Opposition — Turco v. Monroe County Bar Ass'n

In The JUL 18 2977

Supreme Court of the uted, States

DAK, JR,

OCTOBER TERM, 1977 CLERK

NO. 76-1816

ARTHUR F. TURCO, JR.,

Petitioner,

against

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME COURT, |

FOURTH JUDICIAL DEPARTMENT, JOHN S. MARSH,

REID S. MOULE, RICHARD W. CARDAMONE, HARRY

D. GOLDMAN, RICHARD D. SIMONS, WALTER J.

MAHONEY, FRANK DEL VECCHIO, and G. ROBERT

WITMER, Presiding Justice and Justices of the Appellate

Division of the Supreme Court, Fourth Judicial

Department, and LESTER FANNING, Chief Clerk of

the Appellate Division of the Supreme Court,

Fourth Judicial Department,

Respondents.

BRIEF FOR RESPONDENTS THE APPELLATE

DIVISION OF THE SUPREME COURT, FOURTH

JUDICIAL DEPARTMENT, THE JUSTICES AND

CLERK THEREOF IN OPPOSITION TO GRANTING

CERTIORARI

LOUIS J. LEFKOWITZ

Attorney General of the

State of New York

Attorney for Respondents

The Capitol

Albany, New York 12224

Telephone (518) 474-8160

RUTH KESSLER TOCH

Solicitor General

WILLIAM J. KOGAN

Assistant Attorney General

of Counsel

TABLE OF CONTENTS

Page

Di cisdcasshebbeedehobéenescassaccceesécécnes 1

i <tndcnk cdbaveadséesechddsacuéscées 2

Dt Mnbhihbbebedcenddnabbedecdeteedeudcsssecees 2

ARGUMENT:

POINT I — The opinion of the United States Court

of Appeals properly holds that the

instant action is barred by the principles

of res judicata and collateral estoppel; the

opinion is in conformity with the

overwhelming majority of relevant

EE SUADAMRAAUUNNSGRGh Echo déoecdbocnccccceces 6

POINT II — The merits of the petitioner's

contentions made and reviewed five times in

the New York State Courts and in United

States Courts do not warrant further

SO IID 6S ed evdneedeseddddccncdcccess 8

bei eed oo eid d as calesckduieesos 10

TABLE OF CASES

Baxstrom v. Herold, 383 U.S. 107 (1966) ............65. a)

Blankner v. City of Chicago, 504 F 2d 1037 (7th Cir.,

1974) cert. den. 421 U.S. 948, reh. den.

es MP aa cheeeesuneddadedesenseecandeccecoses 7

Chasteen v. Trans World Airlines, Inc., 520 F 2d

EERE Erne 7

Coogan v. Cincinnati Bar Assn., 431 F 2d 1209

eines ceed e needa dedeseceséeeseees 7

Francisco Enterprises v. Kirby, 482 F 2d 481

(9th Cir., 1973) cert. den. 415 U.S. 949 .........0000ee 7

Getty v. Reed, 547 F 2d 971 (6th Cir., 1977)............. 7

Table of Cases (Continued)

Page

Ginger v. Circuit Court for the County of Wayne,

372 F 2d 621 (6th Cir., 1967) cert. den.

SOP Wes GES LIBS) cccccccccccccccccccccccccccccccs 7

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)........... 7

Humphrey v. Cady, 405 U.S, 504(1972) .....ccceeeeees a)

Kauffman v. Moss, 420 F 2d 1270 (3d Cir., 1970)

cert. den. 400 U.S. 846 (1970) 0... . cece ce eee eeeeeees 7

Lovely v. Laliberte, 408 F 2d 1261 (1st Cir., 1974)

GENE, GNM, SE iets BOM ce cece cccccccccccccccccecccces 7

Mack v. Florida State Board of Dentistry,

430 F 2d 862 (Sth Cir., 1970) cert. den.

GBT Us GED occ cccccccccccccccccccccccccccccccccces 8

Matter of Turco, 46 A D 2d 490, app. dsmd. 36 N Y

2d 713, lv. to app. den., 36 N Y 2d 642, cert. den.

