Bishop v. Comm. on Professional Ethics, 686 F.2d 1278 (8th Cir. 1982)

The Honorable Harold D. Vietor, United States District Court for the Southern District of Iowa.

The district court stayed its injunction pending appeal. Bishop v. Comm, on Professional Ethics and Conduct of the Iowa State Bar Ass’n, 521 F.Supp. 1219, 1233 (S.D.Iowa 1981).

For a general summary of the district court’s findings, see Bishop v. Committee, supra, 521 F.Supp. at 1232-33.

Michael W. Liebbe was not Bishop’s attorney in the present case.

It is important to note that at the time the joint application for limited remand to the district court was granted this court was unaware of the existence of Bishop’s January 5, 1982 affidavit or any other circumstances, other than the pending ethical violations proceedings against Bishop, which might suggest that Bishop’s claims had become moot. Furthermore, at the time we remanded this case for possible class certification it obviously was not the intention of this court to permit the district court to waive the hearing and analysis requirements of Rule 23 and to certify the class and class representative without any hearing whatsoever.

The Honorable William C. Stuart, Chief Judge, United States District Court for the Southern District of Iowa. It should be noted that while the case was originally tried by Judge Vietor, it was a different district court judge who made the class action determination.

Bishop v. Comm, on Professional Ethics and Conduct of the Iowa State Bar Ass’n, Civ. 81-47-D (S.D.Iowa March 8, 1982) (order for class certification and class designation).

In re Accusation Against Bishop, No. 2-68112 (Iowa S.Ct. April 15, 1982) (Order).

It is difficult to square this representation with Bishop’s earlier affidavit or the earlier disciplinary proceedings in the Iowa Supreme Court.

In re Accusation Against Bishop, 320 N.W.2d 47 (Iowa S.Ct. 1982) (Order).

These allegations of unethical and unprofessional conduct in violation of the Iowa Disciplinary Rules included conversion by Bishop of client’s monies for Bishop’s own personal use and failure to perform legal services for which he had already received payment. See In re *1283 Accusation Against Bishop, 320 N.W.2d 47 at 48 (Iowa S.Ct. 1982).

The record in the instant case is strongly suggestive of such an attempt by counsel to stipulate to jurisdiction. Although it appears that appellant Bishop presented a “live” controversy at the time his complaint was filed, at the time of the district court’s decision on the merits, and at the time notice of appeal was filed, it also appears that subsequently serious questions arose concerning the potential mootness of Bishop’s individual claims on grounds other than Bishop’s possible future disbarment. Nevertheless, neither counsel for the appellant nor counsel for the Committee addressed these other problems until questioned by this court at oral argument on the appeal. The record also discloses that when the parties became concerned about potential mootness problems associated with Bishop’s individual claims, they filed a joint application for limited remand for class certification. On remand to the district court for class certification, counsel for the Committee not only did not oppose class certification, but submitted the sole affidavit in support of class certification. Moreover, when counsel were requested by this court at oral argument to supply supplemental briefs addressing the mootness issue, they sought to file a joint brief. When that request was denied, both counsel filed briefs urging this court to find that Bishop’s individual claims were not moot. Thus, at a minimum, the record suggests that the mootness issue has yet to be presented to this court in an adversary manner. While we fully recognize the importance of the constitutional issues present in this case, and we do not doubt the earnestness of the parties in seeking a decision on the merits, we believe that it is appropriate to reiterate the Supreme Court’s statement in Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) concerning the rules of justiciability arising out of the “case or controversy” requirement: “ ‘The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules .’” id. at 136, 97 S.Ct. at 1718 (quoting Ashwander v. TVA,* 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).

