Opposition Brief — Ketchum v. Administrator, Attorney Registration & Disciplinary Commission

, >, Supreme teurt, US.

\y) ‘\ RILED

JAM BR 1969

10L, JR.

No. 88-1189

CLERK

In THE

Supreme Court of the Gnited States

OctosEer Term, 1988

WALTER M. KETCHUM,

Petitioner,

Vs.

ADMINISTRATOR, ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari

To The Illinois Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

JAMES J. GROGAN

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Counsel for Respondent

acl

Photex — 444 North Wabash Avenue — Chicago 60611 —- 321-0223

oe

TABLE OF CONTENTS

Page

TAREA OF AIPTMORETING ccc cs cvscsoneeedd, 244

CONSTITUTIONAL PROVISIONS AND RULES

Pio Sh, : a ee ee ee ere

INTRODUCTION... ccccreccccvcccsccscecscsceed

QUESTION PRESENTED... cc cccceeveccsesececd

SUMMARY OF ARGUMENT... cece cccvceeeeec4 OD

ARGUMENT... cc cvccccccccvccccccceseesecIn~ml&

CONCLUSION... cc ccccccccccccevecccecccceeelO

ll

TABLE OF AUTHORITIES

Cases: Page

Bouie v. Columbia, 378 U.S. 347 (1964) .9-11

Calder v. Bull, 3 Dall. 386 (1798)...10, ll

Cummings v. Missouri, 4 Wall. 277 (1867)

EE ck hk 5 de dd Oe ae a eee re” See t |

Dobbert v. Florida, 432 U.S. 282 (1977)..10

Goldfarb v. Virginia State Bar, 421 U.S.

Tia (1975) eeeeeeeeereeeeeeeeee we errr rT Seer

In re Corboy, 124 Il1l.2d 29, 528 N.E.2d 694

C2OSE) ce cccssvcscse “eTTTTTT cs

In re Daley, 549 F.2d 469 (7th Cir.

L977) «« eeeeeeerereee#ees#58nree#e#tseee##e#e#e#e# @# Trrrrrrre Tsk

In re Ketchum, 124 I11.2d 50, 528 N.E.2d

GES (19GR) ccc ccscccssaes seeeees «eee. passim

In re Leonard, 64 I11.2d 398, 356 N.E.2d 62

(1976) eeeeee#ee#eee#ee# eeeee#kee#e#*® eeeees#srktee#eree#ee?#e# reer Tr

In re Neff, 83 Ill.2d 20, 413 N.E.2da 1282

(1980) eeeeeeese;e?eee#eteeee @ eee*e#ee#eeexs#see?#s# oseeeO, ia

In re O'Hallaren, 64 Il1l1.2d 426, 356 N.E.2d

i Peery Tree (teaeenheanee

In re Ruffalo, 390 U.S. 544 (1968)...passim

In re Saladino, 71 Ili1.2d 263, 375 N.E.2d

102 (1978) eeeeee#ee#e#ee#eeee#e#s#e#e# e*eeeee#e#e#@ errr eT es

Marks v. Unites States, 430 U.S. 188

ili

Page

Middlesex County Ethics Committee, etc. v.

Garden State Bar Association, 457 U.S. 423

EE ea 7 |

Miller v. Florida, 107 S.Ct. 2446

SPN EOSSSO ERED SSCS BO esate nsecescecee ld, ll

Pierce v. United States, 314 U.S. 306

PES NS SCPESCES Cece ees eeccsccccceshGsih

Pulley v. Harris, 465 U.S. 37 (1984)....13

Weaver v. Graham, 450 U.S. 24

a 10, 11

CONSTITUTION:

U.S. CONST. amend. XIV..... cococeoce se - pasein

U.S. CONST. Art. I, §10..... cvcccee ePasein

STATUTES:

107 I11.2d Rule 7-110......... oee.-e- passim

Rr eRe Re GB(C) (4). 0c cccccccs errs

BO? BASeOG BULS TF7lecccccccccccccss Ia, 15

No. 88-1189

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

WALTER M. KETCHUM

Petitioner,

vs.

