Petition — Shott v. Startzman

L MICHAL

Supreme Court of the Wntted- States ~~

OCTOBER TERM, 1977

ay why ~~ % i

No. 7™. ~-32¢

EDGAR I. SHoTT, JR.,

Petitioner,

vs.

THOMAS L. STARTZMAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

STANLEY K. LAUGHLIN, JR., Esa.

2061 Fairfax Road

Columbus, Ohio 43221

Louis A. Jacobs, Esa.

130 Christopher Street

New York, New York 10014

Counsel for Petitioner

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INDEX

| ae ee ee ee ee ee ee ee

ee a a 4 tke Gee ee

Question Presented ......

Constitutional and Rule Provisions

ee 2. 4's. wae ee 6 Uwe eS

Statement of the Case ....

Reasons for Granting the Writ

The Irrebuttable Presumption

Doctrine Developed by Recent

Decisions of This Court Needs

Further Definition in Light

of Conflicting Opinions In-

volving Such Presumptions

a Gen ae ee ee ee

Appendix A: Judgment Entry of

Supreme Court of Ohio .....

-ii-

TABLE OF AUTHORITIES

Cases

Allgeyer v. Louisiana,

165 U.8. BPS (AGS7) « © ew we

Baker v. Carr, 369 U.S. 186 (1962)

Bell v. Burson, 402 U.S. 535

ene. we ee 8 6 a ee ee

Cincinnati Bar Ass'n v. Shott, 10

Ohio St. 2d 117, 226 N.E.2d 724

Lae) «es 6 bb we 6¢ & 8 6 el

Cleveland Board of Education v.

LaFleur, 414 U.S. 632 (1974) .. .

Cohen v. Hurley, 366 U.S. 117

[2eOne « Reber 6. © ee © ous oie

Furman v. Georgia, 408 U.S. 238

[aeee.6¢ ee. + bee © 2 e 8 8

In re Thatcher, 83 Ohio St. 246,

53 B.B. Bee taeeer «© &« © t we ©

Jimenez v. Weinberger, 417 U.S.

Soe Gevaert m & « «© © © @ 8 6 #0 «

Kennedy v. Mendoza-Martinez, 372

0.8. 466 Cheesy ee © eo 8 &@ oO

Massachusetts Board of Retirement

v. Murgia, 472 U.S. 307 (1976) . .

Mourning v. Family Publications

Service, Inc., 411 U.S. 356 (1973)

~iii-

NAACP v. Button, 371 U.S. 415 (1963) 7

Sosna v. Iowa, 419 U.S. 393 (1975) 8

Stanley v. Illinois, 405 U.S. 645

ee ee a ee ea ee ee ee & 8

Tehan v. Shott, 382 U.S. 406 (1966) 2

Turner v. Dep't of Employment Secur-

ity of Utah, 423 U.S. 44 (1975) . 6, 8

United States Dep't of Agriculture

v. Murry, 413 U.S. 508 (1973) .. 7, 8

Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1 (1976) . . . 7 . . Ve 8

Vlandis v. Kline, 412 U.S. 441

Ki be ie ee ce se Le Make Ge Fe

Weinberger v. Salfi, 422

O.Me FED (AIe) © © eo 0 0 o Oe Ve BF

Constitutional and Rule Provisions

Constitution of the United

States, Eighth Amendment ..... 2, 9

Constitution of the United

States, Fourteenth Amendment ... 2, 9

Supreme Court of Ohio Rules of

Governance, Gov. R. V, §7 .. . passim

ad Supreme Court of the United States

Secondary Authority

Ackerman, “The Conclusive Octoper TERM, 1977

Presumption Shuffle," 125 U. Pa. No.

&. Reva Fen Gaeter se eee 6 6s 6

"Fair and Certain Punishment," j

Report of the Twentieth Century EpGar I. SHOTT, JR.,

Task Force on Criminal Sentencing Petitioner,

* - . * 7 . 7 = 7 . 7 10 ‘ vs.

Gordon and Tenebaum, "Conclusive

Presumption Analysis: The Princi- THOMAS L. STARTZMAN,

ple of Individual Opportunity," Respondent.

71 N.W.L. Rev. 579, 582 (1976) .. 6

National Clearinghouse on Offender PETITION FOR WRIT OF CERTIORARI

Employment Restrictions, Laws, TO THE SUPREME COURT OF OHIO

Licenses, and the Offender's Right

SY Bhi. eErwe ree eee 10

Petitioner Edgar I. Shott, Jr.,

respectfully prays that his petition for

writ of certiorari be granted to review

the judgment entry of the Supreme Court of

Ohio entered in this case on June 3, 1977.

OPINION BELOW

The judgment entry of the Supreme

Court of Ohio in the original action in

mandamus below has not yet been reported;

however, it appears in Appendix A to this

Petition.

