Petition — American Civil Liberties Union v. Bozardt

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

Supreme Court, U. 8.

FILED

AUG 26 196

MICHAEL RODAK, JR_CLERK

STATES

IN THE

SUPREME COURT OF THE UNI

OCTOBER TERM, 1976

No. 76-290

AMERICAN CIVIL LIBERTIES UNION AND JANE KOE,

Petitioners,

versus

O. HARRY BOZARDT, JR., H. HAYNE CRUM, JOSEPH

O. ROGERS, JR., MARION H. KINON, EDWARD M.

ROYALL, II, GEORGE F. COLEMAN, ROBERT A.

HAMMETT, THOMAS J. THOMPSON, COMING B. GIBBS,

JR., LOWELL W. ROSS, FRANK E. HARRISON, J.

MALCOLM McLENDON, C. THOMAS WYCHE, WILLIAM

L. BETHEA, JOHN B. MCCUTCHEON, MELVIN B.

McKEOWN, JR., individually and as members of

the Board of Commissioners on Grievances and

Discipline, and their successors; and THE

ATTORNEY GENERAL OF SOUTH CAROLINA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Melvin L. Wulf Ray P. McClain

22 E. 40th Street : P.O. Box 608

New York, N.Y. 10016 Charleston, S.C. 29402

Laughlin McDonald

Neil Bradley

52 Fairlie Street, N.W.

Atlanta, Georgia 30303

COUNSEL FOR PETITIONERS

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTION

AND OTHER PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

lal ,

I. The doctrine a comity does

not

require that federal courts

defer, for the enforcement of

federal constitutional rights,

to administrative bar disci-

plinary proceedings concerning

non-criminal conduct that is

alleged to te "unethical."

The court below decided

an important question of

federal practice by an

unprecedented and unwar-

ranted extension of the

application of the doctrine

of comity.

This Court should grant

the writ of certiorari to

resolve a conflict among

the circuits as to the ap-

plicability of the doctrine

of comity to administrative

Gisciplinary proceedings

for non-criminal conduct.

Il.

III,

APPENDIX

The decision below is in

conflict with prior decisions

of this Court concerning

standing to seek declaratory

relief on behalf of an organi-

zation, reagardless of proceed-

ings pending against others.

The decision below is directly

in conflict with decisions of

this Court defining exceptions

to the bar to the exercise of

federal jurisdiction imposed

by the doctrine of comity.

CONCLUSION

Opinion of the Court of Appeals

for the Fourth Circuit dated

March 8, 1976

Order of the Court of Appeals for

the Fourth Circuit denying rehear-

ing, dated April 30, 1976

Order of the United States Dis-

trict Court for the District of

South Carolina dismissing origi-

nal complaint, dated December 23,

1974

Order of the United States Dis-

trict Court for the District of

South Carolina denying amending

or altering of its December 23,

1974 order and denying retention

of jurisdiction, dated January 24,

1976

Constitutional and Other Pro-

visions Involved

18a

27a

48a

5la

iii

TABLE OF CITATIONS

Cases: Page

Allee v. Medrano,

416 U.8. B02 (1974) .cccccccccccccscceceedd

Alyeska Pipeline Service Co. v. The

Wilderness Society,

421 U.S. 240 (1975) .cccccccccccccsccsece 8

Anonymous v. Association of the Bar

of the City of New York,

515 F.2d 427 (2d Cir. 1975)........15, 16

Baggett v. Bullitt,

377 U.S. 360 (1964) ..cccccccccccccccecscte

Brotherhood of Railroad Trainmen v.

Virginia,

377 U.B. 1 (1964) cccccccccccccccsccccsead

Brown v. Board of Education,

347 U.B. 4863 (1954) .cccccccsccccccccsese 9

Burns v. Clayton,

236 S.C. 316, 117 S.E.2d 300 (1960)....12

Burrell v. McCray,

U.S. , 96 S.Ct. 2640 (1976).......14

Conley v. Gibson,

355 U.S. 41 DE 66666 6606666006066000008

Cooper v. Pate,

378 U.6. S46 (1964) .cccccccccccccccsesede

Damico v. California,

389 U.S. 416 (1967) ..ccccccccccccccccesl4

Doe v. Pierce,

C.A. BO. 74-47S (D.B.Ce)cccccececcccsces F

Dombrowski v. Pfister,

380 U.S. 479 (1965) .cccccccccccccectd, 21

Doran v. Salem Inn, Inc.,

422 U.B. 922 (1975S) .cccccccccecdO, 11, 20

Erdmann v. Stevens,

458 F.2d 1205 (2d Cir. 1972)...12, 14, 16

Gardner v. Toilet Goods Association,

384 U.S. 167 (1967) .ccccccccccccesceseedd

Geiger v. Jenkins,

401 U.8. 95 (1971) .cccccccccccccecsccccedss

Giaccio v. Pennsylvania,

382 U.S. 399 (1966) .cccccccccccccccseceee

Gibson v. Berryhill,

411 C.8. 564 (1973) .cccccccecceedO, LL, 14

Gooding v. Wilson,

405 U.S. S518 (1972) .ccccccccccccccccceete

Hernandez v. Danaher,

405 F.Supp. 757 (N.D.I11. 1975)........11

Hicks v. Miranda,

422 U.S. 332 (1975) .cccccccccccccsccccsedsl

Houghton v. Shafer,

392 U.S. 639 (1968) .ccccccccccccccccceed4

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975)........10, 12, 20, 21

Hynes v. Mayor of Oradell,

U.S. » 96 B.CE. LTS. cccccccccvesesse

Jenkins Vv. McKeithan,

395 U.S. 411 (1969) .ccccccccccsccccsceetd

Juidice v. Vail, . |

__ F.Supp. (S.D.N.Y. 1976), cert.

ranted, 44 U.S.L.W. 3734 (U.S. June

~ BUTS) CD. T9-1907) ccccvscsvcesesesean

In re Kennedy,

254 S.C. 463, 176 S.E.2d 125 (1970)....12

King v. Smith,

392 U.S. 309 (1968) ..cccccccccccccscccccad

Kugler v. Helfant,

421 U.S. 117 (1975) -cccccccccccccsccccesd

Lewis v. Kugler,

446 F.2d 1343 (3d Cir. 1971)...........19

Lewis v. New Orleans,

415 U.S. 130 (1974) .ccccccccccccccccces 22

McNeese v. Board of Education,

373 U.S. 668 (1963) .cccccccccsccccsecces’

NAACP v. Button,

371 U.S. 415 (1963)..... TTTTITITT

Polk v. State Bar of Texas,

480 F.2e 998 (Sth Cir. 1973) .....e2222215

Roe v. Wade,

410 U.S. 113 (1973) -ccccccccsessceseseesan

Steffel v. Thompson,

415 U.S. 452 (1974). .cccccccesel0, 16, 19

Taylor v. Kentucky State Bar

Association,

424 F.2d 478 (6th Cir. 1970)....eeee0--15

Thoms v. Heffernan,

473 F.2d 478 (2d Cir. 1973)......2022--19

Trainor v. Hernandez,

44 U.S.L.W. 3702 (U.S. June 7,

1976) (NO. 75-1407) ..ccccsseccccccccccecil

United Mine Workers v. Illinois

Bar Association,

389 U.S. 217 (1967) ..cccccccccccccccveeld

United States v. Mississippi,

380 U.S. 128 (1965) ...cccccccccccccveeetdd

United Transportation Union v. Michigan,

401 U.S. 576 (1971) .cccccccccccscccccceeldd

Younger v. Harris,

401 U.S. 37 (1971) ....ceceeee ove passim

Constitutional Provisions:

DipamGimam® OROciccccccsccccceeccesecsooos @

Amendment Fourteen, §1l....-eeeeeeeeseee 3

Statutes:

Rule 59, Federal Rules of Civil

DORR ccncuds éococececcoccooscoese &

SO CO. . GRREEED oc cccecceccsccoecsoecss &

er ee | RPT TeTTTITT TIT TT ttt...

28 U.S.C. SSL33B, LEAS. ccccccccccccccsccee FS

GB O.B Mic BB ccsccccsccccccccecceaese

GB WcB Gc BGGBcccccccwccoccccsescceecsoes F

Other Authorities:

American Bar Association, Code of

Professional Responsibility, Dis-

ciplinary Rule DaLOD(ID) ccccecececececess 8

New York Times, July 22, 1973, p. 30..... 5

Stern and Gressman, Supreme Court

Practice (4th ed. CLE §§3.20, 3.24..13

Supreme Court of South Carolina, Rule

on Disciplinary Procedure §4........3, 12

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals

for the Fourth Circuit entered in the

above-styled case.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fourth Circuit

is reported at F.2d and is

appended hereto at la. The denial of the

petition for rehearing and suggestion for

rehearing en banc is appended hereto at

‘18a. The statement of Judge Winter, joined

by Cudges Craven and Butzner, dissenting

from the denial of rehearing en banc, is

appended hereto at 20a. The opinion of the

United States District Court for the District

of South Carolina is unreported and is

appended hereto at 27a. The opinion of the

district court denying a motion to alter or

amend judgment pursuant to Rule 59 of the

Federal Rules of Civil Procedure is also

unreported and is appended hereto at 48a.

JURISDICTION

The opinion of the United States Court

of Appeals for the Fourth Circuit was

entered on March 8, 1976. The time was ex-

tended for filing a petition for rehearing

and suggestion for rehearing en banc, which

was then filed, and the order denying such

petition was filed on April 30, 1976. Byade

of July 23, 1976, the circuit justice extended

the time for filing this petition to

‘August 26, 1976. This court has jurisdic-

tion to review the judgment below under

28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether administrative bar disci-

plinary proceedings for non-criminal

conduct alleged to be "unethical solicita-

tion" are to be given the same deference

under the doctrine of comity as state court

proceedings for the enforcement of the

policies of state criminal laws?

2. Whether bar disciplinary proceedings

against one member of a private, non-profit

legal service organization forecloses,

under the doctrine of Younger v. Harris,

the organization from seeking declaratory

relief on behalf of the organization and

its members against whom no state pro-

ceedings of any kind are pending?

3. Whether a complairt that alleges

that state administrative proceedings were

(1) instituted in bad faith, (2) instituted

with a desire to harass and retaliate

against the plaintiffs for engaging in con-

stitutionally protected activity, and (3)

instituted pursuant to a statute flagrantly

and patently violative of express constitu-

tional prohibitions against vagueness and

overbreadth, was subject to dismissal under

the doctrine of comity because it did not

also allege that there was no "reasonable

prospect" that the state court would

correctly apply federal constitutional

principles?

