressly that they are suing

defendant Sternberg in his individual

-97a-

Capacity, a liberal reading of their

allegations against him permit that

inference to be drawn. Defendants’

motion to dismiss for lack of subject

matter jurisdiction will be denied with

respect to defendant Sternberg except as

to the claims for money damages made

against him in his official capacity.

I turn next to the contention that

defendant Sternberg is immune’ from

federal antitrust liability under the

State action doctrine set out in Parker

v. Brown, 317 U.S. 341, which exempts

from Sherman Aer t liability

anticompetitive restraints imposed by the

states or at their direction. Defendants

point out that the state supreme court is

the actor in any disciplinary action

against a lawyer in Wisconsin: the

administrator of the Board merely files a

petition; it is the state supreme court

-98a-

that makes the final determination of the

discipline that is to be administered.

Therefore, defendants contend, defendant

Sternberg is only implementing the policy

of the state supreme court and is

entitled to the immunity provided under

Parker.

Plaintiffs emphasize that they are

not challenging the disciplinary action

taken against plaintiff Strasburg, but

defendant Sternberg’s determination that

SCR 22.26 prohibits plaintiffs from

continuing their representation of

medical assistance recipients. On the

present recest, I cannot say that this

determination is derived from a command

of the state so as to qualify for

immunity under Parker. Defendant

Sternberg’s authority to advise suspended

lawyers of the prohibitions on their

activities during suspension is state-

-99a-

derived, but it is a different question

whether his interpretation of the

prohibition can be said to be so derived

in the absence of any definitive ruling

by the state supreme court.

Defendant Sternberg makes the

additional contention that he is

absolutely immune from any claims for

money damages even in his individual

capacity because he is protected by the

doctrine of judicial immunity, as a

person performing functions associated

closely with the judicial process. In

Eisenberg v. Sternberg, 641 F.Supp. 620

(W.D. Wis. 1986), I held that’ the

doctrine of judicial immunity extends to

the administrator and the members of the

Board of Attorneys Professional

Responsibility when they are engaged in

the investigation and presentment of

cases involving the discipline of the

-100a-

state’s lawyers. In performing these

functions that belong to the judiciary

they are serving as an arm of the court,

and are entitled to the same immunity the

court would enjoy. Id. at

626.

Plaintiffs contend that defendant

Sternberg is not entitled to this

immunity when his action is not one of

“investigating, drawing up and presenting

cases involving attorney discipline."

Clulow v. State of Oklahoma, 700 F.2d

1291 (10th Cir. 1983). Because it is

possible to construe the complaint as

alleging that defendant Sternberg is

using Rule 22.26 to interfere with

plaintiffs’ business for improper reasons

having nothing to do with his lawful

duties as administrator of the Board, I

will deny defendants’ motion to dismiss

the complaint against defendant Sternberg

-10la-

on the ground of judicial immunity. Ge

Dacey v. New York County Lawyers'’Ass'ti,

423 F.2d 188 (2d Cir. 1969), cert.

denied, 398 U.S. 929 (1970) (bar

association has no immunity to a civil

action arising out of its attempt to

restrict the distribution of book on

avoiding probate).

ORDER

IT IS ORDERED that defendants’

motion to dismiss the complaint with

respect to defendants Supreme Court of

the State of Wisconsin and Board of

Attorneys Professional Responsibility is

GRANTED; defendants’ motion to dismiss

the complaint against defendant Sternberg

is GRANTED as to plaintiffs’ claims for

money damages against this defendant in

his official capacity; in all other

-102a-

respects it is DENIED.

Entered this 9th day of April, 1991.

BY THE COURT:

S/

BARBARA B. CRABB

District Judge

-103a-

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

August 12, 1993

HON. RICHARD D. CUDAHY, Circuit Judge

HON. JOEL M. FLAUM, Circuit Judge

HON. MICHAEL M. MIHM, Chief District

Judge*

JOHN W. STRASBURG and

ELDERCARE ASSET

PROTECTION PLANS,

INCORPORATED,

Plaintiffs-Appellants,

Appeal from the

United States

District Court

for the Western

District of

Wisconsin.

No. 91 C 18

Barbara B

Crabb, Judge

No. 91-3860 Vv.

STATE BAR OF WISCONSIN,

STERNBERG, JOHN A.

BOLTZ, et al.,

Defendants-Appellees.

