Opposition — Graseck v. Middlemiss

a a Court, U, S47

+ — = —— D

setbaec ‘\ OBC a6 1978 |

Supreme Court of the United: States |

December Term, 1978 | Mt RODAK, JR., CLERK

No. 78-859

ArTHuUR V. GRASECK, JB.,

Plaintiff-Petitioner,

—against—

AncELo Maucert, Individually and as Administrative Judge of

the District Court of Suffolk County; Epwarp U. GREEN, JR.,

Individually and as a Judge of the District Court of Suffolk

County,

Defendants,

Joun F. Mwpuemiss, Jr., Individually and as Attorney-in-Charge,

Legal Aid Society of Suffolk County, New York,

Defendant-Respondent,

RaLtpH CosTe.Lo, Individually and as Attorney-in-Charge of the

District Court Bureau of the Criminal Division of the Legal

Aid Society of Suffolk County, New York,

Defendant,

Lecat Ar Socrety of Suffolk County, New York,

Defendant-Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Mever, ENGLISH, CIANCIULLI & PEIREZ, P.C.

Attorneys for Defendants-Respondents

160 Mineola Boulevard

Mineola, New York 11501

(516) 741-6565

JosEPH P. Hoey,

Of Counsel

————ee

ee

TABLE OF CONTENTS

Questions Presented ........-..----s-sssssssnesnesesesensnnseseneenenennenns

hatte’. GE TAG GB~ vicsiiscecccsctecannscetsssersectin

Pormtr I—

The concurrent findings of fact of both lower

courts that the plaintiff-petitioner was discharged

“due to his inability to work with colleagues and

to follow established rules, his repeated exercise

of poor judgment, and his continual absence from

assigned areas” must be upheld by this Court ab-

sent a “very obvious and exceptional showing of

Pornt II—

In dismissing Graseck as a Legal Aid attorney,

the Legal Aid Society did not act under “Color of

State Law” within 42 U.S.C. §1983 and 28 U.S.C.

GDGEB(B) acceredecesaccsiocovsocsnsnecscvsnsncssosecenseseevennseversansscsassosee

Port ITI—

There is no proof in the record to support a find-

ing that the refusal of the courts below to find that

Graseck’s dismissal was the result of state action

will permit evasion of the Sixth Amendment duty

to provide effective legal representation to the

IMGIPONE .....-ceccenssecesnsererarceceserececseserecensceseececenesseseconensesecssee

CI inn a wctisininaisccutndsabiéeteaneapansnenapinndenaamepeeeuss

ii

TasLe or AUTHORITIES

Cases: PAGE

Adams vy. Southern California First National Bank,

492 F.2d 324 (9th Cir. 1973), cert. den. 419 U.S. 1006

CRD aineeh te scesccakceenenianentec-einnssieninsinppionestettiladi lien dadanacsilt 19

Barrett v. United Hospital, 376 F.Supp. 791 (S.D.N.Y.

1974), aff'd. 506 F.2d 1395 (2d Cir. 1974) .................. 13

Berenyi v. Immigration and Naturalization Service,

Ps Sg ltt aNd Ata sine si ale Se R 5

raden vy. University of Pittsburgh, 552. F.2d 948, 960

CO TRG. MD peckeenpenenewckotseingtcdsoreynievinicaebammnesncotiptiiviian 12,14

Buck v. Board of Education of City of New York, 536

ee Te Cs IR coli cspttcecerreereeniomenteheinth etnies 9

Burton v. Wilmington Parking Authority, 365 U.S. 715

PON eared lesa ah avis a ol 11, 14, 14n, 15

Coleman v. Wagner College, 429 F.2d 1120 (2d Cir.

SI itech shins caecsdtichis ieniigtiniatlecdeditraiticaddabelilgininae 18

Downs vy. Sawtelle, 574 F.2d 1 (1st Cir. 1978), cert.

den. —— U.S. ——, 99 S.Ct. 278 (1978) ............ 12, 14, 19n

Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972)...,... 22n

Faulkner v. Gibbs, 338 U.S. 267 (1949), rehearing den.

S03 SRO. CR ee 5

Flagg Brothers, Inc. v. Brooks, —— U.S. ——, 98 S.Ct.