CONSTITUTION AND OTHER

PROVISIONS INVOLVED

The constitutional provisions and

other provisions of law involved in this

case are set forth in full in the Appendix,

p. Sla et seq., as follows:

United States Constitution,

Amendment One

United States Constitution,

Amendment Fourteen, §1

United States Code, Title 42,

§ 1983

Supreme Court of South Carolina,

Rule on Disciplinary Procedure, § 4

American Bar Association, Code of

Professional Responsibility, Disci-

plinary Rule 2-103(D)

STATEMENT OF THE CASE

Petitioners, the American Civil

Liberties Union and Jane Koe [a fictitious

nare for a black woman attorney who was an

officer of the South Carolina affiliate of

the ACLU], brought this action in October,

1974, in the federal district court pur-

Suant to 42 U.S.C. §§ 1983 and 1988,

founding jurisdiction on 28 U.S.C. §§ 1331

and 1343. Petitioners sought injunctive

and declaratory relief from an adminis-

trative proceeding before the Board of

Commissioners on Grievances and Discipline

for the bar of the State of South Carolina,

in which Koe was charged with “soliciting”

a client for the ACLU. Petitioners alleged

that this disciplinary proceeding had been

instituted in bad faith by the Office of

the Attorney General of South Carolina in

retaliation for a lawsuit brought by the

ACLU. That lawsuit attacked sterilizations

performed by private physicians, allegedly

by coercion, of minority women receiving

federal and state Medicaid benefits. In

that action the Attorney General represented

Welfare officials who allegedly approved

the practice of coercing sterilizations

to be performed on Medicaid patients. This

action also challenged the disciplinary

proceeding as being pursuant to a vague

and overbroad statute. The district court

held that the action should be dismissed,

both as to the subject of the Board pro-

ceedings, Ms. Koe, and as to the ACLU,

which was not and could not be a party to

the Board proceedings. The court of appeals,

adopting the reasoning of the district

court, affirmed the dismissal. 17a.

Judge Winter, joined by Judges Craven

and Butzner in dissenting from the denial

of rehearing en banc, found that the prin-

ciples of Younger Harris had been im-

properly app y the district court and

by the panel, 20a-2la, 23a:

{[H]ere there is pending a

state administrative pro-

ceeding, the object of which

is to determine if the indi-

vidual plaintiff should be

subjected to disciplinary

action, not criminal sanctions,

for alleged misconduct as a

member of the bar.

x exer

Although the district court

ought not to enjoin the ad-

ministrative proceedings

In July, 1973, [M.W.] met

unless the plaintiffs' with a number of individuals

right to relief is free ; including [Jane Koe] at a

from doubt, I see no meeting held at the office

basis on which to say of Mr. Gary Allen. Mr. Allen

that federal jurisdiction had seen her prior thereto and

is ousted because the pro- informed her that the meeting

ceeding is criminal or was for the purposes of dis-

quasi-criminal in nature. cussing sterilizations per-

(Emphasis in original.) formed by physicians in Aiken

County and remedies available

Judge Winter also noted that the ACLU to women who had been steri-

clearly had a legitimate standing in the lized, including suits for

case, 24a-25a: damages against the doctors

involved. Desiring to learn

The impact of the state pro- more about her legal richts

ceedings on the willingness and remedies, if any, she

of lawyers to volunteer and attended the meeting and while

cooperate with ACLU in pro- there met [Jane Koe] for the

viding legal assistance to first time.

those whose constitutional

rights have been violated is At that meeting or during

manifest. The services of conversations after that

ACLU--assisting lay persons meeting, [Jane Koe] explained

to recognize their legal rights to her what her rights and

and making counsel available-- remedies were as far as her

are the very services for sterilization was concerned,

which the individual plaintiff and informed her of her right

is sought to be disciplined to bring an action for in-

and they are constitutionally junctive relief and damages.

protected activities. [Jane Koe] did not, however,

attempt to persuade or pressure

In 1973, national attention was drawn her to file a law suit or

to the plight of women in Aiken County, offer to represent her for

South Carolina, by a pregnant mother who a fee or otherwise.

was temporarily on welfare. Every obstetri-

cian in Aiken County required that she Fccording to petitioners' complaint in this

submit to sterilization after her delivery federal action, Gary Allen then contacted

in order to receive care as a Medicaid Jane Koe and asked that the ACLU represent

patient. New York Times, July 22, 1973, Mrs. M.W. Jane Koe then wrote Mrs. M.W.,

p. 30. According to an affidavit filed in in response to this request, that the ACLU

this action signed by another mother would like to represent her in connection

[Mrs. "M.W."], who was allegedly "solicited" with her sterilization. At the instance

by ee Koe, the following subsequently of the attorney for the defendant physician,

occurred:

Mrs. M.W. decided not to proceed with the

litigation.

Two other black women who had been

sterilized, or threatened with steriliza-

tion, did file a damage suit, against

M.W.'s physician and Welfare Department

officials, through lawyers associated

with the ACLU. Doe v. Pierce, Civil Action

No. 74-475 (District of South Carolina) .1

As further set forth in the complaint and

other papers filed in the district court,

attorneys in the office of the Attorney

General of South Carolina, who were

responsible both for defending state

defendants in Doe v. Pierce and for pro-

secuting matters before the Grievance

Commissioners, obtained the letter from

Koe to M.W., but did not present it to the

Board on Grievances and Discipline until

several months later, after an unsuccessful

attempt to have Doe v. Pierce dismissed on

the basis of Ms. Koe’s letter to Mrs. M.W.

The complaint in this action specifically

alleged, as must be considered true at

this stage of the proceedings, that offi-

cials in the Office of the Attorney General

of South Carolina referred this matter to

the Board on Grievances and Discipline in

retaliation for the bringing of the sterili-

zation lawsuit.

I. Judgment for nominal damages was

awarded against the physician on behalf of

one woman who was prematurely discharged

from the hospital when she refused to con-

sent to sterilization after delivery. The

matter is presently on appeal.

In the context of the above alleged

events, the respondent Board of Commissioners,

on January 9, 1976, gave Ms. Koe a private

reprimand on the basis of a panel report

that relied upon the following rationale:?

The evidence is inconclusive

as to whether the Respondent

solicited Mrs. Williams on her

own behalf, but she did solicit

Mrs. Williams on behalf of the

ACLU, which would benefit

financially [by a possible award

of attorneys' fees] in the event

of successful prosecution of

the suit for money damaces.

x *«

[Koe] has, therefore, violated

DR 2-103 (D) (5) (a) by attempting

to solicit a client for a non-

profit organization which, as

its primary purpose, renders

legal services, where [Koe's]

association is a staff counsel

for the non-profit organization.

Disciplinary Rule 2-103 (D), by its terms,

solely prohibits an attorney from "knowingly

2. This Report was submitted to the

court of appeals, which declined to consider

it. 10a-lla, footnote.

3. It should be noted that the finan-

cial benefit potentially available to the

ACLU -- attorneys' fees awarded, in addition

to damages, by the federal court -- would be

available only in circumstances of egregious

misconduct by the defendants, since no fed-

eral statute authorized court-awarded attor-

neys' fees in such cases. Alyeska Pipeline

Service Co. v. The Wilderness Society, 421

U.S. 240 (1975).

assist[ing] a person or organization...to

promote the use of his services or those

of his partners or associates." Ms. Koe

never promoted the use of her own profes-

sional services, or those of her associates.

Indeed, the uncontradicted allegations of

the complaint establish that the offending

letter was written at the express request

of Gary Allen, whom Koe reasonably be-

lieved to be acting on behalf of Mrs. M.W.

Petitioner Koe has filed a petition

with the Supreme Court of South Carolina

for review of the reprimand, but, as the

majority below noted, she has no right by

statute or rule to such review. 12a. The

State Supreme Court has not yet acted upon

that petition.

REASONS FOR GRANTING THE WRIT

Ten years before this action was

commenced, this Court issued its opinion

in NAACP v. Button, 371 U.S. 415 (1963),

which announced unequivocally that this

Court would protect the rights of black

minority citizens to associate to "solicit"

persons to bring legal action for the re-

dress of unconstitutional racial segregation.

Petitioner Koe is a black woman attorney,

a native of a rural South Carolina County

adjacent to the community that spawned one

of the cases decided by this Court in Brown

v. Board of Education, 347 U.S. 483 (1554),

the lanamark desegregation decision. Viewed

in context, this case is simply NAACP v.

Button played over again, with the ACLU

undertaking the role of allegedly "solici-

ting" litigation on issues of public moment.

This Court should issue a writ of

certiorari to review the judgment below

because it is in conflict with prior

decisions of this Court, e.g., Huffman v.

Pursue, Ltd., 420 U.S. 592 (1975);

Steffet v. Thompson, 415 U.S. 452 (1974);

and NAACP v. Button, 371 U.S. 415 (1963).

In addition, the judgment below extended

the application of the doctrine of comity,

an important issue of federal practice,

in a manner unprecedented in the decisions

of this Court and in conflict with the

decisions of other courts of appeals.

I. The doctrine of comity does

not require that federal

courts defer, for the enforce-

ment of federal constitutional

rights, to administrative bar

disciplinary proceedings con-

cerning non-criminal conduct

that is alleged to be "un-

ethical."

A. The court below decided

an important question of

federal practice by an

unprecedented and un-

warranted extension of

the application of the

doctrine of comity.

Since the decision in Younger v. Harris,

401 U.S. 37 (1971), and its companion cases,

this Court has on many occasions discussed

the considerations of comity that have been

held to prohibit the exercise of federal

judicial power when state judicial pro-

ceedings are pending. Gibson v. Berryhill,

411 U.S. 564 (1973); Steffel v. Thompson,

415 U.S. 452 (1974); Allee v. Medrano, 416

U.S. 802 (1974); Huffman v. Pursue, Ltd.,

420 U.S. 592 (1979) Seaees v. Helfant,

421 U.S. 117 (1975); cks v. Miranda, 422

U.S. 332 (1975); Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975). cf. Hernandez v.

Danaher, 405 F.Supp. 757, prob. jurisdic-

tion noted sub. nom Trainor v. Hernandez,

7 U.S.L.W. 3702 (U.S. June 7, 1976) (No.

75-1407); Juidice v. Vail, F.Supp.

(S.D.N.Y. I976), cert. granted, 44 U.S.L.Ww.

3734 (U.S. June 2I, 572) Tho 77-1397). To

date, however, this Court has never suggested

that state administrative proceedings, in-

cluding disciplinary proceedings for profes-

sional misconduct were subject to the same con-

siderations of comity unless the alleged

misconduct was criminal or quasi-criminal

in nature. See the opinion of Mr. Justice

White for the Court in Gibson v. Berryhill,

supra, 411 U.S. at 576-77, discussing this

ourt's summary affirmance of Geiger v.

