On Appeal from the United States District Court for the District of New Jersey D.C. Civil No. 85-5833.
Before: GIBBONS, Chief Judge, SLOVITER, Circuit Judge, and SCIRICA, District Judge*fn*
Benjamin Edelstein, a New Jersey attorney, filed a complaint in federal court pursuant to 42 U.S.C. § 1983 against all of the members of the New Jersey Supreme Court seeking a declaration that a Rule promulgated by the New Jersey Supreme Court deprived Edelstein and all other attorneys of the State of New Jersey of their federal constitutional rights guaranteed by the First, Fifth and Fourteenth Amendments and an injunction against continued enforcement of the Rule. The Rule, which gives immunity to ethics grievants, provides:
Grievants in ethics matters, clients in fee arbitration cases and witnesses in both ethics and fee matters shall be absolutely immune from suit, whether legal or equitable in nature, for all communications to Committees, Fee Committees, the Director, the Board, or to appropriate staff and for testimony given in ethics or fee arbitration proceedings.
N.J. Sup. Ct. R. 1:20-11(b).
Rule 1:20-11(b) effectively bars Edelstein's pending state court suit for malicious prosecution against Raymond Kramer, the husband of one of Edelstein's clients, who filed an ethics complaint against Edelstein in 1982 with the Monmouth County Bar Association Ethics Commission which was dismissed in 1985. Edelstein's suit was filed pursuant to N.J.S.A. 2A:47A-1 which gives professionals the right to file suit against "any person who falsely and maliciously and without probable cause" makes a complaint of unethical or unprofessional conduct to a disciplinary body.
Edelstein's federal action was assigned to District Judge Robert E. Cowen. Edelstein filed a motion seeking Judge Cowen's recusal, alleging that Cowen was biased because he had served from 1973 to 1978 as Director of the Office of the New Jersey State Courts charged with enforcement of the New Jersey Supreme Court rules governing attorneys' professional conduct. In ruling on the motion, Judge Cowen noted that it had been eight years since he had been employed by the New Jersey State Courts and that he had not been involved in the "promulgation or passing or acceptance" of Rule 1:20-11(b), which was promulgated after he left his position with the New Jersey State Courts. App. at 38-39. Concluding that he did "not see how anyone could reasonably say I lack objectivity to review the substantive claims which are made in this matter," Judge Cowen declined to recuse himself. App. at 39.
The defendants filed a motion to dismiss Edelstein's complaint, which was briefed and argued before the district court. At the hearing, Edelstein contended not only that the Rule as promulgated constitutes a violation of attorneys' rights under the Equal Protection and Due Process clauses, as he alleged in his complaint, but also that the Rule is invalid under the New Jersey Constitution because it was promulgated by the Supreme Court rather than by the legislature. This contention was not made in Edelstein's federal complaint.
With respect to Edelstein's federal constitutional claims, the court concluded that there was a rational basis for the rule, namely the encouragement of ethics complaints "to ferret out unethical practitioners and to motivate complainants to do this, to file complaints without fear of retribution. It makes sense to immunize them." App. at 52. Since the court found that attorneys are not a suspect class, the rational basis for the Rule defeated Edelstein's claim that it violated equal protection or due process. With respect to Edelstein's state constitutional claim, the court stated that it had "no jurisdiction in the matter." App. at 52. The court then dismissed Edelstein's complaint with prejudice.
Edelstein filed a motion seeking to have the court amend its order to dismiss the state law claim without prejudice. Following oral argument, the district court denied the motion for amendment, but clarified its position, explaining that Edelstein's state law claim had been dismissed not on the merits but ...