Petition for Writ of Certiorari — Harlan v. Committee on Professional Ethics & Conduct

In The

Supreme Court of the United Diates

October Term, 1988

oO

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEER ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIA-

TION, and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E.

Shaff, Marie Prinee-Cohen, D. Carlton Shull, William

C, Davison, Norman G. Bastemever, Mary Louise Peter-

sen, and Carolyn Sloan, in their individual and official

capacities; LARRY JACKSON, Deputy Commissioner

of the Iowa Department of Human Services, and GOR-

DON FE. ALLEN, Special Assistant lowa Attorney Gen-

eral, in their individual and official capacities,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ray

Vv

Ronert FE. Svctrrox

Sutron & KeLiy

1409 East Capitol Drive

Milwaukee, Wisconsin 53211

(414) 961-0802

Attorney for Petitioner

COCKLE LAW RBRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Did the complaint of the petitioner set forth a

cause of action under 42 U.S.C. § 1983?

2. Was the opinion of the Eighth Cireuit affirming

the dismissal of the action by the District Court erroneous?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW 2.

OPINION BELOW | 3.W..1c ee

REASONS FOR GRANTING THE WRIT

I.

IT.

THE COMPLAINT SET PORTH A CAUSE OF

ACTION—A CLEAR AND DIRECT IN-

RFRINGEMENT OF PROTECTED FREE

SPEECIL UNDER COLOR OF LAW

THE OPINION OF THE EIGHTIT CIRCUET

ERRONEOUSLY DECLINED TO ADDRESS

THE PETITIONER'S CLAIM OF “BAD

RAITILT HARASSMENT OR OTTER EXCEP-

TIONAL CIRCUMSTANCES,” ........

THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELGIPH

CIRCUIT ERRONEOUSLY CONCLUDED

THAT THE PETITIONER TAD CONCEDED

THAT THE DEFENDANTS WERE IMMUNE 10

CONCLUBION ..-nncc-ss

APPENDIX:

A—OPINION OF EIGHTH CIRCUIT

COURT OF APPEALS ween App.

B—JUDGMENT OF EIGHTH CIRCULT

C—

D—JUDGMENT OF DISTRICT COURT App. 1

E—ORDER OF DISTRICT COURT .... App. 14

COURT OF APPEALS ............. App.

MEMORANDUM OPINION OF

DISTRICT COURT 2 eee App.

ORDER OF DISTRICT COURT

ffi

TABLE OF CONTENTS—Continued

Page

F—COMPLAINT App. 15-26

G—NOTICE OF APPEAL App. 27

H—DOCKET SHEET App. 28-29

I—AFPIDAVIT OF PLAINTIFF App. 30-40

iv

TABLE OF AUTIIORITIES CITED

Page 7

CASES:

Brandenburg v. Ohio, 395 U.S. 444 OE seems a

Cantwell v. Connecticut, 310 U.S. 296 (1940) ~ 5

Chicago Council of Lawyers v. Bauer, 522 F.2d |

DHD (Tt Coir, VOT) ana cneeeennneensnennnnnnennnnnnennennnenneanennnnnnneneencens 5, 10

District of Columbia Court of Appeals v. Feldman,

AGO US. SGD (VSB) nncececannnnennnneennneseecesnnnensnneennnsennnnnnnnncnnsnnnnnnnnnennnne 9, 10

Dombrowski v. Pfister, 380 U.S. 479 (1965) pes

Fair Assessment In Real Estate v. McNary, 454 |

UTS. 100, TO Lh QTL (VSD) nnn anna nn 7

Fiske v. Kansas, 274 US. SSO (1927) nnceennnneeneeeene neeeeneeeene 5

Gitlow v. New York, 268 U.S. G52 (V92 ) nnn ennnaenneneneeren 5

Healy v. James, 408 U.S. 169 (1902) nner 5)

Hirschkop v. Snead, 594 °.2d 356 (4th Cir. 1979) ——.. 5, 10

McNeese v. Board of Education, 373 U.S. 668 (1963) 8

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423, 73 L.Ed.2d 6, 102

ace 9615 (1962) TTF nacre! 9,10

Monroe v. Pape, 365 U.S. i607, 5 L.Ed.2d 492, $1

Sct. 473 (1961) ——__-_ S

NAACP v. Button, 371 U.S. 415 (1963) i)

New York Times v. Sullivan, 376 U.S. 254 (1964) D

Pennzoil Co. v. Texaco, Inc., 107 S.Ct. 1519 (4/6 3 ee

Shelton v. Tucker, 364 U.S. 479 (1960) a)

Stromberg v. California, 285 U.S. 359 ( ) nade 5

Terminiello v. City of Chicago, 357 USS. 1 (1949) 4,5, 10

a

TABLE OF AUTHORITIES CITED—Continued

Page

Thornburgh v. American College of Obstetricians

& Gynecologists, 106 S.Ct. 2169, 90 L.Ed.2d 777

I nna eS st 8,10

Thornhill v. Alabama, 310 U.S. 88 (1940) 5

Tinker v. Des Moines Independent School District,

Se USER, GUS CER) ccnctnccdenteniia ennai 5

Whitney v. California, 274 U.S. 359 (1927) fie 5

Zwickler v. Koota, 389 U.S. 241 (1967) es 5, 6, 10

STATUTES:

36 UA. 6 BAe cece ae 2

42 US.C. § 1983 .........

42 UBL... © TO cies eee 11

aes

o-—

In The

Supreme Court of the United States

October Term, 1988

Ly

4

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEE ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIA-

TION, and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E.

Shaff, Marie Prinee-Cohen, D. Carlton Shull, Wilham

(. Davison, Norman G. Bastemeyer, Mary Louise Peter-

sen, and Carolyn Sloan, in their individual and official

capacities; LARRY JACKSON, Deputy Commissioner

of the Iowa Department of Human Services, and GOR-

DON E. ALLEN, Special Assistant lowa Attorney Gen-

eral, in their individual and official capacities,

Respondents.

rae

ww

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

>.

4

Petitioner prays that a writ of certiorari issue to re-

view the Decision of the United States Court of Appeals

for the Eighth Circuit filed August 12, 1988.

ft

w

1

9

OPINION BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit affirmed the decision of the United

States District Court for the Southern District of Lowa,

the Honorable Lyle E. Strom presiding, dismissing thie

complaint ef the petitioner. ‘The opinon of the Eighth Cir-

cuit is set forth in the Appendix, pp. 1-4 and the decision

of the District Court is set forth in the Appendix, pp. 7-12.

JURISDICTION

Jurisdiction of this Court is invoked under 2S U S.C.

§ 1254.

ee

STATEMENT OF THE CASE inal

The petitioner, Jane Harlan, is an attorney duly li-

censed and admitted to practice in the State of lowa wiltr

offices located in Newton, lowa. On March 22, 1985 upon

petition she was appointed to act as euardian-ad-litem for

five children in proceedings before the Juvenile Court in

the Fifth Judicial District of lowa.

The case concerned a dispute between a natural moth-

er and foster parents and the Iowa Department of Human

Services as to the appropriate placement and custody of

the five children. The case became a clause celebre in

Iowa and eventually commanded the attention of the na-

tional press including the CBS magazine program— 60

Minutes. Proceedings in the case continued through 1985,

1986, and 1987 and the petitioner came to be interviewed in

both the local lowa press and on local and national televi-

sion. The state trial court declined to terminate the par-

ental rights of the natural mother or place the children

with the foster parents and the petitioner acted as counsel

on appeal of that decision to the Supreme Court of Iowa.

In January, 1987, while the appeal was pending in the

lowa Supreme Court a complaint was filed against the pe-

titioner with a grievance committee of the Iowa Bar As-

sociation by respondents, a Special Assistant to the Attor-

ney General, Gordon Allen, and a Deputy Commissioner of

the Iowa Department of Human Services, Larry Jackson,

complaining of public statements made by the petitioner

which were allegedly critical of various public officials.

The petitioner responded to the complaint in Feb-

ruary, 1987 and asserted a First Amendment defense. In

August, 1987 the Committee on Professional Ethies and

Conduct of the lowa State Bar Association sent notice to

the petitioner of a publie reprimand. The petitioner there-

upon filed the action which is the subject of this case in the

United States District Court for the Southern District of

Towa on August 31, 1987. (Appendix, pp. 15-26)

The respondents, Committee on Professional Ethics

and Conduct of the lowa State Bar Association and the in-

dividual members of the Committee filed a Motion to Dis-

miss the complaint by date of September 18, 1987. The re-

spondents, Allen and Jackson, also filed a Motion to Dis-

miss by date of September 22, 1987. Briefs were sub-

mitted by the parties and on October 30, 1987 the District

Court rendered its memorandum opinion dismissing the

Complaint. (Appendix, pp. 7-12) From that opinion and

subsequent order and judgment entered November 2, 1984

(Appendix, pp. 13-14) an appeal was taken to the United

States Court of Appeals for the Eighth Cireuit. (Appen-

dix, p. 27) After the submission of briefs and presentation

of oral argument the United States Court of Appeals for

the Eighth Cireuit issued its opinion on \ucust 12, LSS.