Jenkins, 401 U.S. 95 (1971), in reliance

upon Younger (revocation of a license to

practice medicine, where criminal proceedings

were pending at time of dismissal of federal

case). As the three dissenting judges noted

below, 2la, 23a:

What is at stake in the state

proceedings is the right of a

licensee to practice her pro-

fession; there is no claim

that, if the individual plain-

tiff did the things with which

she is charged, any criminal

statute of South Carolina was

infringed.

Although the district court

ought not to enjoin the ad-

ministrative proceeding unless

the plaintiffs' right to relief

is free from doubt, I see no

basis on which to say that

federal jurisdiction is ousted

because the proceeding is

criminal or quasi-criminal

in nature.

There is, in fact, wholly absent in this

case any effort by the State "to protect

the very interests which underlie its

criminal laws, and to obtain compliance

with precisely the standards which are

embodied in its criminal laws." Huffman

v. Pursue, Ltd., supra, 420 U.S. at 605.

The Supreme Court oF South Carolina itself

has always disclaimed any notion that

disciplinary proceedings in South Carolina

are criminal or even punitive. In re

Kennedy, 254 S.C. 463, 176 S.E.2d I25 (1970);

urns v. Clayton, 237 S.C. 316, 117 S.E.2d

. etitioner Koe was not charged

pursuant to Section 4(c) of the Rule on

Disciplinary Procedure, which imposes sanc-

tions for "commission of a crime involving

moral turpitude." Petitioner Koe was repri-

manded for violation of a Disciplinary Rule

that was not mentioned in any charge or

accusatory pleading until after her hearing;

can the State seriously contend that a

hearing using such procedures is entitled

to the deference due state criminal pro-

ceedings?

In the present case, the court of

appeals adopted the opinion of the district

court on the Younger issue. 3a-4a, 17a.

The district Soare did not analyze the

interests involved in the South Carolina

proceeding, but simply quoted at length

from Erdmann v. Stevens, 458 F.2d 1205

(2d Cir. I572). 35a-F3a. Apparently the

gist of the court's reliance on Erdmann,

as applied in South Carolina, was this,

42a-43a:

Undoubtedly because of

general recognition of the

advisability of permitting

state courts first to act

with respect to the delicate

relationship between them-

selves and their officers,

the traditional method of

obtaining adjudication of

federal constitutional

questions arising out of

such disciplinary proceedings

has been by way of the state

appellate court route to the

Supreme Court rather than by

direct federal intervention

at the initial stages.

458 F.2d at 1210.

This theory is not only totally lacking in

support in prior decisions of this Court,

it is also inapplicable to the factual

circumstance of this case. South Carolina

bar disciplinary procedure provides that a

private reprimand is administered by the

Board of Commissioners on Grievances and

Discipline, without any opportunity for

judicial hearing or any specified procedure

for review by the courts. Petitioner Koe

received a private reprimand on January 9,

1976. As the court of appeals noted,

"... the plain language of [the state

court rule] does not give Koe the right to

‘appeal’ the Board's finding to the South

Carolina Supreme Court." 12a. If the

state court does not have jurisdiction to

review the reprimand at petitioner Koe's

request, it is questionable whether the

reprimand, a decision of a state board, can

be reviewed by this Court on direct review

under 28 U.S.C. § 1257, or any other juris-

dictional statute. Stern & Gressman, Supreme

Court Practice (4th ed. 1969), §§ 3.20 : 24

, . .

Therefore, the crucial predicate of the

Erdmann decision -- the availability of

direct appellate review -- may be wholly

lacking in the factual circumstances of

the present case.

Therefore, the decision below, as

intimated by the court of appeals, 16a, was

effectively a holding that Petitioner Koe

must exhaust state administrative remedies

before bringing this suit pursuant to 42

U.S.C. § 1983. Any such requirement of

exhaustion of state remedies is directly

in conflict with numerous prior decisions

of this Court. Houghton v. Shafer, 392

U.S. 639 (1968); V. smith, 392 U.S.

309 (1968); Damico v. Ca ornia, 389 U.S.

416 (1967); McNeese v. Board of Education,

373 U.S. 668 (1563); see Gibson v. Berryhill,

411 U.S. 564, 581 (1973) (Marshall, J.,

concurring). Cf. also Burrell v. McCray, _

U.S. , 96 S.cty 2640 (1976). Even it

exhaustion of administrative remedies were

an appropriate requirement in this case,

cf. Gibson v. Berryhill, supra, 41l U.S.

at 574, the action of the courts below has

caused it to occur, so that there is pre-

sently no bar to consideration of the matter

in the district court.

B. This Court should grant

the writ of certiorari to

resolve a conflict among

the circuits as to the ap-

plicability of the doctrine

of comity to administrative

disciplinary proceedings

for non-criminal conduct.

The decision below accentuates a con-

flict among the circuit courts of appeals

as to the applicability of the doctrine of

Younger v. Harris, supra, and its progeny

to state bar disciplinary proceedings when

such proceedings have not been brought be-

fore a state court.

The court of appeals for the fifth

Circuit has held that:

---when a Grievance Committee,

by administrative action,

undertakes merely to upbraid

a local attorney for conduct

deemed to be violative of the

ethical standards of the pro-

fession, as provided in the

Canons of Ethics, it is not

in any sense acting in aid of

the enforcement of Texas'

criminal laws.

Polk v. State Bar of Texas,

: 9 t ir.

1973).

Polk was also a case involving a Board which

could administer a reprimand by administra-

tive action, or could bring the matter before

a state court for more severe discipline.

480 F.2d at 1001. The sixth circuit has

also held, in a pre-Younger case involving

a state procedure in Kentucky almost identi-

cal to that in South Carolina, that as long

as the proceedings were before the State Bar

Committee, and not yet referred to the state

courts, the proceedings were not due the

respect due to state judicial proceedings.

Taylor v. Kentucky State Bar Assn., 424 F.2d

77% 482 (6th Cir. 19570).

In contrast, the court of appeals below,

and the second circuit in Anonymous v.

Association of the Bar of the City of New

York, 515 F.2d 427 (2d Cir. 1575), have

applied Younger because of the "interest

of the state court in adjudicating the

continuing professional fitness and

character of its own officers...” 515 F.2d

at 432. However, the court below is the

only circuit court to apply Younger to

administrative board or committee proceedings

on an alleged technical violation of pro-

fessional ethics by conduct that was clearly

altruistic; the conduct at issue in Anon us

was allegedly criminal conduct for which the

attorney had been granted immunity from

criminal prosecution in order to obtain his

testimony before a state grand jury. (In

Erdmann v Stevens, supra, the second circuit

applied Younger to a non-criminal alleged

ethical violation that was being heard in

the state courts, not before a board or |

committee.)

II. The decision below is in con-

flict with prior decisions of

this Court concerning standing

to seek declaratory relief on

behalf of an organization,

regardless of proceedings pend-

ing against others.

The decision below is squarely in con-

flict with this Court's decision in Steffel

v. Thompson, 415 U.S. 452 (1974) and NAACP

Vv. Button, 371 U.S. 415 (1963), in denying

the Petitioner American Civil Liberties

Union the opportunity to litigate its claims

for declaratory relief from the policy set

out by the Board of Commissioners on Grie-

vances and Discipline, on behalf both of

the organization itself and of those of its

attorney members who have not been the sub-

ject of professional disciplinary proceedings.

In NAACP v. Button, supra, this Court

dealt squarely with the question of the

legal standing of an organization similar

to Petitioner ACLU to assert First Amend-

ment rights of association. The words of

this Court then are equally applicable now,

371 U.S. at 428:

-.--petitioner claims that the

[statute] infringes the right

of the NAACP and its members

and lawyers to associate for

the purpose of assisting per-

sons who seek legal redress

for infringements of their

constitutionally guaranteed

and other rights. We think

petitioner may assert this

right on its own behalf, be-

cause, though a corporation,

it is directly engaged in

those activities, claimed to

be constitutionally protected,

which the statute would curtail.

(Emphasis added.)

The court of appeals below entirely missed

the gist of this principle, stating, 6a-7a:

..ethe ACLU clearly has no in-

dependent standing to challenge

state disciplinary proceedings

Since no disciplinary proceedings

can be brought against the ACLU

itself.

However, the complaint in this action had

alleged the following independent interest

of the ACLU in the proceedings (paragraphs

12 and 13):

The ACLU has in the past and

intends in the future to educate

laypersons to recognize their

problems, to facilitate the

process of intelligent

selection of lawyers, and

to assist in making legal

services fully available.

x *«

[The disciplinary] com-

plaint has the effect of

-»e-Chilling and discouragin

the activities of the co A

and the giving of solicited

and unsolicited advice to

lay persons that they should

obtain counsel or take legal

action. (Emphasis added.)

What logic is there in holding that pro-

ceedings pending against one member of an

Organization deprives the organization and

all its members of an opportunity to seek

prompt relief in a federal forum? In

Dombrowski v. Pfister, 380 U.S. 479, 486

T1565), this Court noted that

"(tlhe threat of sanctions

may deter...almost as potently

as the actual application

of sanctions...." ...Because

of the sensitive nature of

constitutionally protected

expression, we have not re-

guired that all of those sub-

ject to overboard regulations

risk prosecution to test their

rights. For free expression--

of transcendent value to all

society, and not merely to

those exercising their rights--

might be the loser.

See also NAACP v. Button, supra, 371 U.S.

at 434-35. In the instant case, the effect

of the federal court's action in staying

its hand has been to deter ACLU attorneys

in South Carolina, for almost two years,

from offering to provide free representation

to uneducated laypersons who are ignorant

of their potential rights to judicial re-

lief. Such activity is clearly protected

under the First Amendment. NAACP v Button,

supra; United Transportation Union v.

Michigan, 401 U.S. ); United Mine

Workers v. Illinois Bar Association,

U.S. ; Brotherhood of Railroad

Traimmen v. Virginia, 377 U.S. 1 (1904). See

dissenting opinion below, 24a-25a.

The decision below is further in con-

flict with Steffel v. Thompson, supra,

In Steffel, the plaintiff, who had not

been arrested, and his co-plaintiff,

who had been prosecuted, had jointly en-

gaged in distributing anti-war literature.

