Opposition Brief — Heller v. Illinois Attorney Registration & Disciplinary Commission

No. 88-1959 JUL

%

~

IN THE i

am i ae

Supreme Court of the United States

OCTOBER TERM, 1988

MELVIN A. HELLER and JERROLD L. MORRIS,

Petitioners.

ILLINOIS ATTORNEY REGISTRATION AND

DISCIPLINARY COMMISSION,

4

ay Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT’S BRIEF IN OPPOSITION

JAMES J. GROGAN

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Responde nt

Of Counsel:

{UTHE A. HOWES

Counse! for Administrator

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

pe

QUESTIONS PRESENTED

Whether Petitioners failed

to invoke federal jurisdiction

pursuant to 28 U.S.C. § 1257(3).

Whether procedures employed by

the Supreme Court of Illinois

imposing discipline on Petitioners

for their repeated violations of

long-established ethical principles

violated the Due Process requirement

of the Fourteenth Amendment.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . «+ « » « 6) = ele

TABLE OF AUTHORITIES . «s+ ¥ #5) 3s Ree

CONSTITUTIONAL PROVISION AND RULES

INVOLVED . «« ss esses + © =» 8 «© #85) @

STATEMENT OF THE CASE. «. »«= «es» e® © s© sees

SUMMARY OF ARGUMENT. .. « « «© © © © © © « 8

ARGUMENT . 7 ° - . . . * . . . 7 . . s e e 1 @)

I. Petitioner failed to invoke

federal jurisdiction pursuant to

28 U.S.C. § eT. eee

II. Procedures employed by the

Supreme Court of Illinois imposing

discipline on Petitioners for their

repeated violations of long-

established ethical principles did

not violate the Due Process require-

ment of the Fourteenth Amendment. .14

CONCLUSION. . .«. «© « « © © © © © © © © 022

ill

TABLE OF AUTHORITIES

Cases: Page

Brinkerhoff-Farris Trust Co, v. Hill, 281

8 ee rr CPE EES rors 13

Consolidated Turnpike Co. v. Norfolk and

Ocena View Railway Co., 228 U.S. 326

i reer rrr SFr e ye ii, i?

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

773 CATS) cer cccccccer eoeee#eegefeesertereskeesttee e *eenetee#sese# 15

Great Northern Railway Co. v. Sunburst Oil

and Refining Co., 287 U.S. 358 (1932)..... 12

In re Anastaplo, 3 Ill.2d 471, 121 N.E.2d

es can 5 he kok ek eee eee ess ues 14

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

denied, 434 U.S. 829, (1977))...seeee. is, i9

In re Donaghy, 402 Ill. 120, 83 N.E.2d

hep eh kek eee eee tea ke ee ee 15

In re Heller, 126 Ill.2d 94, 533 N.E.2da

a ee Ae eee eee ee ee ee passim

In re March, 71 Ill.2d 382, 376 N.E.2d

se pha Heat Rar Dee ese ess 18

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

EE a ee ee 15

In re Ruffalo, 390 U.S. 544 (1968)..... 10,19

Middlesex County Ethics Committee, etc. v.

Garden State Bar Ass'n, 457 U.S. 423

CO rrr Oe Ne er re ea ee 21

Missouri Insurance Co. v. Gehner, 281 U.S.

ih aa bess on eb a ee tee be 13

lV

People ex rel Chicago Bar Ass'n v. Baker,

sii Zid. O66, 142 N.B. 20 S54. (i924) . once e cx 15

Spevack v. Klein, 385 U.S. 511 (1967)..... 16

CONSTITUTION:

Uumy Comes « RONG SIV iss eek nt e ev ecuees passim

STATUTES:

Be Viwaes S BORT 4 Cee ee CRRA RS ORS ee passim

SUT. £aeeae MA 1 Oss K6e A wk eR Oe ee eee 33 2

BOT Ries Oe. Re 74 A ee oie oe Shen oe bee passim

No. 88-1959

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

MELVIN A. HELLER & JERROLD L. MORRIS

Petitioners,

vs.

ATTORNEY REGISTRATION

AND DISCIPLINARY COMMISSION

OF THE SUPREME COURT OF ILLINOIS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

RESPONDENT'S BRIEF IN OPPOSITION

Ar Ti

CONSTITUTIONAL PROVISIONS INVOLVED

Nor shall any State deprive any

person of life, liberty, or property,

without due process of law; U.S.

CONST. amend. XIV.

