Opposition — American Civil Liberties Union v. Bozardt

x Supreme Court, us

FILED

NOV |S 19%

Supreme Court of the United States... 1m, CLERR

Octroser Term, 1976

No. 76-290

AMERICAN CIVIL LIBERTIES UNION, et al.,

PETITIONERS,

versus

0. HARRY BOZARDT, JR., et al., Responpents

On Petition ror A Writ or CERTIORARI TO THE UNITED

States Court or APPEALS FOR THE FourtTH CIRcUIT

BRIEF OF RESPONDENT IN OPPOSITION

DANIEL R. MeLEOD,

Attorney General,

RICHARD B. KALE, JR.,

Assistant Attorney General,

A. CAMDEN LEWIS,

Assistant Attorney General,

Post Office Box 11549,

Columbia, South Carolina

29211,

Attorneys for Respondents.

The R. L. Bryan Company, Lega! Printers, Columbis, $. C

Pace

Opinions Below eer Ee

Jurisdiction 1

Constitutional and Other Provisions Involved 2

Questions Involved 2

Statement of the Case 2

Argument:

I. The Courts Below Did Not Misapply Decisions

Of This Court In Dismissing The Complaint

For Failure To State Facts Sufficient To En-

title The Parties To Federal Equitable Inter-

vention 6

Il. There Is No Conflict of Decisions —=15

Conclusion =k 16

Appendix ion

(i)

TABLE OF CITATION

Cases: Pace

Allee v. Medrano, 416 U. S. 802, 94 S. Ct. 2191, 40 L.

Ed. 566 (1974) 10, 11

Anonymous v. Association of the Bar of the City of New

York, 515 F. 2d 427 (2nd Cir. 1975), cert. denied, 423

U. S. 863, 96 S. Ct. 71, 46 L. Ed. 2d 92 (1975) passim

Burns v. Clayton, 236 S. C. 316, 117 S. E 2d 300

(1960) 8, 9, 11

Doe v Pierce, Civil Action No. 74-475 (D. 8. C.) 4, 5, 13

Dombrowski v. Pfister, 380 U. S. 479, 85 S. Ct. 1116, 14

L. Ed. 2d 22 (1965) 13

Doran v. Salem Inn, Ine., 422 U. S. 922, 95 S. Ct. 2561,

45 L. Ed. 2d 648 (1975) 12

Erdmann v. Stevens, 458 F. 2d 1205 (2nd Cir. 1972),

cert. denied, 409 U. S. 889, 93 S. Ct. menceumeaieer 2d

147 (1972) passim

Huffman v. Pursue, Ltd., 592 U. S. 420, 95 S. Ct. 1200,

43 L. Ed. 2d 482 (1975) 8

In re Ruffalo, 390 U. S. 544, 88 S. Ct. 1222, 20 L. Ed.

2d 117 (1968) 8

Lynch v. Snepp, 472 F. 2d 769 (4th Cir. 1973) 8

Massachusetts v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67

L. Ed. 1078 (1923) 10

Mildner v. Gulatto, 405 F. Supp. 182 (E. D. N. Y. 1975)

aff'd, 425 U. S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751

(1976) 6, 7, 15, 16

Niles v. Lowe, 407 F. Supp. 132 (D. Hawaii

1976) 13, 14, 16

O’Shea v. Littleton, 414 U. S. 488, 94 S. Ct. 669, 38 L.

Ed. 2d 674 (1974) 10

Polk v. State Bar of Texas, 480 F. 2d 998 -_ Cir.

1973) ..

( iii )

TABLE OF CITATION—(Continued)

Cases: Pace

Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L.

Ed. 2d 505 (1974) 12

Taylor v. State Bar of Texas, 424 F. 2d 478 (6th Cir.

1970) 16

Younger v. Harris, 401 U. S. 37, 91S. Ct. 746, 27 L. Ed.

2d 669 (1971) passim

Constitutional Provision:

Amendment 1 10, ll, 14

Amendment 14 10, 11

Statutes:

Rule 53, Federal Rules of Civil Procedure 7

South Carolina Supreme Court’s Rule on Disci-

plinary Procedure:

Rule 3 7

Rule 18 ‘

Rule 34 8, 9, 10

New York Judiciary Laws § 90(2) 7

Other Authorities:

ABA, Code of Professional Responsibility:

DR 1-102 (A) (5) 5, 14

DR 1-103 (A) 5

(iv)

Supreme Court of the United States

Ocroser Term, 1976

No. 76-290

AMERICAN CIVIL LIBERTIES UNION, et al.,

PETITIONERS,

versus

O. HARRY BOZARDT, JR., et al., Reseonpents

Own Peririon ror A Writ or CERTIORARI TO THE UNITED

Srares Court or APPEALS FOR THE FourtH CirRcUIT

BRIEF OF RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is reported at 539 F. 2d 340 (1976). The

opinions delivered in the courts below are fully set out in

the Appendix to the Petition.

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

2 ACLU, PETITIONER, v. Bozarpt, et al., RESPONDENTS

CONSTITUTIONAL AND OTHER PROVISIONS

INVOLVED

In addition to the provisions set forth in the Petition,

the entire Rule on Disciplinary Procedure of the South

Carolina Supreme Court is set out in the Appendix at la.

QUESTIONS INVOLVED

1. Whether the doctrines of equity, comity, and fed-

eralism expounded in Younger v. Harris apply to a state

court disciplinary proceeding?

2. Whether the American Civil Liberties Union can

seek federal equitable relief on behalf of its members, in-

cluding Petitioner Jane Koe, if such federal intervention

would directly interfere with a pending state proceeding

against Petitioner Koe?

3. Whether the District Court correctly dismissed the

petitioners’ Complaint for failure to state facts sufficient

to entitle them to federal intervention?

STATEMENT OF THE CASE

Petitioners, the American Civil Liberties Union and

Jane Koe, filed this action in the United States District

Court for the Distriet of South Carolina on October 31,

1974, seeking injunctive relief, a declaratory judgment, and

costs and attorney fees against the South Carolina Su-

preme Court’s Board of Commissioners on Grievances and

Discipline and the South Carolina Attorney General. The

District Court dismissed the Complaint on the ground that

petitioners had failed to state facts sufficient to entitle

them to federal intervention under the principles set forth

in Younger v. Harris, 401 U.S. 37, 91S. Ct. 746, 27 L. Ed.

2d 669 (1971), as applied in Erdmann v. Stevens, 458 F.

2d 1205 (2nd Cir., 1972), cert. denied, 409 U. S. 889, 93

S. Ct. 126, 34 L. Ed. 2d 148 (1972). [Appendix to Petition

27a.| A Motion to Alter or Amend was denied by the

ACLU, Peririoner, v. Bozarpt, et al., RESPONDENTS 3

District Court on January 23, 1975. [Appendix to Petition

at 48a.) The United States Court of Appeals for the

Fourth Cireuit affirmed the holding of the District Court.

{| Appendix to Petition at la.] A Petition for Rehearing

en banc was likewise denied | Appendix to Petition at 18a].

Petitioner Koe is an attorney licensed to practice law

in the State of South Carolina and, at the time of these

events, was engaged in private practice with the Carolina

Community Law Firm (the firm’s name was later changed).

