Opposition — Berry v. Judiciary Commission

8 .

% Supreme Court, U. $.

FILED

} OCT 141977

MICHAEL RODAK, N., CI ER

In the

Supreme Court of the United States

OCTOBER TERM. 1977

NO. 77 > 423

; B. l. BERRY, JUDGE, ET Al.,

: Petitioners

5 versus

„ JUDICIARY COMMISSION OF LOUISIANA

3 BRIEF IN OPPOSITION TO PETITION FOR WRIT

* OF CERTIORARI TO THE LOUISIANA SUPREME

1 COURT

5 WILLIAM J. GUSTE, JR.

5 ATTORNEY GENERAL

DONALD ENSENAT

ASSISTANT ATTORNEY GENERAL

LOUISIANA DEPARTMENT OF JUSTICE

2-3-4 Loyola Bidg., 7th Floor

New Orleans, Louisiana 70112

(504) 568-6575

ATTORNEYS FOR JUDICIARY

COMMISSION OF LOUISIANA

4

IN THE .

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. 77-423

B.I. BERRY, JUDGE, ET AL.

Petitioners

versus

JUDICIARY COMMISSION OF LOUISIANA

Respondent

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

LOUISIANA SUPREME COURT

I.

Juri li ti

A. The judgment of the Supreme Court of Louisiana was

entered on May 16, 1977. The timely petition for re-hear-

ing of Judge Berry, et al (Judges) was denied on June 17,

1977.

No notice of appeal was filed pursuant to Rule 10, and

no record was timely docketed pursuant to Rule 13.

The alternative ground for invocation of the jurisdiction

of this Court under 28 U.S.C. § 1257(2) is without merit.

B. Mr. Justice Powell extended the time for filing a pe-

tition for writ of certiorari to and including September 19,

1977. The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3).

II.

Questions Presented

No substantial federal question is presented or decided in

the judgment of the Louisiana Supreme Court, dated May

16, 1977. Rule 19(a).

III.

Statement of the Case

This is a judicial discipline case under Article V, Section

2500) of the Louisiana Constitution of 1974, which provides

in pertinent part:

“On recommendation of the judiciary commission,

the supreme court may censure, suspend with or

without salary, remove from office, or retire invol-

untarily a judge for willful misconduct relating to

his official duty, willful and persistent failure to

perform his duty, persistent and public conduct

prejudicial to the administration of justice that

brings the judicial office into disrepute, conduct

while in office which constitutes a felony, or con-

viction of a felony.”

On March 5, 1975, pursuant to its constitutional grant of

supervisory power over the courts, the Louisiana Supreme

Court promulgated a Code of Judicial Conduct, which be-

came effective on January 1, 1976. Art. V, Sec. 5(A), La.

Const. of 1974.

The Louisiana Code of Judicial Conduct was modeled

after the Code of Judicial Conduct promulgated by the

American Bar Association, and adopted in whole or part by

forty (40) states and by the Judicial Conference of the

United States.

Contained in the Louisiana Code of Judicial Conduct was

Canon 5C(2) which prohibited a Louisiana judge from being

a member of the board of directors of a financial institu-

tion. Louisiana Canon 5C(2) was the less restrictive alter-

native presented in the ABA Model Code. The more restric-

tive alternative prohibited judges from being members of

the boards of directors of any corporation, and has-been

adopted as part of the Code of Conduct for United States

Judges.

The judgment sought to be reviewed by this petition is

one which affirmed the recommendation of the Judiciary

Commission that the Judges by refusing to comply with

Canon 5C(2) had engaged in persistent and public conduct

prejudicial to the adn nistration of justice that brings the

judicial office into disrepute.” Based on this Louisiana

constitutional ground for discipline, the Supreme Court, on

recommendation of the Judiciary Commission, suspended

the Judges without salary until they complied with Canon

5C(2) of the Code of Judicial Conduct. In Re Babineaux, et

al, 346 So. 2d 676 (La. S.Ct. 1977).

