Petition for Writ of Certiorari — Holly Gail Crampton, Petitioner v. Commission for Lawyer Discipline of the State Bar of Texas

IN THE

SUPREME COURT OF THE UNITED STATES

________________

Holly Gail Crampton,

Petitioner,

v.

Commission for Lawyer Discipline,

Respondent.

________________

On Petition for Writ of Certiorari to the

Supreme Court of Texas

_________________

PETITION FOR WRIT OF CERTIORARI

_________________

James H. Brannon

Counsel of Record

Bar No. 02895000

615 Bayland Ave.

Houston, Texas 77009

(832) 971-6158 phone

Susan C. Norman

SBOT 15083020

P.O. Box 55585

Houston, Texas 77255

(713) 882-2066 phone

(i)

QUESTIONS PRESENTED

Whether Rule 3.08 C. of the Texas Rules of

Disciplinary Procedure is unconstitutional because it

permits a lawyer’s license to practice law to be

suspended and/or the lawyer disbarred based upon a

“preponderance of the evidence?”

Whether a summary judgment procedure in a lawyer

discipline case which does not permit the lawyer to

call live witnesses under oath satisfies the right to a

meaningful hearing under the procedural due

process guarantees of the Fourteenth Amendment?

(ii)

PARTIES TO THE PROCEEDINGS

Holly Gail Crampton, petitioner

Counsel of Record:

James H. Brannon

Bar No. 02895000

615 Bayland Ave.

Houston, Texas 77009

(832) 971-6158

Additional counsel for Petitioner:

Susan C. Norman

State Bar No. 15083020

Law Office of Susan C. Norman

P.O. Box 55585

Houston, Texas 77255

713 882-2066 (phone)

281 402-3682 (fax)

SueNorman@SueNormanLaw.com

(iii)

Commission for Lawyer Discipline, respondent

Matthew J. Greer

Office of the Chief Disciplinary Counsel

State Bar of Texas

P. O. Box 12487

Austin, Texas 78711

512-427-1349 (phone)

512-427-4167 (fax)

There is no corporation associated with this

litigation.

(iv)

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................... (i)

PARTIES TO THE PROCEEDINGS .................... (ii)

TABLE OF CONTENTS ....................................... (iv)

TABLE OF AUTHORITIES ................................. (vi)

OPINIONS BELOW ................................................. 1

JURISDICTION........................................................ 1

CONSTITUTIONAL PROVISIONS INVOLVED.... 2

STATEMENT OF THE CASE .................................. 2

Facts material to consideration of

the questions presented

When the federal questions sought

to be reviewed were raised; the

method or manner of raising them;

and the way in which they were

passed on by those courts

REASONS FOR GRANTING THE WRIT ............. 10

I.

Fifty years ago this Court, in the case of In re

Ruffalo, 390 U.S. 544, 551 (1968) held that

lawyer disciplinary cases are “quasi-criminal”

(v)

adversarial proceedings, however, this Court

has never directly opined what the burden of

proof in an attorney disciplinary proceeding

should be.

II.

Since Ruffalo, the Fifth Circuit and numerous

other federal circuit and district courts,

together with approximately four-fifths of

state courts (39), have held that the proper

burden in lawyer disciplinary cases is greater

than preponderance and less than beyond a

reasonable doubt, more in the nature of the

intermediate standard of clear and convincing

evidence. Texas, and the remainder of state

courts continue to deny substantive and

procedural due process by applying the lesser

burden of preponderance of the evidence in

lawyer discipline cases.

III.

A burden of preponderance fails to meet the

substantive and procedural due process

requirements mandated when affecting an

attorney’s property and liberty interest in her

license to practice law.

(vi)

In cases involving discipline of attorneys this

Court should declare what the Due Process

protections of the United States Constitution

require that burden of proof to be, and what

constitutes a meaningful hearing.

ARGUMENT ........................................................... 19

IV.

A summary proceeding that does not permit

the calling of live witnesses -- with the ability

of the finder of fact to determine witness

credibility -- but which, instead, relies solely

upon affidavits, falls below the requirements

for a meaningful hearing and denies

substantive and procedural due process in an

attorney disciplinary proceeding.

ARGUMENT ........................................................... 30

CONCLUSION........................................................ 35

APPENDIX

A. Contract of Employment between Petitioner

and clients

B. Order Granting Petitioner’s Motion for Partial

Summary Judgment

(vii)

C. Petitioner’s Notice of Partial Nonsuit

D. Judgment of Partially Probated Suspension

E. Motion for New Trial

F. Order Denying Respondent’s Motion for New

Trial

G. Opinion and Judgment of the Eighth Court of

Appeals El Paso, Texas

H. Motion for Rearing and Rehearing En Banc

I. Order Denying Motion for Rehearing and

Motion for En Banc Rehearing

J. Order of the Texas Supreme Court Denying

Petition for Review on February 2, 2018

K. Fifth Amendment to the United States

Constitution

L. Fourteenth Amendment to the United States

Constitution

M. Rule 3.08 C. of the Texas Rules of Disciplinary

Procedure

N. Rule 1.01(b)(1) and (b)(2) of the Texas

Disciplinary Rules of Professional Conduct

O. Rule 1.15(a)(1) of the Texas Disciplinary Rules

of Professional Conduct

(viii)

TABLE OF AUTHORITIES

Federal Cases

Addington v. Texas,

441 U.S. 481 (1979) ..................................... 19,20

Armstrong v. Manzo,

380 U.S. 545 (1965) .......................................... 34

Bell v. Burson,

402 U.S. 535 (1971) ..................................... 34,35

Bd. Of Regents v. Roth,

408 U.S. 564 (1972) .......................................... 30

Boddie v. Connecticut,

401 U.S. 371 (1971) .......................................... 31

Bolling v. Sharpe,

347 U.S. 497 (1954) .......................................... 32

Cippolone v. Liggett,

112 S. Ct. 2608 (1992) ...................................... 17

Ex Parte Wall,

107 U.S. 265 (1883) .......................................... 21

Herman & McClean v. Huddleston,

459 U.S. 375 (1983) ..................................... 19,20

(ix)

In re Fisher, 179 F.2d 361 (7th Cir),

Cert denied sub nom.