JURISDICTION

The judgment entry of the Supreme

Court of Ohio was entered on June 3, 1977.

This Petition has been filed within 90 days

of that date. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1257(3).

~~

QUESTION PRESENTED

Whether a rule precluding a disbarred

attorney from “ever thereafter being read-

mitted to the practice of law" violates

the Fourteenth Amendment to the United

States Constitution by denying (1) procedural

due process through creation of an irrebut-

table presumption of perpetual unfitness

and (2) denying equal protection of the

laws and substantive due process through

arbitrary selection of a small class of

lawyers for imposition of a "professional

death penalty," despite the fact that the

loosely defined standards of bar discipline

allow most errant lawyers to be reinstated

upon proof of rehabilitation.

CONSTITUTIONAL AND RULE

PRCVISIONS INVOLVED

United States Constitution, Eighth

Amendment:

"Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusua.

punishments inflicted.”

United States Constitution, Fourteenth

Amendment:

Section 1 " *** [Njor shall any

state deprive any person of life, liberty,

or property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.”

3a

Supreme Court of Ohio, Rules of

Governance, Gov. R. V, §7:

"A person disbarred *** shall never

thereafter be readmitted to the practice

of law in this State."

STATEMEN?T OF THE CASE

The rules governing the practice of

law in the State of Ohio prohibit an

attorney once "disbarred" from ever there-

after being readmitted to the bar. The

Rule provides no criteria for determining

who shall receive this "professional death

penalty" as distinguished from lesser

penalties including “indefinite suspension”

(the next most serious penalty,which permits

reinstatement after two years), Gov. R. V

§7. Petitioner Edgar I. Shott, Jr., was

permanently disbarred on April 19, 1967,

Cincinnati Bar Ass'n v. Shott, 10 Ohio St.

2d 117, 226 N.E.2d 724 (1967). Disbarment

was ordered upon a finding of conduct

constituting moral turpitude. 10 Ohio St.

2d at 125-26, 226 N.E.2d at 730, 732.

That conduct occurred over 17 years ago

and resulted in a conviction in 1961 upon

a trial where "The prosecuting attorney in

his summation to the jury commented exten-

sively upon” Mr. Shott's failure to testify

on his own behalf. Tehan v. United States

ex rel. Shott, 382 U.S. 406, 407 (1966).

The offenses were rather technical ones;

selling an unregistered security and selling

a security without a license. "Moral tur-

pitude" was inferred from extraneous

circumstances not elements of the criminal

offense. See 10 Ohio St. 2d at 125-136,

age

supra. Petitioner was never before nor

has he since been convicted of or even

charged with a crime (excepting minor

traffic offenses).

After his disbarment, Mr. Shott served

a one-year term of incarceration, was

granted a final release and restoration

by the Ohio Adult Parole Authority, and

was licensed by the Ohio Insurance Depart-

mert as a bail bondsman, his present

occupation. The effect of Gov. R. V,

§7 on Mr. Shott is to foreclose him from

ever attempting to show that through the

intervening seventeen years since the

incident leading to his disbarment he has

become rehabilitated and is presently fit

to practice law.1

lshott has always maintained his

innocence but more particularly he has

steadfastly denied any moral turpitude,

an element found only in the disbarment

proceeding. In essence, Shott concedes

that he issued a promissory note, found

by the court that convicted him to be an

unregistered “security.” He also concedes

that he invested the money obtained there-

from with one Stickler, who thereafter

was proven to have been engaged in an

unlawful "Ponzi" scheme. He has, however,

maintained from the outset that he believed

Stickler to be engaged in a lawful business

and had no fraudulent knowledge or intent.

No direct evidence was ever adduced against

him on this contention. The Ohio Supreme

Court apparently acted against him on the

assumption that as a worldly-wise attorney,

he should have known that Stickler's “invest-

ments” were too good to be true. The Ohio

Rule prevents him from presenting new

evidence on that issue.

oS

In February, 1977, Mr. Shott brought

an original action in mandamus in the

Supreme Court of Ohio to compel the Clerk

of that Court to accept his petition for

reinstatement upon the ground, inter alia,

that Gov. R. V, §7 is, both as written

and applied, unconstitutional under both

the Ohio and Federal Constitutions.2 On

June 3, 1977, the Ohio Supreme Court,

after considering a brief on the merits

from the Ohio Attorney General on behalf

of the respondent Clerk, rendered a per

curiam judgment (reproduced as poe « — |

A hereto) dismissing the action.

The effect of the Ohio Court Rule and

its application in this case is to allow

Ohio to indulge in an “irrebuttable pre-.

sumption" that a former lawyer, once dis-

barred, is thereafter forever’ deemed unfit

to practice the profession for which he

was trained.