Final judgments or decrees rendered

by the highest court of a State in

which a decision could be had, may be

reviewed by the Supreme Court as

follows: (3) By writ of certiorari,

where the validity of a treaty or

statute of the United States is drawn

in question on the ground of its

being repugnant to the Constitution,

treaties or laws of the United

States, or where any title, right,

privilege or immunity is specially

set up or claimed under the

Constitution, treaties or statutes

of, or commission held or authority

exercised under, the United States.

28 U.S.C. § 1257.

RULES OF THE SUPREME COURT OF ILLINOIS

AND ATTORNEY REGISTRATION AND

DISCIPLINARY COMMISSION

Supreme Court Rule 753(c) (6).

Inquiry, Hearing, and Review Boards.

Except as otherwise expressly

provided in these rules, the standard

of proof in all hearings shall be

clear and convincing evidence.

Supreme Court Rule 771. Types of

Discipline.

(a) disbarment;

(b) disbarment of consent;

~~ =

(Cc) suspension for a specified

period and until further

order of court;

(d) 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.

STATEMENT OF THE CASE

On September 5, 1986 the

Administrator of the Attorney

Registration and Disciplinary

Commission filed a six count

complaint against Petitioners

pursuant to Illinois Supreme Court

Rule 753. The complaint charged

Petitioners with engaging in actions

prejudicial to the administration of

justice; lending or giving a thing of

value to a judicial officer;

circumventing a disciplinary rule

through the actions of another;

engaging in conduct involving

ales

dishonesty, fraud, deceit anda

misrepresentation; failing to avoid

even the appearance of impropriety;

and engaging in actions that tend to

bring the Court and legal profession

into disrepute. Counts I-V alleged

that Petitioners made, guaranteed or

facilitated in loans to Judge

Reginald Holzer. Count VI alleged

that Petitioner Heller paid Judge

Holzer to assist Heller's son in

gaining admission into a local law

school

4s

On F@®ruary 24, 1987, a panel of

the Hearing Board issued a report and

recommendation finding that

Petitioners were guilty by a

preponderance of the evidence of the

misconduct alleged in Counts I, II,

III, IV and V of the Administrator's

complaint. The Hearing Panel found

that the misconduct alleged in Count

is.

VI had not been proven. The Hearing

Board recommended disbarment for both

Petitioners. On March 19, 1987,

Petitioners filed exceptions to the

report and recommendation of the

Hearing Board.

On July 15, 1987, the Review

Board remanded the case to the

hearing panel for such further

proceedings as the panel deemed

appropriate and to submit findings,

conclusions and recommendations based

upon a standard of clear and

convincing evidence as set forth in

Illinois Supreme Court Rule

753(c)(6). Further, the Review Board

directed the Hearing Panel to make

individual findings, conclusions and

recommendations as to each

Petitioner.

On September 30, 1987, the

Hearing Panel issued its revised

7 on 77.7 i oh ho on ] Mhyna y . ~ -~l

were unwarranted. 'ne Hearing Board

proven by clear and convincing

evidence that the Petitioners were

~~

- ~ 1 ASr ~ h

panel recommended disbarment. The

Petitioners filed exceptions to th

revisea report of the Hearing Board.

On January 13, 1988, the Review

Board lssued lts report and

recommendation finding that the

Hearing Board complied with its order

of remand. The Review Board further

concurred with the finding of fact

and conclusions of law of the Hearing

Panel and recommended that

Petitioners be disbarred. The

Petitioners filed exceptions to the

a

— (—

Supreme Court of Illinois.

On December 6, 1988, after

considering briefs and oral

arguments, the Supreme Court of

Illinois issued an order disbarring

Petitioners from the practice of law.

On December 27, 1988,

Petitioners filed a Petition for

Rehearing with the Supreme Court of

Illinois, raising a federal question

for the first time. On

January 30, 1989, the Supreme Court

of Illinois denied the petition

without ruling on the federal

question. (Pet.App. 14).

On February 2, 1989, Petitioners

filed a Motion to Stay Mandate with

the Supreme Court of Illinois so as

to permit Petitioners to seek review

in the Supreme Court of the United

States. On February 7, 1989, the

—

Supreme Court of Illinois issued an

=

order staying the mandate.

On May 30, 1989, Petitioners

served Respondent with copies of

their Petition for Writ of Certiorari

to the Supreme Court of the United

States.

On June 26, 1989 Petitioners

filed a Motion to File an Amended

Petition for Writ of Certiorari. In

their Amended Petition, Petitioners

raise certain issues discussed below.

SUMMARY OF ARGUMENT

The Amended Petition of Writ of

Certiorari to the Supreme Court of

Illinois should be denied for the

following reasons:

First, Petitioners failed to

invoke federal jurisdiction pursuant

to 28 U.S.C. § 1257(3). Petitioners

did not raise any federal

nh...

constitutional claim until filing a

petition for rehearing before the

Supreme court of S2eaianois.