( Appendix, pp. 1-4)

REASONS FOR GRANTING THE WRIT

‘*A function of free speech under our system of gov-

ernment is to invite dispute. It may indeed better

serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger. Speech is often

provocative and challenging. It may strike at pre

judices and preconceptions and have profound unsel-

tling effects as it presses for acceptance of an idea.

That is why freedom of speech, though not absolute,

.. is nevertheless protected against censorship or

punishment, unless shown likely to produce a clear and

present danger of a serious substantive evil that arises

far above public inconvenience, annoyance, or unrest.”’

Termini llo e, City of Chicago, od U.S. i 4-5 (1049).

I.

THE COMPLAINT SET FORTH A CAUSE OF

ACTION—A CLEAR AND DIRECT INFRINGE-

MENT OF PROTECTED FREE SPEECH UN-

DER COLOR OF LAW.

The nature of the free speech infringement in the in

stant case is clearly of the type traditionally protected by

the First Amendment under decisions of the United States

sential arama

Supreme Court from early date. Fiske v. Kansas, 274

U.S. 380 (1927), Strombera v. California, 283 U.S. 359

(1931), Gitlow rv. New York, 268 U.S. 652 (1925), Whitney

v. California, 274 U.S. 359 (1927), Brandenburg v. Ohio,

595 U.S. 444 (1969), New York Times v. Sullivan, 376 U.S.

294 (1964), Thornhill v. Alabama, 310 U.S. 88 (1940),

Terminiello v. City of Chicago, 337 U.S. 1 (1949).

The infringement here is a direct abridgement of

speech which, although perhaps provocative and challene-

ing, is protected. New York Times Co. v. Sullivan, 376 U.S.

254 (1964). Also see Zwickler v. Koota, 389 U.S. 241

(1967), NAACP v. Button, 371 U.S. 415 (19638), Cantwell

v. Connecticut, 310 U.S. 296 (1940).

The ‘‘environment’’ of the particular case as noted to

be important in Healy v. James, 408 U.S. 169 (1972),

Tinker v. Des Moines Independent School District, 393

U.S. 503 (1969) and Shelton rv. Tucker, 364 U.S. 479 (1960)

in the case at bar is the vigorous debate surrounding an on-

going civil legal matter. To censure the legal counsel for

speaking out on the matter is to clearly abridge free speech

in a most fundamental sense. It is that concept that un-

derlies the holding of the Cireuit Courts of Appeals of the

Fourth and Seventh Circuits in Hirschkop v. Snead, 594

F.2d 356 (4th Cir. 1979) and Chicago Council of Lawyers

v. Bauer, 522 F.2d 242 (7th Cir. 1975) in directly striking

down rules of professional conduct which attempt to pro-

hibit or restrict comments made by attorneys in the course

of civil litigation. Such rules inhibit free speech, restrict

reasonable public debate, and have a chilling effeet. Cf.

Zwickler v. Koota, 389 U.S. 241 (1967), Dombrowski v.

Pfister, 380 U.S. 479 (1965).

6

When such infringement is under color of law by

action of agents of the state the victim may certainly ob-

tain redress via an affirmative action in the United States

District Court.

42 U.S.C. 1983 provides:

“Every person, who, under color of any statute, or-

dinance, regulation, custom or useage, of any state or

territory subjects, or causes to be subjected, any eiti-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges or immunities seenred by the Constitution

and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity or other proper proceeding

for redress.’’ 42 U.S.C. § 1983.

“The petitioner brought the instant action against the

respondents for violation of her First Amendment rights

under color of law. The vindication of rights arising un-

der the United States Constitution and federal laws is pri-

marily for the federal courts. There is a duty which rests

upon all levels of the federal judiciary to vindieate the

First Amendment rights of a citizen in the face of oppres-

sion thereof. In Zwickler v. Noota, 389 U.S. 241 (1967)

Justice or ae declared:

‘¢ escape from that duty is not permissible merely

beeause State Courts also have the solemn responsi-

hility equally with the federal courts .. . ‘to guard,

enforee and protect every right granted or secured by

the Constitution of the United States.’ Robb v. Con-

nolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542.

‘We yet like to believe that wherever the Federal

Courts sit, human rights under ihe I*ederal Constitu-

tion are always a proper subject for adjudication and

that we have not the right to decline the exercise of

that jurisdiciion simply because the rights may be ad-

judicated in some other forum.’ ”’

wre =

In Fair Assessment In Real Estate v. Mi Nary, 454

U.S. 100, 70 L.Ed.2d 271, 275 Mr. Justice Rehnquist ob-

served:

“Obviously ¢ 1983 eut a broad swath. By its terms it

gave a federal cause of action to prisoners, taxpayers

or anyone else who was able to prove that his constitu-

tional or federal rights had been denied by any state.

In addition, the statute made no mention of any re-

quirement that state remedies be exhausted before re-

sort to the federal courts could be had. ...”

Justice Rehnquist goes on to diseuss those areas where ab-

stention or deference has been found appropriate.

Justice Brennan in his coneurring opinion, in Fair

«lssessment at footnote 11, 70 L.Ed.2d 288 states that the

congressional policy pronouncement of the role of the fed-

eral courts in the federal system was born of a ‘‘more than

a modest distrust of the state courts as protectors of fed-

eral rights.” He notes that “Where Congress has granted

the federal courts jurisdiction we are not free to repudiate

that authority.”’

It is with this background that the appropriateness

vel non of the Distriet Court’s conclusion that it lacked

subject matter jurisdiction over the action must be viewed.

The circumstances in the case at bar as set forth in the

Complaint supplemented by the verified affidavit submit-

ted clearly established that the petitioner was claiming a

course of conduet by the respondents of harassment, bad

faith and retaliation against her. There were no ongoing

state court proceedings sueh as criminal prosecutions in

which the federal court was requested to intrude. The

harassment and sanetion by reprimand by the respondents

8

was a fait accompli. The Supreme Court of Iowa had is-

sued its reprimand on October 15, 1987.

Also of great significance is the well accepted prin-

ciple that when the unconstitutionality of the particular

state action under challenge is clear, a federal court need

not abstain from addressing the constitutional issue in lieu

of some other reviews availability. See Thornburgh v.

American College of Obstetricians & Gynecologists, 106

S.Ct. 2169, 90 L.Ed.2d 777, 801 (1986). Certainly First

Amendment rights have traditionally been considered with

a reverance equal to those rights of privacy recognized and

secured in Thornburgh. As Justice Blackman indicates in

Thornburgh federal courts have a duty to apply the federal

Constitution faithfully. Also see Justice Blackman con-

eurring in Pennzoil Co. v. Texaco, Ine., 107 S.Ct. 1519 at

p. 1534 (4/6/87).

Since Monroe v. Pape, 365 U.S. 167, 5 L.Ed.2d 492, 81

S.Ct. 473 (1961) immediate resort to federal court has been

authorized whenever state actions allegedly infringe consti-

tutional rights and the state has not been allowed the con-

fession and avoidance defense that it has a review process

which if followed would afford relief,

“It is immaterial whether conduct is legal or illegal as

a matter of state law. Such claims are entitled to be

adjudicated in ihe federal courts.”

McNeese v. Board of Education, 373 U.S. 668, 674 (1963).

II.

THE OPINION OF THE EIGHTH CIRCUIT ER-

RONEOUSLY DECLINED TO ADDRESS THE

PETITIONER’S CLAIM OF ‘‘BAD FAITH HAR-

ASSMENT OR OTHER EXCEPTIONAL CIR-

CUMSTANCES.”’

In~ Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 73 L.Ed.2d 6, 102 8.Ct.

2515 (1982). Justice Rehnquist repeatedly asserts that a

federal claim may be made out against whosoever might be

responsible for injury to the First Amendment rights of an

attorney where there is bad faith, harassment or other ex-

ceptional circumstances. This ‘‘bad faith’’ exception to

lack of subject matter jurisdiction is recognized by impli-

cation by Justice Brennan in District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983) in footnote 16.

Ieldman is the ease relied upon by the District Court in

dismissing the complaint in the case at bar. The complaint

in the case at bar specifically alleged a course of harass-

ment and bad faith by the respondents.

In addition- perhaps more importantly—Disirict of

Columbia Court of Appeals v. Feldman did not involve

First Amendment infringement claims—it involved bar

admission rules and decisions. Justice Brennan specif-

ically notes those allegations in the complaints that in-

volved a general attack on the constitutionality of the

Rules were properly within the subject matter jurisdie-

tion of the Federal District Court. See 75 L.Ed.2d 206

at pp. 225-226.

lt is respectfully submitted that had Feldman involved

allegations of concerted course of conduct harassing the

10

applicants and infringing their First Amendment rights

the holding would have confirmed the subject matter jur-

isdietion of the lower federal courts.

