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DAVID A. NOWICKI and ROBERT B. LAIRD,
Plaintiffs-Appellants,
vs.
CLAIR H. VOSS, Defendant-Appellee.
No. 94-2919
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
1996 U.S. App. LEXIS 30369
November 20, 1996, Decided
CASE STATUS: RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE
REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIORHIST
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94-C-433. Terence T.
Evans, Judge.
COUNSEL
DAVID A. NOWICKI, Plaintiff - Appellant, Pro se, Waukesha, WI USA.
ROBERT B. LAIRD, Plaintiff - Appellant, Pro se, Pewaukee, WI USA.
For CLAIR H. VOSS, Honorable, Defendant - Appellee: James H. McDermott, OFFICE OF THE ATTORNEY GENERAL, Wisconsin
Department of Justice, Madison, WI USA.
JUDGES
Before Hon. WALTER J. CUMMINGS, Circuit Judge, Hon. JOHN L. COFFEY, Circuit Judge, Hon. JOEL M. FLAUM, Circuit
Judge
OPINION
ORDER
David A. Nowicki is a self-proclaimed reporter for the Divorced Dads Against Discrimination ("DDAD")
newsletter and "paralegal" who, for a fee, provides a variety of services on behalf of other DDAD members
-- including petitioning the courts to speak on their behalf if they are inarticulate. According to Nowicki and
Robert Laird, his client and fellow plaintiff-appellant, Laird is "legally inarticulate" despite "the
fact that he is a former air force officer, college graduate, and a broker . . . ." (R. 1 at 10, P 30.) On
March 14, 1994, Judge Clair Voss, a state circuit court judge in Waukesha County, Wisconsin, refused to let Nowicki
participate in or record a hearing concerning a property dispute between Laird and his wife. Nowicki and Laird
filed suit pursuant to 42 U.S.C. § 1983. They claim that Judge Voss' actions violated their constitutional
rights, federal antitrust laws and the Contracts Clause of the Wisconsin Constitution. We affirm.
This is the third appeal involving Nowicki's attempts to provide legal and "para-legal" services for
DDAD members in the Wisconsin courts. In Nowicki v. Cooper, 56 F.3d 782, 784 (7th Cir. 1995), cert. denied, 133
L. Ed. 2d 700, 116 S. Ct. 753 (1996), this court affirmed the district court's dismissal in part, but remanded
two claims -- one concerning a due process right to pursue a nonlegal profession in the court room, and the other
concerning his First Amendment right to attend judicial proceedings. In Nowicki v. Ullsvik, 69 F.3d 1320, 1323
(7th Cir. 1995), we affirmed the district court's judgment against a state court judge and an attorney who had
asked the court to stop Nowicki from practicing law without a license. Nowicki appears before us again, this time
accompanied by Laird, to pursue another variation of his prior suits.
According to the complaint, Laird was on the brink of bankruptcy, and therefore could not afford a lawyer. Despite
his alleged financial circumstances, he also hoped to purchase a home without his wife attaching "Homestead
Rights" to the property. The mortgage company would not finance the purchase if Laird's wife was on the mortgage
or title. Laird asked for an "annulment" of the marriage. At a March 14, 1994 hearing concerning the
home, Judge Voss refused to allow Nowicki to participate because his activities amounted to the unauthorized practice
of law in violation of Wis. Stat. § 757.30. Without Nowicki's assistance, Laird was allegedly unable to effectively
present his case at the hearing and lost his chance to purchase the home because the judge refused to grant the
annulment order. He also allegedly had to purchase a transcript in order to pursue his case in the Wisconsin and
Federal systems because Nowicki had not been allowed to record the session. Neither side has clearly indicated
whether Laird's state court litigation has ended, and in light of allegations in the complaint that imply that
it is on-going, we will assume that it continues. Cf. Ullsvik, 69 F.3d at 1323; Cooper, 56 F.3d at 784.
Judge Voss filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) which the district court
granted. The plaintiffs contend that the district court erred by dismissing their complaint without permitting
them to amend. However, despite their allegations to the contrary, the record contains no evidence that the plaintiffs
ever attempted to amend the complaint. Their ability to amend the complaint as of right ended with the entry of
judgment.
The plaintiffs' claims for damages under § 1983 against Judge Voss in his official and personal capacities
are barred by the Eleventh Amendment and absolute judicial immunity respectively. Cooper, 56 F.3d at 783. Judge
Voss stopped Nowicki's participation in order to prevent a violation of § 757.30 in his courtroom, and therefore
he is immune pursuant to the "state action" immunity doctrine. Lawline v. American Bar Ass'n, 956 F.2d
1378, 1384 (7th Cir. 1992), cert. denied, 510 U.S. 992, 114 S. Ct. 551, 126 L. Ed. 2d 452 (1993); see Wis. Stat.