Koe during this period also served as an officer and mem-

ber of the Board of Directors of the South Carolina Chap-

ter of the American Civil Liberties Union. In July, 1973,

Petitioner Koe met with several individual’s including a

Mrs. M. W. concerning the sterilizations performed on

women by private physicians in Aiken County. During

the meeting, Petitioner Koe advised Mrs. M. W. of her

legal rights and remedies in regard to her sterilization and

informed her of her right to bring an action for money

damages against the doctor. In talking with Mrs. M. W.,

Petitioner represented herself to be an attorney and in-

formed the group that the ACLU, also a petitioner herein,

was an organization that could bring this legal action on

behalf of these women. Mrs. M. W. adviged Petitioner

Koe that she would contact her, if she decided to bring

such an action. On August 30, 1973, without having been

contacted by Mrs. M. W. in any way during the interim,

Petitioner Koe wrote to Mrs. M. W. on the stationery of

her private law firm, Carolina Community Law Firm,

signing the letter as Attorney-at-Law. In her letter, Peti-

tioner Koe stated:

You will probably remember me from talking with you

at Mr. Allen’s office in July about the sterilization per-

formed on you. The American Civil Liberties Union

4 ACLU, PEriTIONER, v. BoZARpT, et al., RESPONDENTS

would like to file a law suit on your behalf for money

against the doctor who performed the operation.

* * *

About the lawsuit, if you are interested let me know,

and I’ll let you know when we will come down to talk

to vou about it.

Thereafter, Mrs. M. W. informed Petitioner Koe that she

had no intention of suing her doctor. ‘

On October 19, 1974, John W. Williams, Secretary of

The Board of Commissioners on Grievances and Discipline,

filed a Complaint against Petitioner alleging that Petitioner

Koe’s letter to Mrs. M. W. constituted solicitation in viola-

tion of the Code of Professional Responsibility. [Appen-

dix to Petition at 29a.) On October 31, 1974, the petitioners

filed their action in Distriet Court seeking to enjoin the

Board from hearing or otherwise processing the Complaint

against Petitioner Koe. The petitioners’ Complaint made

the bare allegation that the disciplinary action was ini-

tiated against Petitioner Koe in bad faith' for purposes of

harrassment because of a lawsuit brought by the ACLU®*.

They further allege that Rule 4(d) of the South Carolina

Supreme Court’s Rules on Disciplinary Procedure was

vague and overbroad in violation of the First and Four-

teenth Amendments to the United States Constitution. The

‘The petitioners’ complaint in this action did not allege any acts

of “bad faith” against the Board of Commissioners on Grievances and

Discipline, but only against the South Carolina Attorney General's

Office, a separate and distinct entity. (See, Petitioners’ Brief, page 7.)

The complainant in the grievance proceeding was John W. Williams, a

private attorney who serves as the Secretary of The Board of Commis-

sioners on Grievances and Discipline, but not as a Board member.

2On April 15, 1974, a civil action was filed by two black women

(not Mrs. M. W.), which was entitled Doe v. Pierce, Civil Action No.

74-475 (D. S. C.). The plaintiffs were represented by attorneys associated

with the ACLU. The South Carolina Attorney General's Office rep-

resented the State Commissioner and the Aiken County Director of the

Department of Social Services. The trial resulted in verdicts in favor

of both state defendants. A judgment for nominal damages was awarded

on behalf of one of the plaintiffs _ the private physician who was

represented by private counsel. No member of the Board of Commis-

sioners or its Secretary, Mr. Williams, represented any party or was

in any other way connected with Doe v. Pierce.

ACLU, Peririoner, v. Bozarpt, et al., RESPONDENTS 5

petitioners further alleged in their Complaint before the

District Court that the Board was collaterally estopped

beeause of the proceedings in Doe v. Pierce, or alterna-

tively that Doe v. Pierce was res judicata as to the issue

of solicitation, and that the Board had no authority to

supervise or discipline the eonduct of attorneys, when

such conduct oceurs in practicing before federal courts."

The Respondents make no statement in response to

Petitioners’ statement concerning any disciplinary proceed-

in’ or penel report in regard to Petitioner Koo.

On May 10, 1971, a hearing was held before the Honorable Sol R.

Blatt, United States District Court ‘Judge for the District of South

Carolina and the presiding judge in Doe v. Pieree, concerning the issue

of solicitation as it affected the appropriaiences of a class action. Per-

mission was granted to take the depositions of plaintiffs in order to

determine if similar letters had been sent out to other women. During

the course of this hearing, Judge Blatt made the following statements

in regard to proceeding for a possible ethical violation:

The Court: If I were to decide that it had no bearing on the

litigation itself, you may or may not want to bring the letter to the

attention of the appropriate authority that is set up to handle such

matters.

* * .

I think he [plaintiffs’ attorney] is correct, that solicitation has

nothing to do with the right of plainiffs to bring the suit. Then

solicitation would be an issue before the appropriate authorities

and not before the court. are

Active solicitation might subject the person soliciting to a criminal

procedure or it might subject them to disciplinary action by the

speespeume legal committee, but it has nothing to do with the case

itself.

Thereafter, depositions as ordered by Judge Platt were scheduled durin

the first week of August, 1974. On August 19, 1974, Petitioner Koe’s

letter was forwarded to the Board for whatever action the Board deemed

appropriate. In this regard, Disciplinary Rule 1-103(A) of the Code of

Professional Responsibility provides:

A lawyer possessing unprivileged knowledge of a violation of DR

1-102 [which defines “misconduct”] shall report such knowledge to

a tribunal or other authority empowered to investigate or act upon

such violation.

The atiorney in the Office of the Attorney General of South Carolina

that forwarded Petitioner Koe’s letter to the Board, was not the Attor-

ney responsible for prosecuting this case before the Board (nor was the

prosecuting attorney an attorney in any way involved in Doe v. Pierce).

‘Rule 18 of the South Carolina Supreme Court’s Rule on Dis-

ciplinary Procedure provides that all proceedings and documents relat-

ing to complaints and hearings thereon and to proceedings in connection

therewith shal! be private, unless the attorney involved shall request in

writing that they be public and the court shall so order. A violation of

this provision is deemed as contempt of the South Carolina Supreme

6 ACLU, PETITIONER, v. BoZaARprT, et al., RESPONDENTS

ARGUMENT

I. The courts below did not misapply decisions of this

Court in dismissing the Complaint for failure to state facts

sufficient to entitle the parties to federal equitable interven-

tion.

The petitioners contend that certiorari should be

granted because the courts below “decided an important

question of federal practice by an unprecedented and un-

warranted extension of the application of the doctrine of

comity.” The petitioners further argue that the courts

below misapplied Younger v. Harris, 401 U.S. 37, 91S. Ct.

746, 27 L. Ed. 2d 669 (1971) and its progeny to this case be-

cause: (1) the disciplinary proceeding was an administra-

tive proceeding; (2) there was no state proceeding pending

against the Petitioner ACLU; and (3) the petitioners’ case

falls within one of the exceptions recognized in Younger v.

Harris, supra.

A\. The Disciplinary Proceeding was an Administra-

tive Action.

Contrary to petitioners’ assertions, this Court has on

several occasions suggested that disciplinary proceedings

are entitled to the considerations of equity, comity and

federalism set forth in Younger v. Harris, supra. See,

Mildner v. Gulotta, 405 F. Supp. 182 (. D. N. Y. 1975),

aff'd, 425 U. S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751

(1976); Anonymous v. Association of the Bar of the City

of N. ¥., 515 F. 2d 427 (2nd Cir. 1975), cert. denied, 423

U.S. 868, 96S. Ct. 71, 46 L. Ed 2d 92 (1975); Erdmann

Court. On October 28, 1976, respondents were informed by the Clerk of

the South Carolina Supreme Court that Section 18 of the Rule had not

been relaxed in any way. Respondents are shocked that attorneys for

petitioners would introduce parts of a panel report, which is not part of

the record in this appeal, especially after petitioners’ attorneys were

severely admonished by the court for attempting to introduce this doc-

ument at oral — before the United States Court of Appeals over

- objection and in violation of the South Carolina Supreme Court’s

ule.