GES Ue GEG ccc ccccccccccecccccccccccccccsccccccces 2

Mildner v. Gulotta, 405 F. Supp. 182, affd. 96 S. Ct.

SE ER ST 9

MTM, Inc. v. Baxley, 420 U.S. 799, 43 L. Ed. 2d 636

(1G7B) accccccccccccccccccccccccesccceveccccccccens i)

Mulligan v. Schlacter, 389 F 2d 231 (6th Cir., 1968) ..... 8

Ney v. California, 439 F 2d 1285 (9th Cir., 1971) ........ 8

_ Parker v. McKeithen, 488 F 2d 553 (Sth Cir., 1974)

cert. den. 419 U.S. 838 (1974) .... cece cece e ee eeeeeees 6

Preiser v. Rodgriguez, 411 U.S. 475, 497, 36 L. Ed. 2d

BSD ccccccccccccccccccecerccceeceecerceceeecesecoes 6

Roy v. Jones, 484 F 2d 96 (3d Cir., 1973)... .. cc cece eeees 7

Specht v. Patterson, 386 U.S. 605 (1967) ........eeeeees 9

Spence v. Latting, 512 F 2d 93 (10th Cir., 1975) cert.

Gem, GBB UG. BGS occcccccvccccccccccccccccccccccecs 7

Tang v. Appellate Division, 487 F 2d 138 (2d Cir.,

1973) cert. den. 416 U.S. 906 (1974)... ... cece eeeeees 5

Thistlewaite v. City of New York, 497 F 2d 339

(2d Cir., 1974) cert. den. 419 U.S. 1093 (1974) ........ 5

Turco, Matter of, 46 A D 2d 490, app. dsmd.,

36 N Y 2d 713, lv. to app. den. 36 N Y 2D 642,

DOUG, GOR, GEO UE. GED cc ccccccccccccccccccccccccces 2

In the

Supreme Court of the Hnited States

OCTOBER TERM, 1977

NO, 76-1816

ARTHUR F. TURCO, JR.,

Petitioner,

against

THE MONROE COUNTY BAR ASSOCIATION, THE

APPELLATE DIVISION OF THE SUPREME COURT

FOURTH JUDICIAL DEPARTMENT, JOHN S. MARSH,

REID S. MOULE, RICHARD W. CARDAMONE, HARRY

D. GOLDMAN, RICHARD D. SIMONS, WALTER J.

MAHONEY, FRANK DEL VECCHIO, and G. ROBERT

WITMER, Presiding Justice and Justices of the

Appellate Division of the Supreme Court, Fourth

Judicial Department, and LESTER FANNING, Chief

Clerk of the Appellate Division of the Supreme Court,

Fourth Judicial Department,

Respondents.

BRIEF FOR RESPONDENTS THE APPELLATE

DIVISION OF THE SUPREME COURT, FOURTH

JUDICIAL DEPARTMENT, THE JUSTICES AND

CLERK THEREOF IN OPPOSITION TO GRANTING

CERTIORARI

The Appellate Division of the Supreme Court of the State

of New York, Fourth Judicial Department, the Justices and

Clerk thereof, submit this brief in opposition to the

petitioner's application for certiorari to review the decision

of the United States Court of Appeals for the Second

Circuit. The Court of Appeals decision affirmed the order of

the District Court for the Western District of New York

(BURKE, D.J.) dismissing the amended complaint. The

United States Court of Appeals found that the doctrine of

res judicata is applicable because the petitioner's “claims

were actually raised [in the prior disbarment proceedings

in the New York State Courts], and pursued right up to

the Supreme Court.”

