Allstate Insurance v. West Virginia State Bar

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALLSTATE INSURANCE COMPANY, 
Plaintiff-Appellant,
v.
THE WEST VIRGINIA STATE BAR; THE  No. 98-1537
WEST VIRGINIA STATE BAR
COMMITTEE ON UNLAWFUL PRACTICE,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CA-97-1056-2)
Argued: January 26, 1999
Decided: November 30, 2000
Before WIDENER and MURNAGHAN,* Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Senior Judge Hamilton joined.
*Judge Murnaghan heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
2 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
COUNSEL
ARGUED: Benjamin Lee Bailey, BOWLES, RICE, MCDAVID,
GRAFF & LOVE, P.L.L.C., Charleston, West Virginia, for Appel-
lant. Sanford Benjamin Bryant, KING, ALLEN, GUTHRIE &
MCHUGH, Charleston, West Virginia, for Appellees. ON BRIEF:
Brian A. Glasser, BOWLES, RICE, MCDAVID, GRAFF & LOVE,
P.L.L.C., Charleston, West Virginia, for Appellant. Robert B. King,
Pamela L. Kandzari, KING, ALLEN, GUTHRIE & MCHUGH,
Charleston, West Virginia, for Appellees.
OPINION
WIDENER, Circuit Judge:
Plaintiff, Allstate Insurance Co. (Allstate), appeals the district
court’s dismissal without prejudice of Allstate’s action against defen-
dants, the West Virginia State Bar (State bar) and the West Virginia
State Bar Committee on Unlawful Practice (committee), based on the
district court’s decision that it lacked subject matter jurisdiction, and
in the alternative, that it should abstain. We address only the question
of jurisdiction, not abstention, and we affirm.
On October 3, 1995, a West Virginia attorney complained to the
West Virginia Lawyer Disciplinary Board asserting that Allstate was
engaging in the unauthorized practice of law. At the time of the com-
plaint, Allstate was distributing a pamphlet that was entitled "Do I
need an Attorney?" to people with claims for which Allstate might be
liable. The pamphlet allegedly aided claimants in processing their
claims by providing them with information regarding whether they
should hire an attorney before learning about any settlement offers by
Allstate and fee arrangements the claimant should make should they
decide to retain an attorney. Allstate did not distribute the pamphlet
to claimants known to be represented by counsel.
The Lawyer Disciplinary Board referred the complaint against All-
state to the committee. The committee is a permanent committee of
the State bar that is charged with addressing and deciding all com-
ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR 3
plaints regarding conduct that may qualify as the unauthorized prac-
tice of law pursuant to the criteria established by the West Virginia
Supreme Court of Appeals. W. Va. State Bar, Bylaws, art. VII, § 1.
A three-member sub-committee comprised of two practicing attor-
neys and a West Virginia circuit court judge1 was assigned to hear the
complaint. After publishing notice in the West Virginia Lawyer and
requesting comments and prehearing submissions regarding the mat-
ter, the sub-committee conducted a hearing on Allstate’s pamphlet on
July 17, 1997. At the hearing, about which no complaint is made, All-
state and the complainant presented various documents and argued
their positions as to the propriety of Allstate’s pamphlet. On Septem-
ber 22, 1997, the full committee issued its written opinion and deci-
sion that Allstate’s dissemination of the pamphlet constituted the
unauthorized practice of law.
On September 24, 1997, the committee provided its decision to
Allstate and requested "confirmation and agreement that [Allstate]
will desist from the unlawful practices." On October 7, 1997, Allstate
requested that the committee reconsider its opinion, and the commit-
tee granted a stay of the opinion until October 28, 1997. On October
23, 1997, the committee denied Allstate’s request for reconsideration.
Allstate then ceased disseminating the pamphlet and filed this action
seeking a permanent injunction against the committee and the State
bar to prevent both entities from enforcing the opinion. Allstate
asserted that the committee’s opinion was an unconstitutional attempt
to restrain Allstate’s speech pursuant to the First Amendment and an
unconstitutional attempt to restrain interstate commerce under the
dormant commerce clause.2
1
A West Virginia circuit court is a court of general jurisdiction.
2
The complaint in this case seeks to enjoin the Committee from taking
any action in support of its decision on the ground that the action of the
committee is a violation of the First Amendment of the United States
Constitution as an exercise of free speech, and also is in violation of the
dormant commerce clause of the Constitution, art. I, § 8, under the fol-
lowing scenario: "The effect of the state action is only to enrich and pro-
tect West Virginia’s lawyers at the expense of an out-of-state company.
Rank protectionism of this sort violates the dormant commerce clause of
the Constitution of these United States."