ADMINISTRATOR, ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION OF ILLINOIS

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ILLINOIS SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

~

CONSTITUTIONAL PROVISIONS INVOLVED

The ex post facto clause of the

United States Constitution provides, "No

State shall .. . pass any... ex post

facto law." U.S. CONST. Art. I, §10.

The due process clause of the United

States Constitution provides, "nor shall

any State deprive any person of life,

liberty or property, without due process

of law." U.S. CONST. amend. XIV.

RULES OF THE SUPREME COURT OF ILLINOIS

AND ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION INVOLVED

Supreme Court Rule 7-110. Relationship

with Officials. (1980)

(a) A lawyer shall not give or lend

any thing of value to a judge, official,

or employee of a tribunal, except that a

lawyer may make a contribution to the

campaign fund of a candidate for such

office.

Supreme Court Rule 7-110(a). Relationship

(Amended 1988)

"(a) A lawyer shall not give or lend

any thing of value to a judge, official,

or employee of a tribunal except those

gifts or loan which a judge or a member

of his family may receive under Rule

65(c) (4) of the Code of Judicial Conduct,

except that a lawyer may make a

contribution to the campaign fund of a

candidate for such office."

a

Supreme Court Rule 65(c)(4). A Judge

Should Regulate His Extrajudicial

Activities To Minimize The Risk

Of Conflict With His Judicial

Duties.

(4) Neither a judge nor a member of

his family residing in his household

should accept a gift, bequest, favor, or

loan from anyone except as follows:

(a) a judge may accept a gift

incident to a public testimonial to him;

books supplied by publishers on a

complimentary basis for official use; or

an invitation to the judge and his spouse

to attend a bar-related law, the legal

system, or the administration of justice;

(b) a judge or member of his

family residing in his household may

accept ordinary social hospitality; a

gift, bequest, favor or loan from a

relative; a wedding or engagement gift;

loan from a lending institution in its

regular course of business on the same

terms generally available to persons who

are not judges; or a scholarship or

fellowship awarded on the same terms

applied to other applicants;

(c) a judge or a member of his

family residing in his household may

accept any other gift, bequest, favor, or

loan only if the donor is not a party or

other person whose interests have come or

are likely to come before him, including

lawyers who practice or have practiced

before the judge.

Supreme Court Rule 771. Types Of

Discipline

(a) disbarment;

(b) disbarment on consent;

(c) suspension for a specified

ere

ellie,

period and until further order

of court;

(ad) suspension for a specified

period of time;

(e) suspension until further order

of the court;

(f) suspension for a specified

period of time or until further

order of the court with

probation; or

(g) censure.

INTRODUCTION

For the sake of brevity, Respondent

will not provide sections in its brief

for opinion below, jurisdiction, and

statement of the case. Respondent will

address in its argument those portions of

those sections of Petitioner's brief

which Respondent considers inaccurate or

inadequate.

QUESTION PRESENTED

Whether the procedure employed by

the Supreme Court of Illinois imposing

discipline on Petitioner for his

violation of long-established ethical

principles violated the due process

requirement or ex post facto clause of

the United States Constitution.

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari

to the Supreme Court of Illinois should

be denied for the following reasons:

First, Petitioner was not denied due

process of law during the course of the

ain,

disciplinary proceedings against hin.

Petitioner received notice of the charge

and an opportunity to defend, in complete

compliance with the due process

requirements as mandated in In re

Ruffalo, 390 U.S. 544 (1968).

Second, in disciplining Petitioner,

the Supreme Court of Illinois did not

retroactively apply a new standard to

Petitioner's acts of misconduct in

violation of the ex post facto clause.

Petitioner's conduct was violative of the

former construction of Rule 7-110(a) as

well as the new construction.

Third, the amount of discipline

imposed is within the discretion of the

Supreme Court of Illinois. Such

flexibility is crucial to achieve the

ultimate goals of the disciplinary

system. The only issue in fact raised by

this petition is an issue of state law,

which the Illinois Supreme Court has

already decided.

ARGUMENT

Lawyer discipline is within the

inherent authority of the state courts.

See Goldfarb v. Virginia State Bar, 421

U.S. 773, 792 (1975). Supervision of

attorney conduct is one of the most

crucial functions of the Supreme Court of

f.