The District Court erred in concluding that it lacked

subject matter jurisdiction over the action and the Opinion

of the Eighth Cireuit erred in declining to address the er-

ror of the District Court. The District Court had misap

plied the holdings of the United States Supreme Court in

District of Columbia Court of Appeals v. Feldman, 409

U.S. 462 (1983) and by implication Middlesex County

Ethics Committee v. Garden State Bar Association, 457

U.S. 423 (1982) and ignored the holdings of Hirsehhop

Snead, 594 F.2d 356 (4th Cir. 1979) and Chicago Couneil of

Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975). A proper

er consideration of that case law and the traditional con-

cepts of First Amendment law embodied in Zwickler v.

WK oota, 389 U.S. 241 (1967), Terminiello v. City of Chicago,

337 U.S. 1 (1949), Dombrowski v. Pfister, 380 US, 479

(1965) and Thornburgh v. American College of Obstetri-

cians & Gynecologists, 106 S.Ct. 2169, 90 L.Ed.2d 777, 801

(1986) compelled reversal of the District Court.

III.

THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIR-

CUIT ERRONEOUSLY CONCLUDED THAT

THE PETITIONER HAD CONCEDED THAT

THE DEFENDANTS WERE IMMUNE.

In this respeet the opinion of the Court of Appeals ts

perplexing, without precedential support, and contrary to

the record. Although the District Court opinion had con-

cluded that the defendants were immune from an award

t

:

:

'

11

of damages against them there was no holding that de-

claratory judgment or injunctive relief would be unavail-

able to the petitioner in the event she should prevail. Fur-

ther and more importantly, the record discloses that the

petitioner had filed a Notice of Appeal from the entire

Opinion, Order, and Judgment of the District Court and,

accordingly, was challenging the decision in its entirety.

(Appendix, p. 28-29) Whether or not the respondents en-

joyed immunities, qualified or absolute from damages

would not bar the petitioner from declaratory judgment or

injunctive relief and attorneys’ fees under 42 U.S.C. § 1988.

In addition there was no concession that the respondents

enjoyed any immunity even from damages. Certainly the

respondent Larry Jackson, the Deputy Commissioner of

the Iowa Department of Human Services was not, by vir-

tue of his employment, cloaked with any heretofore recog-

nized immunity. If he was ultimately found to have in-

jured the petitioner’s First Amendment rights under color

of law there is no precedent for absolving him from an

award of damages.

In essence the opinion of the Eighth Circuit begged

the question before it and avoided addressing the core issue

by invoking a heretofore unrecognized doctrine of issue

preclusion by waiver when there was no waiver of record.

4 >

oe

12

CONCLUSION

For the foregoing reasons a Writ of Certiorari should

issue to review the Opinion of the United States Court of

Appeals for the Eighth Circuit.

Respectfully submitted,

Rosert E. Sutton

Sutton & KEeLLy

1409 East Capitol Drive

Milwaukee, Wisconsin 53211

(414) 961-0802

Attorney for Petitioner

App. 1

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 87-2619

Jane Harlan

Appellant,

v.

Appeal and Cross-

Appeal from the

United States

District Court for

the Southern

District of Iowa.

The Committee on Professional

Kthies and Conduct of the Iowa

State Bar Association, and its

individual members thereof,

Michael H. Figenshaw; John J.

Greer; James L. Tyler; Karen E.

Shaff; Marie Prince-Cohen;

D. Carlton Shull; William C.

Davison; Norman G. Bastemeyer ;

Mary Louise Petersen and

Carolyn Sloan, in their

individual and official

capacities; Larry Jackson,

Deputy Commissioner of the Iowa

Department of Human Services,

and Gorden E. Allen, Special

Assistant Iowa Attorney General

in their individual and

official capacities,

Appellees.

ee me me ee a ee a ee a ee ee ee es

App. 2

No. 87-2702

Jane Harlan,

Appellee,

v.

)

)

)

)

The Committee on Professional )

Ethics and Conduct of the lowa )

State Bar Association, and it )

individual members thereof, )

Michael I. Figenshaw; John J. )

Greer; James L. Tyler; Karen E. )

Shaff: Marie Prince-Cohen; )

D. Carlton Shull; William C. )

Davison; Norman G. Bastemeyer; )

Mary Louise Petersen and )

Carolyn Sloan, in their individual )

)

)

)

)

)

)

)

)

)

)

)

)

and official capacities,

Appellants,

Larry Jackson, Deputy

Commissioner of the lowa

Department of Human Services,

and Gorden EF. Allen, Special

Assistant lowa Attorney General

in their individual and

official capacities.

Submitted: June 16, 1988

Filed: August 12, 1988

Before HEANEY and MAGILL, Cireuit Judges, and

LARSON,* Senior District Judge.

* THE HONORABLE EARL R. LARSON, Senior United States Dis-

trict Judge for the District of Minnesota, sitting by designation.

A pp. 3

PER CURIAM.

I. INTRODUCTION

Jane Harlan (Harlan) appeals the district court’s'

dismissal of her lawsuit against the Committee on Pro-

fessional Ethics and Conduct of the lowa State Bar

Association (the Committee) for want of subject matter

jurisdiction. Finding no error in law or fact, we affirm.

Il. FACTS

Harlan, an Towa attorney, was appointed guardian

ad litem for five children in proceedings to determine

custody and placement. After an lowa juvenile court

judge determined that the children’s mentally-ill mother

should be given custody instead of the foster parents,

Harlan criticized that judge in the local media. As the

case became a local (and later national) cause celebre,

Harlan continued to publicly criticize various state offi-

cials, including the juvenile court judge who awarded

custody, and the appellate judges hearing the appeal of

the award of custody. While the appeal was pending,

a grievance was filed against Harlan with the Committee,

alleging that she had violated professional ethics by criti-

cizing the juvenile court judge and state officials. Harlan

responded by asserting a First Amendment defense. The

Committee rejected Harlan’s First Amendment claims,

and sent her notice of their recommendation of public

reprimand. The notice informed her that if she failed

to challenge the Committee’s decision within thirty days,

'The Honorable Lyle £. Strom, Chief Judge, United States

District Court for the Southern District of lowa.

App. +

the reprimand would be spread upon the records of the

Iowa Supreme Court. See Iowa Supreme Court Rule

118.3. Harlan did not challenge the Committee’s recom-

mendation, cither through the administrative procedures

prescribed by the Iowa Supreme Court, or in the United

States Supreme Court. As a result, a final order of Pub-

lie Reprimand was entered by the lowa Supreme Court

on October 15, 1987. Harlan then filed this 42 U.S.C.

§1983 action for derogation of her First Amendment

rights. The district court dismissed her lawsuit on the

alternative grounds (1) that allowing Harlan’s lawsuit

to go forward would involve federal district court review

of the lowa Supreme Court’s decision to censure a mem-

ber of the lowa Bar, a result prohibited by the doctrine

of absention, and (2) that all the defendants were entitled

to absolute immunity. This appeal followed.

Ill. DISCUSSION

Harlan has not challenged the district court’s finding

that the Committee and its individual members were abso-

lutely immune from liability for damages. Her failure

to do so precludes this court from re-examining the issue

of immunity on appeal, see Rubek v. Barnhart, 814 F.2d

1283, 1285 (8th Cir. 1987), or overturning the district

court’s dismissal on immunity grounds, and thus is fatal

to her appeal.

In view of this disposition, it is unnecessary to ad-

dress Harlan’s objection to the district court’s conclusion

regarding the doctrine of abstention.

We have considered appeHee’s request for Fed. R.

Civ. P. 11 sanctions and do not find that they are war-

Se

App. 5

ranted in this case. Accordingly, the district court’s

decision dismissing Harlan’s lawsuit is in all respects

affirmed.

A true copy.

ATTEST: /s/ Robert D. St. Vrain

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

App. 6

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JUDGMENT

No. 87-2619

Jane Harlan,

Appellant,

v.

The Committee on Professional

Ethies and Conduct of the lowa

State Bar Association, and its

individual members thereof,

Michael H. Figenshaw; John J.

Greer; James L. Tyler; Karen E.

Shaff; Marie Prince-Cohen;

D. Carlton Shull; William C.

Davison; Norman G. Bastemeyer;

Mary Louise Petersen and

Carolyn Sloan, in their

individual and official

capacities; Larry Jackson,

Deputy Commissioner of the lowa

Department of Human Services,

and Gorden E. Allen, Special

Assistant Iowa Attorney General

in their individual and

official capacities,

Appellees.

ee ee ee ee a ee ee et ee ee ee ee ee” — ee eee ee ee”

87-619-B

Appeal and Cross-

Appeal from the

United States

District Court for

the Southern

District of Lowa.