§ 757.30(1) (authorizing action for contempt if necessary to enforce licensing statute).
Nowicki and Laird also requested declaratory relief with respect to their constitutional claims. Such relief is
not barred by sovereign or judicial immunity. In Cooper, 56 F.3d at 784, we noted jurisdictional problems due to
the Rooker-Feldman doctrine and the "domestic relations" exception to federal jurisdiction. Ankenbrandt
v. Richards, 504 U.S. 689, 704, 119 L. Ed. 2d 468, 112 S. Ct. 2206 (1992); District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983); Rooker v. Fidelity-Trust Co., 263 U.S. 413,
68 L. Ed. 362, 44 S. Ct. 149 (1923). We decline to delve into these jurisdictional issues in this case. "Although
jurisdictional issues are normally resolved prior to a determination of the merits, . . . we may disregard potentially
difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the
outcome." Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (citing, inter alia, United States v. Parcel of
Land, 928 F.2d 1, 4 (1st Cir. 1991) (avoiding jurisdictional issue to affirm denial of Rule 60(b) motion on merits)).
Laird claims that § 757.30 of the Wisconsin Code, which prohibits the practice of law without a license, is
unconstitutional on its face. The statute defines the practice of law in the following manner:
(2) Every person who appears as agent, representative or attorney, for or on behalf of any other person, or any
firm, partnership, association or corporation in or before any court of record, court commissioner, or judicial
tribunal of the United States, or of any state, or who otherwise, in or out of court, for compensation or pecuniary
reward gives professional legal advice not incidental to his or her usual or ordinary business, or renders any
legal service for any other person, or any firm, partnership, association or corporation, shall be deemed to be
practicing law within the meaning of this section.
States have a compelling interest in the practice of professions within their boundaries. Florida Bar v. Went
For It, Inc., 132 L. Ed. 2d 541, 115 S. Ct. 2371, 2376 (1995). The legal profession is one of the professions most
closely related to the State's power to protect the public, and it plays an important role in the administration
of justice. Hoover v. Ronwin, 466 U.S. 558, 569 n.18, 80 L. Ed. 2d 590, 104 S. Ct. 1989 (1984). Since the clients
may have difficulty in gauging the relative legal skills of professional representative and the goals of judicial
efficiency and economy are enhanced by competent legal representation, legislatures have attempted to assure quality
by imposing and enforcing licensing requirements, as well as through other means.
Laird claims that § 757.30(2) violates due process because it deprives indigents of the opportunity to hire
cheap unlicensed individuals to represent them. Although he describes the problem as one of "overbreadth,"2
it essentially amounts to a claim that indigents are constitutionally entitled to the assistance of lay advocates
to guarantee their access to the court because they cannot afford attorneys. There are many means of providing
indigents with adequate access to the courts. This right does not compel Wisconsin to waive its prohibition of
the practice of law for compensation without a license as the solution. While there may be extremely limited circumstances
that entitle an indigent prisoner to receive the assistance of a lay person,3 the appellants have not alleged any
comparable scenario.
Laird argues that § 757.30 violates his First Amendment right to freedom of association by denying litigants
the assistance of fellow members at the counsel table in court. Laymen have the First Amendment right of freedom
to associate with licensed attorneys to pursue a legal objective, but only if they can show that the deprivation
will deprive them of meaningful access to the courts. Lawline, 956 F.2d at 1387. Laird contends that a similar
right accrues for legal representation from unlicensed individuals. Since he has not shown that the licensing provision
violates the right of access to the courts in the first place, he fails to state a claim.
Laird claims that § 757.30 violates equal protection because it deprives pro se individuals from having assistants,
while permitting attorneys to have such assistants. The statute itself makes no such distinction. It prohibits
any assistants from practicing law without a license, whether they act in court on behalf of an individual or on
behalf of a law firm.
Nowicki has not demonstrated that § 757.30 is unconstitutional, and thus Judge Voss' order to prevent Nowicki
from violating the statute was proper. The real thrust of Nowicki's claim is that Judge Voss' order prevented him
from acting as a para-legal and reporter to the extent that they are not prohibited by § 757.30. In this case,
Nowicki fails to state a claim.
Judge Voss flatly denied Nowicki the opportunity to assist in any capacity. Nowicki contends that the judge's blanket
prohibition encompassed a variety of potentially services that a non-lawyer could provide in a courtroom. Cf. Lawline,
956 F.2d at 1386 ("'There are many things that lawyers do ... which are properly also done by others.'")
(citation omitted) (dicta). Therefore, Judge Voss allegedly deprived him of a liberty interest in pursuing a profession.
