reply to opposition — GERZOF v. GULOTTA (Nos. 75-11111, 75-972, 856)

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IN THE FEB 20 1976

'

Supreme Court of the United States xem |

October Term, 1975 —- Setettendint

No. 75-1111

Jutius Gerzor, also known as Jutivs M. Gerzor,

Plaintiff-Appellant,

against

Frank A. Gutorta, individually and as Presiding Justice,

Appellate Division of the Supreme Court of the State of

New York, Second Judicial Department, J. Inwix SHapmo,

Marcus G. Curist, Frep J. Munper, Jonn P. Conauan, JR.,

James D. Hopxins, ArrHur D, Brennan, A. Davin Benga-

min, Henry J. LatHam, M. Henry Marrtvusce.i, individu-

ally and as Associate Justices of the Appellate Division of

the Supreme Court of the State of New York, Second Judi-

cial Department, and Irvine N. SELErN, individually and as

Clerk of the Appellate Division of the Supreme Court of the

State of New York, Second Judicial Department,

Defendants-Appellees.

On Appeal from the United States D.strict Court

for the Eastern District of New York

a

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BRIEF OF APPELLANT GERZOF IN OPPOSITION TO

MOTION TO DISMISS OR AFFIRM

Ancewo T. Cometa

Attorney for Plaintiff-Appellant

40 West 57th Street

New York, New York 10019

Of Counsel:

Puiuips, Nizer, Bensamin, Karim & Barton

KennetH Davin Burrows

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TABLE OF CONTENTS

PAGE

Statement _. as io ae : 2

Conclusion z ws | 5

TABLE OF AUTHORITIES

Case:

MTM, Inc. v. Baxley, 420 U.S. 799 (1975) | 2, 3, 4

Statute:

laced 2,5

Other Authority:

3 Bender’s Federal Practice Forms, Matthew Bender

& Co., New York, 1970 . Bit BRE 4

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-1111

Jutius Gerzor, also known as Jvutius M. Gerzor,

Plaintiff-Appellant,

against

Frank A. Guuorta, individually and as Presiding Justice,

Appellate Division of the Supreme Court of the State of

New York, Second Judicial Department, J. Inwrix SHaprmo,

Marcus G. Curist, Frep J. Munper, Jonn P. Conauan, JR.,

James D. Hopxins, Antoun D. Brennan, A. Davip Bensa-

MIN, Henry J. Latnuam, M. Henry Marrvusce1, individu-

ally and as Associate Justices of the Appellate Division of

the Supreme Court of the State of New York, Second Judi-

cial Department, and Irvine N. Sevxry, individually and as

Clerk of the Appellate Division of the Supreme Court of the

State of New York, Second Judicial Department,

Defendants-A ppellees.

On Appeal from the United States District Court

for the Eastern District of New York

a A

BRIEF OF APPELLANT GERZOF IN OPPOSITION TO

MOTION TO DISMISS OR AFFIRM

Statement

Appellant Julius Gerzof submits this brief in opposition

to Appellees’ motion dated February 11, 1976 to dismiss or

affirm his appeal.

Appellees’ invocation of their version of this Court’s

holding in MTM, Inc. v. Baxley, 420 U.S. 799 (1975), mani-

fests a profound misconcepticn about what the Court below

actually did. While there is no doubt that Judge Neaher

believed that ‘‘prevailing standards of federalism’’ made

abstention appropriate here (4a, 33a)*, that fact must be

the beginning and not the end of inquiry.

For one thing, Judge Neaher’s statements are contained

in his opinion and not in the judgment of the Court. But

it is the judgment which provides the yardstick by which

to measure appealability, and whether or not an appeal lies

herein under 28 U.S.C. §1253 depends not so much upon

what Judge Neaher said, but upon what he and his breth-

ren actually did. Judge Neaher’s expressed preference

for abstention is, mcreover, not only inconsistent with, but

completely overshadowed by, his extensive discussion and

resolution of the merits of Appellant’s constitutional claim.