DI a ia al ee 13

Fletcher v. Rhode Island Hospital Trust National

Bank, 496 F.2d 927 (1st Cir. 1974), cert. den. 419

SLES EGDTEPUND sincshecdeesheniianiahovtneletdepinanpsedthsaiacidlacsiaanepaeinadiai 19

Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321

|, RRR SI a re Re en 5

iii

PAGE

Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d

Cir. 1973) ...........: SLA Ve nT OR EO Oe Thar ae 13, 18

Granfield v. Catholic University of America, 530 F.2d

1035 (D.C.C. 1976), cert. den. 429 U.S, 821 (1976)..... 19

Graver Tank & Mfg. Co., Inc. v. Linde Air Products

Cig BBO TB. BTL (IDAD) ncreccsagsrcccreccscccccsesecscevevecevscenvece 5

Greco v. Orange Memorial Hospital Corp., 513 F.2d

873 (5th Cir, 1975), cert. den, 423 U.S. 1000 (1975)..12, 19

Grossner v. Trustees of Columbia University, 287 F.

Supp. 535 (S.D.N.Y. 1968) ......--..---ceee- . 18

Holodnak v. AVCO Corp., AVCO-Lycoming Division,

Stratford, 514 F.2d 285 (2d Cir. 1975), cert. den.

423 U.S. 892 (1975) .. me 14, 15

Jackson v. Metropolitan Edison Co,, 419 U.S. 345

EN iiss dsc abcaniernnrnceniigsfitbebopepbacserenonshnenerncheoustovscuatens 15, 16

Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir.

| RT OAR.” nn SOCORRO 11, 13, 14n, 18

Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir.

DN diac heed ei eatsachencegseavpsinmetecnessinsas 9, 10, 12, 13, 16, 18

Memphis Light, Gas & Water Division v, Craft, ——

ip ee bk a)” a /) ) aan 5

Powe v. Miles, 407 F.2d 73 (2d Cir. 1968) ..........-c0ces00 16, 18

Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir.

gE LTE DT pea Se ee 13

Taylor v. Consolidated Edison Co, of New York, Inc.,

552 F.2d 39 (2d Cir. 1977), cert. den, 434 U.S. 845

ea odescteetpesbenecececlsslesooverieenleneccenevssnsetocsess 18, 19

Turner v. Impala Motors, 503 F.2d 607 (6th Cir. 1974) 19

iv

PAGE

United States v. Ceccoleni, —— U.S. ——, 98 8.Ct.

WRB, CODTB) | ccencecccicctintiisnccsnvioneninginin 5

United States v. Commercial Credit Co., Inc., 286 U.S.

GB CIGD) nbn caiia cock iccksacedlcdctncectbedsdesehdabbareennsoensetventnenedians 5

United States v. Dickenson, 331 U.S. 745 (1947) .......... 5

United States ex rel. Reed v. Richmond, 277 F.2d 702

(DE CR GOODY isin iibcihisciccnieesibitahcdibsitbsovonstSsbbicstaboamscgne 22n

United States v. Price, 388 U.S. 787 (1966) ..........0000-0 8n

United States v. Robinson, 553 F.2d 429 (5th Cir. 1977),

cert. den. 434 U.S. 1016 (1977) ........coceresesevsecesrerenees 22n

United States v. Wright, 176 F.2d 376 (2d Cir. 1949),

ee fly Bey) Ae le 22n

United States v, Yanishefsky, 500 F.2d 1327 (2d Cir.

DDI 5 sistisssinntsitcaiitainteigaleracplbiaite <tdsi clea tai antsectannsicbecnanias 22n

University of California Regents v. Bakke, —— US.

siniiese! SG TRIE, EM MMPI asusiciscopdshtentedintdbiiniandonsebstaiengete 20

Wahba v, New York University, 492 F.2d 96 (2d Cir.

1974), cert. den. 419 U.S. 874 (1974) ........ccccencececeneees 18

Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973), cert. den.

