Reply Brief for the United States — Shapero v. Kentucky Bar Ass'n

FILED

| su (2 (1888

JOSEPH F. SPANIOL, JR

IN THE —— aa

SUPREME COURT OF THE UMTED STATES

October Term, 1988

—_——_-

= | 1s Supreme Court, U.d-

No. 88-1703 |

|

RICHARD D.SHAPERO - - - + ~- _ Petitioner

versus -

KENTUCKY BAR ASSOCIATION - -_ Respondent

On Petition For a Writ of Certiorari to the

Supreme Court of Kentucky

PETITIONER’S REPLY BRIEF

DONALD L. COX

Attorney at Law

Counsel of Record

MARY JANICE LINTNER

Attorney at Law

DAVID J. ROPER

Attorney at Law

LYNCH, COX, GILMAN & MAHAN,

P.S.C.

1800 Meidinger Tower

Louisville, Kentucky 40202

(502) 589-4215

Counsel for Petitioner

WESTERFIELD-BONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

1. The decision below involves an important question

which directly affects this Court’s jurisdiction and

is in conflict with this Court’s decision in Shapero

Vv. Kentucky Bar Association ........6...6....4.. 1

2. The decision below conflicts with recent decisions

of this Court and of Federal Courts of Appeals and

with the legislative history of the Civil Rights At-

torney’s Fees Act of 1076 ...........0cccc scenes. 4

3. Petitioner’s pending Section 1983 action does not

preclude the recovery of attorneys’ fees in this

OO EIR ISIE D BOO re ET ie ETE EET EEE 9

IE tar Kc 24S as cad saben Mace t nanan 10

il

TABLE OF AUTHORITIES

—————

Cases: PAGE

Adams vy. Attorney Registration and Disciplinary

Commission, 600 F. Supp. 390 (E.D. Ill. 1984),

aff’d 801 F.2d 968 (7th Cir. 1986) ..............

Americans United for Separation of Church and

State v. School District of Grand Rapids, 835

F208 Gos (6th Cit. 196T) 3. a ee 5

Bates v. State Bar of Arizona, 433 U.S. 350 (1977)... 4

Chicago & Southern Air Lines v. Waterman S.S.

~]

Corg., 3a3'US. 106 (IRS) os oe ee 3

Doe v. Bolton, 410 U.S. 179 (1973) ..... 2.2.2. 0n0e 6

Epperson v. Arkansas, 393 U.S. 97 (1968) ......... 6

Ex parte Auditor of Public Accounts, 609 S.W.2d 682

(9. TGC) 0k can tase eee 8

Ex parte Howard, 76 U.S. (9 Wall.) 175 (1869) ..... 2

In re Sanford Fork & Tool Co., 160 U.S. 247 (1895). = 2

Middlesex Ethics Committee v. Garden State Bar As-

sociation, 457 US. 423° (1983) 0. a es dD,

New York Gaslight Club v. Carey, 447 U.S. 54 (1980) 7

Spencer v. Honorable Justices of Supreme Court of

Pennsylvania, 579 F. Supp. 880 (E.D, Penn. 1984),

aff'd sub nom Spencer v. Supreme Court of Penn-

~]

sylvania, 760 F.2d 261 (8d Cir. 1985) 2.2.2.0. 6

Steffel v. Thompson, 415 U.S. 452 (1974) .......... 6

Tyler v. Magwire, 84 U.S. (17 Wall.) 253 (1872) ... 1

United Public Workers of America vy. Mitchell, 33

Ritts $0 GOEL) ow se case ck enae eee eee 3

Village of Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S, 489 (2982) .......3.2......... 4

Statues:

42 U.S. Section 19083 .. 0... eee 4,5,7,9

8 Oe 6 6 Ra ee ee Ue Re et eer eee ae

42 U.S.C’. Seetion 1988 4.5.8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

RicHarp D. SHAPERO “ . - - Petitioner

Vv.

KENTUCKY Bar AssociaATION - - - Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

PETITIONER’S REPLY BRIEF

1. The decision below involves an important question

which directly affects this Court’s jurisdiction and is

in conflict with this Court’s decision in Shapero v. Ken-

tucky Bar Association.

The only rationale advanced by the Kentucky Bar

Association (hereafter ‘‘KBA’’) to justify the Su-

preme Court of Kentucky’s amendment of the Shapero

I decision on remand is that the Supreme Court of

Kentucky in Shapero 1 ‘simply misspoke itself.”’

KBA’s Brief at 8 In addition, the NBA argues that

[un jone of [the errors corrected by the Supreme Court

of Kentucky in Shapero [7 and Shapero 111]| affected

this Court’s essential ruling. 2. 2 KBA’s Brief at 9.