We recognize that an exception to the general rule requiring dismissal for mootness when a named plaintiff no longer has a personal stake in the outcome of the litigation, applies in cases which present issues “capable of repetition, yet evading review.” See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 398, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980). This doctrine applies even where the named plaintiff’s personal claim expires prior to class certification. See id. One application of this doctrine occurs in cases in which due to the inherently transitory nature of proposed class representative’s individual claims and the realities of the judicial process, the proposed class representative’s individual interest will expire prior to the time a district court reasonably could be expected to rule on a motion for class certification. See id. at 399, 100 S.Ct. at 1210; Sosna v. Iowa, 419 U.S. 393, 402 n.11, 95 S.Ct. 553, 558 n.11, 42 L.Ed.2d 532 (1975). See, e.g., Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975) (in a suit challenging constitutionality of pretrial detention without a probable cause hearing the Court stated that plaintiffs fell within this exception to the general rule because “[i]t is by no means certain that any individual, named as plaintiff, would be in pretrial custody long enough for the district judge to certify the class.” Id.). The instant case clearly does not fall within this branch of the doctrine since there is absolutely no reason to expect that Bishop’s individual interest in advertising means and contents prohibited by the Iowa Disciplinary Rules would expire prior to the time the district court could reasonably be expected to certify a class action. The doctrine of “capable of repetition, yet evading review” has also been applied to allow a named plaintiff to litigate an issue despite the mootness of his or her personal claim in cases where the named plaintiff’s expired individual claim may be expected to reoccur. United States Parole Comm’n v. Geraghty, supra, 445 U.S. at 398, 100 S.Ct. at 1209. See, e.g., Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 123-25, 93 S.Ct. 705, 711-712, 34 L.Ed.2d 147 (1973). However, a court must be able to conclude that reoccurrence of the plaintiff’s expired claim may be reasonably expect*1285ed, rather than be a mere possibility, see SEC v. Medical Comm’n for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972), and “speculative contingencies” do not provide a sufficient basis for such a conclusion. See Hall v. Beals, 396 U.S. 45, 49, 90 S.Ct. 200, 202, 24 L.Ed.2d 214 (1969). We do not believe that appellant Bishop’s claims fall within this branch of the doctrine. Although it is not entirely inconceivable that Bishop may at some time in the future again seek to practice law and advertise that practice in the State of Iowa, this possibility is far too remote and speculative in light of the multiple intervening contingencies that would have to occur before Bishop once again would be in a position to challenge the Iowa Disciplinary Rules relating to lawyer advertising. Cf. Allen v. Likins, 517 F.2d 532 (8th Cir. 1975) (Plaintiff challenged constitutionality of statute that removed plaintiffs children from her custody upon her incarceration in prison. Prior to class certification, plaintiff was paroled and regained custody of her children. Despite plaintiff’s claim that she might again be unconstitutionally deprived of custody of her children if her parole was revoked, this court held that plaintiffs claims were moot and did not present issues “capable of repetition, yet evading review.” The court reasoned that in light of the four contingencies, three of which were within the discretion of the government, the threat of again losing custody could not be considered a real and immediate danger.) See also Hall v. Beals, supra, 396 U.S. at 49, 90 S.Ct. at 202. Before Bishop could once again be subjected to the allegedly unconstitutional Iowa Disciplinary Rules relating to lawyer advertising the following contingencies must occur: (1) Bishop would have to return to the State of Iowa; (2) Bishop would have to seek readmission to the Iowa Bar; (3) the Supreme Court of Iowa would have to determine that Bishop was fit to practice law in Iowa and readmit Bishop to the Bar; (4) Bishop would have to commence practice of law in Iowa. Thus, although we have little doubt that the Iowa Disciplinary Rules relating to lawyer advertising will continue to be applied to Iowa attorneys in the future, “there is no demonstrated probability that [Bishop] will again be among that number.” Weinstein v. Bradford, supra, 423 U.S. at 149, 96 S.Ct. at 348 (citation omitted).

The reasoning for this requirement is that because “faulty certification prevents] the class from acquiring separate legal status, Art. Ill require[s] dismissal.” United States Parole Comm’n v. Geraghty, supra, 445 U.S. 388, 413, 100 S.Ct. 1202, 1217, 63 L.Ed.2d 479 (1980) (Powell, J. dissenting, joined by C. J. Burger, J. J. Stewart, Rehnquist).

Fed.R.Civ.P. 23(c)(1) provides in relevant part that: “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.

Id Rule 23(c)(3) provides in relevant part that: “The judgment in an action maintained as a class action under subdivision (b)(2) shall include and describe those whom the court findus to be members of the class.”

