# Opposition — Turco v. Monroe County Bar Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 834

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2048%3A2. Public record. Not legal advice.