# Appendix — Strasburg v. State Bar > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0889%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1047 ## Text a foe" | ame Court, Ub 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. -2a- 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 -3a- 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 -4a- 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. -5a- 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 -6a- 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 -8a- 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." -9Ja- | 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. -10a- 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 -l3a- 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: -l15a- 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 -l17a- 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. -18a- 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 -19a- 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 -20a- 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. -2la- 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 -22a- 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. -23a- 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. -25a- 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 -27a- 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. -28a- 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 -29a- 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 -32a- 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 -33a- 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 -34a- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0889%3A2. Public record. Not legal advice.