Id Rule 23(a) provides:

We also question the propriety of class certification entered in this case over six months after judgment was entered by ■ the district court on the merits. Under Fed.R.Civ.P. 23(c)(1) “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” This requirement has been held to apply to all class actions, including those brought pursuant to Rule 23(b)(2). See Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir. 1975), cert. denied, Mathews v. Jimenez, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976). There has been some variance among the circuits as to the exact nature of the Rule 23(c)(1) limitation on when a class action may be certified, see, e.g., Gurule v. Wilson, 635 F.2d 782, 788-90 (10th Cir. 1980) (post-judgment class certification proper in Rule 23(b)(2) class action in the unusual circumstances of that case); Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d.787 (1978) (same); Nance v. Union Carbide Corp., 540 F.2d 718, 723 n.9 (4th Cir. 1976) (determination of class status must be made prior to decision on merits); Larionoff v. United States, 533 F.2d 1167, 1183 (D.C.Cir. 1976) (simultaneous entry of judgment and class certification permissiblé); Jimenez v. Weinberger, supra, 523 F.2d 697 (“in some cases the final certification need not be made until the moment the merits are decided.”). Nevertheless, this court has indicated that in certain unusual circumstances post-judgment class certification is permissible in Rule 23(b)(2) class actions. See Marshall v. Kirkland, 602 F.2d 1282, 1301 (8th Cir. 1979); Johnson v. Mathews, 539 F.2d 1111, 1125 n.23 (8th Cir. 1976). These unusual circumstances included the facts that: (1) plaintiffs had either filed the original complaint as a class action or moved to proceed as a class action prior to the decision on the merits, but the district court had failed to formally certify the class under Rule 23(c)(1), see 539 F.2d 1125 n.23; 602 F.2d at 1301, and (2) the case had been tried as a class action and the district court had ordered class relief. See id.; 539 F.2d at 1125 & n.23, 1126. In light of the fact that the instant case was not originally filed as a class action, apparently was not tried as a class action, and appellant Bishop did not move for class certification prior to the judgment on the merits, we seriously doubt if post-judgment class certification was proper. However, we need not base our decision in the present case on such a finding in view of our determination that the class certification was clearly improper on other grounds. See text infra.

Another relevant'factor to determining the adequacy of class representation under Fed.R. Civ.P. 23(a)(4) is the failure of the class representative to move for class certification prior to trial. See East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404-05, 97 S.Ct. 1891, 1897-1898, 52 L.Ed.2d 453 (1977). There the Court stated that “the named plaintiffs failure to protect the interest of the class members by moving for certification surely bears strongly on the adequacy of the representation that those members might expect to receive.” Id. at 405, 97 S.Ct. at 1898. It should be noted that in the instant case Bishop did not move for class certification until over six months after a judgment had been entered by the district court.

On January 8, 1982, the award was modified to allow interest on that amount from and after August 20, 1981. See Bishop v. Committee on Professional Ethics, Civ.No. 81-47-D (S.D.Iowa Jan. 8, 1982) (amendment to order). It should also be noted that while the instant case, including the award of attorney’s fees, was before this court on appeal, the district court entered orders releasing to Bishop’s counsel the attorney’s fees paid into the district court by the State of Iowa. See Bishop v. Committee on Professional Ethics, Civ. No. 81-47-D (S.D. Iowa May 21, 1982) (Order); Bishop v. Committee on Professional Ethics, Civ. No. 81-47-D (S.D.Iowa April 29, 1982) (Order). The district court orders dp not explain why the fees were released, and this court is somewhat perplexed by the district court’s action and the lack of objection to the release of the attorney’s fees by the Committee, in light of the fact that the Committee has appealed the district court’s award of attorney’s fees in the instant case.

The district court held that the Iowa Disciplinary Rules relating to lawyer advertising *1291were unconstitutional to the extent that they prohibited: Bishop v. Committee on Professional Ethics, supra, 521 F.Supp. at 1232.

It should be noted that we are not now ruling on the subject of attorney’s fees in this court.

The Honorable Roy L. Stephenson assumed the status of Senior United States Circuit Judge effective April 1, 1982.

The Honorable Robert Van Pelt, Senior United States District Judge for the District of Nebraska, sitting by designation.