Opposition Brief — Zimmermann v. Board of Professional Responsibility

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\y | yogePy F. SPANIOL, JR

No. 88-1707 % ‘ CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JOHN ZIMMERMANN,

= Petitioner,

BOARD OF PROFESSIONAL RESPONSIBILITY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Tennessee

BRIEF IN OPPOSITION

L. HAROLD LEVINSON

Counsel of Record

REBECCA L. BROWN

School of Law

Vanderbilt University

Nashville, Tennessee 37240

(615) 322-2615

JOSEPH L. MERCER II

Disciplinary Counsel

Board of Professional

Responsibility

1101 Kermit Drive, Suite 405

Nashville, Tennessee 37217

(615) 361-7500

May 16, 1989 Counsel for Respondent

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TEN

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QUESTION PRESENTED

Whether the First Amendment is violated by DR 7-

107, as applied in imposing a private reprimand upon a

prosecutor for revealing to the press, during two sepa-

rate felony trials, matters that were not in the public

record, when the state court determined that, on each

occasion:

(i) his statements posed a “reasonable likelihood”

of interfering with a fair trial or with the imposition

of sentence, and

(ii) this “reasonable likelihood” test was the equiv-

alent of tests which recuire a “serious or imminent

threat” or a “clear and present danger.”

TABLE OF CONTENTS

Page

SOR yy OT) A Oi 4 | i

EE Sy 8 | iv

Senses: OF THE CASE .................................... 1

REASONS WHY PETITION SHOULD BE DENIED.. 2

I. The Petition Attempts To Relitigate, In This

Court, A Question Of State Law Concerning

The Definition Of “Public Records” _.................. 2

II. The Petition Attempts To Litigate, In This

Court, An Issue That Was Expressed Only As

Dictum In The Tennessee Supreme Court’s

aa sac cscaninnnmanannene 3

III. The Tennessee Supreme Court Was Unanimous

In Its Rejection Of The Constitutional Challenge

- GTR et 4

IV. The Tennessee Supreme Court’s Decision Is

Correct On The Merits Of The Constitutional

oo. c avcsomennexnecsdawionss eeanien 5

V. The Tennessee Supreme Court’s Decision Does

Not Directly Conflict With Other Cases.............. 6

Nee ee asic biaciodehannsidiniweneesaecuas 10

(iil)

TABLE OF AUTHORITIES

Cases Page

Bailey v. Systems Innovation, Inc., 852 F.2d 93

¢ | Ae | REAM ON SUNN Aoepior re rstreuntiey wen 7

Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.

1980), aff'd, 452 U.S. 89 (1981) ....................... 7

Bridges v. California, 314 U.S. 252 (1941) ............. 6

Chicago Council of Lawyers v. Bauer, 522 F.2d 242

(7th Cir. 1975), cert. denied, 427 U.S. 912

(1976) ........ asa coealige saeco hncanantn meh apaahaipia ebeteaayetee 5, 8

Committee on Legal Ethics v. Douglas, 370 8.E.2d

SE Se WU I es ace iast ets 8

Craig v. Harney, 331 U.S. 367 (1947) ...........---------- 6

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979).. 5,8

Keller, In re, 213 Mont. 196, 693 P.2d 1211

“p< __,_) ees pace Benn ESR BAIS AASORR COMES pa PS OB Real 9

Kemner v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d

py GE) RRR A san ia cree Ral Rent OR Uist are 7

Landmark Communications, Inc. v. Virginia, 435

Te ee 0 sas ok cd ness aceite ade eendeeae 6

Lasswell, In re, 296 Or. 121, 673 P.2d 855 (1983)... 5, 9

Levine v. United States District Court, 764 F.2d

590 (9th Cir. 1985), cert. denied, 476 U.S. 1158

EI since oss econc chs lamnaontanek i cniaenlaandsindamnesbeaats 7

Markfield v. Association of Bar of City of New

York, 49 A.D.2d 516, 370 N.Y.S.2d 82 (N.Y.

App. Div.), app. dismissed, 37 N.Y.2d 794, 357

pm EG | ci) SIR Rrra rte on ODE Cn 5, 10

Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423 (1982) —..... 8

Pennekamp v. Florida, 328 U.S. 331 (1946) -......... 6

Rachmiel, In re, 90 N.J. 646, 449 A.2d 505 (1982)... 9

Ruggieri v. Johns-Manville Products Corp., 503

Deca, TO Cs TD asserts. 7

Shadid v. Jackson, 521 F. Supp. 85 (E.D. Tex.