ACLU, PETITIONER, v. BoZaARprT, et al., RESPONDENTS 7

v. Stevens, 458 F. 2d 1205 (2nd Cir. 1972), cert. denied,

409 U. S. 889, 93 S. Ct. 126, 34 L.-Ed. 2d 147 (1972). In

Erdmann v. Stevens, supra, the court found that the

Appellate Division, First Department, was acting in a

judicial capacity as a state court in the disciplinary pro-

ceedings, and that the proceedings were judicial, not ad-

ministrative, in nature. 7d. at 1209. The New York disei-

plinary procedure® appears to be very similar, if not

identical, to the procedure used by the South Carolina

Supreme Court. As in the New York procedure, the South

Carolina Supreme Court has exclusive power to resolve

issues as to alleged misconduct of attorneys practicing

before it.6 As in New York’, the South Carolina Supreme

Court invokes the assistance of a board or committee to

conduct hearings with respect to complaints regarding

members of the bar,* but the disciplinary power continues

to rest ultimately with the court and the findings of the

5 New York Judiciary Law § 90(2).

6 Rule 3 of the South Carolina Supreme Court’s Rule on Disciplinary

Procedure provides:

All proceedings for the investigation of complaints and grievances

involving alleged misconduct of any member of the bar of this

state, all proceedings for the discipline of such members of the bar,

and all proceedings for reinstatement to the practice of law in this

state shall be brought, conducted and dispo of in accordance with

the provisions of this Rule.

7 See, Mildner v. Gulotta, supra, at 190; Erdmann v. Stevens, supra,

at 1209.

® Such a procedure is used by federal courts who employ a special

master to hear and report. Rule 53, Federal Rules of Civil Procedure.

In Anonymous, supra, Appellants attempted to distinguish Erdmann,

supra, in that injunctive relief was being sought against a grievance

committee, not the court. The court no that the committee was per-

forming its duties as a quasi-judicial body and an arm of the court,

much as the special master in federal court, and thus that a proceeding

before such a committee constituted a “judicial proceeding.”

~ ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

Board are in no way binding upon the Court.® Petitioners

contend that a disciplinary proceeding is neither a criminal

prosecution nor a state civil proceeding which is in aid of

or closely related to criminal statutes. Huffman v. Pursue,

Ltd., 592 U.S. 420, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975).

While this Court has held that a disciplinary proceeding

is a judicial proceeding of a quasi-criminal nature, Jn re

Ruffalo, 390 U. S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117

(1968); Wildner v. Gulotta, supra, it is submitted that the

notions of comity and federalism as expressed by the Court

in Younger should not turn on labels such as “civil” or

“eriminal” but rather upon an analysis of the competing

interests involved in each case. Lynch v. Snepp, 442 F.

2d 769 (4th Cir. 1973). As the court in Huffman v. Pursue,

Ltd., supra, observed:

[I |Jnterference with a state judicial proceeding pre-

vents the state not only from effectuating its substan-

tive policies, but also from continuing to perform the

separate function of providing a forum competent

to vindicate any constitutional objections interposed

against those policies. Such interference also results

in duplicative legal proceedings, and can readily be

*The Board of Commissioners on Grievances and Discipline was

created by the South Carolina Supreme Court to “receive, entertain,

inquire into, take proofs, make findings, and submit recommendations

to the court concerning complaints of misconduct.” In Burns v. Clayton,

237 S. C. 316, 331, 117 S. E. 2d 300, 301 (1960), the South Carolina

Supreme Court expressed the duties and responsibilities of the Board

as follows:

... The Board of Commissioners on Grievances and Discipline are

offices of this Court, commissioned and charged with the duty of

investigating alleged misconduct on the part of their fellow mem-

bers of the Bar of this State and of reporting to this Court the

proceedings of their findings and recommendations. . . The Board’s

report is advisory only, this Court being in nowise bound to accept

its recommendations; and upon 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 ap-

propriate disciplinary action thereabout.

Rule 34 of the Court’s Rule on Disciplinary Procedure provides:

Nothing in these Rules shall be construed to deprive the Supreme

Court of the authority to require the certification to it of the record

in any case, for such action as it deems proper.

ACLU, PETITIONER, v. Bozarpt, et al., RESPONDENTS 9

interpreted “as reflecting negatively upon the state

courts’ ability to enforce constitutional principles.”

(Citations omitted.)

The component of Younger which rests upon the threat

to our federal system is thus applicable to a civil pro-

ceeding such as this quite as much-as it is to a criminal

proceeding. Jd. at 604, 95 S. Ct. at 1208, 43 L. Ed. (2d)

at 492.

Therefore, Huffman establishes that the principles of

comity and federalism “are not to be discarded simply be-

cause the state action sought te be enjoined is yclept civil.”

Anonymous v. Association of the Bar of the City of N. ¥.,

supra, at 433.

In Erdmann v. Stevens, supra, the court appropriately

observed the interests of the courts in disciplining its attor-

neys:

The relationship between a court and those practicing

before it is a delicate one. It would appear axiomatic

that the effective functioning of any court depends

upon its ability to command respect not only from those

licensed to practice before it but also from the public

at large. It requires little vision to appreciate that if a

state court were subject to the supervisory interven-

tion of a federal overseer at the threshold of the court’s

initiation of a disciplinary proceeding against its own

officer, the state judiciary might suffer an unfair and

unnecessary blow to its integrity and effectiveness. Id.

at 1210.

Petitioners’ contention that the disciplinary procedure in

this case is administrative in nature is based on the clearly

erroneous statement that the South Carolina Supreme

Court does not have jurisdiction to review this case. Such

a contention is directly refuted by the Rule of Disciplinary

Procedure’® and South Carolina court decisions." The

10 See, Rule 34.

11 See, Burns v. Clayton, 237 S. C. 316, 117 S. E. 2d 300 (1960).

‘

10 ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

etitioners must admit error in this regard since the South

o

Carolina Supreme Court, pursuant to Rule 34, granted

Petitioner Koe’s petition for writ of certiorari in the

grievance case.’*

B. No state proceeding was pending against Petitioner

ACLU.

Petitioner ACLU contends that the courts below erred

in denying the ACLU the opportunity to litigate its elaim

for declaratory relief. In the Complaint before the District

Court, petitioners had requested the District Court to de-

clare “that the [grievance] complaint filed against plain-

tiff Koe and proceedings before the Board of Commission-

ers on Grievances and Discipline violate rights secured to

plaintiffs by the First and Fourteenth Amendments of the

United States Constitution.”

Standing to bring suit must be personal to and satis-

fied by those who seek to invoke the power of the federal

courts. The plaintiff must allege that he has sustained or

is immediately in danger of sustaining some direct injury

as a result of the challenged statute or official conduct.

Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct.. 597. 67

L. Ed. 1078 (1923); O'Shea v. Littleton, 414 U. S. 488, 94

S. Ct. 669, 38 L. Ed. 2d 674 (1974). A grievance action

12 By letter dated October 28, 1976, attorneys for Petitioners advised

this Court that the South Carolina Supreme Court on September 16,

1976, granted Petitioner Koe’s request to review the disciplinary proceed-

ing in Williams v. Anonymous.

13In Allee v. Medrano, 416 U. S. 802, 94 S. Ct. 2191, 40 L. Ed.