The petitioner instituted this action seeking declara-

tory and injunctive relief under 42 U.S.C. § 1983 upon the

grounds that certain of New York State's disbarment

procedures denied him his constitutional rights of due

process and equal protection of the law.

Questions Presented

Does the dismissal by the United States Court of Appeals

on the grounds of res judicata of an action brought by an

attorney ordered disbarred by New York State Courts

present special and important reasons for the granting of

certiorari where the questions raised by the plaintiff in

the Federal action were actually raised by him both in the

Appellate Division and in the Court of Appeals of the

State of New York as well as in the Supreme Court of the

United States on his application for certiorari in the State

disciplinary proceeding?

Facts

In view of the narrow issue presented upon this

application, an exhaustive review of the underlying facts

will not be presented herein. A full discussion of the

factual basis for the order of disbarment is contained in

the opinion of the Appellate Division (46 A D 2d 490

{1975]) as well as in the opinion of the United States

Court of Appeals for the Second Circuit [( F. 2d

4/21/77). In brief, the facts are as follows:

The petitioner, Arthur F. Turco, Jr., was disbarred by

the New York State Appellate Division, Fourth Depart-

ment, by an order dated January 28, 1975. The discipli-

nary proceedings against the petitioner had begun on or

about April 4, 1972 when the Appellate Division directed

that an investigation of petitioner's conduct be conducted

by the Monroe County Bar Association, the Bar Association

of the County in which Turco practiced law. That investi-

gation resulted in the filing of a petition in the Appellate

Division which alledged that the petitioner “is or may be

guilty of professional misconduct” in his office as an

attorney. The petition alleged specifically that Mr. Turco

had been indicted in Baltimore, Maryland on May 1, 1970 on

charges of murder, conspiracy to commit murder, soliciting

to commit a felony (murder), common law assault and

soliciting to commit a felony (kidnapping). The petition

further alleged that on February 14, 1972 Turco entered a

plea of quilty* to the charge of common law assault ( a

misdemeanor), all other charges being dropped. The

petition also alleged that Turco had been arrested in New

York City on February 22, 1970 on charges of possession of

dangerous weapons, possession of dangerous drugs,

possession of hypodermic instruments and obstructing

governmental administration. Turco pleaded quilty** to a

violation of New York Penal Law § 265.06 (a misde-

meanor) on March 8, 1972.

Mr. Turco’s answer to the petition did not deny these

allegations. Indeed, as the opinion of the United States

Court of Appeals notes, Turco himself elaborated on the

charges against him when he adverted during the course

of the disciplinary proceedings to his “incognito stay in

Canada” while he was free on bail pending his criminal

proceedings and for which he was additionally charged

with bail jumping. Both Turco and his counsel were heard

by the Appellate Division after which that Court, in a

memorandum-decision and order dated December 17,

1973, found that Turco was guilty of professional

misconduct as an attorney.

The Appellate Division held that Turco was bound by

his guilty pleas and that he did not have a right to

relitigate the underlying facts. The Court did offer to him

*The conviction on the plea of guilty was affirmed on

appeal.

**The conviction on the plea of guilty was affirmed on

appeal by the New York Appellate Term.

a “hearing in mitigation” to determine the discipline to be

imposed. The purpose of the hearing was to enable Turco

to offer testimony bearing upon his character and ability

as an attorney. After receiving the hearing officer's

report, which was submitted without recommendation,

the Appellate Division ordered that Turco be disbarred

(Matter of Turco, 46 A D 2d 490).

In the New York State Court of Appeals, Turco argued

that as a result of the manner in which the disciplinary

proceedings had been conducted he had been deprived of

his right to due process and equal protection of the laws.

Turco’s appeal to the New York Court of Appeals as of

right was dismissed “upon the ground that no substantial

constitutional question is directly involved.” (36 N Y 2d

713 [Feb. 19, 1975].) Turco’s motion for leave to appeal to

the Court of Appeals was denied (36 N Y 2d 642 [Feb. 19,

1975]) as was certiorari to this Court (423 U.S. 838 [Oct.

