SUR PETITION FOR REHEARING SUR PETITION FOR REHEARING BEFORE PANEL
Before Seitz, Chief Judge, and Aldisert, Adams, James Hunter III, Weis, Higginbotham and Sloviter, Circuit Judges.*fn* Before Adams, Weis and Sloviter, Circuit Judges.
SUR PETITION FOR REHEARING The petition for rehearing filed by Appellee, Middlesex County Ethics Committee, in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
SEITZ, Chief Judge, and ALDISERT, JAMES HUNTER III, and WEIS, Circuit Judges, would grant rehearing.
SUR PETITION FOR REHEARING BEFORE PANEL
Appellee has filed a Petition for Rehearing which appends thereto an affidavit by Stephen W. Townsend, Clerk of the Supreme Court of New Jersey. That affidavit states (1) that the Supreme Court of New Jersey, upon notification that its action would not violate the existing stay in this matter, will bring the constitutional claim of Lennox Hinds directly before it by directing a hearing by the Middlesex District Ethics Committee if further factual findings are necessary to permit the adjudication of the constitutionality of DR 1-102 and DR 7-107(D) or, if no hearing is required, by directing the accelerated filing of briefs and oral argument before the Supreme Court, and (2) that the Supreme Court decided on March 9, 1981 to determine the desirability of formalizing in R.1:20 "the procedures which have heretofore enabled respondents in disciplinary actions to raise constitutional questions."
We assume, without deciding, that we may properly consider that affidavit which contains facts dehors the record in ruling on the Petition for Rehearing. But see In re Sugar Antitrust Litigation, 579 F.2d 13, 19 (3d Cir. 1978). We decline to grant the petition. In our decision in this case, we held that the dismissal of plaintiffs' federal action was based on the erroneous premise that abstention was required under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). We found that abstention was inappropriate because the proceeding before the Ethics Committee, which was the only state proceeding then underway, did not guarantee to Hinds the requisite opportunity to make his federal constitutional arguments. Mr. Townsend's affidavit does not show otherwise.
We will not repeat any of the discussion set forth in our prior opinion but will confine ourselves to the new matters raised in the Petition for Rehearing. We have recently held that in reviewing a district court decision to abstain, the relevant facts are those which existed at the time of the district court's decision. Kennecott Corp. v. Smith, 637 F.2d 181, 186 (3d Cir. 1980). Therefore, we must focus on the rules and procedures which were in fact available to Hinds at that time. The Petition for Rehearing does not refer us to any Rule of the Supreme Court of New Jersey which would have insured judicial consideration of Hinds' constitutional claim at the time the complaint was filed in the district court. Instead, it refers us to the decision of the Supreme Court of New Jersey in In re Logan, 70 N.J. 222, 358 A.2d 787 (1976), where the court referred to motions apparently made before it by the respondent during the course of the disciplinary proceedings. Id. at 229, 358 A.2d 787. The opinion in that case does not explain the nature of these motions nor the procedure by which they were considered by the court before the conclusion of the preliminary decision by the then County Ethics Committee. It does appear that the preliminary matters raised by motion and considered by the Supreme Court were not directed to the merits of the constitutional due process issue which the Supreme Court considered in conjunction with its consideration of the presentments after the conclusion of the proceedings before the County Ethics Committee.
In any event, while the Supreme Court of New Jersey might now interpret its rules to permit it sua sponte to certify a disciplinary matter before it, see R.2:12-1, such discretionary action by the court is not the equivalent of an established procedure whereby an attorney may obtain a judicial determination of his or her constitutional claim before being required to undergo disciplinary proceedings before two tiers of ethics committees. The absence of an established mechanism is manifested by the Townsend affidavit which states the Supreme Court will now undertake to consider whether such a procedure should be formalized.
Judge Weis, in his dissenting opinion Sur Denial of Rehearing, suggests that this case should be dismissed as moot because the Townsend affidavit "establishes that the state supreme court is now prepared to promptly hear and rule on the Hinds case." We believe this represents a misinterpretation of the doctrine of mootness. That doctrine is derived from the "case or controversy" requirements of Article III of the Constitution which underlies justiciability. In considering whether a controversy has become moot, the courts have focused on the effect of intervening events on the merits of the controversy. The test for mootness requires us to determine if there is no reasonable expectation "that the alleged violation will recur" and that interim events have completely and irrevocably eradicated the effects "of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979).
In this case the merits of the underlying controversy relate to the two disciplinary rules which have been challenged as unconstitutional both on their face and as applied to Hinds. No action on the merits of this claim has been taken by the New Jersey court. Thus, the doctrine of mootness is inapplicable.
A recent in banc decision of this court touches upon some of the same considerations raised by the petition for rehearing in this case. In Finberg v. Sullivan, 658 F.2d 93 (3d Cir. 1981), we declined to vacate our opinion holding the Pennsylvania post-judgment garnishment procedures did not comport with due process, although the Pennsylvania Supreme Court revised those procedures to conform to the requirements enunciated in our opinion. In both the Finberg case and the present case, the state supreme courts proceeded to act with commendable dispatch following receipt of our respective opinions. Nonetheless, such actions cannot serve as the basis for vacating our judgments and depriving them of their precedential value. Furthermore, in this case, unlike Finberg, there has been no action taken by the Supreme Court of New Jersey to rescind the rules which have been challenged as unconstitutional and therefore the issue of mootness, rejected in Finberg, is simply inapplicable here.
In our original opinion in this case, we expressly noted that we did not reach the issue of the propriety of dismissal on abstention grounds of the plaintiff organizations who were not parties to the state disciplinary proceedings. Garden State Bar Association v. Middlesex County Ethics Committee, 643 F.2d 119 at 130 (3d Cir. 1981). Since that time, this court has held that abstention is improper with respect to such parties. New Jersey-Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, 654 F.2d 868 at 881 (3d Cir. 1981). Judge Weis recognizes the precedential effect of that decision but concludes that plaintiff organizations present only a claim derivative of that of Hinds. However, there has been no district court or appellate court consideration of the issue. The allegations in the complaint, fairly read, present an independent claim by the organizations based on the alleged facial unconstitutionality of the disciplinary rules. The complaint avers that the organizations are not parties to the proceedings before the Ethics Committee. Therefore, under the law in ...