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April 12, 1984

Louis SCHWARTZ, Individually, and for Persons similarly situated, Plaintiffs,
JUDICIAL RETIREMENT SYSTEM OF NEW JERSEY, Division of Pensions of the Department of the Treasury, State House Commission, Supreme Court of the State of New Jersey, individually, Honorable Chief Justice Robert N. Wilentz, Honorable Justice Robert L. Clifford, Honorable Justice Sidney M. Schreiber, Honorable Justice Stewart G. Pollock, Honorable Justice Daniel J. O'Hern, Honorable Justice Marie L. Garibaldi, Defendants

The opinion of the court was delivered by: LACEY


 In this action plaintiff contests the constitutional validity of N.J.S.A. 43:6A-13(a) (West Supp.1983-84) and an administrative directive of the New Jersey Supreme Court. Both rules forbid retired state judges receiving pensions from engaging in certain forms of private law practice. Plaintiff claims that the rules are arbitrary and irrational, and hence in violation of the equal protection clause of the fourteenth amendment. The matter is before the court on cross motions for summary judgment under Fed.R.Civ.P. 56(c).

 The underlying facts are uncontested. Plaintiff Louis Schwartz served as a judge of the New Jersey Superior Court from April 9, 1970 to July 21, 1982. He then retired and began collecting a lifetime pension of $52,500 per year under the state Judicial Retirement System, N.J.S.A. 43:6A-1 et seq. (West Supp.1983-84). The statute provides that no person receiving a pension under the Judicial Retirement System may "engage in the practice of law before any of the courts of this State." N.J.S.A. 43:6A-13(a). On December 4, 1975 the state Supreme Court issued administrative guidelines delineating the scope of the ban:

(2) A retired judge may not serve as an attorney in any matter in any court of the State of New Jersey. This prohibition includes participating in the actual conduct of any proceeding before the court, appearing at counsel table during the course of a court proceeding, and serving therein either as associate counsel or counsel of record. . . .
(4) A retired judge may not serve as an attorney in any contested or uncontested matters before either State or local administrative agencies, boards and tribunals exercising a discretionary or quasi-judicial function. . . .

 Memorandum to Justices and Judges (Dec. 4, 1975) (promulgating regulations). The directive also banned pension recipients from serving as expert witnesses or accepting miscellaneous court appointments. It explicitly permitted them to perform tasks connected with litigation but not requiring court appearances. The directive also exempted federal court practice from its prohibition.

 On April 13, 1982 plaintiff sent the first of a series of letters to the state Supreme Court by way of the Administrative Director. In it, he explained that he wished to take a position as county counsel, and inquired whether the ethical guidelines would prohibit such employment. In this and subsequent letters, he explained that the position would involve advising a public agency. He would be present at quasi-judicial hearings held by the agency, but not as a litigant or interested party. The Administrative Director of the Courts replied by letter dated July 14, 1982 that the "role of a retired judge associated with a public agency would have to be of the same character as that of one acting 'of counsel' to a law firm."

 Plaintiff continued to seek clarification. By November 3, he received a preliminary opinion from the Supreme Court that the employment was impermissible. The Administrative Director asked for further information about plaintiff's duties. The Supreme Court considered the information and confirmed the earlier opinion. On December 13, 1982 it advised plaintiff that employment as county counsel "would contravene the letter and spirit of the guidelines. . . ." An explanation for the ruling appeared in the November 3, 1982 letter:

 Plaintiff brought this action on October 5, 1983. His main argument is that the proffered justification should apply equally to pensioned and unpensioned judges, and that the distinction is therefore irrational. He also argues that nothing in the statute justifies the Supreme Court's rules against employment in a nonadvocatory capacity. Finally, plaintiff argues that the legislature, in promulgating the original statute, invaded a province committed to the Supreme Court by the state constitution.


 Plaintiff sues under 42 U.S.C. § 1983 for violations of his fourteenth amendment rights by the State of New Jersey. This court has jurisdiction over such claims by virtue of 28 U.S.C. § 1343(3) and (4). He principally claims that defendants are denying him equal protection of the laws. The complaint states a constitutional claim that is not "insubstantial" or "frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946). It is well within the traditional meaning of civil rights or equal rights, as specified in the jurisdictional statute; it is not simply a federal statutory claim appended to § 1983 for jurisdictional purposes. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).

