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.
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 controversy properly before it." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S. Ct. 1060, 1062, 3 L. Ed. 2d 1163 (1959)). Accord, Johnson v. Kelly, 583 F.2d 1242, 1250 (3d Cir.1978).
The Supreme Court has confined abstention to three general categories. Colorado River, supra, 424 U.S. at 814, 96 S. Ct. at 1244. First, a district court will abstain where a state court decision of a novel state law issue might moot or alter the federal constitutional issue before the federal court [hereinafter " Pullman abstention"]. E.g., Lake Carriers v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972); United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 82 S. Ct. 676, 7 L. Ed. 2d 623 (1962); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941).
Second, the federal court will abstain where a case presents difficult state law issues bearing on substantial public policies transcending in importance the case at bar [hereinafter " Burford abstention"]. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). Third, this court must abstain where plaintiff seeks to restrain certain state judicial proceedings which are then pending [hereinafter " Younger abstention"]. E.g., Middlesex Ethics Committee, supra; Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). These categories are no more than a guide, of course. Abstention is a developing field of law, grounded in principles of federalism, and is not easily reduced to any formula. The proper relationship between state policy and the federal judiciary, and not any categorical scheme, must guide the discretion of the district court. See Williams v. Red Bank Bd. of Ed., 662 F.2d 1008, 1023 n. 15 (3d Cir. 1981).
Younger abstention is clearly inappropriate. The first step in the Younger analysis is determining whether there is a pending, i.e., ongoing, state judicial proceeding. Middlesex Co., supra, 457 U.S. at 432, 102 S. Ct. at 2521; Steffel v. Thompson, 415 U.S. 452, 460-75, 94 S. Ct. 1209, 1216-24, 39 L. Ed. 2d 505 (1974); Coruzzi, supra, 705 F.2d at 690. There is no pending state proceeding with which a decision on the merits here would interfere. Younger abstention has never applied in such a case.
In Steffel, for example, plaintiffs sought a declaratory judgment that threatened prosecutions would violate their first amendment rights. The Court held that attacks on the constitutionality of a statute, whether facial or as-applied, were cognizable where there was no prosecution actually in progress and plaintiffs sought a declaratory judgment. Here, too, plaintiff attacks a rule that will be applied if he accepts employment. Considerations of federalism and comity "have little force in the absence of a pending state proceeding." Steffel, supra, 415 U.S. at 462, 94 S. Ct. at 1217 (quoting Lake Carriers' Ass'n, supra, 406 U.S. at 509, 92 S. Ct. at 1756).
Nor do the issues warrant Pullman abstention. Defendants can point to no novel issue of state law that would moot plaintiff's constitutional claim or place it in a different light. The state Supreme Court has authoritatively advised plaintiff that its regulations apply to him, if it were not clear from the regulations themselves. The validity of the state pension law and the nature of plaintiff's status under it are not in doubt. Plaintiff's separation of powers arguments, while matters of state law, are insubstantial. See infra. The heart of defendant's abstention argument is that plaintiff could bring his claims in state court instead, because the state courts have historically been receptive to review of court rules. See American Trial Lawyers v. New Jersey Supreme Court, 66 N.J. 258, 267, 330 A.2d 350, 355 (1974) (review of court rules "never foreclosed"). See also In re Sackman, 90 N.J. 521, 448 A.2d 1014 (1983) (reviewing rule requiring out-of-state attorneys to maintain principal office in New Jersey); In re Professional Ethics Advisory Committee Opinion No. 475, 89 N.J. 74, 444 A.2d 1092, appeal dismissed, 459 U.S. 962, 103 S. Ct. 285, 74 L. Ed. 2d 272 (1982). This court, however, does not have discretion to dismiss a suit "merely because a State court could entertain it." Colorado River, supra, 424 U.S. at 813, 96 S. Ct. at 1244 (quoting Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 361, 71 S. Ct. 762, 774, 95 L. Ed. 1002 (1951)).
The federal court will abstain where a disputed issue of state law is likely to alter the federal claim. The gist of plaintiff's claim, however, is that the distinction between pensioned and unpensioned judges is irrational. The existence of that distinction is undisputed. I cannot abstain where defendants would simply prefer to be in state court. Wisconsin v. Constantineau, 400 U.S. 433, 437-39, 91 S. Ct. 507, 510-11, 27 L. Ed. 2d 515 (1971); Zwickler v. Koota, 389 U.S. 241, 251, 88 S. Ct. 391, 397, 19 L. Ed. 2d 444 (1967). Plaintiff had a right to choose a federal forum for his constitutional claim. Id., 389 U.S. at 248, 88 S. Ct. at 395. I cannot require that he exhaust state law remedies before bringing this § 1983 action. Patsy v. Bd. of Regents, 457 U.S. 496, 500, 102 S. Ct. 2557, 2559-60, 73 L. Ed. 2d 172 (1982); Steffel, supra, 415 U.S. at 472-73, 94 S. Ct. at 1222; Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 482, 5 L. Ed. 2d 492 (1961).