Kerner v. Fisher, 340 U.S. 825 (1950) .............. 21

In re Grodner,

587 Fed. Appx. 166 (5th Cir. 2014) ................... 22

In re Medrano,

956 F.2d 101 (5th Cir. 1992) ............................. 22

In re Rosales,

2018 U.S. App. LEXIS 7662 ............................. 23

In re Ruffalo,

390 U.S. 544 (1968) .......... (iv),(v),17,18,19,22,28

In re Ryder,

263 F.Supp. 360 (E.D.VA.), aff’d 381 F.2d 713

(4th Cir. 1967) ............................................... 21,22

In re Thalheim,

853 F.2d 383 (5th Cir. 1988) ........................ 21,22

In re Winship,

39;7 U.S. 358 (1970) .................................... 19,20

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) .......................................... 34

(x)

NASCO, Inc., v. Calcasieu Television &

Radio, Inc.,

894 F.2d 696 (5th Cir. 1990) ............................. 22

National Ins. Co. v. Tidewater Co.,

337 U.S. 582 (1949) .......................................... 31

Matthews v. Eldridge,

424 U.S. 319 (1976) .......................................... 33

Meyer v. Nebraska,

262 U.S. 399 1923) ........................................... 32

Santosky v. Kramer,

455 U.S. 745 (1982) .......................................... 20

Stanley v. Illinois,

405 U.S. 645 (1972) .......................................... 33

Willner v. Committee on Character and Fitness’

373 U.S. 96 (1963) ............................................ 21

Woodby v. INS,

385 U.S. 276 (1966) .......................................... 20

Texas cases

Texas Atty. Gen. Op. JM-546 (Tex. A.G.),

1986 WL 219392 ............................................... 35

(xi)

Cases of states other than Texas

In re Anonymous,

1990 Pa. LEXIS 261 .......................................... 28

Attorney Grievance Commission of Maryland

v. Walter, 407 Md. 670, 967 A.2d 783 (2009) ......... 25

Burleigh v. State Bar,

Supreme Court of Nevada, April 28, 1982 ....... 25

In re Conduct of Campbell,

345 Or. 670, 202 P.3d 871 (2009) ...................... 26

In re Coruzzi,

95 N.J. 557 (N.J. 557) ........................................ 25

State ex. rel. Counsel for Discipline of Nebraska

Supreme Court v. Wintroub,

277 Neb. 787, 765 N.W.2d 482 (2009)............... 25

In re Cueller,

880 N.E.2d 1209 (Ind. 2008) ............................. 24

In re Davis,

43 A3d 856 (Del. 2012) ...................................... 24

In re Disciplinary Action against Michael,

836 N.W.2d 753 (Minn. 2013) ........................... 25

(xii)

In re Disciplinary Action Against Stensland,

2009 ND 77, 764 N.W.2d 438 (N.D. 2009) ........ 26

In re Disciplinary Counsel v. Squire,

2011 – Ohio – 5578, 958 N.E. 2d 914

(Ohio 2011)......................................................... 26

In the Matter of the Disciplinary Proceeding

Against Jack L. Burtch, an Attorney at Law,

162 Wn 2d 873 (Sup. Ct. of Wash.) ................... 28

Druckers Case,

133 N.H. 326, 577 A.2d 1198, 1990

N.H. LEXIS 70 (1990) ....................................... 25

In re Edmonds,

2014 Ill. 11769 (Sup.Ct. of Illinois

11-20-2014) ........................................................ 24

The Florida Bar v. Greene,

926 So.2d 1195 (Fla. 2006) ................................ 28

Florida Bar v. Pellegrini,

714 So,2d 448 (Flo. 1998) .................................. 24

In re Gray,

381 S.C. 406, 673 S.E.2d 442 (2009) ................. 26

Hunt v. Disciplinary Board of Alabama State Bar,

381 So.2d 52 ....................................................... 23

(xiii)

Idaho

154 Idaho 233 (Sup.Ct. of Idaho 2013) ............. 27

Iowa Supreme Court Attorney Disc. Bd. v. Zenor,

707 N.W.2d 176 ................................................. 27

Iowa Supreme Court Attorney Disciplinary

Bd. v. Nelson,

838 N.W.2d 528 (Iowa 2013) ............................. 28

Lawyer Disciplinary Bd. v. Aleshire,

736 S.E.2d 70 (W. Va. 2012) .............................. 26

McGee v. Alaska Bar Ass’n,

353 P.3d 350 ...................................................... 23

N.C. State Bar v. Talford,

147 N.C. App. 582 .............................................. 28

Office of Lawyer Regulation v. Eric L. Crandall,

2011 WI 21 ......................................................... 28

State ex. rel. Oklahoma Bar Ass’n v. Godlove,

2013 OK 38, 318 P.3d 1086 (Okla. 2013) .......... 26

In re Olson,

Sup. Ct. of Montana 2009 Mt 455 (2009).......... 25

(xiv)

People v. Bontrager,

407 P.3d 1235 ................................................... 24

Statewide Grievance Comm. v. Terzis,

1998 Conn. Supreme LEXIS 2797 .................... 24

In re Swanson,

288 Kan. 185. 200 P.3d 1205 (2009) ................. 25

In re Wilson,

90 So.3d 1018 (La. 2012) ................................... 25

In re Zakroff,

934 A.2d 409 (D.C. 2007)................................... 24

Federal Statutes

28 U.S.C. § 1257(a) ................................................... 1

42 U.S.C. § 1983 ........................................................ 4

Texas Statutes

Texas Transportation Code § 524.039 ................... 35

Statutes of states other than Texas

Wyoming State Bar Disciplinary Code 15 ............. 27

Federal Rules

Rules 13.1 and 29.2 of this Court ............................. 1

(xv)