Petitioners have not demonstrated

that they fit within any exception as

they had reason to expect that the

Court would decide the case as it

did.

Second, Petitioners were not

denied due process of law during the

course of the disciplinary

proceedings against them, nor have

petitioners been deprived of a

property right. A license to

practice law is a privilege not an

absolute right. Licensing of

attorneys in Illinois is within the

inherent authority of the Supreme

Court of Illinois. A grant of

immunity in exchange for testimony in

a federal prosecution protects

petitioners from criminal

ee ee

proceedings, but does not extend to

dis-iplinary proceedings. The two

proceedings are clearly separate and

distinctive. Petitioners received

notice of the charges and an

opportunity to defend in complete

compliance with the due process

requirements as mandated in In re

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

ARGUMENT

I. PETITIONERS FAILED TO INVOKE

FEDERAL JURISDICTION PURSUANT TO

28 U.S.C. § 1257(3).

Petitioners are required to

demonstrate in their petition that

this Court has jurisdiction to review

the judgment of the Supreme Court of

Illinois. Petitioners have failed to

do so.

Petitioners first raised their

federal constitutional claim of a

denial of due process in their

~~

petition for rehearing after the

judgment of the Supreme Court of

Illinois.

Raising a federal question for

the first time in a petition for

rehearing addressed to the highest

state court is generally insufficient

to invoke federal jurisdiction unless

the court actually entertains the

petition and expressly decides the

question. Consolidated Turnpike Co.

v. Norfolk and Ocean View Railway

Co., 228 U.S. 326, 334 (1913). As

the Illinois Supreme Court denied the

petition in the instant case without

entertaining the federal question

(Pet.App. B), the general rule

precludes review by this Court. To

constitute a reviewable judgment

under such circumstances, the order

denying the petition for rehearing

must be more than a cursory

—12—

recitation that the petition has been

fully or maturely considered and is

accordingly denied. Consolidated

Turnpike Co. v. Norfolk and Ocean

View Railroad C€o., Z289u.s. o263

333-334 (1913).

In order to invoke the

jurisdiction of this Court to review

a constitutional claim not timely

presented to the Supreme Court of

Illinois, Petitioners must establish

that their case fits within an

exception. Great Northern Railway

Co. v. Sunburst Oil and Refining Co.,

287 U.S8. 358, 367 (1932).

Petitioners have not set forth any

claim nor authority asserting that

they fit within an exception. The

only exception Petitioners could

possibly claim is that the Illinois

Supreme Court rendered an unexpected

decision, giving them no prior

=;

opportunity to anticipate or assert

their federal claim, and the petition

. for rehearing constitutes their first

and only chance to present the matter

to that court. Brinkerhoff-Farris

Zee Sos Vs Hill, 281 U.S. -673,

677-78 (1930); Missouri Insurance Co.

v. Gehner, 281 U.S. 313, 320 (1930).

Petitioners clearly fail to meet this

test. First, Illinois Supreme Court

Rule 771 provides for types of

discipline that may be imposed for

professional misconduct, including

disbarment. Second, the

Administrator has urged disbarment

throughout the course of the

disciplinary proceeding, and the

Hearing Board and Review Board have

recommended disbarment. (Pet.App. C,

D). Thus, Petitioners cannot assert

that the Court's decision was

unexpected or a surprise.

a) oe

II. THE PROCEDURES EMPLOYED BY THE

SUPREME COURT OF ILLINOIS

IMPOSING DISCIPLINE ON

PETITIONERS FOR THEIR REPEATED

VIOLATIONS LONG-ESTABLISHED

ETHICAL PRINCIPLES VIOLATED THE

DUE PROCESS REQUIREMENT OF THE

FOURTEENTH AMENDMENT.

Petitioners erroneously contend

that the procedure by which an

attorney is granted immunity from

criminal prosecution is a deprivation

of a property right, i.e. his law

license, without due process.

Petitioners specious argument fails

for several reasons. Fivret,

Petitioners base their argument on

the fallacious premise that a law

license is a property right. It is

well established that the right to

practice law is a privilege. In re

Anastaplo, 3 I11.2d 471, 121 N.E.2d

826 (1954). Membership in the legal

profession and engaging in the

practice of law is a privilege and

ae oe

not an absolute right (People ex rel.

Chicago Bar Ass'n v. Baker, 311 Ill.