)

)

)

)

)

)

)

)

)

)

)

)

ORDER

On consideration of the petition for

rehearing any suggestion for rehearing en

banc filed in the above-entitled cause on

July 23, 1993, by plaintiffs-appellants,

-104a-

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,

The Honorable Michael M. Mihm, Chief

Judge of the Central District of

Illinois, sitting by designation.

* The Honorable John L. Coffey, Circuit

Judge, did not participate in the

consideration or decision of this case.

-105a-

IT IS ORDERED that the aforesaid

petition for rehearing be, and the same

is hereby DENIED.

-106a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

ORDER

Vv. 91-C-18-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON, EDMUND

MANYDEEDS, III JACQUELINE BOHMAN, WILBUR

W. WARREN in, MICHAEL WHERRY, MICHAEL

FAUERBACH, LISA LOTTE GAMELTOFR,

PATRICIA GROVE, ROBERT J. KAY, CELIA

SERAPHIM, DIANE ZORE, AND THE SUPREME

COURT OF THE STATE OF WISCONSIN,

Defendants.

Plaintiffs have moved the court to

vacate the order dated November 15, 1991,

granting defendants’ motion for summary

judgment. Plaintiffs ask that the court

rehear and reconsider the motion. In

addition, plaintiffs ask for the

opportunity to conduct discovery bearing

-107a-

on the motion for summary judgment. At

the same time, and inexplicably,

plaintiffs have filed a notice of appeal.

The notice of appeal does not

deprive the court of jurisdiction to

consider the plaintiffs’ motion to vacate

because the notice is a nullity. First,

there is no final judgment (or its

equivalent) from which to take an appeal.

Second, even if there were such a

judgment, a notice of appeal has no

effect if it is filed before the

disposition of substantive postjudgment

motions. Fed. R. Civ. P. 4(a)(4).

I turn then to the merits of

plaintiffs‘ motions. Plaintiffs contend

that the order entered herein on November

15, 1991 should be vacated so that the

court may rehear and reconsider

defendants’ motion for summary judgment.

Plaintiffs suggest three reasons for

-108a-

reconsideration: that the court may not

have considered the decision of the

United States Supreme Court in Hafer v.

Melo, 60 U.S.L.W. 4001 (November 5, 199

a3 that the court overlooked

uncontroverted evidence in the record

that defendant Sternberg rendered

opinions on ElderCare’s business

activities and threatened plaintiffs with

sanctions if they did not forbear from

those activities; and that the court did

not address the "“indispensable" issue

whether ElderCare’s business conduct

constituted the practice of law.

None of plaintiffs’ arguments

warrant vacating of the November 15

order. Hafer v. Melo concerned the

distinction between personal-capacity and

official-capacity suits brought under 42

U.S.C Sec. 1983. It did not address the

-109a-

scope of immunities that may be available

to persons sued in one or the other

Capacity, other than to hold that state

officials may not claim the immunity of

the Eleventh Amendment when they are sued

in their personal capacities even for

actions taken in their official

capacities. Instead, the court noted

that, except for very limited classes of

officials, government officers are not

immunized from personal liability for

acts within their authority. "Rather,

immunity from suits under Sec. 1983 is

‘predicated upon a_ considered inquiry

into the immunity historically accorded

the relevant official at common law and

the interest behind it,’ JImbler v.

Pachtman, 424 S. 409, 421 (1976)." Hafer

v. Melo, 60 U.S.L.W. 4003. Hafer sheds no

new light on the issues considered in the

-110a-

November 15, i991 opinion.

With respect to plaintiffs’

other challenges to the November 15

opinion and order, only very limited

discussion is necessary. i @i¢. not

overlook the evidence in the record to

which plaintiffs refer; in fact 1

discussed it in the opinion. See slip

op. at 8-10, 16-17. Contrary to

plaintiffs’ contention, it was not

necessary to decide whether ElderCare’s

business conduct constituted the practice

of law in order to decide the motion. A

prosecutor does not act outside his

investigatory capacity merely because he

investigates activity that is determined

later to be legal or permissible.

Because I decline to vacate the

November 15 order, I will deny

plaintiffs’ request to take a deposition

of defendant Sternberg.

-llla-

Plaintiffs raise one more

matter, relating to the final paragraph

of the November 15 order in which I

advised plaintiffs that "if they believe

they have available claims against (the

defendants that have not yet been served

in this action), they may have until

December 15, 1991 in which to refile the

action and accomplish service." Slip op.

at 18-19. Plaintiffs have not complied

with this order. On December 16, 1991,

they filed a motion to have the court

"consider this motion as a refiling of

their complaint in this matter and to

permit service upon the remaining

defendants." They have not filed any

evidence of service upon any of the

defendants who had not been served as of

November 15. Therefore, I will take the

action I advised them I would take and

dismiss the complaint as the remaining

-112a-

defendants with prejudice and enter final

judgment for the defendants.