The prosecution of the co-plaintiff, whose

federal suit was dismissed, was voluntarily

stayed pending the decision of Steffel's

federal action. The practical effect of

granting declaratory relief to Steffel was

clear and immediate: if the statute were

declared unconstitutionally applied to him,

his handbilling companion would undoubtedly

be freed from further prosecution. See also

Roe v. Wade, 410 U.S. 113, 125-27 (1573),

discussed in Steffel v. Thompson, supra,

415 U.S. at 471 n.15. In Steffel, this

Court also cited with approval two court

of appeals decisions in which state pro-

secutions were pending against certain

persons, yet class actions were held to be

maintainable on behalf of the class of

persons threatened with proceedings but

not presently subject to pending proceedings.

Thoms v. Heffernan, 473 F.2d 478 (2d Cir.

I973); Lewis v.Kugler, 446 F.2d 1343, 1349

(3d Cir. L571} See Steffel v. Thompson,

supra, 415 U.S. at 458 n.8. More recently,

this Court has recognized the same practi-

cal possibility in Doran v. Salem Inn, Inc.,

supra.

Indeed, a forum for Petitioner ACLU was

mandated by the fact that "no disciplinary

proceedings can be brought against the ACLU

itself." An affirmative lawsuit is the

only way in which the ACLU can assert its

organizational interests in the protected

activity of offering free, unsolicited repre-

sentation to laypersons.

III. The decision below is directly

in conflict with decisions of

this Court defining exceptions

to the bar to the exercise of

federal jurisdiction imposed

by the doctrine of comity.

The decision below is also in conflict

with the meaning attached to the irreparable

injury requirement stated in Younger v.

Harris, supra, as discussed in subsequent

cases, sack as Huffman v. Pursue, Ltd.,

supra. This Court has stated that even

where there are pending state proceedings,

entitled to respect under the doctrine of

comity relied upon in Younger, the doctrine

does

..-allow intervention in those

cases where the District Court

properly finds that the state

proceeding is motivated by a

desire to harass or is con-

ducted in bad faith or where

the challenged statute is

"flagrantly and patently viola-

tive of express constitutional

prohibitions...." (Emphasis

added.) Huffman v. Pursue, Ltd.,

supra, 420 U.S. at 6IT.

Thus, there are three separate exceptions

to Younger: (1) a prosecution for purposes

of harassment; (2) a prosecution conducted

in bad faith, "without any hope of ultimate

success, but only to discourage" constitu-

tionally protected activity, Dombrowski v.

Pfister, supra, 380 U.S. at 450; or (3) a

prosecution under a statute "flagrantly and

patently violative of express constitutional

prohibitions." Petitioners alleged all of

these exceptions to the doctrine of comity.

The district court's opinion, adopted on

these points by the court of appeals,

recognized that exceptions had been suffi-

ciently alleged, but held that irreparable

injury could not be shown unless there were

no "reasonable prospect that the state court

would respect and satisfactorily resolve

the constitutional issues raised." 4la.

This additional requirement flies directly

in the face of this Court's decision in

Huffman, decided in the interim between

the decision of the district court and the

decision of the court of appeals. In

Huffman, this Court expressly required that

state appellate processes be exhausted,

unless [the federal plaintiff] established

— ed intervention was justified under

ne o e exceptions recognized in Yo a

(Emphasis added.) 420 U.S. at 611. Indeed

the idea that proceedings have been brought.

without any hope of ultimate success"

contemplates that the appropriate state

judicial officers will properly guard the

federal plaintiff's rights, but this Court's

decisions have established that where such

prosecutorial bad faith is shown, the

federal plaintiff need not wait upon state

court proceedings for vindication. See

Opinion of Judge Winter below, 2la, footnote.

This Court has further recognized an

important exception to the Younger doctrine

in the class of statutes that are "flagrantly

and patently violative of express constitu-

tional prohibitions.” The doctrines of

vagueness and overbreadth are well developed

in the jurisprudence of this Court. Hynes

v. Mayor of Oradell, U.S. _» 96 S.Ct.

ae Tt STEY 7 Lewis v. New Orleans, 415 U.S.

130 (1974); Goods a8 Ss Wilson, 405 U.S. 518

(1972); Giaccio v. Pennsylvania, 382 U.S.

399 (1966); poegete v. Ballitt, tt, 377 U.S.

360 (1964); v. Button, supra. The

present proceeding was Tnitiater on a

complaint charging that Koe's conduct was

punishable as an "act ... OF «-- practice

which tends to pollute the administration

of justice or to bring the legal profession

or the courts into disrepute." Although

the Supreme Court Rule on which this com-

plaint was based was enacted almost twenty

years ago, it has never been authoritatively

construed by the South Carolina Supreme

Court in a manner to limit its application

to avoid punishment of protected activity.

In fact, the reprimand issued by the Board

of Commissioners reflects a total disregard

for the decisions of this Court, in pur-

porting to impose discipline for conduct

indistinguishable from that held protected

by this Court in NAACP v. Button, supra,

on behalf of an organization specifically

mentioned in Button as one whose activities

were protected. 371 U.S. at 440, n. 19.

7. The Board purported to find Koe's

conduct unprotected because an associate,

with whom she shares office expenses, re-

ceives compensation from the ACLU, and the

ACLU asks for attorneys fees in cases where

such may properly be awarded according to

law. But in NAACP v. Button, supra, the

Court's opinion extended to the protection

of staff attorneys of the NAACP and the

Defense Fund, 371 U.S. at 420-21, 429 n. Ale

(footnote continued to next page)

In the present case, the federal

plaintiffs are still waiting, almost two

years later, and the state procedures

have not yet brought the complaint before

any court. The chilling effect on the

ACLU and its associated attorneys continues

unabated. The petitioners sufficiently

alleged exceptions to the Younger doctrine

to justify relief. These allegations must

be accepted as true at this stage of the

litigation. Jenkins v. McKeithan, 395

U.S. 411, 421-22 (1565); Gardner v. Toilet

Goods Assn., 387 U.S. 167, 172 (1967);

United States v. Mississippi, 380 U.S. 128,

143 (1565); Cooper v. Pate, 378 U.S. 546

(1964); Conley v. Gibson, 355 U.S. 41

(1957). Therefore, it was patently erro-

neous for the district court to dismiss

this action in reliance upon Younger v.

Harris.

(footnote 4 continued from preceding page)

434-35, 438-44, although the record clearly

showed that they were compensated for their

professional efforts in "solicited" cases, ]

supra at 420, and the Supreme Court of

Appeals of Virginia had found the state to

be justified in preventing "fomenting and

soliciting legal business.... which they

channel to the enrichment of certain

lawyers employed by them." 371 U.S. at

426.

CONCLUSION

For the foregoing reasons the petition

for a writ of certiorari to the United

States Court of Appeals for the Fourth

Circuit should be granted.

Respectfully submitted,

RAY P. McCLAIN

P.O. Box 608

Charleston, S.C. 29402

LAUGHLIN McDONALD

NEIL BRADLEY

52 Fairlie St., N.W.

Atlanta, Georgia 30303

MELVIN L. WULF

22 East 40th Street

New York, New York 10016

COUNSEL FOR PETITIONERS

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1335

American Civil Liberties Union and Jane Koe,

Appellants,

versus

O. Harry Bozardt, Jr., H. Hayne Crum, Joseph

O. Rogers, Jr., Marion H. Kinon, Edward M.

Royall, II, George F. Coleman, Robert A.

Hammett, Thomas J. Thompson, Coming B. Gibbs,

Jr., Lowell W. Ross, Frank E. Harrison, J.

Malcolm McLendon, C. Thomas Wyche, William

L. Bethea, John B. McCutcheon, Melvin B.

McKeown, Jr., individually and as members of

the Board of Commissioners on Grievances and

Discipline, and their successors; and the

Attorney General of South Carolina,

Appellees.

Appeal from the United States District Court

for the District of South Carolina, Columbia

Division. Robert F. Chapman, District Judge.

Argued October 9, 1975. Decided Mar. 8, 1976.

Before BOREMAN and BRYAN, Senior Circuit Judges,

and FIELD, Circuit Judge

BOREMAN, Senior Circuit Judge:

One of the appellants, pursuing this

action under the fictitious name Jane Koe,

is an attorney licensed to practice law in

South Carolina who performs legal services

for the other appellant, the American Civil

Liberties Union (hereinafter the ACLU). Koe

and the ACLU seek federal equitable relief

blocking state disciplinary proceedings

initiated against Koe by the Board of Commis-

sioners on Grievances and Discipline of the

South Carolina Bar (hereinafter the Board).

They contend that the Board's investigation

of a complaint filed against Koe charging

her with professional misconduct violates

rights guaranteed by the first and fourteenth

amendments to the Constitution of the United

States and 42 U.S.C. §1983.

This action arose as a result of a

complaint filed with the Board charging that

Koe, by writing a letter to a prospective

client offering the legal services of the

ACLU, performed acts which constituted solici-

tation and violated the Canons of Ethics

adopted by the South Carolina Supreme Court.

Koe contends that since her services for the

ACLU are rendered without fee, she has not

violated the Canons of Ethics, and that the

investigation of the complaint by the Board

and the Attorney General of South Carolina

amounts to bad faith harassment intended to

discourage the activity of the ACLU. Koe

and the ACLU initiated this action in the

federal district court seeking declaratory

and injunctive relief preventing the Board

from prosecuting or otherwise processing

both the complaint filed against Koe and

similar future complaint which may be filed

against other ACLU attorneys. The Board

moved for dismissal of the action. The dis-

trict court, in a well reasoned opinion,

granted the Board's motion to dismiss on the

ground that federal relief was barred under

- 5a

state court in pending state criminal pro-

the principles set forth in Younger v. Harris, ceedings, see Younger, supra, or in certain

401 U.S. 37 (1971), as applied by the Second pending state civil proceedings, see Huffman

Circuit in Erdmann v. Stevens, 458 F.2d 1205 v. Pursue, Ltd., 420U.S. 592 (1975), principles

(2 Cir.), cert. denied, 409 U.S. 889 (1972). of comity and federalism require that the federal

On appeal, Koe and the ACLU contend that courts not be permitted to interfere in the on-

even if Younger i i

ger is a bar to the relief re- going state proceedings. The underlying consid-

quested, the di j

, strict court should have eration of the Younger rule is the recognition

abstained and retained jurisdiction rather

that any federal claim properly asserted in

than dismissing the federal complaint. We and rejected by the state court is subject

find no merit in this argument. Abstention | to review by the United States Supreme Court.

is generally held to be appropriate in cases | 420 U.S. at 605. Since the federal claim

in which both stat i

ate and federal questions will eventually be subject to consideration

arise, and it is recognized that an action | by the Supreme Court, abstention appears to

pending in state court will likely resolve have no application to cases in which Younger

state law questions which are dispositive | bars relief. In this regard, the Supreme

of . .

the federal claim. Harris County Comm'rs Court has stated that "[u]nlike those situa-

Court v. Moore, 420 U.S. 77 (1975). However, |

tions where a federal court merely abstains

the Younger bar to federal intervention in-

from decision on federal questions until

volves different consid i ; it i

sGerations; it is the resolution of underlying state issues...

recognized that when both state and federal Younger v. Harris contemplates the outright

questions are properly presented before a dismissal of the federal suit, and the pre-

sentation of all claims, both state and

federal, to the state courts." Gibson v.