App. 7

No. 87-2702

Jane Harlan,

Appellee,

v.

The Committee on Professional

Ethics and Conduct of the Iowa

State Bar Association, and its

individual members thereof,

Michael H. Figenshaw; John J.

Greer; James L. Tyler; Karen E.

Shaff; Marie Prince-Cohen;

D. Carlton Shull; William C

Davison; Norman G. Bastemeyer;

Mary Louise Petersen and

Carolyn Sloan, in their individual

and official capacities,

‘Appellants,

Larry Jackson, Deputy

Commissioner of the Iowa

Department of Human Services,

and Gorden F.. Allen, Special

Assistant Iowa Attorney General

in their individual and

official capacities.

This appeal from the United

dp) me ue a a a a a es a a a a ee ee ee ee ee ee ee ee ee”

states District Court

was submitted on the record of the district court, briefs

of the parties and was argued by counsel.

After consideration, it is ordered and adjudged that

the judgment of the district court in this cause be affirmed

in accordance with the opinion of this Court.

App. 8

August 12, 1988

Appellees (Committee on Professional Ethics and Con-

duct) will recover from the appellant the sum of $54.42

for taxable costs on appeal.

Appellees (Gordon Allen and Larry Jackson) will re-

cover from appellantthe sum of $34.80 for taxable costs

on appeal.

A True Copy.

ATTEST: /s/ Robert D. St. Vrain

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 9

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF LOWA

CENTRAL DIVISION

JANE HARLAN, )

Plaintiff, CV. 87-619-B

v.

MEMORANDUM

OPINION-

)

)

THE COMMITTEE ON PRO- )

FESSIONAL ETHICS AND )

CONDUCT OF THE IOWA )

STATE BAR ASSOCIATION, )

et al., )

)

)

)

-)

Defendants.

This matter is before the Court on the following mo-

tions to dismiss: the Committee on Professional Ethics

and Conduct of the Iowa State Bar Association (the Ethics

Committee) and the individual members of that Committee

(Filing No. 3), and Gordon Allen and Larry Jackson (Fil.

ing No. 5). The defendant Ethics Committee has also filed

a motion for Rule 11 sanctions against the plaintiff (Filing

No. 3).

The controversy in this case concerns attorney disci-

plinary proceedings which culminated in the public repri-

mand of plaintiff, Jane Harlan. Gordon Allen and Larry

Jackson, state officials, initiated the complaint with the

Committee on Professional Ethics and Conduct of the Iowa

State Bar Association’ on January 27, 1987, alleging that

' The Ethics Committee members are commissioners of the

Supreme Court of lowa, and are authorized to initiate, receive

and process complaints filed against attorneys licensed to prac-

tice law in lowa. lowa State Court Rule 118.2.

App. 10

plaintiff, Jane Harlan, violated various provisions of the

Towa Code of Professional Responsibility.

Harlan was notified of the complaint and responded

to it on February 13, 1987. Harlan’s response denied any

unethical conduct and raised a First Amendment defense

to the complaint. The Ethics Committee, following an in-

vestigation, voted to discipline Harlan by a reprimand.

Harlan was notified of the decision of the Committee on

August 26, 1987, and was informed that she had thirty

days to challenge the decision. If no exceptions were filed

within the thirty days, the reprimand would be forwarded

to the Clerk of the Iowa Supreme Court and spread upon

the records of that Court as a public reprimand. See lowe

Supreme Court Rule 118.5.

The Iowa Supreme Court Rules provide that if a rep-

rimand is challenged, no report of the reprimané shall be

made to the Clerk of the Court and the reprimand shall be

stricken from the records. Jowa Supreme Court Rule

118.32 Harlan failed to challenge the Committee’s deci-

sion which would have stricken the reprimand from the

records and prevented the Committee from filing the repri-

mand with the lowa Supreme Court. Her failure to chal-

lenge the decision of the Committee has now resulted in a

final order of reprimand being entered by the Lowa Su-

preme Court on October 15, 1987.

: The rule further states: “The Committee on Professional

Ethics and Conduct may, however, proceed further with any

complaint against such attorney before the Grievance Commis-

sion. When a reprimand has been filed but exception is duty

taken thereio, such reprimand shall not be admissible in evi-

dence in any hearing before the Grievance Commission.” lowa

Supreme Court Rule 118.3.

App. 11

In considering a motion to dismiss under Fed.R.Civ.P.

12(b)(6), allegations in the complaint must be viewed in

the light most favorable to plaintiff. Fusco v. Xerox

Corp., 676 F.2d 332, 334 (8th Cir. 1982). ‘*[A] complaint

should not be dismissed for failure to state a claim unless

it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him

to relief.’’ Conley v. Gibson, 355 U.S. 41, 45-46 (1957)

(footnote omitted). ‘‘Thus, as a practical matter, a dis-

missal under Rule 12(b)(6) is likely to be granted only in

the unusual case in which a plaintiff includes allegations

which show on the face of the complaint that there is some

insuperable bar to relief.’’ Jackson Sawmill Co. v. United

States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439

U.S. 1070 (1979). c

States have a strong interest in regulating their state

bars as lawyers are ‘‘essential to the primary government-

al function of administering justice.’’ Goldfarb v. Vir-

gma State Bar, 421 U.S. 773, 792 (1975). Recognizing

this important state interest, the United States Supreme

Court has noted that “orders of a state court relating to

the admission, discipline and disbarment of members of its

bar may be reviewed only by the Supreme Court of United

States on certiorari to the state court and not by means of

an original action in a lower federal court.” District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482

n.16 (1983) (quoting MacKay v. Nesbitt, 412 F.2d 846 (9th

Cir. 1969).

The Feldman case concerns state court regulation of

attorneys. The Court held that United States District

Courts lack subject matter jurisdiction to review state

court decisions made in judicial proceedings. Feldman,

App. 12

460 U.S. at 486. The Court stated that this rule holds even

when constitutional claims exist if these claims are inex-

tricably intertwined with the state court’s decision in a

judicial proceeding. Id. at 483-84 n.16.

The only exception recognized in Feldman is when a

plaintiff does not directly challenge a state judicial deci-

sion or raise a claim which is inextricably intertwined with

a judicial decision. In such an instance, a United States

District Court may hear the case. In the area of attorney

discipline, challenges to the constitutionality of state bar

rules, for example, do not necessarily require a district

court to review a final state court judgment. In such case,

the district court would be called upon to simply assess the

validity of a state rule promulgated in a nonjudicial pro-

ceeding. In such a ease, the district court would not be re-

viewing a state court judicial decision and could properly

hear the case. Id. at 486.

In this matter, however, Harlan’s challenge is to a

state court decision arising out of judicial proceedings.’

For this Court to hear plaintiff’s claim it would be, in es-

sence, reviewing a final state court judgment. The United

States District Courts do not have jurisdiction over chal-

lenges to state court decisions in cases arising out of judi-

cial proceedings even if those challenges allege that the

state court’s action was unconstitutional. /d. at 486. See

also, Michaelis v. Nebraska State Bar Assectation, 717

; The proceedings in this matter involved a judicial inquiry

in which the Committee, acting on behalf of the lowa Supreme

Court, ‘‘was called upon to investigate, declare and enforce

‘liabilities as they [stood] on present or past facts and under

laws supposed already to exist.’” Feldman, 460 U.S. at 479,

quoting Prentis v. Atlantic Coastline Co., 211 U.S. 210, 226 (1908).

App. 13

F.2d 437 (8th Cir. 1983). Review of this matter in a fed-

eral court may be had only in the United States Supreme

Court. 28 U.S.C. § 1257. As this matter called for the re-

view of a final state court decision arising out of judicial

proceedings, this Court lacks subject matter jurisdiction

and must dismiss this action.

Apart from the question of this Court’s jurisdiction

in this matter, defendants have raised the issue of im-

munity. Defendant Ethics Committee claims absolute

quasi-judicial immunity barring plaintiff’s § 1983 and 1985

claims for damages. Defendants Jackson and Allen claim

that absolute immunity is conferred upon them by lowa

Supreme Court Rule 118.19 which states in part:

Members of the Grievance Commission, members of

-the Committee on Professional Ethics and Conducts,

and their respective staffs shall be immune from suit

for any conduct in the course of their official duties.

The Iowa Supreme Court has interpreted that this rule’s

intent and purpose is to ‘‘ protect complainants, witnesses,

members of the Grievance Commission, members of the

Committee on Professional Ethics and Conduct, and their

respective staffs from retaliatory litigation by investigated

lawyers ....°’ State v. Baker, 293 N.W.2d 568, 576

(Iowa 1980).

It is clear that the defendants in this action are im-

mune from liability for damages for filing the complaint

and for assisting with the investigation (defendants Allen

and Jackson) and for the processing of the complaint and

disciplinary action (defendant Ethics Committee).