1 i Sapa Rey As Soar ap enn P OE RaTaee en RENCE ASA POI 7

Sheppard v. Maxwell, 284 U.S. 333 (1966) ............ 7

State v. Biegenwald, 106 N.J. 18, 524 A.2d 130

PIED sobre, seecic tints ac data neck cianaeiecedeunphmaneednaneia ks 8

State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985),

cert. denied, 474 U.S. 1110 (1986) ....................... 8

TABLE OF AUTHORITIES—Continued

Page

United States v. Ford, 830 F.2d 596 (6th Cir.

DORE acres nn ccte sa cee pen tnhisenitei wer mconnneaeinndh 7

United States v. Lehder-Rivas, 669 F. Supp. 1563

Oe tin MII oie scacsh.cincinipantsnonnshaunolasemamaiadends 7

United States v. Marcano-Garcia, 446 F. Supp.

1354 (D.P.R. 1998) ...... Oe I eee 7

Wood v. Georgia, 370 U.S. 375 (1962) .................. 6

Other Authorities

Note, A Constitutional Assessment of Court Rules

Restricting Lawyer Comment on Pending Liti-

gation, 65 Cornell L. Rev. 1106 (1980) -................ 5

Two More States Adopt Versions of the Model

Rules: Montana, 1 ABA/BNA Lawyer’s Manual

on Professional Conduct 855 (July 10, 1985) ..... 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1707

JOHN ZIMMERMANN,

Petitioner,

BOARD OF PROFESSIONAL RESPONSIBILITY,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Tennessee

BRIEF IN OPPOSITION

The Board of Professional Responsibility of the Su-

preme Court of Tennessee (“the Board”), the Respond-

ent, respectfully submits this brief in opposition to the

petition for writ of certiorari to the Supreme Court of

Tennessee that was filed on April 20, 1989 by John Zim-

mermann, the Petitioner.

STATEMENT OF THE CASE

The Petitioner, John Zimmermann, is an Assistant Dis-

trict Attorney. He was disciplined by a private repri-

mand for two separate violations of Disciplinary Rule

7-107 of the Tennessee Code of Professional Responsi-

bility.

The first violation occurred after the preliminary hear-

ing and before jury selection in the murder trial of Larry

Sheffield. Mr. Zimmermann revealed to news reporters

some gruesome details of the victim’s injuries, which

were not matters of public record.

The second violation occurred before sentencing in the

trial of Dwayne Haynes and Richard Emmett for a num-

ber of violent felonies. Mr. Zimmermann revealed to

news reporters his opinion about the seriousness of the

erimes and his intention to ask for the maximum sen-

tence.

The public defender filed complaints with the Board

of Professional Responsibility about both of these inci-

dents. A three-lawyer Hearing Panel found that Zimmer-

mann’s statements in the Sheffield case violated DR 7-

107, but that his statements in the Haynes/Emmett case

did not. The Panel recommended a private reprimand.

Zimmermann appealed to the Chancery Court, which

conducted a trial de novo. The court found that Zimmer-

mann violated DR 7-107, both in the Sheffield case and

in the Haynes/Emmett case. The court affirmed the im-

position of a private reprimand.

Zimmermann appealed to the (Tennessee Supreme

Court. The court affirmed by a vote of 4 to 1.

REASONS WHY PETITION SHOULD BE DENIED

This case is not appropriate for review by this Court,

for the following reasons.

I. The Petition Attempts To Relitigate, In This Court,

A Question Of State Law Concerning The Definition

Of “Public Records.”

The petition asserts that Mr. Zimmermann’s statements

consisted of information that was already available to

the public. Pet., pp. i, 10. By raising the “public rec-

ords” issue in this Court, Zimmermann evidently pro-

poses to relitigate the issue here. That issue is, however,

a matter of state law which has already been determined

by the Tennessee Supreme Court. It is not an appropriate

issue for this Court to review.

The “public records” issue was litigated in all three

tribunals that considered this case. In each tribunal,

Zimmermann asserted that his statements were per-

mitted by DR 7-107(C), which allows attorneys to quote

from “public records of the court in the case.” Zimmer-

mann based this defense on his private viewing of a

handwritten draft of the autopsy report in the Sheffield

case, before the report had been finalized or lodged with

a public records custodian.