Texas Rules

Texas Rules of Civil Procedure

166a ......................................................... 33,35

Texas Rules of Disciplinary Procedure

3.08 C ............................................................ 10

Texas Rules of Professional Responsibility:

1.01(b)(1) ......................................................... 8

1.01(b)(2) ......................................................... 8

1.15(a)(1) ......................................................... 8

3.08 ................................................................. 8

Rules of states other than Texas

Alaska Bar Rule 22(e) ............................................. 23

Arizona Rules of the Supreme Court

Rule 48(d) ........................................................... 24

State Bar of California Rules of Procedure

Rule 5.103 .......................................................... 24

Georgia Rule 4-221(e)(2) ......................................... 24

(xvi)

Mississippi State Bar Rules of Discipline

Rule 8.6 .............................................................. 25

New York Rules for Attorney Disciplinary

Matters Part 1240.1 .......................................... 28

Vermont Administrative Orders of

Supreme Court 9 – Perm rules governing

establishment and operations of the Prof.

Resp. Program Rule 16 c Standard of Proof ..... 26

Virginia Rules 13 – 18 Bd. Proceedings

upon K and L and M.......................................... 26

United States Constitutional provisions

U. S. Const. Amend. V .................................... passim

U. S. Const. Amend. XIV ................................ passim

Other Authorities

ABA Standards ....................................................... 23

(1)

OPINIONS BELOW

The trial court’s Judgment of Partially

Probated Suspension was filed of record on January

6, 2015.

The opinion of the Eighth Court of Appeals of

Texas was issued on December 14, 2016.

The Order Denying Petitioner’s timely-filed

Motion for Rehearing and Motion for Rehearing En

Banc was issued on August 23, 2017.

The Texas Supreme Court’s one-page order

denying review was issued on February 2, 2018.

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a) from the Texas Supreme Court’s

entry of its order denying Petition for Review on

February 2, 2018.

This Petition for Writ of Certiorari is filed

within 90 days of the Texas Supreme Court’s denial

of the Petition for Review, under Rules 13.1 and 29.2

of this Court.

(2)

CONSTITUTIONAL PROVISIONS

INVOLVED

Fifth Amendment to the United States Constitution

- attached in Appendix J

Fourteenth Amendment of the United States

Constitution – attached in Appendix K

STATEMENT OF THE CASE

Facts material to consideration of the questions

presented:

This disciplinary suit arises from Petitioner’s legal

advice and her actions relating to that advice

provided to the clients, who were husband and wife.

The clients were referred by another law firm to

Petitioner specifically to pursue a civil rights case in

state court against the Texas Department of Family

and Protective Services (“DFPS”). The clients had

been licensed as foster parents and had six children

living in their home, including a one year old child,

whom they hoped to adopt, when DFPS removed all

of the children from the home of the clients.

DFPS’ position was that it removed the children from

the clients upon learning of sexually-inappropriate

telephone text messages sent by the husband to the

mother of one of the children in his foster care. There

was documentary proof of these texts, sent on the

husband’s phone on August 27, 2009, which stated:

(3)

1. “We are getting a divorce and we never even

had sex.”

2. “If I would have meet (sic) you in another

time.”

3. “Are you naked”

The clients’ position was that DFPS had removed the

children in retaliation because of testimony adverse

to DFPS that the husband had given when he was

called as a witness in another case involving DFPS

and one of the foster children in his home.

Petitioner explained to the potential clients in detail

the following:

1. The clients could pursue a deprivation of their

First Amendment Rights and the right not to

suffer retaliation by the governmental unit for

the exercise of their freedom to speak out on

issues of importance to the public and the duty

to speak honestly in court;

2. The immunities and law that apply to DFPS

and its employees preclude state court tort

causes of action;

3. The difficulties of overcoming the unsavory and

salacious text message evidence DFPS would

use to support its actions;

(4)

4. The law related to 42 U.S.C. § 1983; that DFPS’

immunities would still be applicable; and the

expectation that an immunities argument

would have to be addressed and defeated;

5. That a § 1983 case could be filed in state court,

however, DFPS would have the right to remove

the case to federal court;

6. The extensive experience that Petitioner had

acquired over many years relating to state and

federal civil rights litigation; the domestic

relations exception in federal court; the

distinction between removal of a case to federal

court and one originally filed in federal court;

the case law regarding removal of a case to

federal court; and how to handle such a case

after removal in order to avoid sanctions;

7. That both lawyers and clients were subject to

sanctions, which could be severe, for filing or

maintaining a domestic relations case in

federal court that the Federal District Judge

determines was not proper to file or pursue in

federal court;

8. That if the case were removed to federal court,

because it would be a federal question case

only, it could not be remanded to state court

and thus the only safe procedure to avoid

sanctions was to take no action and permit the

case to die;

9. That if clients decided to pursue a § 1983 case

(5)

in state court and it were removed to federal

court that Petitioner would take no action on it

and the case would be permitted to die;

10. That Petitioner would only accept employment

in the case, if clients agreed that the case would

not be pursued in federal court;

11. To please obtain a second or third legal opinion

as to the advice Petitioner was providing.

This initial conference lasted over three hours.

Petitioner did not encourage the clients to go forward

with this case and emphasized the difficulty of

pursuing and prevailing in such a case.

At the conclusion of this conference the clients

agreed that they understood the legal advice given

and, that if the case were removed to federal court,

they understood specifically why the case should not

be pursued in federal court, and agreed with not

pursuing the case in federal court and allowing it to

die.

Petitioner prepared a contract of employment

that specifically set out that the case would be filed in

state court, and the contract, in a bold, larger font,

specifically precluded federal court representation.