GO Te, TR TUE beascy cove osccececciienhtiistlanhinastustnnibeanatabinnhinie 9n

Weise v. Syracuse University, 522 F.2d 397 (2d Cir.

j _ * RR TM SIAL Pies ee PAN Meare OF I COMIRN NCA eh ROD ei ra 13,18

Constitutional and Statutory Provisions;

First Amendment, United States Constitution .............. 6

Fourteenth Amendment, United States Constitution... 6

Sixth Amendment, United States Constitution ............ 6, 21

Code of Judicial Conduct of the American Bar Asso-

ER RITE RMIT celpcesoncenepreteindicuibssoninascndiemmnians 22

Code of Professional Responsibility of the American

ee DOOD Lidice Aes ee 22

Vv

PAGE

WEE, CR TW STG accesses enccsccesekcs cscvccvcincococospececossece . 22n

N.Y. County Law, Article 18-B §722 ..........ccssssssseseee 8,9

N.Y. Membership Corporation Law, Article 2 ............ 8

Title 18 U.S.C. $8006 A(h)(2)(A) .......cc.nccsssrerserscsceeees 22n

vo & Bip f oR: |} | PPR EE ena ene. 2,8

BER ME, I Wile MRM. solceintss (octaceisciecesegcbeimetnenssieanipesiadbmieced 2,8,9

I Ee ET Te TL Ne nnn ny am

In THE

Supreme Court of the Rnited States

December Term, 1978

| No. 78-859

Artuur V. Graseck, JR.,

Plaintiff-Petitioner,

—against—

\ Ancreto Mavceri, Individually and as Administrative

Judge of the District Court of Suffolk County; Enwarp

U. Green, Jr., Individually and as a Judge of the Dis-

trict Court of Suffolk County,

Defendants,

Joun F. Mippiemiss, Jr., Individually and as Attorney-in-

Charge, Legal Aid Society of Suffolk County, New York,

Defendant-Respondent,

Raupu Costet.o, Individually and as Attorney-in-Charge

of the District Court Bureau of the Criminal Division

of the Legal Aid Society of Suffolk County, New York,

Defendant,

LecaL Ar Society of Suffolk County, New York,

Defendant-Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents John F. Middlemiss, Jr., Individually

and as Attorney-in-Charge, Legal Aid Society of Suffolk

2

County, New York and the Legal Aid Society of Suffolk

County, New York, respectfully request that this Court

deny the petition for writ of certiorari, seeking review of

the Second Circuit’s opinion and judgment in this case filed

and entered August 1, 1978. That opinion is not reported.

Questions Presented

1. Whether the concurrent findings of fact by both lower

courts should be upheld absent a very obvious and excep-

tional showing of error?

2. Whether the Respondents acted under the color of

State Law pursuant to 42 U.S.C. §1983 and 28 U.S.C.

§1343(3) in dismissing petitioner?

3. Whether the holding that the dismissal of petitioner

was not under the color of State Law may permit the

evasion of the Sixth Amendment duty to provide effective

legal representation to the indigent?

Statement of Facts

Petitioner Graseck (hereinafter “Graseck”) worked for

the Legal Aid Society (hereinafter “the Society”) as a

staff attorney in its Criminal Division from July 12, 1971

to October 13, 1972. In October, 1971, he was assigned to

the District Court Bureau in Hauppauge, Long Island

and remainded there until his dismissal on October 13,

1972. E. Thomas Boyle, Attorney-in-Charge of the District

Court Bureau from October 1971 to August 1972, served

as his immediate supervisor. Ralph Costello replaced

Boyle in this position in August, 1972, and was Graseck’s

supervisor until October 13, 1972.

3

On October 13, 1972, respondent Middelmiss, Attorney-

in-Charge of the Society, met with Costello. Middlemiss

requested petitioner to resign, setting forth the grounds

for the request. Graseck informed Middelmiss that he re-

fused to resign and that he needed the weekend to con-

sider it. Middelmiss then discharged him.

E. Thomas Boyle met with Middlemiss a few days later

protesting Graseck’s discharge and urging his reinstate-

ment. When Middlemiss refused to rehire him, Boyle re-

signed in protest.

On November 15 the Personnel Committee of the So-

ciety conducted a hearing to review Graseck’s termination,

particularly the charge leveled against the Society by him

and Boyle that judicial pressure provoked the decision.

Graseck was notified of the meeting. The first part of

the meeting was open to the public; former clients of

Graseck testified on his behalf. The balance of the meet-

ing was held in private among the five members of the

Personnel Committee, Boyle, Costello, Middlemiss and

Graseck.