In each tribunal the Board argued, to the contrary,

that the “record” in question was not a “public record

of the court in the case” at the time Zimmermann re-

vealed its contents to the news media. Each tribunal

found that Zimmermann’s statements violated DR 7-107.

These findings necessarily reject Zimmermann’s “public

records” defense. The “public records” issue is a matter

of state law that has been fully litigated and authorita-

tively determined in the state courts. It is unsuited for

review by this Court.

II. The Petition Attempts To Litigate, In This Court, An

Issue That Was Expressed Only As Dictum In The

Tennessee Supreme Court’s Opinion.

The petition challenges the suggestion, in the majority

opinion of the Tennessee Supreme Court, that the Dis-

trict Attorney review his “open policy with the media.”

Pet., pp. 24-25, referring to Tennessee Supreme Court

Opinion, Pet., pp. 7a, 20a.

This portion of the court’s opinion is clearly dictum.

The District Attorney, an elected public officer, is Mr.

Zimmermann’s employer and supervisor. The District

Attorney was not a party to this litigation and is clearly

not bound by the court’s dictum in this case. The dictum

addressed to the District Attorney by the state court is

not appropriate for review by this Court.

III. The Tennessee Supreme Court Was Unanimous In Its

Rejection Of The Constitutional Challenge Raised

Here.

The four Justices who joined the majority opinion of

the Tennessee Supreme Court clearly rejected Mr. Zim-

mermann’s challenge to the constitutionality of DR 7-107

as applied in this case.

The remaining member of the court, Justice Drowota,

wrote a separate opinion, concurring in part and dissent-

ing in part. Justice Drowota concurred in the majority’s

holding that DR 7-107, as applied in this case, does not

violate the United States or Tennessee Constitution.

Pet., p. 14a. The petition is clearly wrong in asserting

that Justice Drowota found DR 7-107 unconstitutional.

Pet., p. 13. In fact, the Tennessee Supreme Court was

unanimous in rejecting Zimmermann’s constitutional

challenge to DR 7-107 as applied in this case.

Justice Drowota’s dissent was based, not on constitu-

tional grounds, but on his conclusion that Zimmermann

had not violated DR 7-107. Pet., p. 14a. In reaching

this conclusion, Justice Drowota gave DR 7-107 a more

permissive interpretation than did the majority. Justice

Drowota’s opinion also implies that he was influenced by

Zimmermann’s “public records’ defense. Pet., p. 17a.

The division of the court on these issues is purely a mat-

ter of state law, presenting no federal question for this

Court to review.

Justice Drowota’s dissent also took issue with the sug-

gestion included in the majority opinion, to the effect that

the District Attorney should review his ‘open policy with

the media.” Pet., pp. 14a, 20a. As indicated above, the

majority’s suggestion on this matter is merely dictum.

Consequently, the court’s division on this matter presents

no federal question for this Court to review.

IV. The Tennessee Supreme Court’s Decision Is Correct

On The Merits Of The Constitutional Issue.

The Tennessee Supreme Court correctly held that DR

7-107 is constitutional, as applied to the facts of this

ease. The court found that Mr. Zimmermann’s state-

ments posed a “reasonable likelihood” of interfering with

a fair trial in the Sheffield case, and with the imposition

of sentence in the Haynes/Emmett case. Pet., p. 12

Some courts perceive a constitutionally significant dif-

ference between this test and other formulations, such as

“serious and imminent threat” or “clear and present

danger.” See, for example, the conflict on this issue be-

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

242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976)

(“serious and imminent threat”) and Hirschkop v. Snead,

594 F.2d 356 (4th Cir. 1979) (“reasonable likelihood’’) ,

both discussed later in this brief. Other courts have

concluded that the distinction is merely semantic. See

In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983): Mark-

field v. Association of Bar of City of New York, 49

A.D.2d 516, 370 N.Y.S.2d 82 (N.Y. App. Div.), app.

dismissed 37 N.Y.2d 794, 337 N.E.2d 612 (N.Y. 1975):

Note, A Constitutional Assessment of Court Rules Re-

stricting Lawyer Comment on Pending Litigation, 65

Cornell L. Rev. 1106 (1980).

The Tennessee Supreme Court, in the case at bar, sub-

scribed to the latter view, that the distinction among

the various verbal formulations is merely semantic. Pet.,

p. 12a. Thus, by finding that Mr. Zimmermann violated

DR 7-107 as interpreted by the “reasonable likelihood”

test, the court necessarily found that Zimmermann vio-

lated DR 7-107 as interpreted by the other two tests as

well—“serious and imminent threat” and “clear and

present danger.” As a result of this finding, the court’s

decision is constitutionally correct, so long as at least

one of the three tests passes constitutional muster.