Prior to this disciplinary proceeding, the Judges had

sought and obtained a declaratory judgment of the consti-

tutionality of Canon 5C(2) under the Constitutions of

4

Louisiana and of the United States. Specifically, the Judges

alleged that Canon 5C(2) violated their guarantees to due

process, equal protection and freedom of association found

in Article I of the Louisiana Constitution of 1974 and in

the First and Fourteenth Amendments to the United States

Constitution.

The judgment of the Louisiana Supreme Court declaring

Canon 5C(2) constitutional under the Constitutions of

Louisiana and the United States was entered on December

13, 1976. A timely petition for re-hearing was denied on

January 21, 1977. Babineaux, et al v. Judiciary Commiss-

sion of Louisiana, 341 So. 2d 396 (La. S.Ct. 1976).

No notice of appeal was filed, and no petition for a writ

of certiorari seeking review of that judgment was timely

filed in this Court. That judgment is now final.

Only after final judgment, and only after the Judges

persistently and publicly refused to comply with Canon

5C(2), did the Judiciary Commission institute disciplinary

proceedings and recommend discipline to the Louisiana

Supreme Court.

The sole issue presented in the court below was the

recommendation of the Judiciary Commission that the

Judges’ refusal to comply with Canon 5C(2) was a ground

for discipline under the Louisiana Constitution of 1974, and

that the discipline to be imposed should be suspension with-

out salary until the Judges complied with Canon 5C(2).

The Louisiana Supreme Court adopted the recommendation

of the Judiciary Commission. In Re Babineaux, et al,

346 So. 2d 676 (La. S.Ct. 1977).

5 ‘

No substantial federal question was raised or decided

below, and none is presented in the petition pursuant to

Rule 23 (I) (f).

IV.

Argument in Opposition to Granting the Writ

The questions presented in the petition attack the com-

mission form of judicial discipline on its face.

Thirty-three states and the District of Columbia have

adopted a judiciary commission plan similar to that of

Louisiana. American Judicature Society, Judicial Disability

& Removal Commission, Courts and Procedures, Page i

(1973).

This Court has denied certiorari from a judgment of the

Florida Supreme Court adopting the recommendation of a

similar judiciary commission. In Re Kelly, 238 So.2d 561

(Fla. S.Ct. 1970). cert. den. sub. nom., Kelly v. Florida

Judicial Qualifications Commission, 401 U.S. 962, reh.

den. 403 U.S. 940 (1971).

State judgeships and state judiciary commissions or

courts are creatures of state law. A state judicial disciplin-

ary proceeding on its .face does not involve a substantial

federal question, and this Court has dismissed an appeal on

that ground. Friedman v. Court on Judiciary of New York,

375 U.S. 10 (1963); see also, In Re Osterman, 13 N.Y. 2d a.

(1963), cert. den. sub. nom., Osterman v. Court on the

Judiciary of New York, 376 U.S. 914 (1964).

6

This Court has also denied certiorari of a federal court

constitutional challenge on its face and in application of a

state judiciary commission. Napolitano v. Ward, 317 F.

Supp. 79 (M.D. II., 1970), aff'd 457 F.2d 279 (7th Cir.

1972), cert. den. 409 U.S. 1037, reh.den. 410 U.S. 947.

V.

Conclusion

The petition for a writ of certiorari to the Supreme Court

of Louisiana does not present a substantial federal question

and should be denied. i

Respectfully submitted,

WILLIAM J. GS TE, IR.

ATTORNEY GENERAL

STATE OF LOUISIANA

DONALD ENSENAT

_ ASSISTANT ATTORNEY

GENERAL

7 .

Certificate of Service f

I hereby certify that copies of the foregoing Brief in

Opposition to Petition for Writ of Certiorari has been served

on:

JOHN P. NELSON, JR.

144 Elk Place, Suite 1202

New Orleans, Louisiana 70112

This 13th day of October, 1977.

DONALD ENSENAT --