As this Court lacks subject matter jurisdiction over

this action, the defendants’ motions to dismiss will be

App. 14

granted. The Court, however, will deny defendant Ethics

Committee’s motion for Rule 11 sanctions against the

plaintiff. A separate order will be entered in accordance

with this opinion.

DATED this 30th day of October, 1987.

BY THE COURT:

/s/ Lyle E. Strom

UNITED STATES DISTRICT

JUDGE

App. 15

UNITED STATES DISTRICT COURT

DISTRICT OF

JANE HARLAN JUDGMENT IN A

CIVIL CASE

v.

CASE NUMBER:

THE COMMITTEE ON PRO- 87-619-B

FESSIONAL ETHICS AND CON-

DUCT OF THE LOWA STATE

BAR ASSOCIATION, et al

| | Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

{[X] Dectsion by Court. This action came to considera-

tion before the Court. The issues have been con-

sidered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that defendants’ motions to dismiss are granted and plain-

tiff’s complaint is hereby dismissed.

NOVEMBER 2, 1987 JAMES R. ROSENBAUM

~ Date Clerk

/s/ Pat Bridges

(By) Deputy Clerk

App. 16

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

JANE HARLAN,

Plaintiff, CV. 87-619-B

v. |

THE COMMITTEE ON PROFES.- ORDER

SIONAL ETHICS AND CONDUCT

OF THE IOWA STATE BAR ASSO-

CIATION, et al.,

Defendants.

ee ad

Pursuant to the memorandum opinion entered herein™

this date,

IT IS HEREBY ORDERED that defendant’s mo-

tions to dismiss are granted and plaintiff’s complaint is

dismissed.

IT IS FURTHER ORDERED that defendant Ethics

Committee’s motion for sanctions is overruled.

DATED this 30th day of October, 1987.

BY THE COURT:

/s/ Lyle E. Strom

LYLE E. STROM

UNITED STATES DISTRICT

JUDGE

App. 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

JANE HARLAN, CIVIL ACTION

' Plaintiff, File No. 87-619-B

vs. (Jury Trial Demanded)

The COMMITTEE OF PROFESSIONAL

ETHICS OF THE IOWA STATE BAR

ASSOCIATION and its individual members

thereof, Michael H. Figenshaw, John J.

Greer, James L. Tyler, Karen E. Shaff,

Marie Prinee-Cohen, D. Carlton Shull,

William C. Davison, Forman G. Bastemeyer,

Mary Louise Petersen, and Carolyn Sloan,

in their individual and official capacities ;

LARRY JACKSON, Deputy Commissioner of the

Iowa Department of Human Services, and

GORDON E. ALLEN, Special Assistant Iowa

Attorney General in their individual and

official capacities,

Defendants.

COMPLAINT

1.

This is an action for declaratory and injunctive relief

and damage pursuant to Article VI of the United States

Constitution and 42 U.S.C. Sees. 1983, 1985, and 1988. Jur-

isdiction is predicated on the foregoing provisions of the

law and further upon 28 U.S.C. 1331 and 1343 and Article

III of the United States Constitution. The amount in con-

troversy exclusive of interests and costs exceeds $10,000.00.

2.

JANE HARLAN is an adult citizen of the United

States residing in the Southern District of Towa and at all

App. 18

times material herein was an attorney in good standing

duly admitted and licensed to practice the profession of

law.

3.

The members of the Committee on Professional Ethies

and Conduct of the Iowa State Bar Association are ap-

pointed commissioners of the Supreme Court of Iowa to

initiate or receive and process complaints against any

attorney licensed to practice law in this state for alleged

violations of the lowa Code of Professional Responsibility

for Lawyers and laws of the United States or the State

of lowa.

.

Michael H. Figenshaw, John J. Greer, James L. Tyler,

Karen E. Shaff, Marie Prinee-Cohen, D. Carlton Shull,

William C. Davison, Norman G. Bastemeyer, Mary Louise

Petersen, and Carolyn Sloan are all adult citizens and

residents of the State of Iowa. At all times material here-

in they did collectively comprise the Committee on Profes-

sional Ethies and Conduct of the Iowa State Bar Associa-

tion with offices located at 1101 Fleming Building in the

City of Des Moines, Polk County, Iowa. Said Committee

was at all times material herein empowered by the Su-

preme Court of Iowa to initiate or receive and process

complaints against any attorney licensed to practice law

in this state.

5.

LARRY JACKSON is the Deputy Commissioner of

the Towa Department of Human Services with offices at

es ee |

App. 19

the Hoover State Office Building in Des Moines, Polk

County, Lowa.

6.

GORDON E. ALLEN is a special assistant to the

Iowa Attorney General with offices at the Hoover State

Office Building in Des Moines, Polk County, Iowa.

7.

JANE HARLAN is engaged in the practice of law in

an office located at 300 Midtown Building in the City of

Newton, Jasper County, lowa, and was engaged in said

practice at all times material herein.

8.

On January 27, 1987, LARRY JACKSON and GOR-

DON ALLEN filed a complaint concerning JANE HAR-

LAN with the Committee on Professional Ethics and Con-

duct of the lowa State Bar Association attached as Ex-

hibit 1.

9.

All actions actually engaged in by the plaintiff con-

stituted protected free speech and thus could not form the

basis for disciplinary action. Said protected speech ulti-

mately resulted in nationwide publicity of the mistreat-

ment of children in the custody of the State of Iowa, and

legislation improving their status.

10.

Said disciplinary action was initiated in bad faith to

retaliate against the plaintiff for having exercised her

hattieehenteeensereieeseeeateenmneeiil

ee

App. 20

First Amendment Riglits in criticizing public officials, pub-

lie agencies, public policies, and for reporting on testi-

mony which took place in public courtrooms.

11,

On February 13, 1987, the plaintiff filed an answer

to the complaint against her which is hereinafter attached

as Exhibit 2 raising her First Amendment defense to said

complaint.

12.

On August 26, 1987, the plaintiff received correspon-

dence from the Committee on Professional Ethies and

Conduct of the Iowa State Bar Association indicating that

she would be reprimanded for her conduct unless she took

further action. All of the conduct complained of in the

Committee’s decision involved protected speech and is

attached as Exhibits 3 and 4.

13.

Any further proceedings of the Committee will be

brought not with any genuine expectation of their even-

tual success, but only to discourage the exercise of the

plaintiff’s protected rights, and presumably deter others

who might otherwise be inclined to speak out.

14.

The Committee has no legitimate interest in prosecut-

ing the disciplinary charges against the plaintiff. Its

only real interest is in retaliating against the plaintiff and

chilling her further speech.

App. 21

15.

The acts of the defendants in this matter were under

the color of law and in violation and contravention of the

rights of the plaintiff under the Constitution of the United

States and the First and Fourteenth Amendments thereof.

16.

The defendants and each of them knew or in the ex-

ercise of reasonable care should have known that their

conduct was violative of the rights of the plaintiff. Be-

cause of the specialized knowledge and education of the

defendants, the plaintiff believes that the participation of

the individual defendants was reckless, malicious, and

vindictive.

17.

As a direct and proximate result of the actions of the

defendants, the plaintiff has sustained and continues to

sustain severe damage and injury to her property and

professional reputation, sustained disruption and injury

to her employment, sustained extreme mental pain and

emotional suffering and has been required to defend

against the proceedings against her to her damage in the

amount of $250,000.

WHEREFORE, plaintiff demands relief against the

defendants and all of them jointly and severally as fol-

lows:

1. Declaratory and injunctive relief directing that the

defendants have heretofore violated the constitutional

rights of the plaintiff and enjoining the defendants from

such violation and infringement in the future.

App. 22

2. For compensatory damages in the amount of

$250,000.00.

3. For punitive damages in the amount of $750,000.00.

4. For costs, disbursements and attorney’s fees pur-

suant to the provisions of 42 U.S.C. See. 1988.

5. For such further relief as may be appropriate.

Dated August 31, 1987.

es Respectfully submitted,

/s/ Jane Harlan

Jane Harlan, pro se

300 Midtown Building

Newton, Iowa 50208

(515) 792-9934

App. 23

THE IOWA STATE BAR ASSOCIATION

COMPLAINT

RE: Jane Harlan of Monroe, Iowa.

Grievance Commission

Iowa State Bar Association -

1101 Fleming Building

Des Moines, lowa 50309

We, Gordon E. Allen and Larry Jackson, upon best

information and belief, hereby complain that Jane Harlan,

whose address is 300 Midtown Building, Newton, Iowa,

50208, has violated the Rules, Ethies and Conduct of the

Legal Profession. As background information, Ms. Har-

lan was appointed pursuant to Iowa Code § 232.89 as coun-

sel and guardian ad litem for five children involved in a

child-in-need-of-assistance proceeding before the Jasper

County Juvenile Court. Those children were placed in the

custody of the Department of Human Services and there-

after placed in foster care. Statutory review hearings of

that disposition were held, with Ms. Harlan participating

throughout the proceedings as guardian ad litem for the

children.