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V. The Tennessee Supreme Court’s Decision Does Not

Directly Conflict With Other Cases.

The petition fails in its attempt to demonstrate direct

conflict between the Tennessee Supreme Court’s decision

and other cases. The petition does not cite and the Board

is not aware of any precedent, from this Court or any

other, that would clearly confer First Amendment protec-

tion upon Mr. Zimmermann based on the facts found in

this case. These facts are, in summary, that Mr. Zimmer-

mann spoke to news media while he was serving as

prosecuting attorney in sensational felony cases; his

statements are not excused by the “public records of the

court” exception; his statements were highly inflamma-

tory; his statements (in the Sheffield case) were made

before jury selection and they were made to news re-

porters in the county where jurors would be selected;

his statements (in the Haynes’ Emmett case) were made

before sentencing.

Most of the cases cited in the petition deal with First

Amendment issues in settings that are clearly distinguish-

able from this case. First, the petition cites “contempt

by publication” cases in which news media were the par-

ties. Bridges v. California, 314 U.S. 252 (1941); Craig

v. Harney, 331 U.S. 367 (1947); Landmark Communica-

tions, Inc. v. Virginia, 435 U.S. 829 (1978); Pennekamp

v. Florida, 328 U.S. 331 (1946). These cases, dealing

with freedom of the news media, do not control the case

at bar, which is a matter of attorney discipline.

The petition also cites Wood v. Georgia, 370 U.S. 375

(1962), arising from a contempt citation against a sher-

iff. Again, Wood does not involve attorney discipline

and is therefore not relevant here.

Next, the petition relies on “gag order’’ cases, some

arising in civil litigation, others in eriminal litigation.

After listing these cases, this brief will indicate why they

are not directly relevant here.

The civil gag order cases cited in the petition are

Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3d Cir.

1988) (gag order addressed to parties, not counsel) ;

Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980),

aff'd, 452 U.S. 89 (1981) (parties and counsel) ; Kemner

v. Monsanto Co., 112 Ill.2d 223, 492 N.E.2d 1327 (1986)

(parties and counsel); Ruggie?i v. Johns-Manville Prod-

ucts Corp., 503 F. Supp. 1036 (D.R.I. 1980) (counsel) ;

Shadid v. Jackson, 521 F. Supp. 85 (E.D. Tex. 1981)

(counsel).

The other gag order cases cited in the petition arose

in criminal litigation. Levine v. United States District

Court, 764 F.2d 590 (9th Cir. 1985), cert. denied, 476

U.S. 1158 (1986) ‘(defense counsel); United States v.

Ford, 830 F.2d 596 (6th Cir. 1987) (defendant) : United

States v. Lehder-Rivas, 669 F. Supp. 1563 (M.D. Fla.

1987) (injunction to restrain defendant in criminal case

from preparing profile of potential jurors shortly before

jury selection); United States v. Marcano-Garcia, 456

F. Supp. 1354 (D.P.R. 1978) (defendant).

The gag order cases—whether civil or criminal—are

not directly relevant here, because (i) gag orders are

enforceable by the court’s contempt power, (ii) they must

be narrowly tailored in view of the specific circumstances

of each pending case, and (iii) they often involve re-

straints against the news media, parties and witnesses,

rather than being limited to attorneys. As a result, the

standards that apply in gag order cases should not nec-

essarily control in disciplinary proceedings against attor-

neys. The gag order cases that arose: in civil litigation

are the furthest removed from relevance here, because

the litigants in those cases do not enjoy the full range of

constitutional protections conferred upon defendants in

criminal cases.

The petition cites Sheppard v. Maxwell, 384 U.S. 333

_ (1966) which reversed a criminal conviction, in part be-

cause of prejudicial publicity which the trial court should

have prevented. The petition asserts that Sheppard

adopts no standard, Pet., p. 16. In fact, however, this

Court expressed the “reasonable likelihood” standard in

that case, 384 U.S. at 363. Further, Sheppard involved

post-conviction relief, an issue which is distinguishable

from attorney discipline. For example, State v. Biegen-

wald, 106 N.J. 13, 524 A.2d 130 (1987) held that the

prosecuting attorney had seriously violated DR 7-107 in

a murder trial, but that these violations had not caused

enough prejudice to require a new trial. A similar result

was reached in State v. Bracy, 145 Ariz. 520, 703 P.2d

464 (1985), cert. denied, 474 U.S. 1110 (1986).