4 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
The district court dismissed Allstate’s complaint on two alternative
grounds. First, the court held that it lacked subject matter jurisdiction
because a federal district court does not have the power to sit in direct
review of a state-court decision, which in the instant case was the
committee’s ruling that Allstate was engaged in the unlawful practice
of law. Second, the court ruled that abstention was mandated. We
address only whether or not the district court properly dismissed the
suit for lack of subject matter jurisdiction and do not consider the
application of the abstention doctrine. Neither do we express an opin-
ion on the merits of the case.3 We conduct a de novo review of the
district court’s dismissal of Allstate’s claims for lack of subject matter
jurisdiction. See Guess v. Bd. of Med. Exam’rs of State of N.C., 967
F.2d 998, 1002 (4th Cir. 1992).
We first decide whether the federal district court had subject matter
jurisdiction to consider Allstate’s constitutional claims that are linked
with the committee’s decision that Allstate was engaged in the unau-
thorized practice of law. The Rooker-Feldman doctrine mandates that
lower federal courts "generally do not have jurisdiction to review
such decisions; rather, jurisdiction to review state-court decisions lies
exclusively with superior state courts and, ultimately, the United
States Supreme Court." Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.
1997). See also District of Columbia Ct. App. v. Feldman, 460 U.S.
462, 482-86 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16
(1923). Under the Rooker-Feldman doctrine, lower federal courts are
generally barred from not only considering issues actually presented
to and decided by a state court, but also hearing constitutional claims
that are "inextricably intertwined with questions ruled upon by a state
court, as when success on the federal claim depends upon a determi-
nation that the state court wrongly decided the issues before it." See
Plyler, 129 F.3d at 731 (quotations omitted).
In Feldman, 460 U.S. at 462, the Supreme Court considered
whether the district court had subject matter jurisdiction to review a
final decision by the District of Columbia Court of Appeals denying
an applicant admission to the state bar. The Court held that the district
court lacked jurisdiction to review the state court’s allegedly uncon-
3
See Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 378
(1981).
ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR 5
stitutional denial of an applicant’s admission because the state-court
action was judicial in nature and final state-court judgments may only
be reviewed by the Supreme Court itself. See Feldman, 460 U.S. at
482; 28 U.S.C. § 1257. Feldman made clear that this rule applied also
to constitutional claims that "are inextricably intertwined with the
state court’s denial in a judicial proceeding of a particular plaintiff’s
application for admission to the state bar . . . ." Feldman, 460 U.S.
at 482-84 n.16. See also Czura v. Supreme Court, 813 F.2d 644, 646
(4th Cir. 1987). The Feldman Court also indicated that "by failing to
raise his claims in state court, a plaintiff may forfeit his right to obtain
review of the state-court decision in any federal court." Feldman, 460
U.S. at 484 n.16.
Allstate argues that, unlike in Feldman, the Rooker-Feldman doc-
trine is inapplicable because the committee was not a judicial body
and the committee’s proceedings did not possess any judicial charac-
teristics. Allstate argues that it can factually distinguish its action
from Feldman. Allstate, however, does not persuasively argue that the
principles explicated in Feldman are not applicable here. Although
the West Virginia Supreme Court of Appeals has not itself issued a
final decision on the committee’s decision with respect to Allstate’s
conduct, we nevertheless hold that the Rooker-Feldman doctrine pre-
vents the district court from exercising subject matter jurisdiction.
In conducting this analysis, we are mindful of the weight given by
the Supreme Court to federal-state comity concerns that arise out of
federal review of state bar proceedings and to the "strength of the
state interest in regulating the state bar." Feldman, 460 U.S. at 484
n.16 (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792
(1975) (stating that "[t]he interest of the States in regulating lawyers
is especially great since lawyers are essential to the primary govern-
mental function of administering justice, and have historically been
officers of the courts")).
The first question that we must answer is whether the Committee’s
proceedings qualify as judicial actions as opposed to administrative
or ministerial processes. As the Feldman Court explained: "[a] judi-
cial inquiry investigates, declares, and enforces liabilities as they
stand on present or past facts and under laws supposed already to
exist . . . . Legislation on the other hand looks to the future and
6 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
changes existing conditions by making a new rule to be applied there-
after to all or some part of those subject to its power." Feldman, 460
U.S. at 477 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226
(1908)). In evaluating the committee’s proceedings to assess their
judicial character, we examine the nature and effect of the proceeding
and not the form of it. See Feldman, 460 U.S. at 478 (quoting Osborn
v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819 (1824)).