Nowicki's claim is "highly dubious" given that "Nowicki's business -- the rendering of para-legal
services directly to clients rather than to lawyers -- looks like nothing so much as the unauthorized practice
of law." Cooper, 56 F.3d at 785. Regardless, unlike Cooper, in which Nowicki had alleged that the judge had
a policy of prohibiting such services in all cases before her, id., he makes no such allegations in this case.
Nowicki objects to Judge Voss' order because it excludes him from one particular job -- the representation of Laird
in the annulment action. As such, his claim is not actionable under a suit brought directly under the due process
clause.4 Ullsvik, 69 F.2d at 1325.
Nowicki also claims that Judge Voss' decision violated his First Amendment right to attend the proceedings. In
Cooper, 56 F.3d at 784-85, we reversed the dismissal of Nowicki's First Amendment claim concerning his total exclusion
from the court room. In contrast, Judge Voss allowed Nowicki to attend the proceedings. He just could not record
them. This limitation on the First Amendment right to attend judicial proceedings "can withstand constitutional
scrutiny so long as it is reasonable and neutral, as with time, place and manner restrictions generally."
United States v. Kerley, 753 F.2d 617, 621 (7th Cir. 1985); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994)
(per curiam). Nowicki asserts that Judge Voss' decision was discriminatory, cf. id., but his use of the term is
utterly conclusory.5
Although Nowicki alleged in his complaint that Judge Voss did not provide a specific reason when he told Nowicki
to stop recording, he also alleged more generally that the judge refused to allow Nowicki to provide services to
Laird in order to prevent the unauthorized practice of law. While Nowicki contends that recording a hearing is
an innocent practice in and of itself, we can understand how Judge Voss would find it to be part of a larger scheme
to practice law without a license. In the complaint, Nowicki claims that he needed to record the proceedings in
part to ensure the accuracy of his reporting for the DDAD newsletter. However he also alleged that in part he wanted
to use the recording as his private record and that the court's decision impaired his efficiency in assisting Laird.
Prohibiting Nowicki from recording the hearing to avoid the unlicensed practice of law is a neutral, reasonable
basis for the court's order. Thus, Nowicki fails to state a claim for a First Amendment claim.
The plaintiffs' contention that Judge Voss' decision violated the Contracts Clause of the United States Constitution
Art. I, § 10, cl. l, is meritless. The Contracts Clause applies to legislative acts, not judicial orders.
Ullsvik, 69 F.3d at 1325. The pendant claim alleging a violation of the Contracts Clause of the Wisconsin Constitution
equally fails to state a claim. Id. at 1326 n.4.
Nowicki's request for the disqualification of the Attorney General of Wisconsin on the basis of vague assertions
of conflicts of interest is denied. Ullsvik, 69 F.3d at 1326. He believes that the Attorney General should be prosecuting
Judge Voss for antitrust violations, and therefore he should not be defending the judge. As we explained before,
immunity bars any such antitrust claim against Judge Voss arising out of the order in Laird's suit.
DISPOSITION
AFFIRMED.
OPINION FOOTNOTES
2 Laird is not arguing that the statute is vaguely worded in a way that makes it difficult to tell whether one
is practicing law without a license or, apart from freedom of association or access to the courts, that its prohibition
encompasses constitutionally protected conduct. His contention that the licensing requirement violates the rights
of individuals who do not want to hire licensed attorneys merely because they want to save money is frivolous.
3 In Johnson v. Avery, 393 U.S. 483, 490, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969), the Supreme Court held that prison
officials could not prohibit an inmate from receiving the assistance of fellow inmates if the officials otherwise
provided no alternative means to help indigent (and often illiterate) prisoners to prepare federal habeas corpus
petitions. However, even in Johnson, the Court observed that states could impose reasonable restrictions on such
assistance, including "the imposition of punishment for the giving or receipt of consideration in connection
with such activities." Id. The Court has recently openly disclaimed any suggestion in its prior access to
courts cases that states "must enable the prisoner ... to litigate effectively once in court." Lewis
v. Casey, 135 L. Ed. 2d 606, 116 S. Ct. 2174, 2181 (1996); cf. also Murray v. Giarratano, 492 U.S. 1, 7-8, 106
L. Ed. 2d 1, 109 S. Ct. 2765 (1989) (holding that there is no federal constitutional right to counsel for indigent
prisoners seeking state post-conviction relief).
4 We do not address whether Nowicki had a protectable property interest at stake because he has not adequately
presented any such argument on appeal. Fed. R. App. P. 28(a)(6).
5 Nowicki alleges that the enactment of § 737.50 was motivated by certain discriminatory intentions, but none
of these are attributed to the judge himself.
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