Berryhill, 411 U.S. 564, 577 (1973). We are

not aware of any authority which suggests

that dismissal is inappropriate in cases in

which Younger bars federal intervention, and

the appellants have cited no cases which

Support such a position. Thus, we conclude

that dismissal was appropriate upon the

court's determination that Younger was a bar

to federal intervention.

The ACLU further contends that even if

dismissal of Koe's complaint was appropriate

under Younger, dismissal of the ACLU's com-

plaint was improper because there was no

state proceeding pending directly against it.

Although the district court opinion does not

assign specific reasons for dismissal as to

the ACLU, we conclude that the ACLU's com-

plaint was properly dismissed.

In the instant case, the ACLU clearly

has no independent standing to challenge

- teal he

state disciplinary proceedings since no dis-

ciplinary proceedings can be brought against

the ACLU itself. However, in Allee v. Medrano,

416 U.S. 802 (1974), the Court recognized

that a labor union has standing as a named

plaintiff to raise any claims that one of

its members would have standing to raise under

42 U.S.C. §1983, if the union was in a posi-

tion to suffer real injury derivatively when

there was infringement upon the first amend-

ment rights of its members. The ACLU contends

that under Allee it has derivative standing

in the instant case, but we find it un-

necessary to reach this question since, even

if the ACLU has standing, the relief sought

by the ACLU would be barred by Younger v.

Harris.

If the ACLU were found to have standing

to assert rights of its associated attorneys

derivatively, and this standing was asserted

only on the basis of the injury to Koe, it

is clear that the organization's action for

equitable relief would be subject to the

same restrictions as Koe's action, since its

rights would be derived entirely from Koe's

rights. The ACLU contends, however, that it

is also asserting rights of associated

attorneys other than Koe who have no state

proceedings pending against them, and are

not burdened by the Younger restrictions.

Since its other associated attorneys would

not be subject to the Younger restrictions

in a suit for federal equitable relief, the

ACLU claims that it should not be subject

to Younger. We reject this contention. The

Supreme Court has held that persons not

presently subjected to state proceedings may

seek declaratory relief with respect to

threatened prosecutions without meeting the

requirements of Younger. Steffel v. Thompson,

415 U.S. 452 (1974). In Steffel, however,

declaratory relief was sought by an indivi-

Gual; thus any federal equitable relief

~ eS eS rrs

* AY eS s

which he received would affect only sub-

sequent state proceedings initiated against

him. In the present case, because federal

equitable relief is sought by the ACLU on

behalf of its members, a grant of federal

relief would necessarily have an effect upon

all ACLU associates, including Koe. To

permit the ACLU to assert rights to those

associates not bound by the Younger restric-

tions in order to obtain federal equitable

relief which would necessarily benefit all

its associates would directly interfere

with the pending state proceedings, and have

the effect of circumventing the Younger

restrictions which bar Koe from seeking

direct federal relief. We conclude that

Allee and Steffel were not intended to be

interpreted so as to permit a litigant to

avoid Younger restrictions merely by jcining

his claim with claims of others asserting

a joint interest.

10a

After argument was heard on this appeal,

Koe and the ACLU moved this court to remand

their case to the district court, contending

that action taken by the Board terminated

the disciplinary proceedings against Koe and

removed the necessity for federal "abstention."

Because the district court did not “abstain,”

but rather dismissed the federal complaint on

ground that Younger barred relief, we view

this as a motion to remand on the ground that

the Board's action removed the Younger bar

to federal intervention.

In this motion to remand, Koe and the

ACLU allege that after this appeal was filed

the investigating panel recommended that Koe

be given a “private reprimand" which was ad-

ministered by the Board on January 9, 1976.2

I. At oral argument Koe's counsel ten-

dered documents to the court which he repre-

sented to be copies of the investigating

panel's confidential report and recommendation.

The Board's counsel objected and we ordered

these documents sealed and retained by the

clerk pending our determination of what action

[footnote continued to next page]

lla

They argue that because the administration

of the "private reprimand" has the effect of

ending the state disciplinary proceeding and

no “appeal” is provided to the state courts

from this "private reprimand,” the Younger

considerations of comity and federalism

which barred the district court from con-

sidering the case no longer exist. The

Board counters this argument by asserting

that because section 34 of the South Carolina

Supreme Court's Rule on Disciplinary Pro-

cedure recognizes that court's authority to

require certification to it of the record in

any disciplinary proceeding "for such action

as it deems proper," there has been no final

state determination in these disciplinary

Tfootnote 1 continued from preceding page]

should be taken with respect thereto. Having

concluded that the report could not affect

this decision, we direct that the seale” docu-

ments be returned to appellant's counsel.

l2a

proceedings. *

The Board argues further that

since Koe may still seek certification for

review from the state Supreme Court, she has

not exhausted her state remedies, and that

Younger continues to bar federal intervention.

We think that the plain language of

section 34 does not give Koe the right to

"appeal" the Board's finding to the South

Carolina Supreme Court. This recently adopted

section serves only to bolster earlier inter-

pretations by the South Carolina Supreme Court

holding that it has the ultimate responsibi-

lity to resolve all disciplinary proceedings.

We find section 34 entirely consistent with

prior judicial pronouncements of that court

2. Section 34 of the South Carolina Supreme

Court's Rule on Disciplinary Procedure, as

amended June 12, 1975, states:

Nothing in these rules shall be

construed to deprive the Supreme

Court of the authority to require

the certification to it of the re-

cord in any case, for such action

as it deems proper.

l3a

that

[the members of the Board are] com-

missioned and charged with the duty

of investigating alleged misconduct

on the part of their fellow members

of the bar of this State and of re-

porting to this court the proceedings

of their inquiry, and their findings

and recommendations; that the Board's

report is advisory only, this court

being in nowise bound to accept its

findings of fact or to concur in its

recommendations; amlupon this court

alone rests the duty and the grave

responsibility of adjudging, from the

record, whether or not professional

misconduct has been shown, and of

taking appropriate disciplinary

action thereabout.

Burns v. Clayton, 237 S.C. 316, 117 S.E.2d

300 (1960).

Koe's argument appears to be based upon

her interpretation of the provisions of

section 11 of the Rule on Disciplinary pro-

cedure, which states that, upon a finding

by the Board that the attorney is guilty of

misconduct, the Board may administer a

"private reprimand."? Since there is no

3. Section Il of the South Carolina Supreme

Court's Rule on Disciplinary Procedure, as

amended June 12, 1975, states, in pertinent

[footnote continued to next page]

l4a

provision in any other section of the South

Carolina Supreme Court's Rule on Disciplinary

Procedure under which one who is subjected to

a “private reprimand" may obtain a review by

Tfootnote 3 continued from preceding page]

part:

Upon consideration of the report of

the panel, and the showing made to the

Board, the Board of Commissioners may:

(a) Refer the matter back to the

panel for further hearing; or

(b) Order a further hearing before

the said Board of Commissioners;

port of the prior proceedings

before the panel.

Upon its final review, the Board of

Commissioners may either dismiss the

complaint or find that the respondent

is guilty of misconduct. If the Board

shall determine that a private reprimand

shall be administered, it shall ad-

minister such reprimand. If the com-

plaint is dismissed or if a private

reprimand is administered, the Secretary

of the Board of Commissioners shall

thereupon so notify the respondent, the

complainant, all counsel of record, and,

when deemed appropriate, and requested

in writing by the respondent, the local

Bar Association... .

i a

15a

that court, Koe contends that the Board's

administration of a "private reprimand” has

the effect of rendering final judgment on her

case. If section 1l is interpreted as Koe

urges, there appears to be an ambiguity

between it and section 34, which clearly

recognizes the power of the highest state

court to review the Board's findings in any

proceeding. We find, however, that the pro-

visions of the Rule may be read without con-

flict if the "findings" of the Board are

always considered advisory. Our reading of

both Burns, supra, and section 34 convinces

us that even a "private reprimand" administered

under section 11 is to be considered merely

advisory until sustained or acquiesced in by

the state Supreme Court. Thus, we conclude

that there is no final state determination

in any disciplinary proceeding until such

time as the South Carolina Supreme Court

indicates, expressly or by implication, that

the Board's findings will either be rejected

or permitted to stand.

l6a

Koe's state remedies are not exhausted

until such time as the disciplinary pro-

ceedings become final and, until her state

remedies are exhausted Younger v. Harris

bars both Koe and the ACLU from seeking

equitable relief. Huffman v. Pursue, Ltd.,

420 U.S. 592 (15975). In the present case,

a final state adjudication of the dis-

Ciplinary proceedings will not occur until

it can be demonstrated that the South Carolina

Supreme Court has either expressly decided

the question or acquiesced in the decision of

the Board.” Since Koe and the ACLU have shown

neither of the above, the motion to remand

is denied.

q. We do not reach the question in the present

case as to whether either Koe or the ACLU may

renew the action for federal equitable relief

if the Board's interpretation of the Canons

of Ethics is sustained by the state Supreme

Court. Thus, we express no opinion as to what

relief would be appropriate under those cir-

cumstances.

5. We suggest that if the South Carolina Supreme

Court should fail to certify Koe's case upon

its own motion as permitted by section 34, Koe

may obtain finality by requesting review

[footnote continued to next page]

17a

We affirm the holding of the district

court that Younger v. Harris bars federal

intervention in these state disciplinary pro-

ceedings, for the reasons stated in the

district court's opinion, ___ F.Supp. ____

(D.S.C. 1974), and as amplified herein.

Affirmed

[footnote 5 continued from preceding page]

by that court. If review is denied or no

action is taken within a reasonable period,

this would have the effect of affirming the

Board's findings.

ee eee

“ a

18a

UNITED STATES COURT OF APPEALS —

FOR THE FOURTH CIRCUIT

[Filed April

No. 75-1335 30, 1976]

American Civil Liberties

Union and Jane Koe,

Appellants,

versus

O. Harry Bozardt, Jr., H. Hayne

Drum, Joseph O. Rogers, Jr.,

Marion H. Kinon, Edward M. Royall, II,

George F. Coleman, Robert -. Fammett,

Thomas J. Thompson, Conning B. Gibhs, Jr.,

Lowell W. Ross, Frank E. Harrison, J.