Subsequently the clients employed Petitioner

at which time Petitioner and clients signed the

Contract of Employment which Petitioner reviewed in

depth with clients prior to its signing, particularly as

to the agreement not to pursue any case relating to

(6)

the civil rights claim in federal court. Thereafter the

case was filed in state court. Within thirty days the

case was removed to federal court. Upon the removal

of the case to federal court, Petitioner informed the

clients of its removal – as she had previously warned

could happen -- and that in accord with their prior

agreement, the case was over.

The Clients agreed and did not request that

Petitioner take any further action. After confirming

with the clients her prior advice, Petitioner took no

action of any kind regarding the case, and the case

was eventually dismissed by the Federal District

Judge, with no sanctions to the clients.

The clients, who had previously kept in close

touch with Petitioner prior to the case’s removal to

federal court, did not further contact Petitioner until

approximately six to seven months later when the

husband called and asked if he and his wife could

come in for an appointment.

At the appointment which only the husband

attended, Petitioner again reviewed the agreement

and reasons for the agreement to take no action in

federal court and permit the case to die. The husband

acknowledged their agreement to let the case die and

left.

Several months later the husband filed a

grievance against Petitioner.

Several depositions were taken and discovery

exchanged. The Respondent CFLD then filed a

(7)

Motion for Summary Judgment, using “Affidavits” of

the clients which failed to swear them to the truth of

the statements made in the “Affidavits.”

In her Response to the Motion for Summary

Judgment, Petitioner objected to the failure of the

“Affidavits” of the clients to contain a proper

attestation to the truth of what was set out therein,

making the “Affidavits” defective as summary

judgment evidence.

The allegations of misconduct were then

decided solely on the motion for summary judgment

alone, using the “Affidavits,” without benefit of any

hearing where live testimony under oath and the

credibility of the witnesses against Petitioner could be

assessed.

After the trial court granted partial summary

judgment in favor of the CFLD, the trial court held a

sanctions hearing.

At the sanctions hearing, Respondent CFLD

called the husband to testify. On cross-examination

by counsel for Petitioner, the husband’s inability to

tell the truth was immediately and quickly apparent.

The trial court acknowledged that Counsel for

Petitioner had made his point (as to lack of credibility

of the husband-client) but did not set aside the

summary judgment order previously entered.

In the Order Granting Partial Summary

Judgment (appendix B) Petitioner was found to have

violated the following provisions of the Texas Rules of

(8)

Professional Responsibility:

1.01(b)(1): In representing a client, a lawyer

shall not:

(1) neglect a legal matter entrusted to the

lawyer;

1.01(b)(2): In representing a client, a lawyer

shall not:

(2) frequently fail to carry out completely the

obligations that the lawyer owes to a client or clients.

1.15(a)(1): A lawyer shall decline to represent a

client or, where representation has commenced, shall

withdraw, except as stated in paragraph (c), from the

representation of a client, if:

(1) the representation will result in violation of

Rule 3.08, other applicable rules of professional

conduct or other law;

On January 6, 2015, a written order was filed of

record which assessed Petitioner’s sanction as a twoyear, partially-probated suspension, with one year

active and the second year fully-probated, together

with $7,500 restitution and $5,000 in attorneys fees.

(Appendix D)

When the federal questions sought to be

reviewed were raised; the method or manner of

raising them; and the way in which they were

passed on by those courts:

Initially the federal questions were raised in a

(9)

timely-filed Motion for New Trial, filed at trial court

level (appendix G):

3. The trial court had an opportunity to

observe the inability of Steven Young, one

of the two complainants in this case to

accurately, correctly and truthfully

respond to questions by counsel in this

case, while testifying in open court, having

been called to testify by the Petitioner at

the hearing on sanctions. The failure of

Steven Young (and also Tammy Young in

her “affidavit”) to be sworn to tell the truth

in his summary judgment “affidavit”,

which counsel for Respondent timely

objected to at the time of her response,

should be reviewed by the court for its

impact on the sufficiency of the summary

judgment evidence to support the order of

the court granting summary judgment, or

whether under the circumstances, the

Respondent should be entitled to an actual

trial of the issues (as opposed to the

procedure of summary judgment) in this

case.

5. Respondent was deprived of her right to a

"meaningful hearing” as required by the

due process provisions of the Fourteenth

Amendment to the United States

Constitution, via the use of the

constitutionally deficient summary

judgment procedure set out in Rule 166a of

the Texas Rules of Civil Procedure.

(10)

6. Respondent was deprived of her right to a

“meaningful hearing” as required by the

due process provisions of the Fifth

Amendment to the United States

Constitution, via the use of the

constitutionally deficient summary

judgment procedure set out in Rule 166a of

the Texas Rules of Civil Procedure.

8. Burden of proof is a product of

constitutionally required due process

provisions of the Fourteenth Amendment

to the United States Constitution. The

designation of preponderance of evidence

as the proper burden of proof in Rule 3.08

C of the Texas Rules of Disciplinary

Procedure is a constitutionally deficient

burden as more fully set out herein.

9. Burden of proof is a product of

constitutionally required due process

provisions of the Fifth Amendment to the

United States Constitution. The

designation of preponderance of evidence

as the proper burden of proof in Rule 3.08

C. of the Texas Rules of Disciplinary

Procedure is a constitutionally deficient

burden as more fully set out herein.

10. A Preponderance of the evidence burden

fails to satisfy the higher standards of due

process or due course of law required to

(11)

remove or impair a governmental license

held by the licensee.

13. The statutorily prescribed preponderance

of the evidence burden of proof in Texas

Disciplinary proceedings is a violation of

the responding attorney's right to equal

protection of the law under the Fourteenth

Amendment to the United States

Constitution.

14. The statutorily prescribed preponderance

of the evidence burden of proof in Texas

Disciplinary proceedings is a violation of

the responding attorney's right to due

process of law provision of the Fourteenth

Amendment to the United States Texas

Constitution.

15. The statutorily prescribed preponderance

of the evidence burden of proof in Texas

Disciplinary proceedings is a violation of

the responding attorney's right to due

process of law provisions of the Fifth

Amendment to the United States Texas

Constitution.