Upon hearing that the Department intended to change

the foster care placement pursuant to a plan to reunify the

children with their natural mother, Ms. Harlan, on behalf

of those children, filed in Oetober of 1986, a motion re-

questing the Jasper County Juvenile Court to enjoin that

change in foster placement. Ms. Harlan also filed on be-

half of the children a petition to terminate the parental

rights of the natural mother. Pending hearing on the

petition, all parties avreed that no change in placement

would occur. The petition was denied after hearing, and

App. 24

filed December 31, 1986. Shortly after the entry of that

order, the Department of Human Services changed the

foster care placement.

Continuing since August 1986, in derogation of statu-

tory and appellate remedies available to her clients, Ms.

Harlan, assertedly on their behalf, has pursued extra-

judicial remedies in the Governor’s office and the court

of publie opinion by repeatedly requesting assistance with

and commenting upon this ease with members of the local

and national media.

Specifically, it is believed Ms. Harlan has violated

the Rules of Ethies and Conduct in the following respects:

In violation of DR7-107(G), Ms. Harlan, has contin-

ually, during the course of the juvenile court litigation,

made or participated in making extra-judicial statements

relating to the evidence, the character and credibility of

parties and witnesses and her opinion as to the merits of

the claims or defenses of these parties. Upon best in-

formation and belief, Ms. Harlan has commented repeat-

edly in the Des Moines Register, and has made comments

on various radio ‘‘eall-in’’? shows, including WHO in Des

Moines and the Jim Fisher Show in Davenport. In addi-

tion, Ms. Harlan has contacted the Governor’s Office and

staff directly, demanding the Governor’s involvement in

this judicial proceeding. Inappropriate comments were

made at local NOW chapter meetings and even the local

K-Mart.

Much of the information released and publicly dis-

cussed, in violation of DR 1-102, was obtained from rec-

ords protected as confidential under Towa Code § 232.147,

< 237.9, and 64 235A.15 and .17, to which she had access

App. 25

as court-appointed guardian ad litem. Her comments, re-

ported in the Des Moines Register, disclosed facts regard-

ing the natural mother’s mental health history and the

children, and information about those children contained

within child abuse records. Subsequent to December 31,

1986, Ms. Harlan disclosed to local and national media the

(ime and date of the children’s move to different foster

care placement and thereafter the location and circum-

stances of their new foster care placement. This is not

an exhaustive list of specific examples.

In summary, but most importantly, Ms. Harlan’s will-

ingness to pursue_extra-judicial remedies does substantial

disservice to the integrity of the judicial system, violates

the trust and confidence placed in her by the Juvenile

Court, and ultimately is counterproductive to the children

whose best interests she was appointed to protect.

Respectfully submitted,

/s/ Gordon E. Allen

Gordon E. Allen

Special Assist. Attorney General

/s/ Larry Jackson

Larry Jackson

Deputy Commissioner

Department of Human Services

App. 26

JANE A. HARLAN

Attorney At Law

300 Midtown Building ¢ Newton, Iowa 50208

Phone: (515) 792-9934

February 13, 1987

trievanece Commission

Towa State Bar Association

1101 Fleming Building

Des Moines, Towa 50309

Re: Answer to Complaint of

Larry Jackson and Gordon Allen

Dear Sir or Madame:

The complaint of Gordon Allen and Larry Jackson

should be dismissed as frivolous because it is filled with

inaccuracies, and represents an unethical effort to silence

counsel in violation of her First Amendment Rights.

The inaccuracies are as follows:

1. No public statements about the case were made

before the end of October, 1986.

9. No confidential information has been released by

counsel. All factual statements have been based on public

courtroom hearings and can be verified by transeripts. No

items from confidential files have even been mentioned in

the media by counsel with the exception of her description

of Karen Cooper as having a ‘‘long history of mental ill-

ness.’? That fact was clearly brought out numerous times

in a public courtroom. Ms. Cooper’s relatives and attor-

ney made many more damaging comments than anything

attributed to this attorney.

3. All comments by counsel have dealt with public in-

formation, public agencies, public issues, and public poli-

cies within the protection of the First Amendment.

App. 27

4. The national and local media were aware of the

date and time of the children’s move several hours before

counsel. Upon information and belief the media camped

at the Mick home for several days waiting for the move.

Mrs. Mick was televised receiving the call in which that

information was conveyed.

5. Counsel has not released the circumstances and lo-

cation of the new foster home placements. Upon infor-

mation and belief the media is not aware of the location

at the present time. The circumstances or potential cir-

cumstances were released by the children and Larry Jack-

son of the Department of Human Services.

The First Amendment rights of attorneys concerning

pending litigation are well established as evidenced by the

attached opinion of Hirschkop vs. Snead, 594 F. 2d 356,

(1979). Perhaps your committee should examine the ethi-

cal conduct of public officials and attorneys who file frivo-

lous complaints in order to harass their adversaries.

/s/ Jane Harlan

Jane Harlan

App. 28

THE

IOWA STATE BAR ASSOCIATION ‘

Committee on Professional

Ethics and Conduct

Norman G. Bastemeyer, Administrator

1101 Fleming Building

Des Moines, lowa 50309

1-515-243-3179

August 24, 1987

PERSONAL AND CONFIDENTIAL

Ms. Jane Harlan

Attorney at Law

300 Midtown Building

Newton, lowa 50208

In Re: Our File No. 8687-189

Dear Ms. Harlan:

The above complaint against you came on for consid-

eration by the Committee at its recent hearing meeting.

Following review of the allegations contained in the

complaint, your response thereto, the Committee’s investi-

gation, and the file, it was the determination of the Com-

mittee that you be and hereby are publicly reprimanded

for your conduct in making extrajudicial statements re-

lating to the evidence, the character and credibility of the

parties and witnesses and your opinion as to the merits of

the claims or defenses of parties to a matter in which you

appeared as the attorney for certain minor children, in

violation of Disciplinary Rule DR 7-107(G); and for your

conduct in making statements to the press concerning the

judge hearing that matter, in violation of DR 8-102(B).

App. 29

Your conduct as above described is also in violation of

Canon 1 of the Iowa Code of Professional Responsibility

for Lawyers as well as Disciplinary Rule DR 1-102(A)(6).

FOR THE COMMITTEE ON

PROFESSIONAL ETHICS

AND CONDUCT

/s/ Norman G, Bastemeyer

NGB/vle

Cert. P 707 166 049

THE IOWA STATE BAR ASSOCIATION

(SEAL)

lowa Supreme Court

Grievance Commission

Carl V. Nielsen, Secretary

Cathy Kelly, Administrative Assistant

1101 Fleming Building

Des Moines, Iowa 50309

1-515-243-3179

August 24, 1987

Ms. Jane Harlan

Attorney at Law

300 Midtown Building

Newton, lowa 50208

In Re: Our File No. 8687-189

Dear Ms. Harlan:

Pursuant to Supreme Court Rule 118.3, enclosed find

a letter from the Committee on Professional Ethics and

Conduct reprimanding you.

You hereby are notified that you have thirty (30) days

from receipt of this letter to file exceptions with the Secre-

tary of the Grievance Commission, 1101 Fleming Building,

App. 30

Des Moines, Iowa, 50309, and if such exceptions are not

filed within said period, the reprimand will be forwarded

to the Clerk of the Supreme Court and spread upon the

records of the Court as a public reprimand.

For your information, we are enclosing a copy of Su-

preme Court Rule 118.

/s/ Carl V. Nielsen

Carl V. Nielsen, Secretary

Grievance Commission

CVN/vle

Enclosures

App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DIISTRICT OF IOWA

CENTRAL DIVISION

JANE HARLAN,

Plaintiff,

vs. Civil No. 87-619-B

THE COMMITTEE ON NOTICE OF APPEAL

PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA

STATE BAR ASSOCIATION, and its

individual members thereof, Michael H.

Figenshaw, John J. Greer, James L.

Tyler, Karen E. Shaff, Marie Prinee-Cohen,

D. Carlton Shull, William C. Davison,

Norman G. Bastemeyer, Mary Louise

Petersen, and Carolyn Sloan, in their

individual and official capacities;

LARRY JACKSON, Deputy Commissioner

of the lowa Department of Human

Services, and GORDON E. ALLEN,

Special Assistant lowa Attorney

General, in their individual and

official capacities,

Defendants.

NOTICE IS HEREBY GIVEN THAT JANE HAR-

LAN, plaintiff above named hereby appeals to the United

States Court of Appeals for the Eighth Cireuit from the

decision and order dated October 30, 1987, of the United

States District Court for the Southern District of Iowa,

the Honorable Lyle E. Strom, judge presiding.