 The question remains whether this is an impermissible attempt to "appeal" a decision of the New Jersey Supreme Court to this court. Federal district courts have no authority to hear appeals from state court decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 1311, 75 L. Ed. 2d 206 (1983); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296, 90 S. Ct. 1739, 1748, 26 L. Ed. 2d 234 (1970). That power is reserved to the Supreme Court by virtue of 28 U.S.C. § 1257. Where, as here, state courts have been granted rulemaking power, the line is sometimes thinly drawn between appeals of a state judicial decision and civil suits challenging court-made rules on federal grounds. The latter may be heard in federal district court; the former may not.

 The Supreme Court, in District of Columbia, supra, recently explored the distinction between judicial and administrative acts by state courts. It held that the appellate court's refusal to waive its own rule requiring attendance at an ABA-accredited law school as a prerequisite to admission to the bar was a judicial act. The Court emphasized that appellant had received Feldman's application, applied the local law to the facts of the case, and adjudicated his rights. The court in such a case

investigates, declares and enforces liabilities as they stand upon present or past facts and under laws supposed already to exist. . . . Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.

 Id., 103 S. Ct. at 1312 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S. Ct. 67, 69, 53 L. Ed. 150 (1908)). The Supreme Court held that the applicants could challenge the appellate court's refusal to waive its rules only by way of appeal. Plaintiffs' constitutional challenges to the rules themselves, however, were properly before the district court.

 Looking not to the form, but to the "character of the proceedings," id., 211 U.S. at 226, 29 S. Ct. at 69, I have little doubt that plaintiff here challenges the rules themselves. Promulgated by administrative directive on December 4, 1975, they clearly have prospective general application. Plaintiff's chief line of attack depends on the fact that the rules govern only pensioned judges. Thus plaintiff's grounds for objection are inherent in the regulations, and do not turn on any particular application of them.

 The Supreme Court has often recognized that a state court may "act in a non-judicial capacity in promulgating rules regulating the bar." District of Columbia, supra, 103 S. Ct. at 1316. See Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731, 100 S. Ct. 1967, 1974, 64 L. Ed. 2d 641 (1980); Lathrop v. Donohue, 367 U.S. 820, 827, 81 S. Ct. 1826, 1829, 6 L. Ed. 2d 1191 (1961) (plurality opinion). When it does, its rules may be challenged by way of a suit in federal district court; for purposes of 28 U.S.C. § 1257, nonadjudicative rules stand on the same basis as state statutes or administrative regulations.

 I find that this court has jurisdiction over plaintiff's claim. I would not have jurisdiction over a claim that the state Supreme Court erroneously applied its rules to the facts of plaintiff's case, but plaintiff makes no such claim. *fn1" This is a "civil action" under 28 U.S.C. § 1343; it is not an "appeal" under 28 U.S.C. § 1257.


 Defendants argue that I should abstain from deciding this question. They state that the matter is best left to the state courts. Plaintiff in their view may bring a state court action and eventually carry the matter to the state Supreme Court, sitting in its adjudicative rather than its rulemaking capacity. Nevertheless, I find abstention unwarranted here.

 Concededly, the regulation of the legal profession traditionally has lain with the state. The state has broad power to establish professional standards, particularly with regard to the legal profession. Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004, 2015, 44 L. Ed. 2d 572 (1975). "The State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses." Middlesex Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 434, 102 S. Ct. 2515, 2522, 73 L. Ed. 2d 116 (1982) (applying Younger abstention to pending state disciplinary proceedings). Judges, even more than lawyers, are "essential to the primary governmental function of administering justice. . . ." Goldfarb, supra, 421 U.S. at 792, 95 S. Ct. at 2016. If anything, New Jersey's interest in regulating the ethical conduct of its judges is even greater than its interest in prescribing standards for attorneys. Coruzzi v. State of New Jersey, 705 F.2d 688, 691 (3d Cir.1983) (applying Younger abstention to removal proceedings against state judge). It may even be that the relationships involved are "extremely delicate," as argued by defendant. More must be shown to invoke the "extraordinary and narrow exception to the duty of a District Court to adjudicate a ...

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