= 566 (1974) Chief Justice Burger observed in his separate opinion

that:

Prosecutions instituted against persons who are not named plain-

tiffs cannot form the basis for standing of those who bring the

action. In particular, a named plaintiff cannot acquire standing

to sue by bringing his action on behalf of others who suffered

injury which would have afforded them standing had they been

named plaintiffs; it bears repeating that a person cannot predicate

standing on injury which he does not share. Standing cannot be

acquired through the backdoor of a class action. /d. at 828-9, 94

S. Ct. at 2207, 40 L. Ed. 2d at 588.

Petitioner ACLU has not claimed that it has ever been threatened with

prosecution, if indeed such a prosecution was possible, or that a prosecu-

tion was even likely. Petitioner ACLU merely claimed that the prosecu-

ACLU, Petitioner, v. Bozarpt, et al., RESPONDENTS 11

is a proceeding against an individual attorney’s license to

practice law. Burns v. Clayton, 237 S. C. 316, 117 8S. E.

2d 300 (1960). Therefore, it is apodictic that the ACLU

has not sustained or is not in danger of suffering any

direct injury as a result of the grievance Complaint against

Petitioner Koe. Any standing by the Petitioner ACLU to

seek a declaratory judgment for the filing of a grievance

Complaint against Koe, would be a derivative right based

on the injury suffered by its member, Petitioner Koe. The

Petitioner ACLU asserts the derivative right to bring a

declaratory judgment action on behalf of its member Koe.”*

The Fourth Cireuit correctly noted, however, that:

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 restrict-

ions as Koe’s action, since its rights would be derived

entirely from Koe’s rights . .. To permit the ACLU

to assert rights to those associates not bound by the

Younger restrictions in order to obtain federal equi-

table relief which would necessarily benefit all its asso-

ciates would directly interfere with the pending state

proceedings, and have the effect of circumventing the

Younger restrictions which bar Koe from seeking di-

rect federal relief. We conclude that Allee and Steffel

tion of Koe had a “chilling effect” on their First and Fourteenth Amend-

ment rights. This Court has held that such an allegation is not sufficient

to bring the equitable jurisdiction of federal courts into play to enjoin

a pending state prosecution. Younger v. Harris, 401 U. S. 37, 51, 91

S. Ct. 746, 754, 27 L. Ed. 2d 669, 679. Therefore, there is no case or

controversy with the petitioner ACLU. The United States Court of

Appeals for the Fourth Circuit correctly held that the ACLU had no

independent standing to challenge state disciplinary proceedings since

no disciplinary proceedings can be brought against the ACLU itself.

[Appendix to Petitioners’ Brief at 7a.]

14 The court below noted that Allee v. Medrano, 416 U. S. 802, 94

S. Ct. 2191, 40 L. Ed. 2d 566 (1974), recognized that a labor union had

standing to raise any claims that one of its members would have, if the

union was in a position to suffer real injury derivatively when there

was infringement upon the Constitutional rights of its member. How-

ever, it was unnecessary to decide if the ACLU has such standing in

this case. [Appendix to Petition at 7a.]

12 ACLU, PETITIONER, v. Bozarpr, et al., RESPONDENTS

were not intended to be interpreted so as to permit a

litigant to avoid Younger restrictions merely by join-

ing his claim with claims of others asserting a joint in-

terest. [Appendix to Petitioner’s Brief at 9a.]"

To allow Petitioner ACLU to seek declaratory relief on

issues which are identical to those pending before a state

proceeding would result in an unnecessary duplication of

legal proceedings. In Erdmann v. Stevens, 458 F. Supp.

1205 (2nd Cir. 1972) the court opined:

Undoubtedly because of [the] 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 ob-

taining adjudication of federal constitutional ques-

tions 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 interven-

tion at the initial stages. 7d. at 1211.

Furthermore, federal intervention would be disruptive of

the state grievance proceeding and reflect negatively on the

state court’s ability to enforce constitutional principles.

C. The petitioners’ Complaint did not state facts suffi-

cient to fall within the exceptions to Younger v. Harris.

Contrary to petitioners assertions, the courts below

found that petitioners’ case did not fall within the excep-

tions to the general rule against federal intervention as

set forth in Younger v. Harris, supra. The District Court

complaint made bare assertions that the disciplinary action

15 In Steffel v. Thompson, 415 U. S. 452, 94 S. Ct. 1209, 39 L. Ed.

2d 505 (1976) declaratory relief was sought by an individual who had

been threatened with prosecution for distributing anti-war literature

with another individual (who had been prosecuted). Thus, the plaintiff

in Steffel was asserting his personal right rather than a derivative

right. This Court noted in Doran v. Salem Inn, Inc., 422 U. S. 922, 95

S. Ct. 2561, 45 L. Ed. 648 (1975), that there would plainly be cir-

cumstances in which legally distinct parties are so closely related that

they should all be subject to the Younger considerations which govern

any one of them.

ACLU, PEeriTIONER, v. BoZARDT, et al., RESPONDENTS 13

was in bad faith and for purposes of harrassment. How-

ever, the only factual allegation in support of such bare

assertions was that the South Carolina Attorney General

had withheld a “ruling” by the District Court in Doe v.

Pierce, Civil Action 74-475 (D. S. C.) from the Board,

which “ruling” was res judicata as to the issue of solicita-

tion, or collaterally estopped the proceedings before the

Board. The District Court specifically rejected the argu-

ment that the “ruling” had any effect on the grievance

proceeding. | Appendix to Petition at 43a-44a.] No allega-

tion could be made, or was made, that the same disciplinary

rules were not applied equally to all members of the South

Carolina Bar. Thus, the petitioners’ Complaint did not

establish the type of selective bad faith prosecution which

justified an exception to Younger.’* See, Niles v. Lowe, 407

F. Supp. 132 (D. Hawaii 1976). Furthermore, the courts

below correctly noted that there was also no showing of

irreparable injury, both great and immediate. Younger v.

Harris, supra, at 46, 91S. Ct. at 751, 27 L. Ed. 2d at 676-7.

Any threats which these proceedings pose to petitioners’

federal rights may be eliminated by presenting their con-

tentions to the South Carolina Supreme Court.’ [Appen-

16 The court in Anonymous v. Association of the Bar of the City of

N. Y., 515 F. 2d 427 (2nd Cir. 1975), noted that the plaintiffs in Dom-

browski v. Pyister, 380 U. S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22

(1965), alleged that police had made illegal searches, that prosecutors

threatened prosecution under unconstitutional statutes, and that the

illegally obtained documents were — shown at public hearin As in

Anonymous, the plaintiffs in this case have made no showing of the type

of official lawlessness which warranted federal intervention in Drom-

browski.

17 {in Younger v. Harris, supra, this Court held that: !

Certain types of injury, in particular the cost, anxiety and in-

convenience of having to defend against a single criminal prosecu-

tion, could not by themselves be considered “irreparable” in the

special legal sense of that term. Instead, the threat to plaintiff's

federally protected rights must be one that cannot be eliminated

by his 7 atm against a single criminal prosecution. /d. at 46, 91

S. Ct. at 751, 27 L. Ed. 2d at 676-7.

Thus, the Court in Erdmann v. Stevens, supra, at 1208, correctly

observed that the plaintiff must show grave and irreparable injury

without reasonable prospect that the state court would respect and

satisfactorily resolve the constitutional issues raised.

14 ACLU, PETITIONER, v. BoZarRpt, et al., RESPONDENTS

dix to Petition at 4la.] See, Niles v. Lowe, supra; Erd-

mann v. Stevens, 458 F. 2d 1205 (2nd Cir. 1972), cert.

denied, 490 U. S. 889, 93 S. Ct. 126, 34 L. Ed. 2d 147 (1972).