16. The “quasi-criminal” nature of discipline

proceedings constitutionally requires a

higher burden of proof than preponderance

of the evidence.

17. An Attorney's constitutional liberty

(12)

interest in their law license requires

greater due process protection than that

which Is afforded under a preponderance of

evidence level of proof.

18. The power to sanction is the power to

destroy. Public policy interests in the

vigorous viability of an attorney's

protection from retaliatory governmental

action arising from engaging in activities

which may involve unpopular cases,

positions, running for office, etc., requires a

higher burden of proof than preponderance

of the evidence.

23. The correct constitutionally required

burden of proof in this case is by clear and

convincing evidence.

24. The use of summary judgment, a procedure

involving preponderance of the evidence,

does not meet the constitutionally

mandated higher level of required evidence

in a disciplinary proceeding.

26. The federal courts, including the United

States Supreme Court, have examined the

constitutional liberty interest of the

parent-child relationship and have

required a higher burden than

preponderance of the evidence to impair a

parent's right to raise their children and to

do so free from the interference of others.

(13)

The burden of proof required to terminate,

suspend or impair an attorney's law

license, a matter of significant public

importance, should carry no lesser liberty

interest protections.

The Motion for New Trial was denied in its

entirety by written order signed on February 25,

2015. (appendix F)

Next, the federal questions were raised in

Petitioner’s Brief to the Eighth Court of Appeals filed

on June 10, 2015.

Issue No. Four, restated:

Whether the use of Texas traditional

summary judgment procedure affords a

lawyer insufficient due process protections in

their law license?

Point of Error No. One:

Due process under the Fifth and

Fourteenth Amendments to the United

States Constitution

Issue No. Five, restated:

Whether the use of Texas traditional

summary judgment procedure deprives a

lawyer of a meaningful hearing in a suit

(14)

involving their law license?

Point of Error No. One:

Due process under the Fifth and

Fourteenth Amendments to the United

States Constitution

Issue No. Six, restated:

Whether the burden of proof of preponderance

affords a lawyer insufficient due process

protections in their law license?

Point of Error No. One:

Due process under the Fifth and

Fourteenth Amendments to the United

States Constitution

Issue No. Seven, restated:

Whether the burden of proof of clear and

convincing evidence is the constitutionally

mandated minimum level of proof to be

applied in a disciplinary proceeding involving

a law license?

Point of Error No. One:

(15)

Due process under the Fifth and

Fourteenth Amendments to the United

States Constitution

Issue No. Eight, restated:

Whether a CFLD proceeding involving a

lawyer’s law license is a quasi-criminal

proceeding?

Point of Error No. One:

Whether a quasi-criminal proceeding

prohibits a summary judgment

disposition?

Point of Error No. Two:

Whether a quasi-criminal proceeding

requires a higher burden of proof than

mere preponderance?

Issue No. Nine, restated:

Whether the present procedures set out in the

Rules of Disciplinary Procedure are

constitutionally deficient?

Point of Error No. One:

Due process under the Fifth and

(16)

Fourteenth Amendments to the United

States Constitution

The issues were again presented in Petitioner’s

Motion for Rehearing and Motion for Rehearing En

Banc, filed on January 30, 2017, and denied without

opinion on August 23, 2017, by a two-member court of

appeals.

9.

The panel cites In re Ruffalo, 390 U.S.

544, 550; 88 S.Ct. 1222; 20 L.Ed. 2d (1968) for

“right to notice.” The panel failed to see,

however, that one page later, at page 551 the

Supreme Court declared [regarding a

disciplinary suit involving a lawyer's law

license] “These are adversary proceedings of a

quasi-criminal nature.”

10.

Although various Texas courts have

held that a disciplinary suit is not “quasicriminal,” for the purposes, however, of

applying the due process protections of Fifth

and Fourteenth Amendments, the supremacy

of federal law over state law was made clear

by the United States Supreme Court in

Cippolone v. Liggett, 112 S. Ct. 2608 (1992):

“State law that conflicts with federal law is

without effect.”

The issues were again presented to the Texas

Supreme Court which denied the Petition for Review

without opinion on February 2, 2018.

(17)

3.

The use of traditional summary

judgment in a case in which there was no

compulsory discipline required, denies a

lawyer the right to a meaningful hearing under

the U.S. Constitution’s Fifth and Fourteenth

Amendments rights to Due Process and/or

under the Due Course of Law provision of Art.

1 § 19 of the Texas Constitution.

4.

Because the United States Supreme

Court held in In re Ruffalo, 390 U.S. 544 (1968)

that “Attorney disciplinary proceedings are

adversary proceedings of a quasi-criminal

nature[.]” and Cippolone v. Liggett, 505 U.S.

504, 112 S.Ct. 6608 (1992), states that “State

law conflicts with federal law is without

effect[.]” federal law requires this Court’s

reversal of the Eighth Court of Appeals’

decision holding that “Disciplinary proceedings

are civil in nature.”

5.

The U.S. Constitution’s Fifth and

Fourteenth Amendments rights to Due Process

and/or the Texas Constitutions Due Course of

Law provision of Art. 1 § 19 mandate a burden

of proof of Clear and Convincing Evidence in a

law license disciplinary proceeding instead of a

Preponderance of the Evidence.

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REASONS FOR GRANTING THE WRIT

I.

Fifty years ago this Court, in the case of In re

Ruffalo, 390 U.S. 544, 551 (1968) held that

lawyer disciplinary cases are “quasi-criminal”

adversarial proceedings, however, this Court

has never directly opined what the burden of

proof in an attorney disciplinary proceeding

should be.

II.

Since Ruffalo, the Fifth Circuit and numerous

other federal circuit and district courts,

together with approximately 80% of state

courts (39), have held that the proper burden

in lawyer disciplinary cases is greater than

preponderance of the evidence and less than

beyond a reasonable doubt, more in the nature

of the intermediate standard of clear and

convincing evidence. Texas, and the

remainder of state courts, continue to deny

substantive and procedural due process by

applying the lesser burden of preponderance

of the evidence in lawyer discipline cases.

