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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0765%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1020

## Text

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JAM BR 1969

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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

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TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AND RULES
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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)
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Dobbert v. Florida, 432 U.S. 282 (1977)..10

Goldfarb v. Virginia State Bar, 421 U.S.
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In re Corboy, 124 Il1l.2d 29, 528 N.E.2d 694
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In re Daley, 549 F.2d 469 (7th Cir.
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In re Ketchum, 124 I11.2d 50, 528 N.E.2d
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In re Leonard, 64 I11.2d 398, 356 N.E.2d 62
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In re Neff, 83 Ill.2d 20, 413 N.E.2da 1282
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In re O'Hallaren, 64 Il1l1.2d 426, 356 N.E.2d
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In re Ruffalo, 390 U.S. 544 (1968)...passim

In re Saladino, 71 Ili1.2d 263, 375 N.E.2d
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Marks v. Unites States, 430 U.S. 188

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Middlesex County Ethics Committee, etc. v.

Garden State Bar Association, 457 U.S. 423
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Miller v. Florida, 107 S.Ct. 2446
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Pierce v. United States, 314 U.S. 306
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Pulley v. Harris, 465 U.S. 37 (1984)....13

Weaver v. Graham, 450 U.S. 24

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CONSTITUTION:

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

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

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