# Opposition Brief — Zimmermann v. Board of Professional Responsibility > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1228%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1107 ## Text e/a ie FILED \y | yogePy F. SPANIOL, JR No. 88-1707 % ‘ CLERK ed 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 v a7 wat TEN 2 + AS Tre Vey 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) iv 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 V 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, V. 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 2 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 2 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. 5 vu 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. aii iii alga ia acne 6 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. 7 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 8 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 9 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- 10 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, 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 105 Nashville, Tennessee 37217 (615) 361-7500 Counsel for Respondent % ih 1 t4ES Rar E --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1228%3A2. Public record. Not legal advice.