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III.

A burden of preponderance fails to meet the

substantive and procedural due process

requirements mandated when affecting an

attorney’s property and liberty interest in her

license to practice law. In cases involving

discipline of attorneys this Court should

declare what the Due Process protections of

the United States Constitution require that

burden of proof to be, and, what constitutes a

meaningful hearing.

ARGUMENT:

In re Ruffalo, supra at 551, this Court laid

down the fundamental principal that a disciplinary

proceeding against a lawyer, affecting the lawyer’s

right to practice law, is by its nature an adversary

quasi-criminal proceeding.

In the case of Herman & Maclean v.

Huddleston, 459 U.S. 375 (1983) this Court

discussed how the court’s decision to prescribe a

particular standard of proof is conducted, and stated:

“… we are mindful that a standard of proof

‘serves to allocate the risk of error between the

litigants and to indicate the relative importance

(20)

attached to the ultimate decision.’ Addington v.

Texas, 441 U.S. 481, 423 (1979). See also In re

Winship, 397 U.S. 358, 370-371 (Harlan, J.,

concurring). Thus, we have required proof by clear

and convincing evidence where particularly

important individual interests or rights are at stake.

See. e.g., Santosky v. Kramer, 455 U.S. 745 (1982)

(proceeding to terminate parental rights); Addington

v. Texas, supra (involuntary commitment

proceeding); Woodby v. INS, 385 U.S. 276, 285-286

(1966) (deportation) . . . .” This Court continued and

stated: “A preponderance-of-the-evidence standard

allows both parties to ‘share the risk of error in

roughly equal fashion.’ Addington v. Texas supra, at

423. Any other standard expresses a preference for

one side’s interests.”

Herman & Maclean v. Huddleston, supra, was

a class action, securities fraud case which involved

no liberty or property interests and involved no loss

of license issue. The Court’s holding as to this civil

case, was that “the balance of interests in this case

warrants use of the preponderance standard.”

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In contrast to Herman, any case involving an

attorney’s license to practice law involves

particularly important individual interests or rights.

The United States Court of Appeals for the

Fifth Circuit in In re Thalheim, 853 F.2d 383, 389

(5th Cir. 1988) stated:

“The privilege of practicing law “is not ‘a

matter of grace and favor’” [Willner v. Committee on

Character and Fitness, 373 U.S. 96, 102; 83 S.Ct.

1175, 1179-80, 10 L.Ed.2d 224 (1963)]; on the

contrary . . . “an attorney’s license to practice [is] a

‘right’ which cannot lightly or capriciously be taken

from him.” . . . The power to withdraw that right

“ought always to be exercised with great caution;

and ought never to be exercised except in clear cases

of misconduct, which affect the standing and

character of the party as an attorney.” [Ex parte

Wall, 107 U.S. 265, 288, 2S.Ct. 569, 589, 27 L.Ed.

552(1883).] . . .”

And continuing in footnote 9 of Thalheim: “In

attorney suspension and disbarment cases, the

charges must be sustained by clear and convincing

proof. In re Fisher, 179 F.2d 361, 369 (7th Cir.), cert.

(22)

denied sub nom. Kerner v. Fisher, 340 U.S. 825, 71

S.Ct. 59, 95 L.Ed.606 (1950) In re Ryder, 263 F.

Supp. 360, 361 (E.D.Va.), aff’d 381 F. 2d 713 (4th Cir.

1967) (adopting the district court’s opinion).”

The next Fifth Circuit case, In re Medrano,

956 F.2d 101, 102 (5th Cir. 1992) stated: “A

disbarment proceeding is adversarial and quasicriminal in nature and the moving party bears the

burden of proving all elements of a violation. In re

Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L. Ed. 2d

117 (1968); Matter of Thalheim, 853 F.2d 383 (5th

Cir. 1988). The notice of the allegations and the

disbarment proceeding must satisfy the

requirements of procedural due process. NASCO,

Inc. v. Calcasieu Television and Radio, Inc., 894 F.

2d 696 (5th Cir. 1990). A federal court may disbar an

attorney only upon presentation of clear and

convincing evidence sufficient to support the finding

of one or more violations warranting this extreme

sanction. NASCO, supra.”

Recently in the case of In re Grodner, an

unpublished opinion found at 587 Fed. Appx. 166,

169 (5th Cir. 2014) the Fifth Circuit held that proof

(23)

beyond a reasonable doubt was not required in an

attorney discipline case, “only” clear and convincing

evidence was required.

In a very recent unpublished opinion, In re

Rosales, 2018 U.S. App. LEXIS 7662 the Fifth

Circuit stated “A district court may disbar attorneys

only on the strength of clear and convincing

evidence.”

Other circuit courts applying the burden of

clear and convincing to attorney disciplinary

proceedings are the Fourth Circuit, and the Seventh

Circuit – see references above.

The ABA adopted Standards for Imposing

Lawyer Sanctions as approved, February 1986 and

as amended, February 1992, which call for a clear

and convincing evidence burden of proof.

The following thirty states and the District of

Columbia each require a burden of clear and

convincing evidence in disciplinary proceedings

relating to lawyers:

Alabama,

Hunt v. Disciplinary Board of Alabama

State Bar, 381 So.2d 52;

(24)

Alaska,

Alaska Bar Rule 22(e) McGee v. Alaska

Bar Ass’n, 353 P.3d 350;

Arizona,

Rule 48(d) Standard of Proof Rules of

the Supreme Court;

California,

Rule 5.103 Rules of Procedure of the

State Bar of California;

Colorado,

People v. Bontrager, 407 P.3d 1235

(Office of the Presiding Disciplinary

Judge of the Supreme Court of Colorado

2017);

Connecticut,

Statewide Grievance Comm. v.