The petition also cites Committee on Legal Ethics v.

Douglas, 370 S.F.2d 325 (W. Va. 1988), a disciplinary

proceeding against an attorney who was a party to a

transaction being investigated by two judges in a non-

trial setting. The attorney published intemperate state-

ments together with a photograph of himself, costumed

and identified as a “Rambo”-type character resisting the

judges. At issue was the constitutionality, as applied to

those facts. of DR 1-102(A) (5), which prohibits an at-

torney from engaging in “conduct prejudicial to the ad-

ministration of justice.” The court noted that DR 7-107

was not at issue, since that provision applies only to

statements made by attorneys during trials, and the

Douglas case arose in a non-trial setting. Accordingly,

Douglas is readily distinguishable from the case at bar.

The petition points out-the apparent conflict between

the “serious and imminent threat” test announced in

Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th

Cir. 1975), cert. denied, 427 U.S. 912 (1976) and the

“reasonable likelihood” test approved in Hirschkop v.

Snead, 594 F.2d 356 (4th Cir, 1979). Both cases arose

on pre-enforcement review of DR 7-107, a type of review

that this Court subsequently discouraged in Middlesex

County Ethics Committee v. Garden State Bar Associa-

tion, 457 U.S. 423 (1982). Since neither Chicago Council

nor Hirschkop contains any factual finding, their signifi-

cance as precedent is limited, and the conflict between

their verbal formulations may indeed be, as the Tennessee

Supreme Court held in the case at bar, “more semantical

than real.” Pet., p. 12a.

The remaining cases cited in the petition are relevant

to some extent, but they completely fail to demonstrate

the direct conflict claimed by petitioner. In re Lasswell,

296 Or. 121, 673 P.2d 855 (1983) arose from a prosecu-

tor’s statements to the press concerning a pending crim-

inal matter. The court formulated its own test, based to

a considerable extent upon the Oregon constitutional

guarantee of free speech. The court equated this test

with both the “reasonable likelihood” test and the “seri-

ous and imminent threat” test and found that, under any

of these tests, the prosecutor had not committed a viola-

tion.

In re Keller, 213 Mont. 196. 693 P.2d 1211 (1984)

arose from out-of-court statements by counsel for the

defendant in a criminal case. The court declined to en-

force DR 7-107. The court was at the same time consid-

ering whether to revise its disciplinary rules by adopting

the Model Rules of Professional Conduct. Within a few

months after deciding Keller, the same court adopted the

Model Rules, including Rule 3.6 which prohibits an attor-

ney from making an out-of-court statement creating a

“substantial likelihood of material prejudice.” Two More

States Adopt Versions of the Model Rules: Montana, 1

ABA/BNA Lawyer’s Manual on Professional Conduct

855 (July 10, 1985). The combined impact of Keller and

the same court’s new rule creates no conflict with the

Tennessee Supreme Court’s opinion.

The petition cites In re Rachmiel, 90 N.J. 646, 449 A.2d

505 (1982). The Tennessee Supreme Court noted that

Rachmiel presented “strikingly similar circumstances” to

the case at bar. Pet., p. 8a. Rachmiel involved out-of-

court statements by a former prosecutor. The New Jer-

sey court, applying the ‘reasonable likelihood” test, found

the statements improper but withheld sanctions, partly

because of some uncertainty as to whether the attorney

was “associated” with the prosecution of the case, and

partly because of the lack of precedent.

Markfield v. Association of Bar of City of New York,

49 A.D.2d 516, 370 N.Y.S.2d 82 (N.Y. App. Div.), app.

dismissed, 37 N.Y.2d 794, 337 N.E.2d 612 (1975), also

cited in the petition, arose from statements made by

counsel in a criminal case, as a participant in a radio

panel program on prison rebellions. Observing that DR

7-107(D) would pass constitutional muster under either

the “reasonable likelihood” or the “clear and present

danger” test, the court held that the attorney had not

violated the rule.

The above analysis of all cases cited in - petition

demonstrates no direct conflict with the decision of the

Tennessee Supreme Court.

CONCLUSION

For these reasons, the Court should deny the petition

for writ of certiorari.

Respectfully submitted,