In the private meeting the four attorneys presented

their positions to the Committee. Graseck presented his

and submitted exhibits in support thereof; Boyle spoke

on Graseck’s behalf. Based upon all the evidence pre-

sented, the Committee voted four to one to uphold the

decision of defendant Middlemiss to dismiss. Graseck was

apprised of the Committee’s affirmation on the day of the

hearing. On January 24, 1973, the Board of Directors of

the Society reviewed the dismissal and sustained the de-

cision of the Personnel Committee. Graseck was not in-

formed of this meeting nor was he present.

At the trial voluminous oral and documentary evidence

was presented, including the reasons for the termination.

4

The incidents which culminated in Graseck’s dismissal] as

found by the Trial Court in his findings of fact, and

adopted by the Cireuit Court are the following:

(a) The Mottenburg Incident

(b) The Kuzmier, Lardner and Elliott Incidents

(c) The Subpoena Incident

(d) The McElhiney Affirmation

(e) The Article 78 Proceeding Against Judge Tisch

(f) The Pen Incident

(zg) The Volz Incident

(h) Lending of Minutes Without Permission

(i) Absence from Assigned Parts

(Pet. App. B11-B20)*

* Page references preceded by “Pet. App.’ refers to the Ap-

pendices filed by Graseck in connection with his Petition for a

Writ of Certiorari. The letter “A” preceding a page number refers

to the opinion below of the United States Court of Appeals for the

Second Circuit and the letter “B” preceding a page number refers

to the opinion below of the United States District Court per Chief

Judge Jacob Mishler.

REASONS WHY THE WRIT SHOULD BE DENIED

POINT I

The concurrent findings of fact of both lower courts

that the plaintiff-petitioner was discharged “due to his

inability to work with colleagues and to follow estab-

lished rules, his repeated exercise of poor judgment,

and his continual absence from assigned areas” must

be upheld by this Court absent a “very obvious and

exceptional showing of error’’.

In a case such as this where the Court of Appeals has

affirmed the findings of fact of the District Court, this

Court has long held:

“A court of law, such as this Court, rather than a

court for correction of errors in fact finding, cannot

undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and ex-

ceptional showing of error.” (citations omitted) (em-

phasis added). Graver Tank & Mfg. Co., Inc. v. Linde

Air Products Co., 336 U.S. 271, 275 (1949).

This “two court rule” has recently been reaffirmed by

Berenyi v. Immigration and Naturalization Service, 385

U.S. 630 (1967); United States v. Ceccolini, US.

——, 98 S.Ct. 1054, 1058 (1978); and Memphis Light, Gas

& Water Division v. Craft, US. , 98 S.Ct. 1554,

1564 (1978). See also, Goodyear Tire & Rubber Co. v.

Ray-O-Vac Co., 321 U.S. 275 (1944); United States v.

Commercial Credit Co., Inc., 286 U.S. 63, 67 (1932) ; United

States v. Dickenson, 331 U.S, 745, 751 (1947); Faulkner

v. Gibbs, 338 U.S. 267, rehearing den. 338 U.S. 896 (1949).

The parties are not in substantial disagreement as to

the basic facts surrounding Graseck’s discharge. Gra-

6

seck, however, urges the conclusion that “(t]he chronology

of events clearly demonstrates that the discharge decision

was a response to extraordinary judicial communication

to respondent Society”, (Petition at 44)* and therefore

his dismissal resulted “in [an] infringement of petitioner’s

and his clients’ constitutionally protected rights under the

First and Sixth Amendments, respectively, and was vio-

lative of the due process clause of the Fourteenth Amend-

ment”. Petition at 11-12.

After a full de novo trial** the District Court rejected

these contentions finding that:

“A careful review of the 1°cord discloses that plain-

tiff was discharged for a manifest inability to func-

tion within the organizational framework of the So-

ciety. The evidence amply demonstrates that plaintiff

was unable to work with colleagues, to adhere to ele-

mentary rules and procedures of the Society and the

District Court, and to exercise the degree of sound

judgment that is necessary when presenting a case

before the court. During the twelve month period

of his employment ... plaintiff was unwilling to work

as a member of a team, but rather consistently per-

formed according to his personal concept of his posi-

tion. The incidents which culminated in plaintiff's

dismissal might, when viewed singly, seem insignifi-

cant; however, when regarded in the aggregate, they

unequivocally support the Society’s contention that

plaintiff's conduct impeded its proper functioning and

reflected adversely on its good name.” Pet. App. at

B19-B20

*Page references preceded by the word “Petition” refer to

Graseck’s Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

** The transcript of the trial before Judge Weinstein was ad-

mitted into evidence in the trial before Chief Judge Mishler.