ORDER

IT IS ORDERED that plaintiffs motion to

vacate the order of November 15, 1991

granting summary judgment to defendant

Gerald Sternberg is DENIED; plaintiffs’

request to take the deposition of

Sternberg is DENIED; the complaint is

dismissed with prejudice with respect to

all of the defendants and as to

defendant Gerald Sternberg with respect

to plaintiffs’ claims for monetary

damages against him in his official

capacity; and the Clerk of Court is

directed to enter judgment for all

defendants.

-ll3a-

eee

1991.

Entered this 27th day of December,

BY THE COURT:

Barbara B. Crabb

District Judge

-114a-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN W. STRASBURG, and

ELDERCARE ASSET PROTECTION

PLANS, INCORPORATED,

Plaintiffs,

ORDER

z. 91-C-018-C

STATE BAR OF WISCONSIN,

BOARD OF ATTORNEYS PROFESSIONAL

RESPONSIBILITY, GERALD C. STERNBERG,

JOHN A. BOLZ, JOHN E. SHANNON, EDMUND

MANYDEEDS, III JACQUELINE BOHMAN, WILBUR

W. WARREN III, MICHAEL WHERRY, MICHAEL

FAUERBACH, LISA LOTTE GAMELTOFT,

PATRICIA GROVE, ROBERT J. KAY, CELIA

SERAPHIM, DIANE ZORE, AND THE SUPREME

COURT OF THE STATE OF WISCONSIN,

Defendants.

Plaintiffs have filed a motion for

reconsideration of the order entered

herein on April 9, 1991, in which I

discussed the complaint in this case

against defendants Board of Attorneys

Professional Responsibility and Supreme

-115a-

Se ee ee

Court of the State of Wisconsin, and

dismissed plaintiffs’ claim for money

damages against defendant Gerald C.

Sternberg in his official capacity.

Plaintiffs have supported their motion

with a brief. Having reviewed the motion

and the brief and defendants’ brief in

opposition to the motion, I am not

persuaded that there is any reason to

reconsider the April 9 decision.

ORDER

IT IS ORDERED that plaintiffs’

motion for reconsideration of the order

entered herein on April 9, 1991 is

DENIED.

-ll6a-

Entered this 10th day of June, 1991.

BY THE COURT:

BARBARA B. CRABB

District Judge

-117a-

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: July 9, 1993

BEFORE: Honorable Richard D. Cudahy,

Circuit Judge

Honorable Joel M. Flaum, Circuit

Judge

Honorable Michael M. Mihm, Chief

District Judge*

No. 91-3860

JOHN STRASBURG and ELDERCARE ASSET

PROTECTION PLANS, INCORPORATED,

Plaintiffs-Appellants

Vv.

STATE BAR OF WISCONSIN, GERALD C. STERNBERG,

JOHN A. BOLTZ, et al.,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Wisconsin

No. 91 C 18, Barbara B. Crabb, Chief Judge

This cause was heard on the record

from the above mentioned District Court, and

was argued by counsel.

-118a-

* The Honorable Michael M. Mihm, Chief Judge

of the Central District of Illinois, sitting

by designation.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this court that this appeal is

DISMISSED for want of jurisdiction, with

costs, in accordance with the decision of

this court entered this date.

(1061-051993)

-119a-

tee

United States District Court

Western District of Wisconsin

Case Title: Docket number

John W. Strasburg, et al., 91-C-18-C

Plaintiffs, Dec. 30, 1991

v. Name of Judge

or Magistrate

State Bar of Wisconsin, Barbara B.

et al., Crabb

Defendants.

(inapposite pre-printed parts of original

omitted )

....Decision by Court. This action has come

on for consideration by the Court with the

judge named above presiding. The issues

have been considered and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

-120a-

The defendant’s motion for summary

judgment is granted and judgment is entered

in favor of all defendants dismissing

plaintiff’s complaint with prejudice with

respect to all of the defendants and as to

defendant Gerald Sternberg with respect to

plaintiff’s claim for money damages against

him in his official capacity.

Copy of this document has been

provided to Attorneys

Cannon & Weinstein this

30th day of Dec., 1951

- By: S§. Richter, Deputy Clerk

Date: December 30, 1991

Clerk: s/Joseph W. Skupniewitz

-l12la-

ee