Carlene Bense, et al., Plaintiffs-appellants, v. Richard Starling and Anthony Duchinski, Defendants-appellees, 719 F.2d 241 (7th Cir. 1983)

Embodied in the words 'cases' and 'controversies' are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. (emphasis supplied)

It is essential then to the existence of federal judicial power that there be present before the court a proceeding and that such proceeding be an adversary one. In this matter, there was no such proceeding before the District Court.

There was a motion by Goldblatt praying the court to allow him to appear "in this case without local counsel." The "case" to which the motion referred and the "case" shown in the caption of the papers was Carlene Bense and others against Starling and another. There was no such case. A civil action is commenced by filing a complaint (Fed. R. Civ. P. 3). No complaint has ever been filed for Carlene Bense or the others and no process has ever been issued on their behalf.

The only movant before the Court was Mr. Goldblatt, the attorney. His motion was the only matter before the District Court, and it was not an adversary matter. No notice was given to anyone. There was no hearing. There was not, and could not be, any opposition to the motion because there were no "parties" before the Court.

The situation was in fact reasonably clear. Goldblatt had clients who wished to commence an action in the District Court. The motion to the District Court in substance asked that Court to make an exception to Local Rule 1 for the case of Bense and others to allow Goldblatt to commence and prosecute the case by himself alone, without local counsel. There was no demand for this as a constitutional right; there was no assertion that Local Rule 1 was unconstitutional. The motion did not ask for a judicial decision between adversary parties, but rather for a ministerial act by the District Judge granting an exception to a court rule. Chief Judge Foreman denied the motion " [p]ursuant to Local Rule 1." Whatever may have been its basis, the order seems to us to have been an administrative step rather than the exercise of an Article III power of judicial decision.

Even if the order of Chief Judge Foreman was appealable, the notice of appeal as filed was not effective to invoke the jurisdiction of this Court. The notice of appeal was filed by "Carlene Bense et al., plaintiffs above named." Bense and the others are not parties to any civil action in the District Court. Only a party to an action can appeal from an order or judgment therein. This was declared in few words some years ago by the Supreme Court: "One who is not a party to a record and judgment is not entitled to appeal therefrom." Ex Parte Leaf Tobacco Board of Trade, 222 U.S. 578, 581, 32 S. Ct. 833, 833, 56 L. Ed. 323 (1911); see United States ex rel. the State of Louisiana v. Jack, 244 U.S. 397, 402, 37 S. Ct. 605, 607, 61 L. Ed. 1222 (1916).

There are two decisions of this Court which, while involving state court action on Illinois Bar admission matters, employ case or controversy reasoning equally applicable here.

In Ktsanes v. Underwood, 552 F.2d 740 (7 Cir. 1977), rehearing denied, 560 F.2d 790 (7 Cir. 1977), cert. denied, 435 U.S. 933, 98 S. Ct. 1508, 55 L. Ed. 2d 530 (1978), Ktsanes had been admitted to the Kentucky Bar. He was qualified for admission to the Illinois Bar under a reciprocity agreement between Illinois and Kentucky. He had, however, previously taken and failed the Illinois Bar examination. Rule 705(d) of the Illinois Supreme Court provided that an otherwise qualified attorney from another state who had taken and failed the Illinois Bar examination is not eligible to apply for admission to the Illinois Bar on foreign license. Pursuant to this rule, the Illinois Board of Law Examiners denied Ktsanes an application for admission on foreign license. Ktsanes next petitioned the Justices of the Illinois Supreme Court for an exemption from Rule 705(d). This petition was denied. Ktsanes then commenced an action under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Illinois against the members of the Illinois Board of Law Examiners and the Justices of the Illinois Supreme Court. He asserted that Rule 705(d) violated the equal protection clause of the Fourteenth Amendment and asked for an injunction against its enforcement. The District Court dismissed the action. This Court reversed.

The relevant issue in this Court was whether the denial by the Illinois Supreme Court of Ktsanes' petition for exemption constituted a judicial decision in a case or controversy in the federal constitutional sense. If so, the Supreme Court of the United States would have jurisdiction to review the decision by certiorari (28 U.S.C. § 1257(3); In re Summers, 325 U.S. 561, 65 S. Ct. 1307, 89 L. Ed. 1795 (1945)). But, as Mr. Justice Black put it bluntly:

"... lower federal courts possess no power whatever to sit in direct review of state court decisions." Atlantic C.L.R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296, 90 S. Ct. 1739, 1748, 26 L. Ed. 2d 234 (1970).

If the decision of the Illinois Supreme Court could have been reviewed by the Supreme Court of the United States, then no lower Federal court would have jurisdiction of a civil action under 42 U.S.C. § 1983 attacking that decision because such action would in substance be asking for a review of the state court decision. So the Ktsanes decision recognized (552 F.2d at 741, 742).

The Ktsanes decision was that the Illinois Supreme Court decision could not have been reviewed by the Supreme Court of the United States because it was not made in a case or controversy. This Court described the proceedings in the Illinois Supreme Court in terms applicable to what took place before Chief Judge Foreman in the matter now before us:

When Ktsanes petitioned the Illinois court, the petition was merely one for exemption from the rule, not a challenge of it. There was no 'claim of present right to admission to the bar of a state and a denial of that right' which the Summers Court held to create a case or controversy under Article III.... Ktsanes never argued the question of the validity of Rule 705(d) before the Illinois Supreme Court. He was asking for ministerial action, not judicial determination. The denial of his petition was made by the court acting in an administrative capacity. That denial did not present a case or controversy cognizable by an Article III court, and, thus, was not appealable to the Supreme Court of the United States. 552 F.2d at 743 (citations omitted).

This Court has recently approved and followed Ktsanes in determining whether bar admission proceedings before the Illinois Supreme Court presented a case or controversy in the federal constitutional sense. Lowrie v. Goldenhersh, 716 F.2d 401, 406 (7th Cir. 1983).

We have taken into account whether a recent decision of the Supreme Court in this area, District of Columbia Court of Appeals v. Feldman, --- U.S. ----, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983), affects the conclusion we reach here and the value of the two earlier decisions of this Court as authority for that conclusion. Feldman involved bar admission rules of the District of Columbia Court of Appeals (which is the equivalent of the highest court of a state for purposes of certiorari review under 28 U.S.C. § 1257(3)) and petitions for a waiver under one of those rules. The petitions were denied. Thereafter, these denials were attacked in civil actions in the United States District Court for the District of Columbia. As the case reached the Supreme Court, a crucial question was whether the "waiver" petitions, and orders in the District of Columbia Court of Appeals were in "cases" or "controversies" under Article III. On facts very different from those in the case at bar, the Supreme Court decided that they were. The Supreme Court found that the applicants in their petitions and in the proceedings had claimed a present right to admission to the Bar (103 S. Ct. at 1314). While this finding may seem (at least as to one of the applicants) without very strong support (and prompted a dissent by Justice Stevens), it was made. No such finding could be made in the case at bar. We are unable to see that the Feldman decision in any way affects our conclusion here or that it in any way affects the two earlier decisions of this Court on which in part we rely.

We are satisfied that precedents in this Court, based on established principles of federal jurisdiction, require us to dismiss the appeal attempted here.

We believe that, if a resolution be desired of the constitutional questions sought to be raised on this appeal, they can be presented in a procedural form within the jurisdiction of the District Court and of this Court.

This appeal is dismissed for want of jurisdiction.