Finally, I find Burford abstention inapplicable here. Burford, supra, and its progeny mainly bespeak the federal courts' reluctance to meddle with highly complex, usually highly technical, state regulatory schemes. Burford itself, for example, would have required the federal court to interpret state regulations governing oil and gas conservation and the drilling of wells. I do not find that Burford or general policies underlying the Burford line of cases demand abstention.
First, this court does not stray beyond its area of expertise in hearing this case. Regulations pertaining to conflicts of interest are not overly technical or foreign to the concerns of federal courts.
More to the point, this case involves no issue of state law as such. The court would not be interpreting the state law in the sense of telling the state what its law is; rather, it would be measuring an unambiguous state law against the requirements of the federal constitution. Thus no "difficult question of state law," Colorado River, supra, 424 U.S. at 814, 96 S. Ct. at 1244, is involved as in Louisiana Power, supra. See also Baltimore Bank v. Farmers Cheese Cooperative, 583 F.2d 104, 110 (3d Cir. 1978) (abstention inappropriate where underlying commodity subject to complex regulations, but actual claim was simple breach of contract). The typical Burford case is a diversity action in which the federal court would in some sense usurp a state law decision.
Here plaintiff asserts a pure federal constitutional claim. The existence of a strong federal claim may well raise the threshold of justification for abstention, Colorado River, supra, 424 U.S. at 815 n. 21, 96 S. Ct. at 1245 n. 21, particularly where no state law issues are posed.
Where plaintiff alleges that a state rule on its face violates the federal constitution, the federal court's concern with the state's efforts to develop a coherent policy must be tempered. Cf. Hotel & Restaurant Employees v. Danziger, 709 F.2d 815, 832 (3d Cir.), prob. juris. noted, 464 U.S. 990, 104 S. Ct. 479, 78 L. Ed. 2d 677 (1983) ("No [ Burford ] argument can be entertained based on disruption of a state administrative scheme in a case in which the court is asked to decide whether the very existence of that scheme violates a paramount federal statute").
Nor is this a case in which a federal court decision would disrupt a state system of administrative review designed to ensure consistency within a complex regulatory system. See Colorado River, supra, 424 U.S. at 815, 96 S. Ct. at 1245; Alabama Public Service Comm'n v. Southern R. Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951). This lawsuit substitutes not for a state administrative review system, but for a hypothetical state lawsuit asserting the same constitutional claim. Cf. Heritage Farms v. Solebury Tp., 671 F.2d 743, 747-48 (3d Cir.), cert. denied, 456 U.S. 990, 102 S. Ct. 2270, 73 L. Ed. 2d 1285 (1982) (allegation of unfair or corrupt administration of state regulations not subject to Burford abstention).
In summary, few factors operate in favor of abstention. To be sure, public rights and important state policies are involved. But "there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy." Zablocki v. Redhail, 434 U.S. 374, 379 n. 5, 98 S. Ct. 673, 677 n. 5, 54 L. Ed. 2d 618 (1978). Otherwise, a federal court could never strike down a state statute. This is a case in the Zablocki, not the Burford, mold. The Zablocki plaintiff, like plaintiff here, challenged the constitutionality of a state statute.
The statute regulated marriage, like judicial ethics a matter of traditional and exclusive state regulation. Justice Marshall found no pending state proceeding; no ambiguous issue of state law; and no complex issue of state law bearing on the coherence of state public policy. 434 U.S. at 379-80 n. 5, 98 S. Ct. at 677-78 n.5. In such a situation, the supremacy of federal law and plaintiff's right to choose a federal forum outweigh all other considerations. A judgment for plaintiff would do no more than ensure that state authority is exercised within the broad boundaries of constitutionality. Cf. Colorado River, supra, 424 U.S. at 816, 96 S. Ct. at 1245 (federal court may hear mixed federal and state claims regarding water rights). The district courts may, and must, hear such claims.
III. THE MERITS
A. Preliminary State Law Issues
Plaintiff first argues that N.J.S.A. 43:6A-13(a), which forbids judges on pensions to "engage in the practice of law before any of the courts of this state," violates state principles of separation of powers. He states that regulation of judicial ethics is constitutionally committed to the New Jersey Supreme Court. N.J. Const. (1947), art. VI, § 2, para. 3; Knight v. Margate, 86 N.J. 374, 390-91, 431 A.2d 833, 842 (1981); In re Gaulkin, 69 N.J. 185, 188-89, 351 A.2d 740, 743-44 (1976). Thus, the argument runs, a statute regulating judicial ethics must be invalid.