Malcolm McLendon, C. Thomas Wyche,

William L. Bethea, John B. McCutcheon,

Melvin B. McKeown, Jr., individually

and as members of the Board cf Commis-

sioners on Grievances and Discipline,

and their successors; and the Attorney

General of South Carolina,

Appellees.

ORDER

Upon consideration of the petition for re-

hearing it is ORDERED, with the consent and

approval of Judge Bryan and Judge Field, that the

petition for rehearing be and the same hereby is

denied.

Upon consideration of the suggestion for a

rehearing in banc, a poll of the court having

been requested by a regular active member of

19a

the court, it was established that a majority

of the regular members of the court in active

service did not favor rehearing in banc,

NOW, THEREFORE, IT IS ORDERED that the

suggested rehearing in banc be and the same

hereby is denied.

For the court:

s/ Herbert S. Boreman

Senior United States

Circuit Judge.

20a

WINTER, Circuit Judge, dissenting:

I dissent from the denial of rehearing in

banc.

This is a classic case for such treatment.

It presents a question of exceptional importance,

Rule 35(a), F.R.A.P., and there is substantial

reason to conclude that the case is wrongly

decided.

The panel holds that the principles set

forth in Younger v. Harris, 401 U.S. 37 (1971),

and its progeny, oust federal jurisdiction of

an action under 42 U.S.C. § 1983 for declara-

tory and injunctive relief where there is

pending a state administrative proceeding,

the object of which is to determine if the

individual plaintiff should be subjected to

disciplinary action, not criminal sanctions,

for alleged misconduct as a member of the

2la

bar.* What is at stake in the state pro-

ceedings is the right of a licensee to

practice her profession; there is no claim

that, if the individual plaintiff did the

things with which she is charged, any crimi-

nal statute of South Carolina was infringed.

Under presently decided controlling

authorities, the outermost reach of the

Younger principle of federal non-intervention

was Huffman v. Pursue, Ltd., 420 U.S. 592

(1975), which held that a district court

should not exercise jurisdiction to determine

the constitutionality of a statute making a

ad At the outset, I express serious reserva-

tions that even if Younger applies, it would

support the result Foackes by the majority.

Younger appears to recognize that it is in-

applicable where a plaintiff shows "bad faith,

harassment, or any other unusual circumstance

that would call for equitable relief." 401

U.S. at 54. The complaint was dismissed not-

withstanding plaintiffs' allegations that the

disciplinary inquiry "was initiated against

plaintiff Koe in bad faith for purposes of,

and has the effect of, harassment and retalia-

tion and chilling and discouraging the

activities of ACLU and the giving of solicited

and unsolicited advice to lay persons that

they should obtain counsel or take legal

action."

a tet 1 ie BE en ey

ee en er

22a

movie theatre which shows obscene films a

nuisance and requiring its closing when

there was pending an earlier filed state

civil proceeding under the statute. Huffman

recognized federal civil injunctive relief

ought to be more conservatively granted

when the object of relief was a state officer

enforcing a state statute than in a case

between private litigants--a concept implicit

in Younger--but that Younger rested also

"upon the traditional reluctance of courts

of equity .. . to interfere with a criminal

prosecution.” 420 U.S. at 604. Thus, the

rationale articulated in Huffman was that

[W]e deal here with a state pro-

ceeding which in important respects

is more akin to a criminal prosecu-

tion than are most civil cases. The

State is a party to the Court of

Common Pleas proceeding, and the pro-

ceeding is both in aid of and closely

related to criminal statutes which

prohibit the dissemination of obscene

materials. Thus, an offense to the

State's interest in the nuisance _—

litigation is likely to be every bit

as great as it would be were this a

criminal proceeding ... while in

23a

this case the District Court's in-

junction has not directly disrupted

Ohio's criminal justice system, it

has disrupted that State's efforts

to protect the very interests which

underlie its criminal laws and to

obtain compliance with precisely

the standards which are embodied

in its criminal laws. 420 U.S. 604-05.

Huffman does not govern this case, and

Younger should not be applied here. Although

the district court ought not to enjoin the

administrative proceeding unless the plaintiffs'

right to relief is free from doubt, I see no

basis on which to say that federal jurisdic-

tion is ousted because the proceeding is

criminal or quasi-criminal in nature. I

ihink that the panel's decision flies in the

teeth of Mitchum v. Foster, 407 U.S. 225

(1972) (holding that an action under 42 U.S.C.

§ 1983 was an exception to the anti-injunction

Statute, 28 U.S.C. § 2283); Gibson v. Berry-

hill, 411 U.S. 564 (1973) (holding that a

federal court could enjoin a proceeding before

the Alabama Board of Optometry where, as here,

plaintiffs allege bias and harassment); and

24a

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

(holding that declaratory relief, such as

that prayed here, could be granted where

a state criminal prosecution was threatened

but not pending.) See also Taylor v.

Kentucky State Bar Assoc., 424 F.2d 478,

482 (6 Cir. 1970) (holding that bar dis-

ciplinary proceedings at the administrative

level are not “proceedings in a state court.")

II.

Only the individual plaintiff is the

subject of the state administrative inquiry;

the ACLU is not. Yet the latter has a sub-

stantial interest in the state proceedings.

The impact of the state proceedings on the

willingness of lawyers to volunteer and co-

operate with ACLU in providing legal assis-

tance to those whose constitutional rights

have been violated is manifest. The services

of ACLU--assisting lay persons to recognize

their legal rights and making counsel avail-

able-- are the very services for which the

25a

individual plaintiff is sought to be dis-

ciplined and they are constitutionally

protected activities. United Mine Workers

v. Illinois Bar Association, 389 U.S. 217

(1967); Brotherhood of Railroad Trainmen

v. Virginia, 377 U.S. 1 (1964); NAACP v.

Button, 371 U.S. 415 (1963). See In re

Ades, 6 F.S. 467, 475-76 (D. Md. 1934),

for a persuasive historical compilation by

a district judge, later a distinguished

member of this court.

It seems to me that under these cir-

cumstances Steffel holds that even if Younger

is a bar to jurisdiction over the claim of

the individual plaintiff, the claim of ACLU

can and should be litigated. See also

Doran v. Salem Inn, Inc., 422 U.S. 922, 931

(1975).

IIlI.

Thus, I would conclude that for these

several reasons the panel's decision is

incorrect. We should grant rehearing in

26a

banc and reach a different result.

Judge Craven and Judge Butzner authorize

me to say that they join in these vie.’s.

ite oe

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

American Civil Liberties

Union and Jane Koe,

Plaintiffs,

vs.

O. Harry Bozardt, Jr.,

H. Hayne Crum, Joseph O.

Rogers, Jr., Marion H.

Kinon, Edward M. Royall,

II, George F. Coleman,

Robert A. Hammett, Thomas

J. Thompson, Coming B.

Gibbs, Jr., Lowell W. Ross,

Frank E. Harrison, J.

Malcolm McLendon, C. Thomas

Wyche, William L. Bethea,

John B. McCutcheon, Melvin

B. McKeown, Jr., individually

and as members of the Board

of Commissioners on Grievances

and Discipline, and their

successors; and the Attorney

General of South Carolina,

Defendants.

me eee ee ee ee ee ee ee ee ee ee ee ee

Civil Action

No. 74-1703

ORDER

This action is brought by American Civil

Liberties Union, hereinafter referred to as

ACLU, and Jane Koe, hereinafter referred to

as Koe, who is a practicing attorney in Rich-

land County, South Carolina, and is using

the fictitious name of Jane Koe to protect

28a

her privacy and professional reputation.

The plaintiffs ask this Court to enjoin the

Attorney General of South Carolina and the

members of the Board of Commissioners on

Grievances and Discipline, hereafter referred

to as Board, who are appointed and elected

pursuant to the Rule for Disciplinary Pro-

cedure of the South Carolina Supreme Court.

The complaint also seeks costs, plus attorneys’

fees and a declaration by the Court that the

pending complaint against Koe before the

Board is in violation of her rights under

the First and Fourteenth Amendments to the

Constitution of the United States.

The defendants have moved to dismiss

the action on five separate grounds, but

Since the dismissal will be granted, it is

necessary to discuss only the grounds sup-

porting dismissal.

On October 10, 1974, Koe received a

nctice and a complaint from the secretary

29a

of the Board, which complaint alleges on

information and belief that Koe committed an

act of misconduct as an attorney by writing

a letter dated August 30, 1973, to an indivi-

dual in Aiken, South Carolina, which the

secretary of the Board considered to be a

solicitation in violation of the Canons of

Ethics. The complaint prays "that the Board

of Commissioners on Grievances and Dis-

cipline consider these allegations and make

such disposition as may be appropriate."

Koe contends that since she is associated

with the ACLU as a cooperating attorney, is

an officer of the South Carolina affiliate

of the ACLU and serves in both capacities

without fee or pay or any expectation thereof

and since she had no financial interest or

expectation of gain or reward in connection

with the correspondence or any representation

that may have been produced thereby, she is

not quilty of violating any of the Canons of

Ethics and the .action of the Board amounts

30a 3la

litigation and filed a damage action

through lawyers associated with the

ACLU, in Doe v. Pierce, Civ. No.

for the purposes of chilling and discouraging 74-475, D.S.C. Plaintiff Koe does

not represent any of the parties in

Doe v. Pierce, nor has she any direct

Involvement in that case.

to harassment, was taken in bad faith and

the activities of the ACLU and the giving

of solicited and unsolicited advice to lay

9. Upon information and belief,

attorneys representing some of the

defendants in Doe v. Pierce secured

persons that they should obtain legal counsel

or take legal action, when their rights are

being violated or threatened with violation.

The complaint alleges in part:

"7. Prior to August 30, 1973, plain-

tiff Koe was contacted by a Mr. Gary

Allen, of whom she had prior knowledge

and knew to be acting on behalf of a

Mrs. M.W. with apparent and actual

authority to so act. Fe requested

that plaintiff Koe or the ACLU under-

take to represent Mrs. M.W. in an

action against certain persons who

procured, performed, or authorized

her sterilization. In response to

such request, she wrote Mrs. M.W.

on August 30, 1973, stating the

willingness of the ACL! to under-

take to secure her representation.

8. Plaintiff Koe talked thereafter

with Mrs. M.W. on several occasions

about her proposed law suit. However,

Mrs. M.W. elected not to proceed with

litigation and plaintiff Koe's in-

volvement with her was terminated.

Other women residing in Aiken, South

Carolina, however, who had been

sterilized or threatened with steril-

ization, elected to proceed with

a copy of the August 3C, 1973,

letter from plaintiff Koe to Mrs.