The KBA, however, fails to discuss, let alone dis-

tinguish Tyler v. Maguire, 84 U.S. (17 Wall.) 253

(1872), and the other eases which establish the invari-

ability and conclusiveness of a judgment of the Su-

2

preme Court of the United States ‘‘upon the law and

facts presented to it.” Lx parte Howard, 76 U.S. (9

Wall.) 175, 183 (1869). Thus, the KBA simply ignores

the holding in In re Sanford Fork & Tool Co., 160 U.S.

247 (1895) that a lower court cannot vary, examine or

review “even for apparent error, upon any matter de-

cided on appeal.’? Jd. at 255 (emphasis supplied).

Accordingly, the Supreme Court of Kentucky, under

the guise of correcting errors, may not recast the facts

or the law presented to the Supreme Court of the

United States so as to fundamentally alter the char-

acter of the decision reviewed by that Court.

The Supreme Court of Kentucky stated in Shapero

IT that it had erred in its Shapero I decision when it

held that it had denied Shapero’s request to mail out

the letter in question. Therefore, the Supreme Court

of Kentucky revised its opinion to state that Shapero’s

letter was never before the court or the KBA Ethics

Committee... Appendix to Petition for Certiorari at

'The KBA’s response to the Petition for Certiorari flatly con-

tradicts the Supreme Court of Kentucky’s holding in Shapero II

that ‘‘the Ethics Committee never reviewed Mr. Shapero’s request

for permission to send the letter.’’ Appendix to Petition for Cer-

tiorari at 3la. In its Brief, the KBA states on page 3 that Shapero

‘requested an Advisory Opinion from the Committee on Legal

Ethics as to the propriety of his proposed letter of solicitation. ...’’

This disagreement by the KBA with the Supreme Court of Ken-

tucky surely would be resolved in favor of the KBA for the Ethies

Committee’s own opinion specifically referred to the Shapero letter

when it stated that ‘‘[{s]everal requests for advisory opinions have

been forwarded . . . seeking approval of ‘targeted direct mail

7?

advertising’ to. victims of foreclosures. See Advisory

Opinion E-310, reproduced in the Appendix to KBA‘s Brief at 14a.

3

3la. As a consequence, the Supreme Court of Ken-

tucky also held that its opinion in Shapero I was merely

an advisory opinion which ‘‘had no legally binding

effect on Shapero.”” Jd. By making these changes in

the facts and the law respecting its decision in Shapero

T, the Supreme Court of Kentucky retrospectively fun-

damentally altered Shapero I from a decision which

was reviewable by this Court to one which was not.

It is beyond question that this Court only reviews

‘cases or controversies and that it will not issue or re-

view advisory opinions. See United Publie Workers

of America v. Mitchell, 330 U.S. 75, 89 (1947), and

Chicago d&: Southern Air Lines v. Waterman S.S. Corp.,

333 U.S. 103, 113 (1948) where this Court refused to

review an administrative decision which only had ‘‘the

force of a reeommendation to the President’? heeause

it ‘‘would be to render an advisory opinion. 2

Therefore, altering Shapero I from a determination of

the legal rights of the Petitioner to an advisory opinion

not binding on Shapero or anyone else (KBA’s Brief

at 13) fundamentally alters the Shapero I decision

from a reviewable to a non-reviewable decision. The

unavoidable implication of this alteration is that, ac-

cording to the Supreme Court of Kentucky, this Court

should never have decided the Shapero case.

Likewise, if the Shapero letter were not before the

Supreme Court of Kentucky, there would have been

no concrete commercial speech case for this Court to

review. The First Amendment overbreadth doctrine

does not apply to commercial speech and professional

4

advertising eases. Bates vy. State Bar of Arizona, 433

U.S. 350, 381 (1977), and Village of Hoffman Estates

Vv. Flipside, Hoffinan Estates, 455 U.S. 489, 497 (1982).

Therefore, in commercial speech cases, this Court will

not invalidate a rule prohibiting commercial speech

except in a given, concrete fact situation. Absent the

Shapero letter, there was no given fact situation and no

reviewable case.

2. The decision below conflicts with recent decisions of this

Court and of Federal Courts of Appeals and with the

legislative history of the Civil Rights Attorney’s Fees

Act of 1976.

Without ever referring to the legislative history of

the Civil Rights Attorney’s Fees Act of 1976 or to the

basic concept of the private attorneys general which

it embodied, the KBA nonetheless argues that the ae-

tion brought by Shapero in the Supreme Court of

Kentucky and the Supreme Court of the United States

was not ‘‘any action or proceeding to enforce a pro-

vision of [42 U.S.C. Sections 1981-1983] . . .”? war-

ranting an award of attorney's fees under 42 U.S.C.