Terzis, 1998 Conn. Supreme

LEXIS 2797;

Delaware,

In re Davis, 43 A3d 856 (Del.

2012);

District of Columbia, In re Zakroff, 934 A.2d 409

(D.C. 2007);

Florida,

Florida Bar v. Pellegrini, 714 So,2d 448

(Flo. 1998);

Georgia

Rule 4-221(e)(2);

Illinois

In re Edmonds, 2014 Ill. 11769 (Sup.Ct.

of Illinois 11-20-2014);

(25)

Indiana,

In re Cueller, 880 N.E.2d 1209 (Ind.

2008);

Kansas,

In re Swanson, 288 Kan. 185. 200 P.3d

1205 (2009);

Louisiana,

In re Wilson, 90 So.3d 1018 (La. 2012);

Maryland,

Attorney Grievance Commission of

Maryland v. Walter, 407 Md. 670, 967

A.2d 783 (2009);

Minnesota, In re Disciplinary Action against

Michael, 836 N.W.2d 753 (Minn. 2013);

Mississippi, Rule 8.6 of the Rules of Discipline for

the Mississippi State Bar;

Montana

In re Olson, Sup. Ct. of Montana 2009

Mt 455 (2009);

Nebraska,

State ex. rel. counsel for Discipline of

Nebraska Supreme Court v. Wintroub,

277 Neb. 787, 765 N.W.2d 482 (2009);

Nevada,

Burleigh v. State Bar, Supreme Court of

Nevada, April 28, 1982;

New Hampshire,

Druckers case, Supreme Court of

New Hampshire 133 N.H. 326 (79-90);

(26)

New Jersey,

In re Coruzzi, 95 N.J. 557 (N.J.

557);

North Dakota,

In re Disciplinary Action Against

Stensland, 2009 ND 77, 764

N.W.2d 438 (N.D. 2009);

Ohio,

In re Disciplinary Counsel v. Squire,

2011 – Ohio – 5578, 958 N.E. 2d 914

(Ohio 2011);

Oklahoma, State ex. rel. Oklahoma Bar Ass’n v.

Godlove, 2013 OK 38, 318 P.3d 1086

(Okla. 2013);

Oregon,

In re Conduct of Campbell, 345 Or. 670,

202 P.3d 871 (2009);

South Carolina,

In re Gray, 381 S.C. 406, 673

S.E.2d 442 (2009);

Vermont

Administrative Orders of Supreme

Court 9 – Perm rules governing

establishment and operations of the

Prof. Resp. Program Rule 16 c

Standard of Proof ;

Virginia,

Rules 13 – 18 Bd. Proceedings upon K

and L and M;

(27)

West Virginia,

Lawyer Disciplinary Bd. v.

Aleshire, 736 S.E.2d 70 (W. Va.

2012);

Wyoming

Wyoming Disciplinary Code for the

Wyoming State Bar 15.

Nine other states describe the burden of proof

as a convincing preponderance, a clear

preponderance, a fair preponderance and the

definition of these burdens are defined as greater

than mere preponderance and less than beyond a

reasonable doubt.

Hawaii,

Review of fact findings subject to clearly

erroneous standard, conclusions of Law

subject to “right/wrong” standard of

review;

Idaho,

burden is clear and undoubted

preponderance 154 Idaho 233 (Sup Ct of

Idaho 2013);

Iowa,

Convincing preponderance of the

evidence “This burden is greater than

in a civil case and less than that in a

criminal case.” Iowa Supreme Court

(28)

Attorney Disc. Bd. v. Zenor, 707 N.W.2d

176;

And Iowa Supreme Court Attorney

Disciplinary Bd. v. Nelson, 838 N.W.2d

528 (Iowa 2013);

Florida,

The Florida Bar v. Greene, 926 So.2d

1195 (Fla. 2006);

New York,

Fair preponderance of evidence

Part 1240.1 Rules for Attorney

Disciplinary Matters;

North Carolina,

clear, cogent and convincing

147 N.C. App. 582 N.C. State Bar

v. Talford;

Pennsylvania,

clear direct and weighty 1990 Pa.

LEXIS 261 In re Anonymous;

Washington,

clear preponderance 162 Wn 2d

873 (Sup. Ct. of Wash.);

Wisconsin,

clear, satisfactory and convincing

Supreme Court of Wisconsin

2011 Wi 21 Crandall case.

As is apparent, depending on what

jurisdiction, state or federal, which federal circuit or

which state is involved, the due process that a

(29)

lawyer is afforded in her law license varies. While a

majority of states have responded to Ruffalo, supra,

and its proclamation of the “quasi-criminal nature”

of disciplinary proceedings with a requirement for

clear and convincing evidence, there are still courts,

of which Texas is one, that refuse to afford licensed

attorneys the higher standard of proof of clear and

convincing evidence.

This Court should speak on the important

issue of what burden of proof is required under the

United States Constitution in disciplinary

proceedings involving allegations of misconduct by

lawyers and the suspension or loss of their license to

practice law.

IV.

A summary proceeding that does not permit

the calling of live witnesses, with the ability of

the finder of fact to determine witness

credibility, but which, instead, relies solely

upon affidavits, falls below the requirements

for a meaningful hearing and denies

substantive and procedural due process in an

attorney disciplinary proceeding.

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ARGUMENT:

This issue (meaningful hearing) is a

companion issue to the correct application of burden

of proof in attorney disciplinary proceedings.

Does a proceeding which deprives an attorney

of the ability to call live witnesses under penalty of

perjury, amount to a deprivation of a meaningful

hearing as required by the due process requirements

of the Fifth and Fourteenth Amendments to the

United States Constitution in cases involving

deprivation of property and liberty interests?

This Court in case of Bd. of Regents v. Roth,

408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

stated:

“. . . a weighing process has long been

a part of any determination of the

form of hearing required in particular

situations by procedural due process.