Illinois. See In re Neff, 83 I11.2d 20,

413 N.E.2d 1282, 1284 (1980).

Petitioner was suspended from the

practice of law for two years by the

Supreme Court of [Illinois for making

numerous and substantial interest free

unsecured loans to the presiding judge of

a division in which he regularly

practiced. Further, Respondent was

disciplined for soliciting loans from

other lawyers to the judge despite

knowing the judge's propensity for

failing to pay obligations.

Respondent was suspended for

violating Rule 7-110(a) of the Illinois

Code of Professional Responsibility as

amended in a companion attorney

disciplinary case, In re Corboy, et al.,

124 Ill.2d 29, 528 N.E.2ad 694 (1988).

Prior to the rule's amendment, Illinois

strictly prohibited all loans or gifts

from iawyers to judges except for

ae ae

campaign contributions to designated

judicial campaign committees. if. at

699. In Corboy, Rule 7-110(a) was

amended to permit lawyer gifts and loans

to judges if judges could accept the

items pursuant to state judicial ethics

guidelines. Id. As a result of the

amendment, lawyers are, among other

things, explicitly permitted to make

gifts and loans to judges if they

constitute common social courtesies or if

the gifts are between members of a

family. Id. at 701.

In selecting the amount of attorney

discipline to be imposed, the Illinois

Supreme Court balances the need to be

consistent with a consideration of the

unique facts of the particular case. See

In re Saladino, 71 Il1l1.2d 263, 375 N.E.2da

102 (1978). Based on the unique facts of

this case, including the repeated nature

of the disciplinary violations and

sills

Respondent's contemporaneous knowledge

that lawyers were forbidden by rule to

make loans to judges, the Court suspended

Petitioner. In re Ketchum, 124 I11.2d

50, 528 N.E.2d 689 (1988).

Petitioner argues that he was denied

due process when the Illinois Court sua

sponte amended Rule 7-110(a) in the

Corboy case. His argument is meritless.

In In re Ruffalo, 390 U.S. 544 (1967),

this Court stated that an attorney in a

disciplinary proceeding is entitled to

due process to the extent that he

receives notice of the charge and an

opportunity to be heard. Id. at S850.

Both requirements have been met.

Respondent had notice that he was charged

with making and soliciting proscribed

loans to a judge. He was afforded ample

opportunity to defend the charges and he

did so in a vigorous manner.

=

In support of his due process

argument, Petitioner relies on this

Court's holding in Bouie v. Columbia, 378

U.s, 347 (1964). Bouie, however, is

easily distinguishable. In Bouie, it was

found that due process was violated

because a state's interpretation of a

criminal statute punished conduct which

was not criminal at the time the act was

committed. Therefore, the defendants

lacked fair warning that their conduct

was prohibited. In this case,

Respondent's actions were wrong under the

prior disciplinary rule and wrong under

the rule as amended. In that Respondent

knew that loans to judges were

prohibited, he had more than fair warning

that he could not engage in such

activity.

= =

Petitioner cites several cases which

stand for the proposition that the ex

post facto clause prohibits application

of a new law or standard to prior acts or

conduct.

1

Bouie v. Columbia, 378 U.S. 347

(1964);

Marks v. United States, 430 U.S.

188 (1977);

Pierce v. United States, 314 U.S.

306 (1941);

Calder v. Bull, 3 Dall. 386 (1798);

Miller v. Florida, 107 S.Ct. 2446

(1987);

Weaver v. Graham, 450 U.S. 24

(1981);

Dobbert v. Florida, 432 U.S. 282

(1977);

Cummings v. Missouri, 4 Wall. 277

(1867).

r

~~:

Petitioner's ex post facto concerns are,

however, misplaced based upon a review of

the case law.

Petitioner fails to understand that

the Illinois Diciiaiiiacs Court did not

retroativeley apply a new standard to his

conduct. The Court held Petitioner's

acts violated the former construction of

Rule 7-110(a) as well as the new

construction. 528 N.E.2d at 693. "It is

axiomatic that for a law to be ex post

facto it must be more onerous than the

prior law." Dobbert, supra, at 294.