Section 1988." Rather, the KABA argues that ‘*[t}he

primary reason why [Shapero] is not entitled to re-

cover [attorneys’ | fees in this proceeding is because

he ‘failed to mention Section 1983 in his Brief to

[the Supreme Court of Kentucky] when [it] reviewed

*Shapero has not filed a claim for attorneys’ fees for the pro-

ceedings before the Ethies Committee of the KBA; his claim is

limited to proceedings in the Supreme Court of Kentucky and the

Supreme Court of the United States.

~

the Board of Governors Advisory Opinion.” Shapero

IT, 763 S.W.2d at 127." KBA’s Brief at 10.

This statement is patently false. This very issue

was addressed by Shapero in his first brief in the

Supreme Court of WNentueky in Shapero I in which

he pointed out to that court that his petition was, in

fact. a Section 1983 elaim:

This Court also appears to have exelusive juris-

diction over Shapero’s federal constitutional elaims

arising wider 42 U.S.C. Section 1983 sinee federal

courts must abstain from entertaining federal con-

stitutional challenges to state disciplinary rules

(even under the First Amendment) until the state

has had an opportunity to rule. IMWiddlesec Ethics

Committee v. Garden State Bar Assn., 457 U.S.

423 (1982).

(See Brief of Petitioner Richard D. Shapero in the

Supreme Court of Kentucky, filed July &, 1986, page

3, note-4, emphasis supplied).

The KBA also argues that attorneys’ fees are not

warranted because the court’s ruling in Shapere J

‘had no binding effect on Petitioner’* and therefore,

he was not deprived of any of his “civil rights as a

consequence of the Court’s ruling.”” KBA Brief at 11.

%Even if Section 1983 had not been specifically mentioned in his

srief, it would not affect Shapero’s entitlement to attorneys’ fees

under Section 1988. In Americans United for Separation of Church

and State v. School District of Grand Rapids, 835 F.2d 627, 632-34

(6th Cir. 1987), the Sixth Cireuit ruled that it was not necessary

to specifically mention 42 U.S.C. Section 1983 in order to reeover

Section 1988 attorneys’ fees as long as the relief obtained vindi-

eated eivil rights of the type protected under Section 1983,

6

According to the KBA and the Supreme Court of

Kentucky, Mr. Shapero remains unaffected by the Su-

preme Court of IKentucky’s decision until he has

mailed the letter in question, disciplinary proceedings

have been instituted, and thereafter he has been en-

joined or disciplined. Jd. However, this position flies

directly in the face of established precedent of this

Court and of other federal courts.

In Spencer v. Honorable Justices of Supreme

Court of Pennsylvania, 579 F. Supp. 880 (E.D. Penn.

1984), aff’d sub nom Spencer v. Supreme Court of

Pennsylvania, 760 F.2d 261 (3d Cir. 1985), an attorney

sought to challenge Pennsylvania's targeted direct mail

solicitation prohibition. The Supreme Court of Penn-

sylvania argued that there was no concrete case or

controversy heeause disciplinary action had not been

taken against Mr. Spencer. The Pennsylvania fed-

eral courts disagreed, holding that since a plaintiff

‘suffers present injury and an irretrievable loss of

first amendment rights to the extent that he obeys the

disciplinary rules and thus foregoes his right to en-

gage in arguably protected speech . . . [a] plaintiff

is not first required to violate the disciplinary rules

and risk his legal career on the hope that his constitu-

tional arguments will be accepted in defense of quasi-

criminal proceedings.’’ Jd. at 884. See also, Steffel v.

Thompson, 415 U.S. 452, 462 (1974) ; Doe v. Bolton, 410

U.S. 179, 188 (1973); and EL pperson v. Arkansas, 393

U.S. 97 (1968).

7

In addition, the KBA argues that Shapero is not

entitled to attorneys’ fees because his appeal to the Su-

preme Court of Kentucky was, ‘tat best, [an] admin-

istrative proceeding| | not necessary to the maintenance

by him of his action in Federal Court.’? KBA’s Brief

at 12. There are at least three fundamental errors in

this position.

First, even if the proceeding before the Supreme

Court of Kentucky is characterized as administrative

instead of judicial, the awarding of attorneys’ fees

incurred in that proceeding would be appropriate un-

der Section 1988 because the proceedings were manda-

tory administrative proceedings such as those in New

York Gaslight Club vy. Carey, 447 U.S. 54 (1980).

Secause of Middleser Kthics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982), Shapero

was compelled to complete bar association-imposed ad-

ministrative proceedings before he could resort to an

independent Section 1983 action. Since Shapero was

precluded by Middlesec from bringing his Section 1983

action to challenge the rule and its application to his

letter in federal court, he was forced to bring it in the

Supreme Court of Nentucky. See Adams v. Attorney

Registration aud Disciplinary Comission, 600 F. Supp.