7

Holding that “[t]he district court’s findings regarding

the events underlying the dismissal decision are not clearly

erroneous and find support in the record” (Pet. App. at

A16), the Court of Appeals stated that:

“The district court found that appellant was discharged

due to his inability to work with colleagues and to

follow established rules, his repeated exercise of poor

judgment, and his continued absence from assigned

areas ... [and] that the discharge, far from being a

reaction of judicial pressure resulted from the inde-

pendent managerial decision of the Society.” Pet, App.

at A7

In their well reasoned opinions, both lower courts fully

reviewed all the relevant and material facts surrounding

petitioner’s dismissal. Graseck, represented by able coun-

sel before the lower courts, does not allege that he was

precluded in fully developing the facts to support his posi-

tion. Nor does his petition raise any new facts not pre-

sented to the trial court. He contends that the lower courts

erred in their findings, vet he does not provide a standard

by which this Court is to review those concurrent findings.

While he disagrees with the conclusions of the lower courts

as to the reasons for his discharge, Graseck completely

fails to make the “very obvious and exceptional showing

of error” which is required if this Court is to distribute

the concurrent findings of the lower courts.

POINT II

In dismissing Graseck as a Legal Aid attorney, the

Legal Aid Society did not act under “Color of State

Law” within 42 U.S.C. §1983 and 28 U.S.C. §1343 (3).

In order to state a cause of action under 42 U.S.C. §1983,

Graseck must establish first, that the appellees-respondents

(hereinafter collectively referred to as “the Society”) acted

“... under color of any statute, ordinance, regulation, cus-

tom, cr usage of any State or Territory. . .”,* and second

he must prove that the Society deprived him of a right,

privilege or immunity secured by the Constitution and

laws of the United States.

The Legal Aid Society of Suffolk County, New York is

a private membership corporation created and organized

under Article 2 of the Membership Corporation Law of

the State of New York. The Society is independent of any

de facto or de jure state or local regulatory authority. It

is governed by a private Board of Directors elected by the

general membership. Article IV of the Society’s By-Laws

provided that “[t]he management of the affairs, property,

business and operation of the society is vested in a Board

of Directors”. Pet. App. at B24 n. 6.

At all relevant times, no member of the Board of Direc-

tors was a public official. No public official automatically

becomes a member of the governing Board of Directors

by virtue of his or her public office. The Society was under

a private contract with the County of Suffolk to represent

indigent persons charged with a crime in accordance with

the County’s obligation pursuant to Article 18-B, §722 of

*The phrase “state action” is used interchangeably with the

phrase “under color of ‘state law’”. United States v. Price, 383

U.S. 787, 794 n. 7 (1966).

9

the County Law of the State of New York. The contract is

renewed annually. The County, if it so desired, could

choose not to renew the contract.

The private nature of the Society has clearly been recog-

nized by the New York State legislature in enacting Sec-

tion 722 of the County Law, which gives the County the

option of using either a “public defender” system or a

“nrivate legal aid bureau or society” to represent indigent

criminal defendants. (emphasis added). The mere fact

that Section 722 of the County Law authorizes the County

to employ a “private legal aid bureau or society” to repre-

sent indigent criminal defendants does not by any stretch

of the imagination transform the Society into a “public”

entity, cf. Buck v. Board of Elections of City of New York,

536 F.2d 522 (2d Cir. 1976).

Although he does not dispute the private nature of the

Society, Graseck urges that relationship between the

Society and Suffolk County is such that his dismissal by

the Society constitutes an act of the State. In rejecting

Graseck’s position, both courts below found that his dis-

missal was, in the words of the Court of Appeals, the

result of the Society’s “. .. own independent evaluation of

its needs, rather than at the behest of the state judges”.

Pet. App. at A37 (footnote omitted).