66, 142 N.E.2d 554, 31 A.L.R. vat},

and no attorney will be permitted to

engage in the conduct of his

profession in such a manner as to

bring the same into disrepute. In re

Donaghy, 402 111.120, 83 N.E.2a 560,

562 (1948).

Lawyer discipline is within the

inherent authority of the state

courts. See Goldfarb v. Virginia

state Bar, 421 U.S. 773, 792 (1975).

Petitioners' law licenses, like those

of all other Illinois attorneys', are

a privilege granted by the Supreme

Court of Illinois to persons deemed

to be fit to practice law.

Supervision of attorney conduct is

one of the most crucial functions of

the Supreme Court of Illinois. See

In re Neff, 83 I11.2d 20, 413 N.E.24a

=) ae

1282, 1284 (1980). With regard to

Petitioners' -misconduct, the Court

stated that "for a period of over

eight years, petitioners continued to

practice before a judge whom they had

repeatedly assisted with loans. Such

flagrant and continuous disregard for

the integrity of our legal system

cannot be countenanced." In re

Heller, 126 Il1l.2a@ 94, S33 H.&.2¢

824, 830 (1988). For these reasons,

Petitioners lost their privilege to

practice law. (emphasis supplied).

Thus, Petitioners' argument is

baseless because Petitioners never

had a property right of which they

could be deprived.

Even if, arguende,a—law license

could be considered a property right,

Petitioners' argument is without

merit. Petitioners cite Spevak v.

Klein, 385 U.S. 511 (1967) for the

my ae

Proposition that an attorney cannot

be deprived of his right against

self-incrimination by the threat of

Suspension or disbarment. This

proposition is not applicable to the

instant case. Petitioners’ state

throughout their brief that Morris

was aware at the time he testified in

the federal prosecution of Holzer

that his grant of immunity did not

extend to any prosecution by the

Attorney Registration and

Disciplinary Commission for unethical

conduct. (Pet.Br. 16, 26).

Petitioners were disbarred for their

reprehensible conduct, not for

refusing to cooperate in their

disciplinary proceeding.

Furthermore, as Petitioners point out

in their brief, they cooperated with

the Attorney Registration ana

Disciplinary Commission in their

a

disciplinary proceeding. At no time

during this proceeding did

Petitioners assert any claim of their

Fifth Amendment rights to protection

against self-incrimination or allege

a violation of due process.

The authority cited by

Petitioners in their brief wholly

Supports the Administrator's

position. In re March, 71 I111.2d

soa, 376 N.B.2G 213 (1978) and In re

Daley, 59 F.2d 469 (7th Cir. 1977)

both establish that a clear

distinction exists between

disciplinary proceedings and criminal

proceedings. While a grant of

immunity is a protection against

subsequent criminal proceedings, it

is inapposite to attorney

Gisciplinary proceedings. The

essence of criminal proceedings is

—

"intended to a redress criminal

wrongs by imposing sentences of

imprisonment, other types of

detention or commitment, or fines,"

while the function of disciplinary

proceedings is to determine whether

an attorney "retains the attribute of

moral fitness which is requisite to

the fulfillment of an attorney's

responsibilities to the court which

licensed him, as well as to the

public." 549 F.2d at 475. A review

of these cases clearly establishes

that Petitioners' Fourteenth

Amendment due process rights were not

violated.

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. Td. at 550. Both

—20—

requirements have been met.

Petitioners had notice that they were

charged with making numerous

proscribed loans to a judge. They

were afforded ample opportunity to

defend the charges and they did so in

a vigorous manner.

In addition, Supreme Court Rule

771 provides Petitioners with

sufficient notice that the state

court had the authority to impose

discipline ranging from censure to

Gisbarment upon any finding of

misconduct. 107 I11.2d Rule 771.

The Hearing Board and Review Board

recommended disbarment and the

Illinois Supreme Court ultimately

agreed. Thus, no substantial federal

question exists.

In Summary, Petitioners'

argument is totally devoid of legal

authority. As a matter of law, a

= =

license to practice law is a

privilege, not a right. A grant of

immunity includes only criminal

proceedings, not attorney

disciplinary proceedings. The

procedure employed, which resulted in

the disbarment of Petitioners, is not

violative of the Fourteenth

Amendment, 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).

Petitioners speciously assert that

this Court should resolve certain

questions under the Due Process

Clause. A review of the applicable

case law clearly establishes that

such . questions have already been

=.

resolved. Petitioners sole purpose

underlying this petition is to delay

the issuance of the mandate of the

Supreme Court of Illinois disbarring

Petitioners.

CONCLUSION

For the reasons set forth above,

Respondent respectfully submits 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