REASONS FOR GRANTING THE WRIT

THE IRREBUTTABLE PRESUMPTION DOCTRINE

DEVELOPED BY RECENT DECISIONS OF THIS COURT

NEEDS FURTHER DEFINITION IN LIGHT OF CON-

FLICTING OPINIONS INVOLVING SUCH PRESUMPTIONS.

THIS CASE IS A PROPER VEHICLE FOR EXPLAINING

THOSE DECISIONS.

2under Ohio law, the Ohio Supreme Court

has exclusive jurisdiction in bar discipli-

nary matters. Hence, the petitioner had

no choice but to begin his action in that

Court.

-6-

In the past few years, this Court has

had a number of opportunities to consider

state action that created conclusive

presumptions. See, e.g. Cleveland Board

of Education v. LaFleur, 414 U.S. 632

(1974'. Irrebuttable presumptions have

been struck down in some instances, Turner

v. Dep't of Employment Security of Utah,

423 U.S. 44, 46 (1975); LaFleur, supra;

Vlandis v. Kline, 412 U.S. 441 (1973);

upheld in some, Weinberger v. Salfi, 422

U.S. 749, 772 (1975); and more or less

ignored in others, Massachusetts Board of

Retirement v. Murgia, 472 U.S. 307 (1976).

It is respectfully submitted that no

internally consistent legal theory has

emerged to reconcile these decisions. See,

Ackerman, ."The Conclusive Presumption

Shuffle," 125 U. Pa. L. Rev. 761, 762 (1977);

Gordon and Tenebaum, “Conclusive Presumption

Analysis: The Principle of Individual

Opportunity,” 71 N.W.L. Rev. 579, 582 (1976).

The rule challenged at bar seems to

present a classic case of an unconstitu-

tional irrebuttable presumption. The

"presumption . .. [is] not necessarily

or universally true in fact." Vlandis v.

Kline, 412 U.S. 441, 452 (1973). The

fact of perpetual unfitness is irrebuttably

drawn from the fact of disbarment; an

individualized determination of whether the

circumstances of the disbarment and the

rehabilitative progress since the disbar-

ment warrant a fact finding of fitness is

foreclosed by the rule. Cf. Cleveland

Board of Education v. LaFleur, supra,

414 U.S. at 648-49. Ohio already has a

"reasonable alternative means of making

the crucial determination" (Vlandis v.

ofe

Kline, supra, 412 U.S. at 452) of fitness

through the same process used for indefinitely

suspended attorneys who, under the Ohio

rules, may be reinstated. See also,

United States Dep't of Agriculture v.

Murry, 413 U.S. 508, 514 (1973). This

procedure is used in many more cases than

is the irrebutable presumption used in

permanent disbarment cases, since many

more attorneys are suspended than disbarred.

Hence, the argument of administrative con-

venience cannot be used by Ohio in this

case. (Cf. Weinberger v. Salfi, supra.)

Under Ohio law, disciplinary procedure

is not considered punishment but is rather

concerned with protection of the public

interest. In re Thatcher, 83 Ohio St. 246,

249, 93 N.E. 895,, 896 (1910). Ohio disci-

plinary procedures thus do not purport to

meet standards of procedural due process

required in punitive proceedings. See

Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963). Hence, the only issue involved in

Ohio disbarment is the public interest in

precluding the attorney from future law

practice. Yet, at the same time Ohio denies

to one disbarred the crucial opportunity

to prove that the public interest would be

served by restoring him to the useful prac-

tice of his chosen and trained-for profession.

"Purely economic matters" are not at issue

here (cf. Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1, 23-24 (1576)); instead,

the liberty and property interests of a

person trained and experienced in a learned

and constitutionally recognized profession,

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

at stake. Cf. Allgeyer v. Louisiana, 165

U.S. 578 (1897).

The application of the irrebuttable

presumption doctrine to this case is,

however, not made easy by decisions of this

Court. For example, how important must the

affected interest be to partake of the

doctrinal protection? Must it be one of

the "basic human liberties," Turner v.

Dep't of Employment Security of Utah,

supra, U.S. at 46?; an incremental

sum of money, Vlandis v. Kline, supra?;

or merely something other than a social

welfare benefit, Weinberger v. Salfi,

supra? How generally va need the pre-

sumption be to justify generalized determi-

nations? Must it be substantially accurate,

Mourning v. Family Publications Service,

Inc., 411 U.S. 356, 377 (1973); believed

accurate by concensus, Cleveland Board of

Education v. LaFleur, supra, 414 U.S. at

799-800, n. 13; or merely the shortest

route to a presumed fact, Vlandis v. Kline,

Supra, 412 U.S. at 452-53, n. 9?

What type of state interest will over-

whelm the individual's right to an individu-

alized determination? Can it be the interest

in domestic relations, Sosna v. Iowa, 419

U.S. 393 (1975); child custody, Stanley v.