Having found no sufficient allegation of bad faith, harrass-

ment, or irreparable injury, both grave and immediate, the

courts below were correct in dismissing the petitioners’

Complaint under the doctrine of Younger v. Harris, supra.

Moreover, the petitioners’ allegation in their Com-

plaint that Rule 4(d) of the South Carolina Supreme

Court’s Rule on Disciplinary Procedure’ is vague and

overbroad does not meet the requirements for federal in-

tervention under Younger v. Harris, supra. This allega-

tion is no more than an assertion that the statute is vague

and overbroad “on its face”. In Younger, this Court

opined:

We do not think that opinion | Dombrowski v. Pfister,

supra,| stands for the proposition that a federal court

can properly enjoin enforcement of a statute solely on

the basis of a showing that the statute ‘‘on its face”

abridges First Amendment Rights. 7d. at 53, 91 S. Ct.

at 755, 27 L. Ed. 2d at 681.

The petitioners did not in fact allege, as they argue in

their Brief, that the Rule is flagrantly and patently viola-

tive of express constitutional prohibitions in every clause,

sentence, and paragraph, and in whatever manner and

against whomever an effect might be made to apply it.”

18 Acually, as noted by the District Court [Appendix to Petition at

29a, 33a] the rievance ey charged slanetinet by a violation of

the Canons of Ethics [Code of Professional Responsibility] or by conduct

tending to pollute or obstruct the administration of justice or to brin

the courts or legal profession into disrepute. See also, ABA’s Code o

low that a violation of the Code of Professional Responsibility would also

be conduct tending to pollute the administration of justice or to bri

the courts or legal profession into disrepute. See also, ABA’s Code o

Professional Responsibility, Disciplinary Rule 1-102(A) (5).

. an Younger v. Harris, supra, at 53-4, 94 S, Ct. at 755, 27 L. Ed. 2d

a ,

ACLU, Peritioner, v. BoZarpt, et al., RESPONDENTS 15

Therefore, the courts below were again correct in finding

that petitioners’ case did not fall within the exceptions of

Younger v. Harris.”

Il. There is no conflict of decisions.

The petitioners contend that there is a conflict of deci-

sions among the cireuit courts of appeal concerning the ap-

plication of Younger v. Harris, 401 U.S. 37, 91S. Ct. 746,

297 L. Ed. 2d 669 (1971) to grievance proceedings, citing

Polk v. State Bar of Texas, 480 F. 2d 998 (5th Cir. 1973)

and Erdmann v. Stevens, 458 F. 2d 1205 (2nd Cir. 1972),

cert. denied, 409 U. S. 889, 93 S. Ct. 126, 34 L. Ed. 2d 147

(1972); Anonymous v. Association of the Bar of the City

of N. Y., 515 F. 2d 427 (2nd Cir. 1975), cert. denied, 423

U. S. 863, 96 S. Ct. 71, 46 L. Ed. 2d 92 (1975); and the

courts below.

Actually the Polk ease is readily distinguishable from

the Second Cireuit decisions and the decisions of the courts

below. In Texas, the grievance system is bifureated—the

grievance committee of the State Bar can hear the case

itself (in which case the committee does not have the power

to disbar or suspend) or a formal complaint can be issued

in the state district courts. In Polk, the court was only con-

sidering the application of Younger to a proceeding before

the grievance committee of the State Bar and not a pro-

20 The petitioners by letter, dated October 28, 1976, to the Clerk of

the United States Supreme Court requested that their Petition in this

case be deferred until the South Carolina Supreme Court had ruled in

this grievance case, Williams v. Anonymous. Thus, they have tacitly

recognized that their rights can best be adjudicated after the state court

has construed the disciplinary rules or other state laws involved. This

realization is indeed the very essence of the decisions in Erdmann,

Anonymous, and Mildner v. Gulotta, supra, which support the tradi-

tional method of adjudication of federal rights in grievance proceedings

by way of the state appellate court route to the United States Supreme

ourt.

16 ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

ceeding before the courts.” Under the South Carolina

Supreme Court’s Rule on Disciplinary Procedure, the

Board of Commissioners is empowered to hear all cases

and recommend not only a reprimand but suspension or

disbarment.”

In any event, this Court has adopted the decisions of

the Second Cireuit in Erdmann and Anonymous holding

that grievance proceedings are judicial proceedings to

which Younger applies. Mildner v. Gulotta, 405 F. Supp.

182 (FE. D. N. Y. 1975), aff'd, 425 U. S. 901, 96 S. Ct. 1489,

47 L. Ed. 2d 751 (1976). Therefore, to the extent that Polk

conflicts with this Court’s decision in Mildner v. Gulotta,

supra, it would be overruled and any conflict removed.

CONCLUSION

For the foregoing reasons, the respondents submit

that the petitioners’ Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

DANIEL R. MeLEOD,

Attorney General,

RICHARD B. KALE, JR.,

Assistant Attorney General,

A. CAMDEN LEWIS,

Assistant Attorney General,

Post Office Box 11549,

Columbia, South Carolina

29211,

Attorneys for Respondents.

21 In Niles v. Lowe, 407 F. Supp. 132 (D. Hawaii 1976), the Court

observed that conventional administrative agencies, even when they adopt

quasi-judicial procedures, derive their delegated authority not from the

courts but from the legislature. In South Carolina, as in New York, the

Board is an agent of the South Carolina Supreme Court and its inquiries

are a part of the court’s judicial function.

22 Taylor v. Kentucky State Bar Association, 424 F. 2d 478 (6th

Cir. 1970) does not support petitioners’ contention since it was a pre-

Younger case.

APPENDIX

THE STATE OF SOUTH CAROLINA

In The Supreme Court

RULE ON DISCIPLINARY PROCEDURE

(.As amended by the Supreme Court on June 12, 1975.)

1. Creation of Board of Commissioners on Grievances

and Discipline.

There is hereby created as Commissioners of this

Court a Board of Commissioners on Grievances and Disci-

pline. The said Board of Commissioners is empowered and

charged to receive, entertain, inquire into, take proofs,

make findngs, and submit recommendations to this Court,

as hereinafter provided:

(a) concerning complaints of misconduct, as herein-

after defined, on the part of any member of the bar of this

state;

(b) concerning practices of any member of the bar of

this state which tend to pollute or obstruct the administra-

tion of justice or to bring the courts or the legal profession

into disrepute; and

(c) relating to petitions for reinstatement of the prac-

tice of law in this state.

2. Constitution, Appointment and Tenure of the Board

of Commissioners on Grievances and Discipline.

The said Board of Commissioners shall be appointed

by this court and shall consist of one (1) member of the

bar of this state from each of the Judicial Circuits of the

state. The term of office of each member of the said Board

shall be three years, or until a suecessor has been appointed,

and shall begin on the first day of October next following

his or her appointment. Vacancy for any cause shall be

promptly filled by appointment by this Court for the un-

expired term. At the time of its initial appointments to

membership, and each year thereafter, this Court shall

designate one member as Chairman of the said Board of

Commissioners and shall also designate a Secretary, who

may, but need not, be a member of the said Board. Provided,

however, should any member be engaged in a Panel or

(19)

20 ACLU, Petitioner, v. Bozarpr, ef al., RESPONDENTS

Panels at the expiration of his term, he shall continue to

serve until completion of his work on such Panel or Panels

as a member thereof despite the fact that his successor for

all other purposes of the Board of Commissioners on Griev-

ances and Discipline has heen appointed and qualified.

3. Rule Exclusive.

All proceedings for the investigation of complaints and

grievances involving alleged misconduct of any member of

the bar of this state, all proceedings for the discipline of

such members of the bar, and all proceedings for reinstate-

ment to the practice of law in this state shall be brought,

conducted and disposed of in accordance with the provi-

sions of this rule.