M.W. and attempted to raise as a

defense in that suit that the action

was barred or rendered unlawful be-

cause of solicitation. On September

24, 1974, during the deposing of one

of the plaintiffs in Doe v. Pierce,

Honorable Sol Blatt, Jr., who had

knowledge of the August 30, 1973,

letter, permitted certain questions

to be propounded to that witness

involving her contacts with plain-

tiff Koe, but solely as to the issue

of the appropriateness of the suit

as a class action. The court ruled

that plaintiff Koe had not committed

solicitation as follows:

Judge Blatt: All right, now let

the record show that the other ques-

tion presented to the Court was the

question pertaining to this witness

as to how she came to meet or to

know [Jane Koe] and so this record

will be clear and recognize that the

Court may clear it some that this

question probably goes to the issue

of solicitation. This Court feels

in its posture of the American

Civil Liberties Union has a duty

32a

and an obligation under the manner

in which it operates to seek out

and help those who it feels are

not able to help themselves, either

their lack of knowledge or lack of

funds, the Court finds no fault

with the situation out of which

this suit arose with the attorneys

connected with the ACLU, in con-

tacting if that in fact did happen,

the plaintiffs but the Court feels

that the issue of contact or solici-

tation does go to the question of

validity or the appropriateness of

a class action. Because of that

and only because of that this Court

feels that it is an appropriate

question to ask this plaintiff."

Plaintiffs allege that the ahove mentioned

"ruling" of Judge Blatt involving the alleged

solicitation by plaintiff Koe was withheld

from the Board by the Attorney General of

South Carolina or his attorneys at the time

the complaint was initiated.

The letter from plaintiff Koe to Mrs.

contained the following paragraph:

"You will probably remember me from

talking with you at Mr. Allen's

office in July about the steriliza-

tion performed on you. The American

Civil Liberties Union would like to

file a lawsuit on your behalf for

money against the doctor who performed

33a

the operation. We will be coming

to Aiken in the near future and

would like to explain what is in-

volved so you can understand what

is going on."

The Board contends that this paragraph con-

stitutes a solicitation in violation of the

Canons of Ethics. This is the charge Koe

is called upon to answer before the Board.

The above letter was dated Aucust 30,

1973. The letterhead showed "Carolina

Community Law Firm" with a Columbia address.

The names of four attorneys were listed on

the letterhead and Koe signed the letter as

"Attorney-at-Law". Although the above

quoted paragraph mentions ACLU, there is no

indication in the letter that Koe is acting

on behalf of the ACLU, is an officer, em-

ployee, cooperating attorney or in any way

connected with ACLU.

The Supreme Court of South Carolina has

adopted a "Rule on Disciplinary Procedure"

pursuant to its authority to discipline,

suspend and disbar attorneys at law. The

34a

South Carolina Constitution Article V.,

Section 4 and South Carolina Code of Laws

(1962) §56-96.

The defendants, except the Attorney

General of South Carolina, are the duly ap-

pointed and acting members of the Poard of

Commissioners on Grievances and Discipline

appointed by the South Carolina Supreme

Court for the purpose of investigating and

making recommendations to the Court in dis-

Ciplinary actions as provided by the afore-

mentioned rule. The duties and responsibili-

ties of the Board have been expressed by

the Court in Burns v. Clayton, 237 S.C.

316, 177 SE 2d 300 (1960) as follows:

", . »« The Board of Commissioners

on Grievances and Discipline are

officers of this Court, commissioned

and charged with the duty of investi-

gating alleaed misconduct on the

part of their fellow members at

the Bar of this State and of re-

porting to this Court the proceedings

of their inquiry, and their findings

and recommendations .... The Board's

report is advisory only, this Court

being in no wise bound to accept

its recommendation; and upon this

35a

Court alone rests the duty and

the grave responsibility of ad-

judging, from the record, whether

or not professional misconduct

has been shown, and of taking

appropriate and disciplinary

action thereabout.”

The Rule on Disciplinary Procedure pro-

vides that unless a complaint filed with the

Board does not on its face state facts suf-

ficient to charge misconduct, the secretary

of the Board shall cause a copy of the

complaint together with a notice to be mailed

to the attorney charged. The attorney then

has 20 days within which to file an answer

to the complaint. After filing of the answer

a formal hearing is held upon reasonable

notice to the complainant and the attorney

before a panel of three commissioners ap-

pointed by the chairman of the Board. No

member of the panel may be a resident of the

judicial circuit in which the complaint

originated or the judicial circuit in which

the respondent resides. The rules also pro-

vide the chairman of the Board may request

36a

the Attorney General's office to handle

prosecution of a claim before the hearing

panel.

The attorney charged in the complaint

has the right to appear, be represented by

an attorney of his choosing, present wit-

nesses and evidence, testify himself, cross

examine the complaint and complainant wit-

nesses and due process is observed.

If the panel finds the attorney guilty

of misconduct warranting only private re-

primand, the panel administers such repri-

mand. However, if the panel finds misconduct

meriting public reprimand, indefinite suspen-

sion or permanent disbarment, the recommenda-

tion goes to the full Board which shall hear

the matter after cue notice to the parties

and the submission of briefs and the presenta-

tion of oral argument in opposition to the

recommendations of the panel. If the Board

concurs in the finding of misconduct and

the administering of discipline of more than

37a

private reprimand, the matter is then re-

ferred to the Supreme Court of South Carolina

and the respondent attorney is again given

the opportunity to be heard. Until the pro-

ceedings are filed in the Supreme Court they

are private, not open to the press or the

public, unless the respondent requests in

writing that they be made public.

Subsequent to receiving the notice and

complaint from the Board, Koe and the ACLU

filed the present action to enjoin the pro-

ceedings, and no further steps have been

taken by the Board awaiting the disposition

of the motion to dismiss the present suit.

In opposition to the defendant's motion

to dismiss, plaintiffs have filed a 35 page

brief, citing 154 different decisions,

together with 13 pages of attachments to the

brief. For all of this effort, plaintiffs

do not distinguish their suit from the

holding of the Second Circuit in Erdmann v.

Stevens, 458 F.2d 1205 (1972). Little or

38a

no effort was made by the plaintiff to advise

this Court of why it should not apply Frdmann,

and no suggestions have been made as to how

this Court can ignore it. The Erdmann case

is so similar in applicable law and its

reasoning is so sound and persuasive, that it

answers every question or position raised by

the plaintiff, except the rather weak argu-

ment of res judicata and collateral estoppel.

Erdmann was an attorney practicing in

New York and brought his suit to enjoin the

concuct of disciplinary proceedings against

him by members of the AppeJlate Division,

First Department, of the State ct New York.

The disciplinary proceedings arose out of

remarks made by the attorney in a magazine

article highly critical of the judges of the

New York courts. He asserted that the purpose

of the disciplinary proceeding was to dis-

courage and prevent his exercise of his first

amendment rights and that the same violated

his rights to equal protection and due

39a

process. These are the basic claims of Koe

and the ACLU in the present action.

Erdmann attempted to enjoin the judges

of the court after they had refused to accept

the recommendation of the Committee on

Grievances of the Association of the Bar of

the City of New York. The present plaintiffs

attempt to enjoin the proceedings even before

they are heard by the Board. In refusing the

injunction and dismissing the action the

Second Circuit wisely applied Younger v.

Harris, 401 U.S. 37 (1971), and this Court

must do the same.

It is rare to find a decision of another

court which is so helpful.

After finding it had jurisdiction in

the action, the Erdmann court stated at page

1208:

“The principal issue is whether, in

view of the policy expressed by the

Supreme Court recently in the sextet

of cases headed by Younger v. Harris,

401 U.S. 37, 91 S.ct. rte 27 L.Bd.2d

669 (1971), (footnote with names of

other five cases omitted) Erdmann's

40a

complaint and supporting papers

State facts entitling him to in-

junctive relief. In Younger.the

Supreme Court denied féderal in-

junctive relief against a pending

State criminal prosecution and

held that because of the strong

policy in favor of 'the notion of

"comity," that is a prover respect

for state functions' and the Con-

stitution's creation of a system

in which the sensitivity of both

State and federal courts must be

recognized and balanced, such inter-

vention should he permitted only

under extraordinary circumstances,

such as where the state proceedings

have been instituted or prosecuted

in bad faith or as part of a cam-

paign of harassment which, unless

restrained, would cause grave ard

irreparable injury without pro-

viding any reasonable prospect that

the state court would respect and

Satisfactorily resolve the constitu-

tional issues raised. See, e.g.

Dombrowski v. Pfister, 380 U.S.

, -Ct. III6, 14 t.Ed.2a 22

(1965). In thus reaffirming the

long-established policy against

federal intervention, see Stefanelli

v. Minard, 342 U.S. 117, 72 §.ct.

118, - Ed. 138 (1951); Clear

v. Bolger, 371 U.S. 392, 83°5.Ct.

385, 9 L.Ed.2a 390 (1963), it was

recognized that unless intervention

were severely restricted, alert

counsel would resort to federal

relief as a readily available means

of disrupting or subverting legiti-

mate state prosecutions in

which constitutional issues could

4la

be resolved by competent state

trial and appellate tribunals.

Although Koe alleges bad faith and harass-

ment in the complaint, this is not sufficient,

since under Younger, she must also show that

unless restrained the proceedings "would cause

grave and irreparable injury without pro-

viding any reasonable prospect that the state

court would respect and satisfactorily re-

solve the constitutional issues raised." In

discussing irreparable damage at page 1210,

Erdmann states:

"The A llate Division's institu-

tion of ieciphinncy proceedings

against him admittedly represents

the exercise of a function exclu-

sively vested in it and falls far

short of the Dombroski ~type om

campaign of harassment and ‘official

lawlessness' described by the Supreme

Court in Younger as the kind of

exceptional or extraordinary cir-

cumstances warranting federal inter-

vention. Furthermore, there is an

absence of any evidence of ir-

reparable gr A a type -

warranting relie er °

which euntves proof of Injury sub-

stantially in excess of that

normally considered sufficient

to invoke equitable relief. In

42a

noting that to justify federal re-

lief against a state prosecution

the injury must be ‘both great and

immediate,’ Justice Black there

stated:

"Certain types of injury, in

particular, the cost, anxiety,

and inconvenience of having to

defend against a single crimi-

nal prosecution, could

not by themselves be considered

“irreparable” in the special

legal sense of that term. In-

stead, the threat to the plain-

tiff's federally protected

rights must be one that cannot

be eliminated by his defense

against a single criminal pro-

secution.' (citation omitted).