6, 1975]). Turco commenced this action in the United

States District Court for the Western District of New

York on March 11, 1975 subsequent to the dismissal of

his appeal to the Court of Appeals but prior to the denial

of certiorari by this Court. He sought declaratory and

injunctive relief against the disbarment order.

The United States District Court for the Western

District of New York “temporarily” enjoined enforcement

of the disbarment order*. On June 30, i976, the Court

(BURKE, D.J.) rendered a decision and order dismissing

plaintiff's action stating:

“There is not merit to the contention that he was

denied equal protection of laws and due process by

denial of a right of appeai to disbarred attorneys.

Levis vs. Gulotta and related cases, Scuthern District

of New York (three judge court judgment), affirmed

by Supreme Court of the United States March 29,

1976.

“This court should not interfere in state disciplin-

ary proceedings, Erdmann vs. Stevens, 458 F. 2d.

1205 (2 Cir. 1972), cert. denied, 409 U.S. 889. Anony-

*Petitioner has continued to practice law to the present by

virtue of injuctive relief obtained from the several Courts

to which the case has been brought.

mous vs. Association of the Bar of the City of New

York, 515 F. 2d. 427 (2 Cir. 1975).”

The United States Court of Appeals for the Second

Circuit held that the petitioner's constitutional claims of

denial of equal protection of the laws and lack of due

process are barred from consideration by the Federal

district court under the doctrines of res judicata and

collateral estoppel. With regard to petitioner's claim that

res judicata should not apply to the constitutional

arguments he had made in the New York State Courts

because he was an involuntary respondent in the State

disciplinary proceeding, the Second Circuit rejected

petitioner's contention holding that such an argument:

“*** has been foreclosed in this circuit by our decision

in Thistlewaite v. City of New York, 497 F. 2d 339

(2d Cir.}, cert. denied, 419 U.S. 1093 (1974), in which

the very argument was made and rejected. There we

applied collateral estoppel in a § 1983 case to a

constitutional determination by a state court. And in

Tang v. Appellate Division, 487 F. 2d 138, 141 (2d Cir.

1973), cert. denied, 416 U.S. 906 (1974), we barred

relitigation of a denial of admission to the Bar

because of lack of jurisdiction, citing Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923), and res

judicata (Hays, J., concurring).

“We do not deal here, therefore, with the slippery

question involving Section 1983 actions where the

state ligitation was involuntary as to the petitioner,

and where the constitutional points could have been

raised but were not. On such a state of facts, the

Supreme Court still has to render a definitive ruling.

Here the claims were actually raised, and pursued

right up to the Supreme Court. In these circum-

stances, we are constrained to hold that the doctrine

of res judicata is applicable, that petitioner may not

have two bites at the cherry, and that the District

Court properly dismissed the action.”

ARGUMENT

POINT I

THE OPINION OF THE UNITED STATES COURT OF

APPEALS PROPERLY HOLDS THAT THE INSTANT

ACTION IS BARRED BY THE PRINCIPLES OF

RES JUDICATA AND COLLATERAL ESTOPPEL;

THE OPINION IS IN CONFORMITY WITH THE

OVERWHELMING MAJORITY OF

RELEVANT AUTHORITY.

The petitioner's brief in this Court limits the issue

presented on this application to the question of whether

the principle of res judicata was properly invoked by the

United States Court of Appeals in affirming the District

Court order dismissing the amended cemplaint herein.

The petitioner contends that the significance of the

dismissal of this action on the basis of res judicata results

from an alleged divergence of opinion amongst the

Circuits as to the applicability of res judicata under the

circumstances of this case as well as from the substan-

tiality of the underlying due process questions sought to

be presented to the Federal District Court.