A pp. 32

Dated at Newton, Iowa, November 30, 1987.

1409 EF. Capitol Drive SUTTON & KELLY

Milwaukee, Wisconsin 53211 Robert E. Sutton

(414) 961-0802 Attorneys for Plaintiff

300 Midtown Building s/ Jane Harlan

Newton, lowa 50208 Jane Harlan, pro se

(515) 792-9934

I hereby certify that I mailed a copy of the

Notice of Appeal in the attorneys of record as

are listed on the docket in this case. James R.

Rosenbaum, Clerk By:

/s/ L. (ILLEGIBLE), Deputy Clerk

App. 33

District 863, Off. 4, Doc. No. Yr. 87-0619, Or. 1

Filing Date 8/31/87 j 3, Nature Suit 440, $ Demand Thou. 1,000,

Judge 6711, County 19099, Jury Dem. P Yr. 87, Doc. No. 619-B

CAUSE: PLAINTIFFS DEFENDANTS

THE COMMITTEE ON PRO-

HARLAN, JANE FESSIONAL ETHICS AND

CONDUCT OF the IOWA

JURY STATE BAR ASSOCIATION

and its individual members

Sep. 17, 1987 864-3421 thereof, Figenshaw, Michael

H.; Greer, John J.; Tyler,

James L.; Shaff, Karen E.;

Prince-Cohen, Marie; Shull,

ASSIGNED TO D. Carlton; Davison, William

JUDGE LYLE STROM C.; Bastemeyer, Norman G.:

U. S. DISTRICT JUDGE __— Petersen, Mary Louise, and

P. O. Box 607 Sloan, Carolyn, in their

Omaha, NE 68101 individual and official

capacities; JACKSON, LARRY,

All Judge’s copies to be mailed Deputy Commissioner of

the lowa Department

of Human Services,

and ALLEN, GORDEN E.,

Special Assistant lowa

Attorney General in their

individual and official

capacities

CAUSE

(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE

IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

Civil Rights action filed under Sections 42 U.S.C. 1983, 1985

and 1988.

JANE HARLAN (Pro Se) Attorneys for def. Committee

Attorney at Law on Prof. Ethics & Its Individual

300 Midtown Building members:

Newton, lowa 50208 James Gritzner

(515) 792-9934 Nyemaster ... law Firm

1900 Hub Tower

Robert E. Sutton (9/28/87) Des Moines, IA 50309

Sutton & Kelly 283-3145

1409 E. Capitol Drive

Milwaukee, WI 53211 for defs. G. Allen &

(414) 961-0802 L. Jackson:

rneeeeeateeeereeeneteneneeeeen ener

App. 34

Thomas J. Miller, Atty. Gen.

Eleanor Lynn, Asst.

Tort Claims Division

Hoover State Office Bidg.

Des Moines, |A 50319

281-5881

STATISTICAL CARDS

CARD DATE MAILED

IS-5 8/31/87

ee \S-6 11/ 2/87

Civ. +S87-619-B

Date NR Proceedings

Harlan, Jane Committee on Professional

Ethies LA State Bar, et al.

8/31/87 1 Complaint. Jury Demand. Summons is-

sued.

8/31/87 2 Application for Preliminary Injunction.

9/18/87 3 M/Dismiss and For Rule 11 Sanctions

(Oral Argument Requested) by Comm. on

Prof. Ethies ... & individual members.

9/18/87 4 Brief in Support of Def. Committee & Its

Members’ M/Dismiss .

9/23/87 5 M/Dismiss by defs. Allen & Jackson.

9/23/87 6 Memo. in Support of M/Dismiss of Defs.

Allen & Jackson.

9/28/87 7 Notice of Appearance and Notice of Asso-

ciate Counsel.

9/28/87 8&8 M/Withdraw Application for Prelim. In-

junction.

9/29/87 9 Order granting m/withdraw app. for pre-

lim. inj.; all briefs in support of or oppo-

sition to defs.’ m/dismiss & for Rule 11

sanctions by 10/20/87. /s/ Strom J. Copy

to attys.

App. 35

10/20/87 10 Memo of Pltf. in Opposition to Mnts. of all

Defs. to Dismiss and for Rule 11 Sanctions.

10/20/87 11 Affidavit of Pltf.

11/ 2/87 12 Memorandum Opinion—<As this Court lacks

subject matter jurisdiction over this action,

the defts’ motions to dismiss will be

granted. The Court will deny deft. Ethies

Committee’s motion for Rule 11. sanction

against the pltf. /s/ Lyle E. Strom, Judge.

Copies to Counsel.

=-

11/ 2/87 13 Order—It is hereby Ordered that defts’

motions to dismiss are granted and pltf’s

complaint is dismissed. It is Further Or-

dered that deft. Ethics Committee’s mo-

tion for sanctions is overruled. /s/ Lyle

EK. Strom, Judge. Copies to Counsel. 153-

O.J-8.

11/ 2/87 14 Judgment-—It is Ordered and Adjudged

that defts’ motions to dismiss are granted

and pltf’s complaint is dismissed. /s/

JRR, Clerk. Pat Bridges, Deputy Clerk.

Copies to Counsel. 153-0J-9.

11/50/87 15 Pltf’s Notice of Appeal.

I hereby certify that I mailed a copy of the

Notice of Appeal to the attorneys of record

as are listed on the docket in this ease.

James R. Rosenbaum, Clerk By:

‘s/ Lu. (ILLEGIBLE) —., Deputy Clerk

PLEASE NOTE:

PROCEEDING ON

CLERK’S RECORD — Send oricinal and

one copy of designation to Des Moines wth

copy to Cireuit.

PROCEEDING ON

APPENDIX and original to Ck. with two

copies to Des Moines.

App. 36

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

JANE HARLAN,

Plaintiff,

Vs.

Cy. 87-619-B

THE COMMITTEE ON PRO-

FESSIONAL ETHICS AND AFFIDAVIT OF

CONDUCT OF THE [OWA PLAINTIFF

STATE BAR ASSOCIATION,

et al.,

Defendants.

STATE OF IOWA )

SS.

COUNTY OF JASPER )

Jane A. Harlan, being duly sworn, deposes and states:

1. I am the plaintiff in the above-entitled action.

2. I am an attorney licensed to practice law in the

State of lowa since 1984 with offices at 300 Midtown

Building, Newton, Lowa 50208.

3. On Mareh 22, 1985, | was appointed the attormey

and guardian ad litem for five minor children, Anna,

Amanda, Sarah, Samantha, and Justin Cooper. I repre-

sented the children in the Jasper County Juvenile Court

until [ was removed on February 17, 1987, and still repre-

sent them before the lowa Supreme Court.

aS Se

atin |

App. 37

4. My first comments in the media concerning my

child clients appeared on October 30, 1986. At that time

1 described the testimony of two of the children in a public

courtroom in the spring of 1985. 1 further criticized the

treatment of my clients by the lowa Department of Lluman

Services. In every instance my statements were accurate,

truthful, and involved public information.

5. Gerald Fuerhelm, the attorney for the natural

mother, was quoted in the Des Moines Register on Octo-

ber 31, 1986. He told of a ‘‘substantiated incident’’ of

abuse on the part of his client involving information

straight from the confidential files of the lowa Department

of Human Services. On subsequent occasions he told of

his client’s treatment history for mental illness. He also

entertained my child clients at his home and at Walt Dis-

ney’s World on Ice without my knowledge or consent. No

disciplinary action was ever instituted against him even

though he elearly released confidential information, vio-

lated ethical rules, and was featured in the media at least

as much as what I was.

6. District Associate Judge Thomas Mott, who

handled the children’s case, never directed me to not talk

to the media coneerning the case, or even discussed with

me the propriety or accuracy of any of my public com-

ments before April of 1987. At that time discussion cen-

tered on my public comments about him, not anything con-

cerning the children.

7. On November 18, 1986, I was quoted in the press

as stating that I couldn’t understand why I was being sued

by the natural mother since I had only told of events oce-

eurring in a publie courtroom.

8. Subsequent comments were confined almost en-

tirely to discussing the issues surrounding the case with-

out giving direct information from any source.

9. On January 5, 1987, I told the press that I would

appeal the court’s decisions concerning my clients. I was

critical of the actions of the Department of Human Ser-

vices in the press when my clients were removed from their

foster home on January 8, 1987.

10. On January 7, 1987, I filed the notice of appeal

on the children’s case.

11. Towa Governor Terry Branstad announced on

television on or about January 19, 1987, that I should be

investigated for my conduct on the case. Upon informa-

tion and belief the Governor is a graduate of Drake Uni-

versity Law School and a licensed attorney.