The facts of this case are virtually identical to those in

Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971),

which held that the firing of an attorney employed by the

Legal Aid Society did not constitute state action under

42 U.S.C. §1983.* As observed by the Court of Appeals

in the instant case,

* See also, Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973), cert.

den. 414 U.S. 1135 (1974). .

10

“Tt)he similarities between Lefcourt and the facts be-

fore us are, not surprisingly, striking. The bylaws of

both societies are almost identical, .. . their respective

contracts were made pursuant to the same New York

Law requiring the State to implement a plan for fur-

nishing counsel to indigent defendants, . . . they both

receive substantial governmental funding (although

the Society in Lefcourt evidently received some funds

for its criminal division from private sources), they

are both housed in governmental buildings, and, most

importantly, there is no formal mechanism through

which any government entity can exercise control or

supervision over the internal operations of the soci-

eties.” (footnote omitted) (emphasis added) Pet. App.

at A21-A22. See also, Pet. App. at B33-B34, B43-B44.

Graseck “. . . has failed to establish that ... [Suffolk

County] or any other governmental subdivision or agency

had any right whatever to intervene in any significant way

with the affairs of the Society with respect to its employ-

ment practices or otherwise”. Lefcourt, supra, at 1155.

Attempting to distinguish Lefcourt, supra, from the

instant case, Graseck states that the Society in Lefcourt

“. . . received ccnsiderable private financing [in the crim-

inal area] and had maintained a healthy private existence

long before it sought governmental assistance” compared

to the activities of the criminal bureau of the Society in the

instant case which was exclusively funded by Suffolk

County. Petition at 69-70. This fact and other “minimal

courtesies” (Pet. App. at A23 n. 20) cited by Graseck in

an attempt to take the instant case out of the Lefcourt

decision and into the area of state action were considered

and, in effect, dismissed by the Court of Appeals as im-

material. Pet. App. at A22-A23.

11

Graseck further argues that the Court of Appeals erred

in refusing to find state action in spite of the existence of

a symbiotic relationship which existed between the state

and the Society. According to Graseck, the Court of Ap-

peals focused “. . . almost exclusively on the nexus ap-

proach to analyzing the state action issue set forth in

Jackson [Jackson v. Metropolitan Edison Co., 419 U.S. 345

(1974) ] [and] made only a passing and confusing reference

to the Burton [Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961)] mode of analysis... .” Petition at 55.

According to Graseck,

“|. a mutually beneficial relationship, such as the one

existing between the State and Respondent Society, is

¢ the cornerstone of the symbiotic relationship contem-

\ plated by Burton. The symbiotic nature of their rela-

/ tionship is apparent from the fact that Legal Aid en-

gaged in the constitutionally mandated service of

providing legal assistance to indigents and plays a

central role in the management of the Court’s con-

gested criminal calendar in exchange for exclusive

funding of its operation by Suffolk County and the

performance of administration favors by the Court.”

(footnote omitted) Petition at 58-59.

Each of these points was considered by the lower court in

arriving at its decision against finding state action.

The Court of Appeals found that a symbiotic relation-

ship, required by Burton v. Wilmington Parking Authority,

supra, for a finding of state action, did not exist.

“We have held that the relationship between the state

and a private authority may be so extensive that the

actions of the ostensibly private institution will fall

within the ambit of state action, even in the absence of

12

direct state involvement in the challenged activity

[citations omitted]. Not unmindful of the close work-

ing relationship here, we believe that the absence of

governmental participation, let alone of “substantial”

participation, in the Society’s general management and

internal operations precludes a finding in this case of

the degree of pervasive interdependence or partner-

ship contemplated by Burton.” (emphasis added) Pet.

App. at A28-A29 n.22.

Contrary to Graseck’s assertion, the Second Circuit con-

sidered and refused to find a symbiotic relationship. Of

great, if not singular, importance to the court was the ab-

sence of governmental participation in the Society’s gen-

eral management and internal operations. Compare,

Braden v. University of Pittsburgh, 552 F.2d 948, 960 (3d

Cir. 1977) ; Greco v. Orange Memorial Hospital Corp., 513

F.2d 873, 877 (5th Cir. 1975), cert. den. 423 U.S. 1000

(1975), finding no state action under Burton analysis where

the board of directors had the ultimate authority in de-

termining hospital policy, notwithstanding a mutually bene-

ficial relationship between the county and the hospital,

with Downs v. Sawtelle, 574 F.2d, 1, 7 (1st Cir. 1978),

cert. den. -—- U.S. ——, 99 S.Ct. 278 (1978), relied upon

by Graseck (Petition at 57), finding state action under the

Burton analysis for the purpose of section 1983 in which

the court stated: “The most compelling factor is the power

of the [Town of] Milo selectmen to appoint the hospital’s

[entire] board of directors.”