The respondents suggest that the alleged inconsis-

tencies in the decisional law on the res judicata question

have been greatly exaggerated and in any event have no

application herein. Further, as to the merits of this action,

as will be argued briefly in Point II (infra), it is equally

clear that the issues raised in the amended complaint

have been addressed by the Courts on other occasions

and, as discussed in the opinion below, have been

resolved in each instance, in support of the respondents’

position and contrary to the petitioner's.

Petitioner concedes, as he must, that principles of res

judicata operate to bar relitigation in a Federal court of a

claim which a party had a right to raise in a prior action

brought either in the Federal or State courts but volun-

tarily chose the State court (citing Parker v. McKeithen,

488 F. 2D 553 [5th Cir., 1974], cert. den. 419 U.S. 838

[1974}). It is equally well settled that res judicata “has

been held to be fully applicable to a civil rights action

brought under § 1983.” (Preiser v. Rodriguez, 411 U.S.

475, 497, 36 L. Ed. 2d 439, 93 S. Ct. 1924 [1973]); cf.

Huffman v. Pursue, 420 U.S. 592, 606, fn. #18) Petitioner's

attempted distinction of the instant case from previous

authority, is, it is submitted, more apparent than real. As

the Court below noted, this is not a case where the State

litigation was involuntary as to the petitioner and where

the constitutional points could have been raised but were

not. “Here the claims were actually raised, and pursued

right up to the Supreme Court” (Petitioner's Appendix, p.

13A). The decision of the Court below herein is supported

by substantial authority throughout the circuits (Lovely

v. Laliberte, 498 F. 2d 1261, 1263-64 [1st Cir., 1974], cert.

den. 419 U.S. 1038; Thistlewaite v. City of New York, 497

F. 2d 339 [2d Cir., 1974], cert. den. 419 U.S. 1093, 42 L. Ed.

2d 686; Roy v. Jones, 484 F. 2d 96 [3d Cir., 1973]; Coogan

v. Cincinnati Bar Ass’n., 431 F. 2d 1209, 1211 [6th Cir.,

1970}; Blankner v. City of Chicago, 504 F. 2d 1037, 1041-

43 [7th Cir., 1974], cert. den. 421 U.S. 948, reh. den. 422

U.S. 1029; Chasteen v. Trans World Airlines, Inc., 520 F.

2d 714 [8th Cir., 1975]; Francisco Enterprises v. Kirby,

482 F. 2d 481, 484-485 [9th Cir., 1973], cert. den. 415 U.S.

949; Spence v. Latting, 512 F. 2d 93, 97-99 [10th Cir.,

1975], cert. den. 423 U.S. 1056).

Petitioner's reliance upon Getty v. Reed, 547 F. 2d 971

(6th Cir., 1977) is clearly misplaced as appears from the

following statement in that opinion (at p. 974):

“Without reference at this point to such questions as

the substantiality of the claims or to such defenses as

res judicata and collateral estoppel, we hold that the

district Court had jurisdiction of the complaints.”

The Court in Getty went on to distinguish its previous

holdings in Ginger v. Circuit Court for the County of

Wayne, 372 F. 2d 621 (6th Cir., 1967), cert. den. 387 U.S.

935 (1967) and Coogan v. Cincinnati Bar Association, 431

F. 2d 1209 (6th Cir., 1970) rather than to find a conflict

therewith as suggested by the petitioner. Similarly, the

support for petitioner's argument which he urges exists in

Kauffman v. Moss, 420 F. 2d 1270 (3d Cir., 1970) cert. den.

400 U.S. 846 (1970); Mulligan v. Schlacter, 389 F. 2d 231

{6th Cir., 1968); and Ney v. California, 439 F. 2d 1285 (9th

Cir., 1971) is nonexistent in that there was not a proper

basis for the invocation of the doctrine of res judicata in

the cited cases due to the absence of the issue in the prior

proceedings in the State courts. While Mack v. Florida

State Board of Dentistry, 430 F. 2d 862 (5th Cir., 1970),

cert. den. 401 U.S. 960 (WHITE, J., dissenting from denial

of writ) departs from the mainstre-m of pertinent

precedent, cited above, it is significant that that decision

predates, and consequently did not have the benefit of the

current trend in this area of the law (see, e.g., Huffman v.