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 upon admission to the practice of law in this state;

(b) violation of any of the Canons of Professional

Ethies as adopted by this court from time to time;

(¢) commission of a crime involving moral turpitude;

(d) conduct tending to pollute or obstruct the admin-

istration of justice or to bring the courts or the legal pro-

fession into disrepute.

(e) emotional or mental stability so uncertain, as in

the judgment of ordinary men, would render a person in-

capable of exercising such judgment and discretion as nec-

essary for the protection of the rights of others and/or

their property or interest in property.

5. Manner of Discipline.

Every member of the bar found guilty of misconduct

shall be disciplined, in accordance with the seriousness of

such misconduct, by:

(a) permanent disbarment; or

(b) suspension for an indefinite period from the office

of attorney at law, subject to reinstatement only as here-

inafter provided; or

- -_— —_—

APPENDIX 21

(c) public reprimand; or

(d) private reprimand.

6. Effect of Discipline.

A person disbarred shall never be readmitted to the

practice of law in this state.

A person who, having voluntarily surrendered his li-

cense to practice, has been thereafter reinstated in the man-

ner hereinafter provided, or who, having been suspended

for an indefinite period from the office of attorney at law,

has been thereafter reinstated in the manner hereinafter

provided, shall be disbarred upon being found guilty of sub-

sequent misconduct.

A person who, having been publicly reprimanded for

misconduct, is thereafter found guilty of subsequent mis-

conduct, shall be suspended for an indefinite period from

the office of attorney at law, or permanently disbarred, de-

pending upon the seriousness of such misconduct.

7. Complaint.

A complaint, as the term is used herein, means a for-

mal written complaint alleging misconduct on the part of a

member of the Bar of this State, who shall be designated

therein as the respondent. The complainant may be (1) any

individual, firm or corporation; (2) the grievance commit-

tee of a regularly organized local bar association; or (3)

a member of the Board of Commissioners as provided in

Section 31 of this Rule. Such complaint shall not be ac-

cepted for filing unless it is:

(a) verified under oath of the complainant; or

(b) signed by one or more members in good standing

of the Bar of this State, as counsel for the complainant.

Signature by such counsel shall constitute a representation

that he or they (1) have investigated the charges of mis-

conduct alleged in the complaint, (2) believe reasonable

cause exists to warrant a hearing on said complaint, and

(3) have accepted the responsibility of prosecuting the

complaint to conclusion. When the grievance committee of

a regularly organized local bar association is the complain-

22 ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

ant, verification of the complaint shall be by the chairman

of that committee.

By filing a Complaint with the Commission the Com-

plainant places himself or herself under these Rules and

submits himself or herself to the jurisdiction of the Court

and the Board of Commissioners. Any Complainant who

shall, without just cause or excuse, after Notice of a hearing

duly given, fail to appear before the Panel at the time pre-

scribed in said Notice, shall render himself or herself sub-

ject to taxation of costs incurred for such hearing and shall

be deemed in contempt of this Court and punishable aceord-

ingly; and any Complainant found by the Board, or any

Panel hearing a Complaint, to have filed a complaint with-

out just cause or excuse or to be otherwise motivated by

malice or reason contrary to the spirit of this Rule, shall

likewise be in contempt of this Court and punishable accord-

ingly. If such Complainant be a lawyer he shall be subject

to Compiaint against him for misconduct.

Whenever a Complaint charges a Respondent with mis-

conduct because of practicing law when not capable of exer-

cising the diseretion and judgment necessary as provided

by Sec. 4 (ec), the Secretary shall forward with the copy

of the Complaint mailed in aecordance with this Rule, a

Notice to Respondent that a Guardian ad Litem must be,

within twenty days, appointed in his behalf by the Clerk

of the Court on Petition by Respondent or someone in be-

half of Respondent, and in the event Respondent fails to

have a Guardian ad Litem so appointed, the Commission

will petition the Clerk of this Court for such appointment.

8. Filing of Complaint; Procedure Thereon.

All complaints shall be filed in quadruplicate with the

Secretary of the Board of Commissioners. If the said

Board of Commissioners shall find that the complaint, upon

its face, does not state facts sufficient to charge misconduct

as herein defined, the said complaint shall be dismissed, and

the Secretary of the Board shall so notify the complainant.

Otherwise the said Secretary shall forthwith cause to be

sent to the respondent by registered mail a copy of said

complaint, together with a notice, signed hy the said See-

APPENDIX 23

retary, requiring the respondent, within twenty (20) days

after the mailing of such notice, to file with the Board, in

quadruplicate, his answer to the complaint, and to serve a

copy of said answer upon the complainant or his counsel of

record. The answer shall be signed by the respondent or by

his counsel, or by both, and may, but need not be, verified.

The Secretary shall also forward to the resident judge

of the attorney a copy of said complaint and any answer

filed by respondent or his counsel. Thereafter the Secretary

shall notify the resident judge of the disposition by the

Board. All such communications shall be confidential ex-

cept as between the resident judge and the presiding judge

of the Circuit or any county court judge within the Circuit.

9. Hearing by Panel of Three Commissioners.

After respondent’s answer has been filed, or the time

has expired within which respondent was required to file

such answer, a formal hearing shall be held, upon reason-

able notice to complainant and respondent or their counsel,

by a panel of three (3) Commissioners appointed by the

Chairman of the said Board of Commissioners, who shall

designate one member of such panel as chairman of the

panel. No member of such panel shall be a resident of the

Judicial Cireuit from which the complaint originated, or

of the Judicial Circuit in which the respondent resides at the

time of the filing of the complaint. The Chairman of the

Board of Commissioners may, whenever he deems it ad-

visable, request the Attorney General’s Office to handle the

prosecution of a claim before the hearing panel.

10. Duty of the Panel.

(a) If the panel shall find that the charges in the com-

plaint are not supported by the evidence, or do not merit

the taking of disciplinary action, the panel will make a certi-

fied report of the proceedings before it, including its find-

ings of fact and recommendations and shall file the same

and an itemized statement of the actual and necessary ex-

penses incurred by it in connection with such proceedings

with the Secretary of the Board of Commissioners.

24 ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

(b) If the panel shall find and determine that the re-

spondent is guilty of misconduct and that a private repri-

mand should be administered, the panel shall make a certi-

fied report of the proceedings before it, including its find-

ings of fact and recommendations, and shall file the same

and an itemized statement of the actual and necessary ex-

penses incurred by it in connection with such proceedings

with the Secretary of the Board of Commissioners.

(c) If the panel shall find and determine that the re-

spondent is guilty of misconduct meriting publie reprimand,

indefinite suspension, or permanent disbarment, it shall

make a certified report of the proceedings before it, in-

cluding its findings of fact and recommendations, and shall

file the same, together with a transcript of the testimony

taken, such exhibits as may have been in evidence before

it, and an itemized statement of the actual and necessary

expenses incurred by it in connection with such proceedings,

with the Secretary of the Board of Commissioners.

11. Review by the Board of Commissioners; Private

Reprimand.

Whenever the panel has filed its report, the Board of

Commissioners through its Secretary, shall, before acting

upon such report, notify the respondent and his counsel, if

any, of the time and place at which the Board will consider

the report for the purpose of determining its action thereon,

such notice to be given not less than thirty days prior to

such meeting. The respondent and his counsel shall have the

right. and shall be so informed in said notice, to appear

before the Board at said meeting and thereupon to sub-

mit briefs and be heard in oral argument in opposition to

or in support of the recommendations of the panel. Like

notice shall be given, and like opportunity to submit briefs

and be heard in oral argument in support of or in opposi-

tion to the recommendations of the panel shall be afforded,

to the complainant and his counsel, if any, and to the Attor-

ney General’s Office where that office has participated in

the hearing before the panel.