Illinois, 405 U.S. 645 (1972); consumer's

rights, Mourning v. Family Publications

Service, Inc., supra; or working conditions,

Usery v. Turner Eikhorn Mining Co., supra?

How complex may the fact finding on the

individual's rebuttal be before the presump-

tion is allowed? Need it be quite involved,

Stanley v. Illinois, supra, 405 U.S. at

657-58; conditioned on other facts, Bell v.

Burson, 402 U.S. 535, 541-43 (1971); or

fairly easy, United States Dep't of Agricul-

ture v. Murry, supra?

aGe

The cases at present do not support

a single cohesive theory on irrebuttable

presumption because on each element there

are seemingly inexplicable divergences

from one decision to another. Further,

the precedent is even unclear on when the

irrebuttable presumption analysis applies.

In Weinberger v. Salfi, supra, this Court

seemingly scounted due process analysis

and measured the statute only on equal

protection standards.

Petitioner submits that even using the

Salfi analysis, Gov. R.V, §7 is unconstitu-

tional. First, no governmental interest

is served if a disbarred attorney is

rehabilitated yet still denied reinstatement.

Secondly, insofar as a lawyer can use his

skills to his and his family's maintenance

and in the service of society, relegating

rehabilitated attorneys to membership in

the class of the permanently disbarred ren-

ders that class overinclusive. Jimenez v.

Weinberger, 417 U.S. 628, 637-38 (1974).

Third, itscition of the penalty of perma-

nent disbarment is done without written,

controlling standards resulting in a "crazy-

quilt" pattern of discipline. Cf. Baker v.

Carr, 369 U.S. 186, 222 (1962). Finally,

because Ohio's "professional death penalty”

operates in so irrational and haphazard a

manner, it not only violates the Fourteenth

Amendment due to its arbitrariness, Cohen v.

Hurley, 366 U.S. 117, 122 (1961). but it

also violates the incorporated Eighth

Amendment prohibition against cruel and

unusual ounishment. Furman v. Georgia,

408 U.S. 238, 309-10 (1972) (Stewart, J.,

concurring).

-10-

In petitioner's view, under either

the irrebuttable presumption doctrine or

an equal protection or substantive due

process analysis, Ohio Supreme Court Gov.

R. V, §7 is unconstitutional. The absence

of a cohesive legal theory and the presence

of unreconciled opinions in this area

suggest a broad general interest in clari-

fication by this Court both for the gui-

dance of courts below and for the protection

of citizens in similar circumstances.

CONCLUSION

Unless the irrebuttable presumption

of unfitness created by Ohio Governance

Rule V, §7 is declared unconstitutional,

petitioner Shott, without a hearing, wil’

forever remain deprived of an important

property interest and a vital personal

3phe need for explication of clear

constitutional standards is particularly

compelling due to the broad utilization

by professional licensing bodies of prior

criminal conduct, characterized as "moral

turpitude," to irrebuttably presume unfit-

ness on the part of those very persons

whom society is trying to restore to use-

ful lives. See, e.g., National Clearing-

house on Offender Employment Restrictions,

LawS, Licenses, and the Offender’s Right

to Work 3 (1973); “Fair and Certain Pun-

ishment," Report of the Twentieth Centur

Task Force on Criminal Sentencing 29 (1976).

elle

liberty interest, despite the fact that

seventeen years of productive and exemplary

life since his solitary transgression

strongly suggest that he may now, in fact,

be fit to return to the practice of law.

Furthermore, the law of irrebuttable

presumption calls out for clarification

Since judges, writers, lawyers, and citi-

zens are currently unable to reconcile the

precedents in this area.

For these and the foregoing reasons,

it is respectfully requested that a writ

of certiorari be issued to review the

judgment of the Supreme Court of Ohio in

this case.

Respectfully submitted,

Stanley K. Laughlin, Jr.

2061 Fairfax Road

Columbus, Ohio 43221

Louis A. Jacobs

130 Christopher Street

New York, New York 10014

Attorneys for Petitioner

ee

APPENDIX

APPENDIX A

Judgment Entry of Supreme Court of Ohio

(June 3, 1977)

No. 77-229

SUPREME COURT OF OHIO

State of Ohio, City of Columbus

The State of Ohio, ex rel. Edgar I. Shott,

Jr.,

Relator,

vs.

Thomas L. Startzman, Clerk, Supreme Court

Respondent.

IN MANDAMUS ON MOTION TO DISMISS

~

This cause originated in this court

on the filing of a complaint for a writ

of mandamus and was considered in the

manner prescribed by law. On consideration

of the motion to dismiss, it is ordered

by the court that this motion be, and the

same hereby is, sustained, and cause

dismissed.