# Opposition — American Civil Liberties Union v. Bozardt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 1022

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0519%3A2. Public record. Not legal advice.