As a matter of state law, it is not true that statutes regulating judicial ethics are invalid. "In the full enjoyment of its paramount and exclusive powers over the judicial branch, the Supreme Court has the authority, reasonably to be implied under the twin principles of the separation and interdependence of governmental powers, to permit or accommodate the lawful and reasonable exercise of the powers of other branches of government even as that might impinge upon the Court's constitutional concerns in the judicial area." Knight, supra, 86 N.J. at 391, 431 A.2d at 842 (upholding application of state Conflicts of Interest Law to judges). In any event, the point is inconsequential. With or without the statute, it is clear beyond cavil that the New Jersey Supreme Court had the inherent power to enact its administrative ethical guidelines; indeed, plaintiff's argument depends on the exclusiveness of that power. Moreover, the statute regulates only practice before the New Jersey courts. Plaintiff seeks only to serve as county counsel in administrative proceedings. Therefore, I would entertain serious doubts regarding his standing to challenge the statute. See generally, L. Tribe, American Constitutional Law, §§ 3-17 -- 3-30 (1978); C. Wright, The Law of Federal Courts, §§ 12-13 (4th ed. 1983). See also Clements v. Fashing, 457 U.S. 957, 966 n. 3, 102 S. Ct. 2836, 2845 n.3, 73 L. Ed. 2d 508 (1982).
For the purposes of this opinion, I will regard plaintiff's case as a challenge to the regulations of the New Jersey Supreme Court, promulgated under the Court's power to regulate "every area in which unjust or unethical conduct might afflict the public at the hands of those admitted by the Court to the practice of law." American Trial Lawyers Assoc. v. New Jersey Supreme Court, 66 N.J. 258, 264, 330 A.2d 350, 353 (1974). That rulemaking power, explicitly granted by art. VI, § 2, para. 3 of the 1947 Constitution, cannot seriously be challenged.
Moreover, it is clear that the Court's regulations apply to plaintiff. The letter from the Administrative Director authoritatively advised plaintiff to that effect, and it explicitly rested on the Court's guidelines, not on the statute. No authority has ever purported to apply the statute to plaintiff, and it does not appear that the statute would forbid employment as county counsel. Plaintiff's legitimate claims arise out of the application of the Court's ethical guidelines.
B. Plaintiff's Equal Protection Challenge
"Membership in the bar is a privilege burdened with conditions." Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917) (Cardozo, J.). Nowhere is that more true than in the case of judges. The state judiciary of New Jersey is hemmed in with regulations aimed at avoiding even the appearance of impropriety. See, e.g., N.J. Ct.R. 1:15 (limiting activities of judges); N.J.Ct.R. 1:17 (prohibiting political activity); N.J.S.A. 52:13D-17.2 (prohibiting casino-related activities by judges and other officials within two years of leaving office). The state Supreme Court has recognized that "integrity is the very breath of justice. Confidence in our law, our courts and in the administration of justice is our supreme interest. No practice must be permitted to prevail which invites toward the administration of justice a doubt or distrust of its integrity." Perillo v. Advisory Committee on Prof. Ethics, 83 N.J. 366, 373, 416 A.2d 801, 805 (1980) (quoting Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 868 (Sup.Ct. Errors 1928)). The need to maintain public confidence in the administration of justice has traditionally justified ethical restrictions on judicial activities, including activities unobjectionable in themselves. See, e.g., Knight v. Margate, 86 N.J. 374, 393, 431 A.2d 833, 843 (1981) (barring judges from casino related activities); In re Vasser, 75 N.J. 357, 382 A.2d 1114 (1978) (misuse of judicial office in private practice); In re Gaulkin, 69 N.J. 185, 199, 351 A.2d 740, 747 (1976) ("certain amenities of life, and perhaps even some legal rights, have to be sacrificed" to avoid appearance of impropriety). Even for an ordinary attorney, any reasonable public perception of impropriety, however unfounded in an individual case, suffices to trigger ethical concerns. See Reardon v. Marlayne, 83 N.J. 460, 473, 416 A.2d 852, 859 (1980).
The need to avoid the appearance of wrongdoing follows a judge even into retirement. Like it or not, a retired judge is still perceived as a judge. Thus the rule at issue here extends its ban to judges receiving pensions. The Court, by way of the Administrative Director, advised plaintiff:
The Court has concluded, generally, that any public agency position you assume would be limited in scope to that of an advisor. . . . It would not be appropriate for you to be the counsel to a public agency or entity. The holding of such a position may result in the perception of your use of your former office, in large part through identification with litigation. Further, it would be inappropriate for you to appear at a public meeting as advisor to a board or agency. Such appearance would result in the public airing of your legal opinions and might lend added influence to any decision made by the board or agency.