[footnote 8. The formality and

procedural requisites for the hearing

can vary, depending upon the

importance of the interests involved

and the nature of the subsequent

(31)

proceedings.’ Boddie v. Connecticut,

supra, at 378.]

“’Liberty’ and ‘property’ are broad and

majestic terms. They are among the

‘great [constitutional] concepts . . .

purposely left to gather meaning from

experience . . . . They relate to the

whole domain of social and economic

fact and the statesmen who founded

this Nation knew too well that only a

stagnant society remains unchanged.’

National Ins. Co. v. Tidewater Co., 337

U.S. 582, 646 (Frankfurter, J.,

dissenting). For that reason, the

Court has fully and finally rejected the

wooden distinction between ‘rights’

and privileges’ that once seemed to

govern the applicability of procedural

due process rights. . . . . By the same

token, the Court has required due

process protection for deprivations of

liberty beyond the sort of formal

(32)

constraints imposed by the criminal

process. . . . . “

“While this Court has not attempted

to define with exactness the liberty . . .

guaranteed [by the Fourteenth

Amendment], the term has received

much consideration and some of the

included things have been definitely

stated. Without doubt, it denotes not

merely freedom from bodily restraint

but also the right of the individual to

contract, to engage in any of the

common occupations of life, to acquire

useful knowledge, to marry, establish

a home and . . . generally to enjoy

those privileges long recognized . . . as

essential to the orderly pursuit of

happiness by free men.’ Meyer v.

Nebraska, 262 U.S. 399. In a

Constitution for a free people, there

can be no doubt that the meaning of

‘liberty’ must be broad indeed. See,

e.g., Bolling v. Sharpe, 347 U.S. 497,

(33)

499-500; Stanley v. Illinois, 405 U.S.

645.”

This Court should render an opinion stating

that a meaningful hearing of a disciplinary

proceeding for an accused lawyer must always

include the right of the accused lawyer to call live

witnesses under oath on the issues of the alleged

misconduct by the lawyer.

As has been repeatedly stated in cases

interpreting Matthews v. Eldridge, 424 U. S. 319, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976) each scenario as to

what constitutes an adequately available and

meaningful hearing must be addressed and decided

on the facts of each type of case involved.

In this case, the issues related to the

allegations against Petitioner were decided by a

summary judgment proceeding. In Texas, in order to

prevail on a summary judgment proceeding, there

must be no material contested issue of fact present.

Rule 166a TRCP. A reading of the Opinion of the

Eighth District Court of Appeals demonstrates

repeated examples of contested fact issues germane

to a resolution of the material facts where the Court

(34)

of Appeals sets out multiple contested facts between

the clients and Petitioner. The brief opportunity at

the sanctions hearing to cross-examine one of the

clients and his lack of veracity and credibility under

oath before the finder of fact illustrates the need for

the live testimony. The issues of fact discussed by

the Eighth Court of Appeals El Paso, Texas, were

decidedly opposite in the contentions made as to the

facts, requiring a credibility determination, which

cannot be performed in the context of a summary

judgment procedure in Texas. Petitioner was

deprived of the credibility determination and

therefore deprived of a meaningful hearing.

In the case of Bell v. Burson, 402 U.S. 535,

541 (1971) involving revocation of a driver’s license,

the issue of the requirement of meaningful hearings

and due process in a proceeding involving revocation

of a driver’s license is discussed. In Bell, this court

stated: “The hearing required by the Due Process

Clause must be meaningful.” Armstrong v. Manzo,

380 U.S. 545, 552 (1965) and ‘appropriate to the

nature of the case.’ Mullane v. Central Hanover

Bank & Trust Co., supra, at 313.”

(35)

In Texas, licensed drivers receive the right to

hearings which are never conducted via Rule 166a

TRCP summary judgment procedures and which

hearings encompass the right of the driver to

subpoena witnesses to give testimony under oath at

the revocation proceeding. (e.g. see Texas

Transportation Code § 524.039 and see also the

Opinion by the Texas Attorney General following the

Bell v. Burson, supra, case being handed down by

this Court. Tex. Atty. Gen. Op. JM-546 (Tex.A.G.)

1986 WL 219392.

In effect a holder of a Texas Driver’s license is

afforded a greater opportunity for a meaningful

hearing regarding loss of that license than is

presently available to licensed attorneys in Texas.

CONCLUSION

The significance of constitutionally-adequate

due process being afforded attorneys in their license

to practice law throughout the justice system, state

or federal, awaits this Court’s considered opinion.

(36)

For the foregoing reasons, this Court should grant

the Petition for Writ of Certiorari.

Holly Gail Crampton, Petitioner

By:

/s/ James H. Brannon

Counsel of Record

James H. Brannon

Bar No. 02895000

615 Bayland Ave.

Houston, Texas 77009

(832) 971-6158

Additional counsel:

Susan C. Norman

State Bar No. 15083020

Law Office of Susan C. Norman

P.O. Box 55585

Houston, Texas 77255

(713) 882-2066

(37)

APPENDIX

A. Contract of Employment between Petitioner

and clients

B. Order Granting Petitioner’s Motion for Partial

Summary Judgment

C. Petitioner’s Notice of Partial Nonsuit

D. Judgment of Partially Probated Suspension

E. Motion for New Trial

F. Order Denying Respondent’s Motion for New

Trial

G. Opinion and Judgment of the Eighth Court of

Appeals El Paso, Texas

H. Motion for Rearing and Rehearing En Banc

I. Order Denying Motion for Rehearing and

Motion for En Banc Rehearing

J. Order of the Texas Supreme Court Denying

Petition for Review on February 2, 2018

K. Fifth Amendment to the United States

Constitution

L. Fourteenth Amendment to the United States

Constitution

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M. Rule 3.08 C. of the Texas Rules of Disciplinary

Procedure

N. Rule 1.01(b)(1) and (b)(2) of the Texas

Disciplinary Rules of Professional Conduct

O. Rule 1.15(a)(1) of the Texas Disciplinary Rules

of Professional Conduct