We are of opinion that the committee’s actions and opinion are of
a judicial rather than administrative character. The sub-committee
which conducted the hearing was a sub-committee of the committee
on Unlawful Practice of Law of the State Bar and was comprised of
a circuit judge and two attorneys. It received and investigated the
complaint filed against Allstate alleging that circulating its flier was
the unlawful practice of law. The sub-committee held a hearing in
which it heard argument and examined the facts and exhibits concern-
ing the accused pamphlet. The full committee then analyzed the facts
under the West Virginia State bar’s definition of the practice of law
and considered various state-court precedents defining conduct that
was found to be the unauthorized practice of law. The committee then
rendered its written opinion and decision in which it concluded that
the dissemination of the pamphlet constituted the unlawful practice of
law as defined by the West Virginia Supreme Court of Appeals. See
W. Va. Code §§ 51-1-4a. The Committee then denied Allstate’s peti-
tion for reconsideration and sought Allstate’s agreement to act in
accordance with its opinion. These proceedings were not ministerial
or legislative. Rather, the committee investigated the claims against
Allstate, applied the State Bar’s regulations and state Supreme Court
of Appeals precedents, and decided that Allstate was in violation. The
committee did not look to the future and announce a new regulation
applicable to all bar members. Instead, it ruled on a particular case
pursuant to current law.
Next, we consider whether the State Bar and its committee are a
part of the system of state courts. We examine the relationship
between the State Bar, the committee, and the state-court system in
West Virginia.
Here, the State Bar is an "agency of the [S]upreme [C]ourt of
[A]ppeals of West Virginia." Its purpose is to "give effect to pertinent
ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR 7
rules of the [S]upreme [C]ourt of [A]ppeals." See W. Va. State Bar
Constitution, arts. I, II. The State Bar is "a part of the judicial depart-
ment of the State government . . . created for the purpose of enforcing
such rules as may be prescribed, adopted and promulgated by the
court." W. Va. Code § 51-1-4a(d). See also Daily Gazette Co. v.
Comm. on Legal Ethics, 326 S.E.2d 705, 708 (W. Va. 1984) (deciding
that "the West Virginia State Bar is an agency of the Supreme Court
of Appeals, and not an independent agency"). The State Bar is also
"authorized and empowered to perform the functions and purposes
expressed in a constitution, bylaws and amendments thereto as shall
be approved by the [S]upreme [C]ourt of [A]ppeals." W. Va. Code
§ 51-1-4a(d). Finally, The Supreme Court of Appeals is vested with
exclusive authority to regulate and control the practice of law and has
inherent power to supplement rules and procedures and to approve the
State Bar’s bylaws. See Daily Gazette, 326 S.E.2d at 708; Comm. on
Legal Ethics v. Douglas, 370 S.E.2d 325, 334 (W. Va. 1988); W. Va.
Code § 51-1-4a(e). Therefore, the State Bar is an agency within the
state court system that operates pursuant to the rules that the Supreme
Court of Appeals issues for it.
The principles creating and regulating the relationship between the
state courts and the State bar apply to the committee, which is a part
of, and whose authority is derived from, the State bar. See W. Va.
State Bar Constitution, art. IV. The committee is a permanent com-
mittee of the State Bar and has "jurisdiction over all matters and ques-
tions which may be considered as constituting the unlawful practice
of law under the definition of the practice of law adopted by the
supreme court of appeals of West Virginia." W. Va. State Bar,
Bylaws, art. VII, § 1. Further, when the committee initiates an action
against a party it may do so in the name of the West Virginia State
Bar, or in the name of the committee, or in the name of any member
thereof. W. Va. State Bar, Bylaws, art. VII, § 2.
In deciding that Allstate’s distribution of the pamphlet amounted
to the unauthorized practice of law, the committee on behalf of the
State Bar, exercised its authority created by the Supreme Court of
Appeals pursuant to that court’s rules, standards, and procedures with
respect to the criteria for the unauthorized practice of law. The State
bar and its committee were not established as entities independent of
the state-court system nor do they possess a measure of independence
8 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
from the courts. Although the committee’s members are appointed by
a Board of Governors rather then by the Supreme Court of Appeals,
we hold that the committee acts under the direction of the Supreme
Court of Appeals and administers the rules that that court has pro-
vided for deciding when a party has engaged in the unlawful practice
of law. The Supreme Court of Appeals exercises supervisory author-
ity over the practice of law in West Virginia, and the State Bar and
the committee act pursuant to that authority. Therefore, we hold that
the State Bar and the committee are agencies within and a part of the
system of state courts in West Virginia.