Pursue, Ltd., 420 U.S. 592 [1975]; Thistlewaite v. City of

New York, 497 F. 2d 339 [2d Cir., 1974], cert. den. 419 U.S.

1093 [1974]; Tang v. Appellate Division, 487 F. 2d 138 [2d

Cir., 1973], cert. den. 416 U.S. 906 [1974]).

In summary, the petitioner asks this Court to grant

certiorari in an action in which this Court has already

examined the merits of his argument and denied certior-

ari in the New York State disciplinary proceedings

{Matter of Turco, 46 A D 2d 490 [4th Dept.], app. dsmsd.

36 N Y 2d 713, cert. den. 423 U.S. 838 [1975]) and he bases

his argument in this application upon alleged inconsis-

tencies which close scrutiny reveals to be ephemeral.

POINT II

_ THE MERITS OF THE PETITIONER'S CONTENTIONS

MADE AND REVIEWED FIVE TIMES IN THE NEW

YORK STATE COURTS AND IN UNITED STATES

COURTS DO NOT WARRANT FURTHER

REVIEW BY THIS COURT.

The petitioner's arguments challenging the New York

State disbarment procedures have not been made in the

Appellate Division, Fourth Department, the New York

State Court of Appeals, the United States Supreme

Court, on application for certiorari, the United States

District Court for the Western District of New York and

the United States Court of Appeals for the Second

Circuit. Petitioner thus seeks a sixth judicial review of

his disbarment and would have this Court consider his

due process and equal protection arguments for the

second time.

The respondents submit that the disbarment order,

issued two and one-half years ago, has now been sub-

jected to every judicial scrutiny to which a litigant can be

entitled and that the time has come for the implemen-

tation of the lawful order of the Appellate Division.

The United States Court of Appeals for the Second

Circuit thoroughly examined petitioner's due process and

equal protection arguments in addition to its finding that

the complaint should be dismissed on the grounds of res

judicata and collateral estoppel. That Court distinguish-

ed petitioner's reliance upon Baxstrom v. Herold, 383 U.S.

107 (1966); Specht v. Patterson, 386 U.S. 605 (1967); and

Humphrey v. Cady, 405 U.S. 504 (1972), which petitioner

urges this Court to consider in his argument that the

secondary consequence of disbarment improperly flowed

from his criminal convictions. In addition to the rationale

of the Court of Appeals opinion, it should be noted that

here we are dealing with a secondary consequence —

petitioner's disbarment — which was conducted ac-

cording to procedures which have previously and most

recently been approved by this Court in its affirmance in

Mildner v. Gulotta, 405 F. Supp. 182 (three-judge court,

E.D.N.Y., 1975), affd. 96 S. Ct. 1489 {1976)*. The absence

of a demonstration of merit to petitioner's constitutional

arguments thus removes any warrant for review by this

Court.

“Respondents reply upon the principal enunciated in

MTM, Inc. v. Baxley, 420 U.S. 799, 804, 43 L. Ed. 2d 636

(1975) that “a direct appeal will lie to this Court under §

1253 from the order of a three-judge federal court denying

interlocutory or permanent injunctive reliei only where

such order rests upon resolution of the merits of the

constitutional claim presented below.”

10

CONCLUSION

PETITIONER'S APPLICATION FOR

CERTIORARI SHOULD BE DENIED.

Dated: July 12, 1977

Respectfully submitted,

LOUIS J]. LEFKOWITZ

Attorney General of the

State of New york

Attorney for Respondents

RUTH KESSLER TOCH

Solicitor General

WILLIAM J. KOGAN

Assistant Attorney General

of Counsel