390, 392, 393 (f.D. TIL 1984), aff’?d 801 F.2d 968 (7th

Cir. 1986), where the court, applying Middlese.r, ab-

stained from ruling on a challenge to Illinois’ targeted

direet mail rules until the Illinois Supreme Court

Committee on Professional Responsibility had first re-

fused to entertain the challenge.

second, the KDA cites no law that a proceeding

brought before the Supreme Court of Iwentucky is

anything but judicial in nature. As the Supreme Court

of Kentucky noted in Kw parte Auditor of Public Ac-

counts, 609 S.W.2d 682, 683, 685 (Ky. 1980), Section

109 of the Kentucky Constitution states that ‘*[t]he

judicial power of the Commonwealth shall be vested

exclusively in one Court of Justice 2...’ (emphasis

supplied), and Section [LO of the Kentucky Constitu-

tion empowers the Supreme Court of Kentucky to exer-

cise appellate Jurisdiction only. The Supreme Court of

Kentucky further held in “rc parte Auditor that since

the NBA was an arm of the Supreme Court of Ken-

tueky, the KIA could not be sued in any of the other

courts of the state and the Supreme Court of Ken-

tucky was the only forum in which the controversy

could be heard and officially resolved. Jd. at 683."

Finally, the WBA does not explain why, in any

event, attorneys’ fees would not be recoverable for the

proceeding in the Supreme Court of the United States,

which certainly was a proceeding in vindication of civil

rights for purposes of Section LOSS,

There is also no indication anywhere in the Supreme Court of

Kentucky's opinion in Shapero IT and Shapcro IIT that its decisions

were anything but judicial in character even though in its brief in

Shaporo TT, the KBA attempted to convinee the Supreme Court

of Kentucky that the proceeding in Shapcoro I was merely adminis-

trative. See Response of KABA Tn Opposition to Petitioner’s Motion

Requesting Attorneys” Fees and Expenses, served October 26, 19383,

pp. 7-2.

3. Petitioner’s pending Section 1983 action does not pre-

clude the recovery of attorreys’ fees in this proceeding.

The final argument raised by the KBA is that be-

‘ause there is a pending Section 1983 action in which

attorneys’ fees could be awarded, this Court should not

order an award of attorneys’ fees in this proceeding.”

However, the cases cited by the KBA involved at-

tempts to obtain relief in a junior proceeding after a

senlor proceeding on the same issues had been com-

menced. In this case, on the other hand, the senior

proceeding is the Shapero case emanating from the

Supreme Court of Kentucky. ‘The district court ae-

tion challenging the Kentucky targeted direct mail rule

was filed afler the Supreme Court of Kentucky bad

issued its decision in Shapero TF and involyed questions

relating not only to the validity of the rule adopted by

the Supreme Court of Nentucky, but also questions of

the enforceability of an agreement between the KBA

and Shapero entered into several years before in set-

tlement of earlier unrelated litigation.

Moreover, the courts in the best position to evalu-

ate and award attorneys’ fees are the eourts before

Whom the Shapero case was argued. Having another

court re-review all the work done in this Court and be-

fore the Supreme Court of Keutucky would be a waste

of judicial efforts because the courts before whom that

*Shapero does not deny that attorneys’ fees could be awarded

by Judge Ballantine in the United States District Court in the

event certiorari is denied. However, that fact alone does not pro-

vide a basis for this Court or the Supreme Court of Kentucky to

deny an award of attorneys’ fees under Section 198s,

10

work was done are more familiar with the quality and

quantity of work performed before them.

CONCLUSION

The Brief of the KBA has failed in any logical

fashion to demonstrate that certiorari should not be

grauted in this case. ‘The actions of the Supreme Court

of Kentucky, in revising its opinion in Shapero I, in-

volved much more than the incidental correction of a

typographical error. Permitting an inferior court,

after reversal, to change its decision from one which

is reviewable to an unreviewable advisory opinion most

assuredly raises important questions about this Court's

jurisdiction.

The KBA has failed to dispute Shapero’s assertions

that certiorari should also be granted because the rul-

ing of the Supreme Court of Kentucky in denying his

attorneys’ fees both before that court-and the Supreme

Court of the United States is at odds with the legis-

lative history of 42 U.S.C. Section 1988 and with

numerous decisions of this Court and of federal ap-

pellate courts. The decision of the Supreme Court of

Kentucky should be reversed and an award of attor-

neys’ fees should be summarily ordered by this Court.

DonaLtp L. Cox

Counsel of Record

Mary JANICE LINTNER

Davip J. Roper

4+