But the Rooker-Feldman doctrine denies us jurisdiction to hear All-
state’s constitutional claims. Congress has entrusted only the Supreme
Court of the United States with jurisdiction to hear appeals from the
state courts. See 28 U.S.C. § 1257. But see Plyler, 129 F.3d at 732
(recognizing exception to the Rooker-Feldman doctrine for federal
habeas corpus proceedings). Thus, the Supreme Court recognized in
Feldman that the lower federal courts have no authority to review
final judgments of a state court in judicial proceedings. Feldman, 460
U.S. at 482. See also Suarez Corp. v. McGraw, 125 F.3d 222, 228
(4th Cir. 1997). "The independence of state courts would surely be
compromised if every adverse decision in state court merely rang the
opening bell for federal litigation of the same issues." Brown & Root,
Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000). Because we
have found that the Committee acted as an arm of the state courts
engaged in a judicial decision-making process, we may not directly
review its decision.
Feldman not only prevents us from reviewing issues actually
decided by state courts, but also denies us jurisdiction over federal
claims that are inextricably intertwined with state court decisions.
Feldman, 460 U.S. at 483 n.16; Breckenridge, 211 F.3d at 198. A
"federal claim is inextricably intertwined with the state-court judg-
ment if the federal claim succeeds only to the extent that the state
court wrongly decided the issues before it." Penzoil Co. v. Texaco,
Inc., 481 U.S. 1, 25 (Marshall, J., concurring). See also Plyler, 129
F.3d at 731 (finding that the Rooker-Feldman doctrine bars "constitu-
tional claims that are inextricably intertwined with questions ruled
upon by a state court, as when success on the federal claim depends
upon a determination that the state court wrongly decided the issues
ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR 9
before it"). We cannot rule that Allstate’s pamphlet is speech pro-
tected by the First Amendment without also concluding that the com-
mittee reached its decision in error. Allstate presented the committee
with its argument that a decision that circulation of its pamphlet, "Do
I Need an Attorney?", was the unauthorized practice of law would
violate the Free Speech Clause of the First Amendment. The commit-
tee nonetheless found that the pamphlet constituted the unlawful prac-
tice of law. As a result, the committee necessarily concluded that its
decision did not infringe upon Allstate’s First Amendment rights.
Whether or not the committee mentioned expressly Allstate’s First
Amendment claim, Allstate’s constitutional challenge is inextricably
intertwined with the committee’s decision. Guess, 967 F.2d at 1003
(deciding that if state court erred in failing to address a constitutional
challenge raised by plaintiff the proper recourse was appeal of that
issue to the United States Supreme Court).
Neither do we consider Allstate’s dormant commerce clause claim.
By failing to raise his claims in state court a plaintiff may forfeit his
right to obtain review of the state court decision in any federal court.
Feldman, 460 U.S. at 484 n.16. The Rooker-Feldman doctrine may
not be circumvented through artful pleading. As this court has noted,
"Justice Brennan, in footnote 16 of Feldman, made clear that even if
a claim is not presented to a state court, or by inference is not ruled
upon, a plaintiff is not entitled to bring that claim in federal court if
the claim was one that should have been brought in the state court."
Guess, 967 F.2d at 1003. Because the dormant commerce clause issu-
ance was not raised before the committee, we will not consider it
here.
Allstate’s last argument is that the decision of the committee was
not a decision of a court and was accordingly not subject to the
Rooker-Feldman doctrine. It bases this argument on the contention
that the committee is an administrative agency, and, being an agency
rather than a court, has no authority to decide the Constitutional ques-
tion before it. It also argues that there is no judicial decision in the
case, as is shown by the fact that there is no appeal from the decision
of the committee within the State court system.
Neither of these arguments is well taken. The committee is not an
administrative agency but is a part of the West Virginia court system,
10 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
as the West Virginia Supreme Court of Appeals has explicitly
decided, and is explicitly provided by statute in West Virginia. See
Daily Gazette, 326 S.E.2d at 708; W. Va. Code § 51-1-4a(d). So that
argument is without merit.
The parallel argument, that the decision of the committee is not the
decision of a court is likewise not well taken.
To repeat, the West Virginia statutory scheme for confining the
practice of law to licensed attorneys consists of several steps. The
State bar is a part of the judicial department of the West Virginia state
government, created for the purpose of enforcing such rules as may
be prescribed. W. Va. Code § 51-1-4a(d). The State Bar is "an agency
of the [West Virginia] Supreme Court of Appeals, and not an inde-
pendent agency." Daily Gazette, 326 S.E.2d at 708. The State bar is
authorized to perform the functions and purposes expressed in a Con-
stitution, bylaws and amendments approved by the West Virginia
Supreme Court of Appeals. W. Va. Code § 51-1-4a(d). The Constitu-
tion and Bylaws of the West Virginia State Bar have been approved
by the Supreme Court of Appeals of West Virginia. See Michie’s W.