APPENDIX 25

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; or

(c) Proceed upon the certified report of the prior pro-

ceedings 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 should be administered, it shall adminis-

ter such reprimand. If the complaint is dismissed or if a

private reprimand is administered, the Secretary of the

Board of Commissioners shall thereupon so notify the re-

spondent, the complainant, all counsel of record, and, when

deemed appropriate, and requested in writing by respond-

ent, the local Bar Association, or associations of the county

or counties in which respondent resides and maintains an

office, and other county or counties from which the com-

plaint arose.

12. Public Reprimand; Suspension or Permanent Dis-

barment; Duty of Board after Review.

If the Board of Commissioners shall determine that the

respondent is guilty of misconduct meriting public repri-

mand, indefinite suspension, or permanent disbarment, it

shall make a final certified report of the proceedings before

it, including its findings of fact and recommendations, and

shall file the same, together with a transcript of the testi-

mony taken, and such exhibits as may have been in evidence

before it, and an itemized statement of the actual and neces-

sary expenses incurred by the hearing panel and by the

Board in connection with the proceeding, in the office of the

Clerk of this Court; and the Secretary of the Board of Com-

missioners shall forthwith notify the respondent and the

complainant, or their counsel, of such action, enclosing with

such notice a copy of the Board’s findings of fact and ree-

26 ACLU, PETITIONER, v. BoZzARpT, et al., RESPONDENTS

ommendations and a copy of the statement of expenses be-

fore mentioned. .

13. Court to Order Respondent to Show Cause.

Upon the filing of such final report of the Board of

Commissioners, this Court shall issue its order directed to

the respondent, requiring him to show cause before this

Court at a time to be therein specified, but not less than

forty (40) days after issuance of such order, why the re-

port of the Board of Commissioners should not be con-

firmed and a disciplinary order entered. Copies of such

order to show cause, certified by the Clerk of this Court,

shall be served under his direction upon the respondent and

the complainant, or their counsel, personally or by regis-

tered mail.

14. Return of Respondent; Briefs.

At least twenty (20) days hefore the date for showing

cause stated in the order of this Court, the respondent shall

make return to said order, setting forth his grounds of ob-

jection to the findings and recommendations of the Board

of Commissioners and to the entry of a disciplinary order

or to the confirmation of the report of said Board upon

which the said order to show cause was issued, and shall

file with the Clerk of this Court the original and ten copies

of such return, together with proof of service of the said

return upon the Secretary of the Board of Commissioners,

upon the complainant or his counsel, and upon the Attorney

General of South Carolina, who shall thereafter participate

in the proceeding in the public interest, whether or not he

shall have been requested by the Chairman of the Board of

Commissioners to participate in the earlier phases of the

prosecution of the complaint. At the time of filing his re-

turn as aforesaid, the respondent shall also file with the

Clerk of this Court the original and ten copies of a brief

in support thereof, together with proof of service of said

brief upon the Secretary of the Board of Commissioners,

upon the complainant or his counsel, and upon the Attorney

General.

APPENDIX 27

15. Briefs on the Part of Complainant.

Within fifteen (15) days after the filing of respondent’s

brief, the Attorney General and counsel for the complainant

shall, jointly or severally, file with the Clerk of this Court

the original and ten copies of such brief or briefs as they

may deem necessary in answer thereto, together with proof

of service thereof upon respondent or his counsel of record

and upon the Secretary of the Board of Commissioners.

16. Form of Return and Briefs.

The return and briefs may be either printed or type-

written, mimeographed or machine duplicated. If printed,

they shall conform to the requirements of Rule 5 of this

Court: if typewritten, mimeographed or machine dupli-

cated, they shall conform to the requirements of Rule 6.

17. Review by Court.

Upon failure of the respondent to make return to the

order to show cause within the time hereinbefore pre-

scribed, or after consideration of the return and such briefs

as may have been filed in support of and in opposition to

the same, and after hearing argument, if this Court shall

desire to hear argument, thereabout, this Court shall enter

such order upon the matter as it may find proper, and may

inelude in its order such provision for reimbursement of

the actual and necessary expenses incurred by the hearing

panel and by the Board of Commissioners as the Court

shall deem proper. Upon the entry of any disciplinary order

pursuant to this rule, the Clerk of this Court shall mail

certified copies thereof: to the respondent, at his last known

address; to the complainant; to all counsel of record; to

the Board of Commissioners; to the local bar association

or associations in the county or counties in which the re-

spondent resides and maintains an office, and in the county

or eounties from which the complaint originated; to the

Clerk of the Court of Common Pleas in each of said coun-

ties; and to the Clerk of the District Court of the United

States for the district in which said counties are located.

28 ACLU, Prririoner, v. Bozarpt, et al., RESPONDENTS

18. Proceedings Private Until Filed in Supreme Court.

Unless and until otherwise ordered by this court, all

proceedings and documents relating to complaints and hear-

ings thereon and to proceedings in connection therewith

shall be private, unless the respondent shall in writing re-

quest that they be public. All complaints shall be captioned

“In The Matter of —" (Name of respondent to be

inserted): and exeept for the officie! records of the Board

and of this court, all references to the respondent through-

out any disciplinary proceeding under this Rule shall he by

the use of the term “Anonymous”, unless and until this

court shall otherwise order,

No persons whomsoever in any way connected with a

matter before the Board, including witnesses, counsel, coun-

sel’s secretaries, Respondent, Board Members, Board em-

ployees, reporters or investigators, shall mention the exist-

ence of any such proceeding, nor disclose any information

pertaining thereto or discuss any testimony or evidence

therein except to persons directly involved, and then only

to such extent as necessary for a proper disposition of the

matter. Provided, however, any proceeding before the

Board may be made publie upon written request of the Re-

spondent. Violation of this provision shall be deemed eon-

tempt of this Court and punishable as such. All persons

attending any proceedings or taking part in any matter

hereunder shall be advised of this provision upon the eom-

mencement thereof. All records and correspondence held

by members of the Board at the conclusion of their respee-

tive terms of office shall be carefully sereened by them, They

shall deliver all essential records and correspondence, so

held, to the Seeretary for filing with the permanent records

of the Commission, and destroy all non-essential records

having no permanent or continuing effect.

19. Quorum of Board or Hearing Panel.

A majority of the members of the Board of Commis-

sioners or of a hearing panel shall constitute a quorum for

all purposes; and the action of a majority of those present

comprising such quorum shall be the action of the Board

of Commissioners or of such hearing panel.

APPENDIX 29

20. Service of Notice, Etc.

Wherever in this rule provision is made for the service

of any notice, order, report or other paper or copy thereof

upon any complainant or respondent or petitiner in connec-

tion with any proceeding involving a complaint or a petition

for reinstatment, service may be made upon counsel of

record for such complainant, respondent, or petitioner,

either personally or by registered mail.

21. Clerk is Agent for Service of Notices on Non-

resident Attorneys.