2. In Bouie, Marks, Cummings, and

Pierce, the manner in which the statute

or law was applied transformed innocent

conduct into criminal activity. In

Miller, revised sentencing guidelines in

effect at the time of sentencing were

applied instead of the guidelines that

were in effect when the defendant

committed the crime. In Weaver, a new

statute resulted in the reduction of a

prisoner's credit time for good behavior

that had been available under the

repealed statute. In Calder, after

plaintiff was awarded certain property, a

subsequent law was passed which, in

effect, divested the property. In

Dobbert, a defendant's argument of ex

post facto violation in regard to change

in state death-sentencing procedure was

rejected.

an htien

Petitioner fails to understand that

the Illinois Supreme Court did not

retroactively apply a new standard to his

conduct. The Court held Petitioner's

acts violated the former construction of

Rule 7-110(a) as well as the new

construction. 528 N.E.2d at 693. “It is

axiomatic that for a law to be ex post

facto it must be more onerous than the

prior law." Dobbert, supra, at 294.

Petitioner's basic underlying

grievance is that he did not receive the

same disciplinary sanction as_ certain

attorneys in the Corboy case. In Corboy,

six lawyers were found to have violated

amended Rule 7-110(a). The Court

declined, however, to impose sanctions

upon them due to the unique facts

surrounding their financial transactions.

The Court was not required to make

Petitioner's sanction consistent with

others who were found to violate the same

=

disciplinary rule. Final responsibility

for determining discipline to be imposed

on attorneys rests in the Supreme Court

of Illinois. In determining the

appropriate penalty, the Court may

properly consider all facts and

circumstances in aggravation and

mitigation, including the attorney's

actual conduct. See In re Neff, 83

I1l1l.2d 20, 413 N.E.2d 1282 (1980).

Furthermore, this Court has rejected the

notion that there is a constitutional

right of proportionality of sanctions,

even in criminal proceedings. See e.gq.,

Pulley _v. Harris, 465 U.S. 37 (1984).

Even if it could be argued that a

criminal defendant were entitled to this

type of proportionality, the concept

should not apply to an attorney

disciplinary proceeding. A disciplinary

proceeding is simply not criminal in

nature. In re Daley, 549 F.2d 469 (7th

=) a

Cir. 1977) cert. denied 434 U.S. 829

(1977). C.f., In re Ruffalo, 390 U.S.

544 (1968). (Disciplinary proceedings,

although sui generis, described as

quasi-criminal).

Flexibility in imposing sanctions is

neither arbitrary nor unconstitutional,

but necessary to achieve the goal of

safeguarding the public, maintaining the

integrity of the profession and

protecting the administration of justice.

See Middlesex County Ethics

Committee, etc. v. Garden State Bar

Association, et. al. 457 U.S. 423, 434-35

(1982). To achieve fair results, the

disciplinary systems must be neither

rigid nor mechanistic, but flexible

enough to allow for the uniqueness of

each case. See In re Leonard, 64 I11.2d

398, 356 N.E.2d 62, 66 (1976). The Court

must evaluate each situation

independently because the circumstances

~< »

of each case vary substantially and

sanctions which are appropriate in one

situation may be inappropriate in another

even though the underlying offense is

similar or even the same. See In re

O'Hallaren, 64 I11.2d 426, 356 N.E.2d

520, 523 (1976). The Illinois Court

correctly applied these principles in

deciding the proper sanction for

Petitioner.

In addition, Supreme Court Rule 771

provided Petitioner with sufficient

notice that the state court had the

authority to impose discipline ranging

from censure to disbarment upon any

finding of misconduct. 107 I11.2d Rule

771. Thus the issue of appropriate

sanction as raised by Petitioner is a

matter of state law. No substantial

federal questions exist.

In summary, the due process

provision of the United States

=~ =

Constitution does not require a more

exacting standard than that employed by

the Supreme Court of Illinois. A

Clarification of a state ethics rule did

not violate any ex post facto or due

process principles. Further, disparate

sentencing is not a proper basis for

certiorari jurisdiction.

CONCLUSION

For the reasons set forth above,

Respondents respectfully submit the

Petition for Writ of Certiorari be

denied.

Respectfully submitted,

James J. Grogan

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Respondent

Ruthe A. Howes, Administrative Assistant,

assisted in the preparation of this brief.

aaa