The injury alleged here is no more than

that incidental to any single prosecu-

tion of a quasi-cririnal nature. There

is no reason to assume that Erdmann's

constitutional rights will not be pro-

tected by the Appellate Division,

Third Department, to which the dis-

ciplinary proceedings against him

have been transferred for eéjudication,

or, if further review becomes necessary,

by the New York Court of Appeals.

The competency of New York state

courts to decide questions arising

under the federal Constitution, by

which we are all governed, is beyond

question. In the unlikely event that

both of these state appellate courts

apply improper standards, Erdmann

could seek Supreme Court review by

petition for writ of certiorari. Un-

doubtedly because of general recogni-

tion of the advisability of permitting

43a

state courts first to act with re-

spect to the delicate relationship

between themselves and their of-

ficers, the traditional method of

obtaining adjudication of federal

constitutional questions arising

out of such disciplinary proceedings

has been by way of the state ap-

nellate court route to the Supreme

Court rather than by direct federal

intervention at the initial stages.

See, e.g., Schware v. Board of Bar

Examiners, 353 U.S. 232, 77 S.Ct.

752, 1 L.Ed.2d 796 (1957); Konigs-

berg v. State Bar of California,

I . . , e . 12a, Le be B4q

2d 810 (1957); Spevack v. Klein,

supra; Matter o ner v. Committee

on Character and Fitness, 373 U.S.

eee P L.Ed.2d 224

’

(1963)."

This Court cannot follow the plaintiffs’

contention that Judge Blatt in his comments

Guoted above from Doe v. Pierce, decided the

issue of solicitation in such a manner that

it has become res judicata or acts as a

collateral estoppel binding upon either the

Board or the Supreme Court of South Carolina.

The recepient [sic] of the letter from

Foe was net a party to that case. Plaintiff

45a

- Federal Judge. See Ginger v. Circuit Court

for County of Wayne, 372 F.2d 621 (6th Cir.

Koe did not represent any party [to sic] that ac- 1967), at page 625:

tion and was not directly involved therein. There "A Federal District Court has no

is no indication that she was questioned by

the attorneys or by Judge Blatt. Certainly

the Judge was not conducting a hearing as to

possible disciplinary actions at the time

he made his statement, which makes it clear

that he was allowing questions as to solici-

tation, solely because it might go to the

issue of the validity or appropriateness of

the class action.

A United States District Judge sitting

alone could not bind the South Carolina

Supreme Court on what disciplinary inquiry

it might make into the affairs of an attor-

ney admitted to practice in South Carolina

by the South Carolina Supreme Court, and

subject to the Canons of Ethics adopted by

that court. This is particularly true

where the issue of solicitation is raised

collaterally to the matter before the

original jurisdiction of a pro-

ceeding disbarring an attorney

from practice in state courts,

though in the state court pro-

ceeding the attorney may raise

questions based upon his rights

under the federal Constitution

for eventual review by the United

States Supreme Court under its

certiorari jurisdiction.”

The complaint alleges in paragraph 14:

"The Board has no authority to supervise or

discipline the conduct of attorneys in their

practice before the courts of the United

States." While it is possible, but rather

unlikely, an attorney could practice before

the federal courts after being disciplined,

suspended or disbarred by the State Supreme

Court. However, this does not mean an

attorney's actions in obtaining, preparing

or presenting cases in the tederal court are

exempt from the State Canons of Ethics, and

such actions are not shielded from the

46a

scrutiny, concern and control of the State

Supreme Court, which has the responsibility

for maintaining the high standards of the

legal profession and the integrity of the

Bar.

The relationship between the Court and

attorneys admitted to practice before it is

summarized by Justice Frankfurter in Theard

v. United States, 354 U.S. 278 (1957):

"The two judicial systems of courts,

the state judicatures and the federal

judiciary, have autonomous control

over the conduct of their officers,

among whom, in the present context,

lawyers are included. The court's

control over a lawyer's professional

life derives from his relation to

the responsibilities cf a court.

The matter was compendiously put by

M~. Justice Cardozo, while Chief

Judge of the New York Court of

Appeals.

'"Membership in the bar is a

privilege burdened with con-

ditions" (Matter of Rouss 221

N.Y. 81, 84, II6 N.E. 782, 783).

The appellant was received into

that ancient fellowship for

something more than private

gain. He became an officer of

the court, and, like the court

itself, an instrument or agency

to advance the ends of justice.'"

a —

47a

Koe was Originally admitted to the

practice of law by the Supreme Court of South

Carolina, and as a practicing attorney she

must maintain the high standards of the pro-

fession she has chosen. This United States

District Court will not now interfere with

the investigation by the Board, an arm of

that Supreme Court, as it determines whether

Koe has conducted her professional affairs

in keeping with the Canons of Ethics.

Since the complaint fails to state facts

entitling plaintiffs to federal intervention,

the same must be and is hereby dismissed.

AND IT IS SO ORDERED.

UNITED STATES DISTRICT

JUDGE.

December 23rd, 1974

Florence, South Carolina

48a

IN THE UNITED STATES CISTRICT COURT

FOF. THF DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION ;

[Filed January

American Civil Liberties 24, 197€]

Union and Jane Koe,

Civil Action

No. 74-1703

Plaintiffs,

vs.

ze)

O. Harry Rozardt, Jr., li. Hayne

Crum, Joseph 0. Rogers, Jr.,

“arion H. Kinon, Edward ™.

Rovall, II, George F. Coleman,

Robert A. Hammett, Thomas J.

Thompson, Coming B. Gibhs, Ur.,

Lowell "’. Ross, Frank E. Harrison,

J. Malcolm McLendon, C. Thomas

“yche, William L. Bethea, John

2. MeCutcheon, Melvin B. McKeown,

Tr., individually and as members

of the Roard of Commissioners

on Grievances and Discipline,

and their successors: and the

Attorney General of South Carolina,

ee ed

Defendants.

This matter is before the Court upon

motion of the plaintiffs under Rule 59(e),

Federal Rules of Civil Procedure, to alter

or amend the Order of December 24, 1974, dis-

missing this case. The present motion is

Supported by an affidavit and a memorandum

of autrorities.

49a

The plaintiffs contend that the affidavit

of M.W. surports their clair of had faith of

the defendants ance retaliation against the

plaintiff Jane Yoe in hringing the complaint

against her before the Commissioners on

Grievances and Discipline. The Court has re-

viewee the affidavit and finds nothing con-

tained therein which offers any support to

mlaintiffs' clain of had faith or retaliation

on the part of the defendants. ft aprears

that the present rotior, which does net set

out the svecifics of the alteration or amend-

ment desired is in effect a motion to reverse

the December 24, 1974 Order, but regardless

of its intent, it is not supported hy ary

net’ evidence or leaal authorities which woulé

cause any amendment or change to the prior

Oreer of the Court.

At a hearing before the Court on January

23, 1975, the plaintiffs also requested the

Court to retain jurisdiction of the matter

50a

until after the proceedings before the Poard

of Commissioners on Grievances and Discipline

had been completed. However, the Court finds

no useful purpose would be accomplished by

retaining jurisdiction. If the plaintiffs

wish to test their legal position at the

court of last resort, this can he accomplished

much more quickly by appeal from tre South

Carolina Supreme Court to the United States

Supreme Court than by going through this

court, the Court of Appeals and then the

Supreme Court.

IT IS, THEREFORE, ORDERED that the motion

to amend or alter the December 24, 1974 Order

of this court he and the same is hereby

denied and the motion for this court to re-

tain jurisdiction is also denied.

AMD IT IS SO ORDERED.

sf Robert F. chapman

E "

UNITLD STATES CISTRICT

JUDGE

January 23rd, 1975

Columbia, South Carolina

5la

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, Amendment One:

Congress shall make no law respecting

an establishment of religion, or pro-

hibiting the free exercise thereof; or

abridging the freedom of speech, or of the

press; or the right of the people peaceably

to assemble, and to petition the Government

for a redress of grievances.

UNITED STATES CONSTITUTION, Amendment

Fourteen:

Section 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of

the United States and of the State wherein

they reside. No State shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property, with-

out due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

United States Code, Title 42, Section 1983:

Every person who, under color of any

statute, ordinance, requlation, custom, or

usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities

secured by the Constitution and laws, shall

be liable to the party injured in an action

at law, suit in eauity, or other proper

proceedings for redress.

52a

Supreme Court of South Carolina, Rule

on Disciplinary Procedure, Section 4:

4. Misconduct Defined.

Misconduct, as the term is used herein,

means any one or more of the following:

(a) violation of any provision of the

oath of office taken uvon admission to the

practice of law in this State;

(b) violation of any of the Canons of

Professional Ethics as adopted by this

Court from time to time;

moral turpitude;

(d) conduct tending to pollute or ob-

struct the administration of justice or tc

bring the courts or the legal profession

into disrepute.

(e) emotional or mental stahility so un-

certain, as in the judgment of ordinary men,

would render a person incapable of exercising

such judgment and discretion as necessary

for the protection of the rights of others

and/or their property or interest in property.

American Bar Association, Code of Profes-

sional Responsibility, adopted by Supreme

Court of South Carolina, Disciplinary Rule

2-103(D):

DR 2-103 Recommendation of Professional

Employment.

(D) A lawyer shall not knowingly assist a

person or organization that recommends, fur-

nishes, or pays for legal services to promote

the use cf his services or those of his

partners or associates. However, he may co-

operate in a dignified manner with the legal

service activities of any of the following,

53a

provided that his independent professional

judgment is exercised in behalf of his

client without interference or control by

any Organization or other person:

(1) A legal aid office or public defender

office:

(a) Operated or sponsored by a duly ac-

credited law school.

(b) Operated or sponsored by a bona

fide non-profit community organization.

mental agency.

(ad) Operated, sponsored, or approved by

a bar association representative of the

general bar of the geographical area in

which the association exists.

(2) A military legal assistance office.

(3) A lawyer referral service operated,

sponsored, or approved by a bar association

representative of the general bar of the

geographical area in which the association

exists.

(4) A bar association representative of

the general bar of the geographical area in

which the association exists.

(5) Any other non-profit organization that

recommends, furnishes, or pays for legal

services to its members or beneficiaries,

but only in those instances and to the ex-

tent that controlling constitutional inter-

pretation at the time of the rendition of

the services requires the allowance of such

legal service activities, and only if the

following conditions, unless prohibited by

such interpretation, are met:

(a) The primary purposes of such organi-

zation do not include the rendition of legal

services.

54a

(b) The recommending, furnishing, or

payinc for legal services to its members

is incidental and reasonably related to

the orimary purposes cof such organization.

a financial benefit from the rendition of

legal services by the lawyer.

(ad) The member or beneficiary for whom

the legal services are rencered, and not

such organization, is recognized as the

client of the lawver in that matter.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.