Service of any notice provided for in this rule upon any

non-resident respondent who has been admitted to the prac-

tice of law pursuant to the rules of this court, or upon any

resident respondent who, having been so admitted, subse-

quently becomes a non-resident or cannot be found at his

usual abode or place of business in this state, may be made

by the Secretary of the Board of Commissioners by leaving

with the Clerk of this court a true and attested copy of such

notice and any accompanying documents and by sending to

the respondent, by registered mail, a like true and attested

copy, with an endorsement thereon of the service upon the

said Clerk, addressed to such respondent at his last known

address. The postmaster’s receipt for the payment of such

registered postage shall be attached to and made a part of

the return of service of such notice by the Secretary. The

panel or Board of Commissioners or court before which

there is pending any proceeding in which notice has been

given as provided in this section may order such continu-

ance as may be necessary to afford the respondent reason-

able opportunity to appear and defend. The Clerk of this

court shall keep a record of the day and hour of the service

upon him of such notice and any accompanying documents.

22. Members of Board May Issue Subpoenas and Order

Depositions Taken.

Each member of the Board of Commissioners shall

have power to issue subpoenas and to administer oaths to

witnesses. All such subpoenas shall be issued in the name

and under the seal of this court, and shall be signed by a

member of the Board of Commisioners. Any member of the

30 ACLU, PETITIONER, v. BOZARDT, et al., RESPONDENTS

Board of Commissioners may order the testimony of a wit-

ness to be taken by deposition within or without this State

in the manner prescribed for the taking of depositions in

civil actions; and such depositions may be used to the same

extent as permitted in civil actions.

23. Effect of Refusal to Obey Subpoena or to Testify.

If any person subpoenaed as a witness pursuant to this

rule shall refuse or neglect to obey said subpoena, to attend,

to be sworn or to affirm, or to answer any proper question,

he shall be deemed in contempt of this court and punish-

able accordingly.

°4. Rules of Evidence to be Observed.

The rules of evidence shall be observed in the conduet

of all hearings.

25. Docket of Complaints.

The Secretary of the Board of Commissioners shall

keep a docket of each complaint and of all proceedings

thereon, and the same shall be retained permanently as a

part of the records of the Board of Commissioners.

26. When Petition for Reinstatement May be Filed.

No petition for reinstatment to the practice of law

shall be filed within two years after the entry of an order

indefinitely suspending the petitioner from the practice of

law in this State, or within two vears after the denial of a

petition for reinstatement filed by such petitioner.

27. Contents of Petition for Reinstatement.

Subject to the foregoing restrictions, any person who

has been indefinitely suspended from the practice of law

and who wishes to he reinstated may file with the Clerk of

this court his verified petition, and ten (10) copies thereof,

setting forth:

(a) the date when indefinite suspension was ordered,

and, if there was a reported opinion concerning the same,

the volume and page of the official reports of this court

where such opinion appears ;

(b) the dates upon which any prior petitions for re-

instatment were filed, denied or granted;

APPENDIX 31

(c) the names of all persons and organizations, other

than the petitioner and the Board of Commissioners, who

were entitled under this Rule to receive from the Clerk of

this court certified copies of the disciplinary order of this

court resulting in the petitioner’s suspension;

(d) the name of the county in which he resides at the

time of the filing of the petition, and of each county in which

he proposes to maintain an office if reinstated; and

(e) the facts upon which he relies to establish by clear

and convincing proof that he has rehabilitated himself.

28. Petition Referred to Committee on Character and

Fitness.

Unless the petition for reinstatement be summarily

denied for insufficiency in form or substance, the Clerk of

this court shall forward five (5) copies thereof to the See-

retary of the Committee on Character and Fitness ap-

pointed under the rules of this court governing admission

of persons to the practice of law in this State; and such

petition shall be deemed to be referred, without court order,

to said Committee.

29. Action by Committee on Character and Fitness.

The Committee on Character and Fitness shall, with

all convenient dispatch, proceed to hold a hearing or hear-

ings, take evidenee concerning petitioner’s character and his

claim of rehabilitation, and report to this court the proceed-

ings had before said Committee, together with the Commit-

tee’s findings of fact and recommendations. Reasonable no-

tice of all such hearings before the Committee shall be given

to the petitioner or his counsel and to the President of the

local bar association or associations in the county or coun-

ties in which the petitioner resides and in which he proposes

to maintain an office in the event of his reinstatement. Such

hearings may, in the discretion of the Committee, be publie,

and shall be public if the petitioner so requests in writing.

Any interested person, any member of the bar, and any rep-

resentative of the South Carolina Bar Association or of

any local bar association may appear before the committee

in support of, or in oppesition to, the petition.

32 ACLU, PEeriTIoNer, v. Bozarpr, et al., RESPONDENTS

30. Committee’s Report to be Filed; Procedure There-

upon.

The report of the Committee on Character and Fitness,

and six (6) copies of the Committee’s findings of fact and

recommendations, shall be filed in the office of the Clerk of

this court, who shall thereupon notify petitioner or his

counse! of such filing and shall with such notice enclose a

copy of the Committee’s findings of fact and recommenda-

tions. If the Committee shall have recommended denial of

the petition, the petitioner shall have ten (10) days from

the date of his receipt of notice thereof from the Clerk

within which to file with the said Clerk objections to the

report and brief in support of such objections, together

with five copies of such objections and brief: but no oral

argument will be heard thereon, Upon consideration of the

Committee’s report and of such objections and brief as

may have been filed by the petitioner concerning the same,

the court shall enter such order as it may deem appropriate

and may inelude in sueh order such provision for reimburse-

ment of the actual and necessary expenses incurred in con-

nection with the proceedings as shall appear just and

proper,

51. Investigation at Instance of Chairman; Procedure

Thereunder.

(a) Whenever, from sources deemed by him reliable,

the chairman of the Commission learns of an attorney (who

is licensed to practice in South Carolina) engaging in prae-

tices in violation of his duty as such attorney, and the

Chairman comes to the conclusion that an investigation

should be made, he shall designate one member of the Com-

Inission to act as an investigator, The member so designated

shall investigate these reported violations of duty, and for

this purpose he may call to his assistance such publie in-

vestigating agencies as he may think proper. After making

such investigation, should the investigator come to the con-

cluson that a complaint (as described in the section 7 here-

of) should be made against the attorney investigated, he

shall file such in his official capacity and be responsible for

the prosecution thereof to a conclusion.

APPENDIX 33

(b) When a member of the Commission shall have been

selected to investigate the conduct of a particular member

of the bar, he shall thereafter be disqualified to act as a

member of the Commission insofar as such conduct of said

member of the bar is concerned, otherwise than as such

investigator and prosecutor as above set out.

32. Rule to be Liberally Construed.

The process and procedure under this rule shall be as

summary as reasonably may be. Amendments to any com-

plaint, notice, answer, objection, return, report or order,

may be made at any time prior to final order of the court.

Any party affected by such amendment shall be given rea-

sonable opportunity to meet any new matter presented

thereby. No investigation or procedure shall be held to be

invalid by reason of any nonprejudicial irregularity or for

any error not resulting in a miscarriage of justice. This

rule shall be liberally construed for the protection of the

public, the courts, and the legal profession, and shall apply

to all pending complaints, investigations and _ petitions

whether the conduct involved occurred prior or subsequent

to the effective date of this rule. To the extent that appli-

cation of this rule to such pending proceedings may not be

practicable, the procedure in force at the time this rule

became effective shall continue to apply.

Every communication, whether oral or written, made

by or on behalf of any complainant to the Board of Com-

missioners or any hearing panel or member thereof, pur-

suant to this Rule, whether by way of complaint or testi-

mony, shall be privileged; and no action or proceeding,

civil or criminal, shall lie against any such person, firm or

corporation by or on whose behalf such communication

shall have been made, by reason thereof.

33. The Board of Commissioners is empowered to

adopt rules and regulations not inconsistent with this rule.

34. Nothing in these Rules shall be construed to de-

prive the Supreme Court of the authority to require the

certification to it of the record in any case, for such action

as it deems proper.