Va. Code, State Court Rules, 816-18 (2000). Article IV of the Consti-
tution of the State bar provides for "a committee on unlawful prac-
tice," the committee involved in this case. W. Va. State Bar
Constitution, art. IV. Article VII of the Bylaws, in § 1, provides for
the jurisdiction of the committee on unlawful practice, and, in § 2, for
the powers of the committee. The committee "is empowered to dis-
miss any complaint, to enter into an agreement to desist from unlaw-
ful practices, or, when the facts warrant, to institute appropriate
proceedings in the name of the West Virginia State bar . . . in any
court having jurisdiction, for the purpose of securing appropriate
relief." W. Va. State Bar, Bylaws, art. VII, § 2. In any investigation
or hearing, the committee has subpoena powers equivalent to those of
a circuit court and to cause the prosecution for contempt for failure
to observe subpoenas. See Bylaws W. Va. State Bar, Bylaws, art. VII,
§§ 6-7.
The record shows that the State bar carefully followed the above
provisions. The complaint in this case was referred to the committee
on unlawful practice which caused a hearing to be held on the com-
plaint before a sub-committee. Following the hearing by the sub-
ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR 11
committee and the decision by the committee, the State bar attempted
to get Allstate "to enter into an agreement to desist from [its] unlawful
practices," as explicitly provided for in § 2 of Article VII of the
bylaws.
Following Allstate’s refusal to enter into the agreement to desist,
as requested by the State bar, the State bar was powerless to take
coercive action against Allstate because neither the statutes nor regu-
lations gave it coercive power. But the State bar did have the power
"to institute appropriate proceedings in the name of the West Virginia
State Bar . . . in any court having jurisdiction," also in accordance
with § 2. W. Va. State Bar Bylaws, art. VII, § 2. A case illustrating
the method by which the State bar enforces its decisions in the West
Virginia state courts is State Bar v. Earley, 109 S.E.2d 420 (W. Va.
1959).
Although Allstate might have continued to distribute the offending
pamphlet with impunity so far as immediate compulsion was avail-
able, the State bar having not instituted proceedings in a court with
jurisdiction, Allstate did not merely decline to "enter into an agree-
ment" but chose to shortcut the state procedure by filing this case in
the district court to present the same question it had unsuccessfully
presented to the Committee, that of First Amendment freedom to cir-
culate the pamphlet. In short, Allstate attempted to preempt the West
Virginia procedure by filing this federal suit in the district court.
While Brown & Root was decided on slightly different facts, it is,
nevertheless, a construction of the Rooker-Feldman doctrine, and it
holds that Rooker-Feldman bars inferior federal court review, not
only of final decisions of state courts, but also of interlocutory orders.
See Brown & Root, 211 F.3d at 198-199. We do not perceive any dif-
ference for the purpose of analysis here between an interlocutory
order of a state court of record such as a circuit court in West Virginia
and the decision of the committee on unlawful practice, an agency of
the Supreme Court of Appeals of West Virginia. The regulation of the
practice of law is entrusted in West Virginia to the Supreme Court of
Appeals and those judicial bodies under that court subject to its
orders, of which the committee on unlawful practice is one. It is diffi-
cult to conceive a matter closer or more important to the State of West
Virginia, not to mention her people, than the question of who is to
12 ALLSTATE INSURANCE v. WEST VIRGINIA STATE BAR
practice law in that State. The question is one particularly suited for
decision by the West Virginia courts under the supervision of the
Supreme Court of Appeals of that State.
We conclude here, as we did in Brown & Root:
Dominating this case is a simple fact: the [federal plaintiff]
objects to the outcome of a judicial proceeding and filed a
separate suit to get around it.
Brown & Root, 212 F.3d at 202 (quoting Ash Assocs. v. Village of
Rosemont, F.2d 726, 727 (7th Cir. 1993)).
We thus hold that the Rooker-Feldman doctrine deprived the dis-
trict court of jurisdiction to review the decision of the committee on
unlawful practice of law.
The judgment of the district court is accordingly
AFFIRMED.4
4
Allstate concedes that it could have sought relief in the West Virginia
State courts, but candidly argues that it "has the right to choose the
forum" and "prefers to vindicate its rights in federal court." Memo of
June 30, 1998, p.13. We do not consider any application of any theory
akin to exhaustion of remedies.
There also may be, although largely obscured, a question of ripeness.
We express no opinion as to that question, for our decision should be no
broader than that necessary to dispose of the question before us.