It is respectfully submitted, therefore, that a reading

of the three opinions and the judgment below compel the

conclusion that the resolution of this case below necessarily

‘*. .. rest{ed] upon the merits of the constitutional claim

presented .. .’’, MTM, supra, at 804, for the following

reasons :

* All references are to appendices annexed to Appellant Gerzof's

Jurisdictional Statement.

3

1. Fully 24% of the 31% printed pages comprising

the text of Judge Neaher’s opinion were devoted to the

factual background and the merits of Appellant’s consti-

tutional claims. In the cotrse of those 2444 pages Judge

Neaher examined, in great detail, the merits of those claims

and rejected them. Thus, while he may have resolved the

merits against Appellant, the fact remains that he resolved

them, and that only after resolving them did he discuss the

applicability of the abstention doctrine (27a-33a).

Nor is there any doubt that Judge Mvore’s dismissal was

on the merits (34a). In fact, the point of his separate con-

currence seem: to have been to insure that the majority

opinion would not be misinterpreted in the light of M7M

to foreclose this appeal since he believed that this case

presented a:

‘* . . constitutional question . . . of sufficient im-

portance to be resolved by our highest court... .’’.

[Emphasis added] (43a).

Judge Weinstein’s dissenting opinion clearly reached

the merits and resolved them in Appellant’s favor (38a-

106a) and, thus, two of the three members of the Court

below clearly based their opinion upon the merits. While

Judge Neaher may have desired to abstain, a close reading

of his opinion establishes that he did not do so.

2. The judgment entered by the Court below is couched

in the standard language of dismissal on the merits— ‘‘.. .

that the plaintiff take nothing of the defendants and

that the complaints are dismissed’’ (108a). It contains,

therefore, no language of abstention, nor any other sug-

4

gestion that the dismissal was not on the merits. Cf. 3

Bender’s Federal Practice Forms No. 3224, p. 399; esp.

fn. 3: (‘*The judgment should clearly state the ground

for dismissal in order to avoid any future question as to

its effect ...’’ at p. 408.)

3. The Court below unanimously agreed that ‘‘. . . seri-

ous procedural and substantive issues .. .’’ were presented

by this case (33a), and, therefore, unanimously agreed to

continue the stay of disciplinary action against Appellant.

But Judge Neaher’s action in continuing the stay was so

clearly inconsistent with abstention, as he himself recog-

nized,* as to establish that no matter what he might have

‘* . . believe[d] these cases call for .. .’’ (33a), that what

he actually did was dismiss on the constitutional merits.

Appellees correctly note that Appellant Gerzof filed a

protective appeal to the United States Court of Appeals

for the Second Circuit. However, they are apparently un-

aware that on January 15, 1976 that appeal was dismissed

for failure to comply with the Court’s Civil Appeals Man-

agement Plan. Accordingly, it is respectfully requested

that, if this Court determines that the requisite jurisdiction

is not present here, that it remand the case to the Court

below with instructions to enter a fresh judgment so that

a timely appeal may be prosecuted to the Court of Appeals.

MTM, supra, at 804.

** _ . [I]ssuing a stay of a final judgment of a State court is at

least a significant intrusion into state matters as enjoining prosecution

of disciplinary proceedings prior to judgment” (28a).

Conclusion

No matter what Judge Neaher said, what the Court be-

low did was to reach and dismiss the merits of Appellant’s

constitutional claim. This Court, therefore, has appellate

jurisdiction under 28 U.S.C. §1253. For all the reasons

stated in Appellant’s Jurisdictional Statement, the con-

stitutional questions raised are substantial and, therefore,

this Court should note probable jurisdiction and set this

case down for a plenary hearing, or, in the alternative,

summarily reverse the decision below.

Dated: New York, New York

February 19, 1976

Respectfully submitted,

AnceLvo T. Cometa

Attorney for Plaintiff-Appellant

40 West 57th Street

New York, New York 10019

Of Counsel:

Puuuips, Nizer, Benzamin, Karim & Bation

Kennets Davin Burrows