12. On January 27, 1987,-the complaint involved in

this action was sent to the Grievance Commission of the

Towa Bar Association signed by Gordon Allen, Special

Assistant to the Attorney General, and Larry Jackson,

Deputy Commissioner of the Iowa Department of Human

Services. Neither party contacted me in advance to taking

this action or objected to the accuracy of anything that I

had said. The filing of this complaint caused me consid-

erable anguish partly because it interfered with my ability

to focus on the children’s appeal.

13. On January 23, 1987, I met with Doug Gross, an

assistant to Governor Branstad, concerning the case be-

cause I thought that it was not improper to petition the

Governor concerning the actions of a state agency. At no

ee

App. 39

time did I release any information from any confidential

file that was not publicly available.

14. On February 13, 1987, I responded to the Bar

Complaint against me and raised my First Amendment

defense. I enclosed a copy of Hirschkop v. Snead, 594

F.2d 356 (1979).

15. Any statement that I made at either a public

meeting or to my personal friends was accurate and lim-

ited to public information.

16. The fact that the complaint mentions what I

might have said at K-Mart demonstrates harassment on

the part of state officials. Such statements would have

been beyond the legitimate concern of the Bar Associa-

tion. Such information was obviously acquired by in-

vestigation and interrogation.

17. On February 16, 1987, a hearing was held in

Jasper County Juvenile Court on a motion filed by the

State requesting that I be removed as the children’s attor-

ney. The motion was granted at least in part because of

false findings by the Court that I had released confidential

information about the case. No proof of this had been

offered into evidence.

18. On March 16, 1987, I met with Megan Antenucei

from the Grievance and Ethics Committee. I gave her

copies of transcripts from the publie hearings to verify

that everything stated by me and repeated by the press

was public information. I also pointed out that the con-

fidential files in the case did not even contain what I had

talked about, exeept that the natural mother had been -

mentally ill and neglectful of the children. Those facts

App. 40

had been brought out many times in a publie courtroom.

[ brought to the attention of Ms. Antenucci the unconstitu-

tionality of the disciplinary rules relied on and cited au-

thority for that position. Ms. Antenucci stated that the

grievance committee could perhaps be persuaded to stay

their proceedings against me until after a decision had

been reached on the suit against me by the natural mother

and my First Amendment rights had been tested in an

Lowa court. I also told her how employees of the Depart-

ment of Human Serviees and District Associate Judge

Thomas Mott had harassed me while I was working on the

appeal. My visits with my clients had been monitored. I

had been fired as the children‘s attorney based on errone-

ous findings for which no evidence had been introduced.

I was given no opportunity to rebut the court’s findings

which raised issues for the first time which had not been

diseussed at the hearing.

19. On March 23, 1987, Associate District Judge

Thomas Mott issued an order where my fees on the ehil-

dren’s case were reduced from $5,700.00 to $500.00 for 95

hours of service since May 20, 1986. I deseribed this ae-

tion in the media as ‘‘retaliation’’ which I firmly believe

it was. This was the only time in which I was directly

critical of the court in the media.

20. The reply brief on the children’s appeal was due

on August 3, 1987, and submitted on schedule. On August

18, 1987, the Iowa Supreme Court directed me to explain

my authority to represent the children on appeal.

21. Six days later, on August 24, the Bar Association

sent me its decision to publicly reprimand me after 30 days

if I did not resist. No hearing or opportunity to defend

oe ee nee

App. 41

their allegations had been provided. On August 31, 1987,

I filed this action in Federal Court. On September 3, 1987,

I wrote a letter to the Bar Association objecting to the

unconstitutionality of the rules that I was being repri-

manded under. Under the rules of the Professional Ethics

and Conduct Committee timely exception to the reprimand

should have prevented submission of the reprimand to the

Supreme Court at that time.

22. On August 31, 1987, I replied to the Iowa Su-

preme Court concerning my authority to represent the

children on appeal. I cited the questionable cireumstances

of my removal at the District level and that I remained

the attorney of choice for my clients. I also moved for

an expedited appeal.

23. On September 15 the Iowa Supreme Court or-

dered that oral argument take place on October 13, and it

proceeded on schedule. However my visit to my clients on

October 8 was both monitored and videotaped by state

officials.

24. The Order of Public Reprimand was issued by

the Iowa Supreme Court on October 15, 1987, exactly two

days after oral argument on the children’s appeal. The

documents sent to me are attached. I feel that the Bar

not only violated my constitutional rights; it also violated

its own rules of procedure concerning my right to a hear-

ing. I also feel that this was a deliberate effort on the

part of the Bar to distract me from completing the chil-

dren’s appeal and discredit me with the Supreme Court

right when the children’s case was submitted.

25. The actions of the defendants in this matter were

part of a pattern of harassment engaged in by state offi-

App. 42

cials under color of state law to intimidate me for assert-

ing my client’s rights, appealing their case, and criticizing

the Governor and lowa Department of Human Services.

26. I had a single conversation with Defendant Gor-

don Allen in about the middle of January, 1987. He com-

plained about my ‘‘ethics’’, but did not indicate any in-

tentions concerning the filing of a grievance. He did not

challenge the accuracy of any of my statements.

27. The defendant Larry Jackson had no contact with

me whatsoever.

28. Defendant members of the Bar Ethics Committee

knew or should have known that the complaint against me

was frivolous and unlawful. They proceeded with it any-

way in an effort to intimidate and harass me. I was

singled out for selective treatment not because of my con-

duct, but because I had taken public positions critical of

the Governor, the State of Iowa, and the lowa Department

of Human Services.

/s/ Jane Harlan

Jane Harlan, Plaintiff

Subscribed and Sworn to Before Me this 19th day of

October, 1987.

/s/ Naney L. Cox

Notary Public

:

3

App. 48

THE IOWA STATE LAR ASSOCIATION

(SEAL)

Committee on Professional

Ethies and Conduct

Norman G. Bastemeyer, Administrator

1101 Fleming Building

Des Moines, lowa 50309

1-515-243-3179

August 24, 1987

PERSONAL AND CONFIDENTIAL

Ms. Jane Harlan

Attorney at Law

300 Midtown Building

Newton, Lowa 50208

In Re: Our File No. 8687-189

Dear Ms. Harlan: 87-1350

The above complaint against you came on for con-

sideration by the Committee at its recent hearing meeting.

Following review of the allegations contained in the

complaint, your response thereto, the Committee’s investi-

gation, and the file, it was the determination of the Com-

mittee that you be and hereby are publicly reprimanded

for your conduct in making extrajudicial statements re-

lating to the evidence, the character and credibility of the

parties and witnesses and your opinion as to the merits of

the claims or defenses of parties to a matter in which you

appeared as the attorney for certain minor children, in

violation of Disciplinary Rule DR 7-107(G); and for your

conduct in making statements to the press concerning the

judge hearing that matter, in violation of DR 8-102(B).

Your conduct as above described is also in violation

of Canon I of the Iowa Code of Professional Responsibil-

App. 44

ity for Lawyers as well as Disciplinary Rule DR 1-102

(A) (6).

FOR THE COMMITTEE ON

PROFESSIONAL ETHICS AND

CONDUCT

/s/ Norman G. Bastemeyer

NGB/vle

Cert. P 707 166 049

A pp. 45

JANE A. HARLAN

Attorney at Law

300 Midtown Building - Newton, Iowa 50208

Phone: (515) 792-9934

September 3, 1987

Carl V. Nielsen

Iowa State Bar Association

1101 Fleming Building

Des Moines, lowa 50309

Re: File No. 8687-189

Dear Mr. Nielsen:

I have received your letter of reprimand of August

24. Thank you for informing me of the kind of ‘‘ethies’’

valued by the Iowa Bar. Since when did a buneh of out-

dated unconstitutional ethical rules take priority over the

welfare of the children in this state?

The actions of your committee in this matter have

done more to diseredit the legal profession than anything

that I could say or anything that I could do. No, I have

no intention of keeping any of your future activities “‘con-

fidential’’.

Sincerely,

/s/ Jane Harlan

Jane Harlan

App. 46

IN THE SUPREME COURT OF IOWA |

IN THE MATTER OF )

JANE HARLAN, ) No. 87-1350 ;

A Practicing Attorney ) ORDER OF PUBLIC

) REPRIMAND

Pursuant to Court Rule 118.3 the attached reprimand

of attorney Jane Harlan by the Committee on Professional

Ethies and Conduct has been filed with the clerk of this

court together with proof of service thereof and a state-

ment that no exception has been filed within the time pre-

scribed.

It is therefore ORDERED that the reprimand of Jane

Harlan be spread upon the records of this court as a public

document.

Dated this 15 day of October, 1987.

THE SUPREME COURT OF IOWA

By /s/ Arthur A. MeGiverin

Arthur A. MeGiverin, Chief Justice

Copies to:

Members of the Court

Client Security and

Attorney Disciplinary Commission

Norman G. Bastemeyer

James E. Gritzner

Jane Harlan

Certified No. 198055