The fact that the Society is engaged in providing con-

stitutionally mandated legal services does not mean that it

is fulfilling a “public function” so as to require a finding of

state action. This “public function” argument was re-

jected in Lefcourt v. Legal Aid Society, 445 F.2d 1150,

13

supra, Traditionally the defense of persons, indigent and

as well as the non-indigent, has been provided by private

attorneys. As noted by this Court in Flagg Brothers, Inc.

v. Brooks, —— U.S. ——, 98 S.Ct. 1729 (1978), a primary

feature of the public function doctrine is exclusivity. It

cannot be seriously contended that the defense of those ac-

cused of crimes has been “traditionally an exclusive public

function”, Flagg, supra, at 1735-36, or that the Society has

had some power delegated to it by the State which is “tra-

ditionally associated with sovereignty”. Jd. at 1733. Ac-

cord, Jackson v. Metropolitan Edison Co., 419 U.S. 345,

supra. See, Weise v. Syracuse University, 522 F.2d 397

(2d Cir. 1975); Grafton v. Brooklyn Law School, 478 F.2d

1137, 1140 (2nd Cir. 1973).

Nor does the fact the Society’s criminal division was

exclusively funded by public moneys sufficient to require

a finding of state action.

The mere receipt of state moneys, without a “nexus”

between the funding and the challenged activity has been

held to be insufficient to warrant a finding of state action.

Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir.) ;

Weise v. Syracuse University, supra; Barrett v. United

Hospital, 376 F.Supp. 791 (S.D.N.Y. 1974), aff'd. 506 F.2d

1395 (2d Cir. 1974); Grossner v. Trustees of Columbia

University, 287 F.Supp. 535 (S.D.N.Y. 1968); Pet. App.

at B33.

Graseck’s attempt to distinguish Lefcourt v. Legal Aid

Society, 445 F.2d 1150, supra, on the grounds that in Lef-

court the Society received “considerable private financing”

(Petition at 70) was considered by the Court of Appeals

in arriving at its decision. Pet. App. at A22. There is

moreover no evidence in the record that indicates the

amount of private financing the Society received in Lef-

14

court or that would sustain Graseck’s claim that it was

“eonsiderable”.

Braden v, University of Pittsburgh, 552 F.2d 948, supra;

Downs v. Sawtelle, 574 F.2d 1, cert. den. —— U.S. —,

99 S.Ct. 278, supra; and Holodnak v. AVCO Corp., AVCO-

Lycoming Diwision, Stratford, 514 F.2d 285 (2d Cir. 1975),

cert, den, 423 U.S. 892 (1975), relied upon by Graseck to

support a finding of a Burton* symbiotic relationship be-

tween the Society and the State are easily distinguishable

from the present case.

In Braden, supra, the court, in affirming the lower court’s

denial of defendant’s motion to dismiss the complaint,

pointed out that the state was/”deeply enmeshed in the

operations of the University, including but not limited to

its financing and its basic decision making processes. Id.

at 959. Prior to the passage of the “University of Pitts-

burgh-Commonwealth Act”, the university had been a

private institution. The State, not content with merely

providing funds to the ailing institution, required a com-

prehensive restructuring of the university to reflect the

needs of the State. Especially damaging to the defendant

university was the fact that the University of Pittsburgh-

Commonwealth Act provided that the university was es-

tablished as an “instrumentality of the Commonwealth to

serve as a State-related institution. .. .” Id.

* Although it is undisputed that Burton survives Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 357, supra, the Burton court

itself, in limiting the ambit of that decision, stated :

“... what we hold today is that when a State leases public prop-

erty in the manner and for the purpose shown to have been

the case here, the proscriptions of the Fourteenth Amendment

must be complied with by the lessee as certainly as though they

were binding covenants written into the agreement itself.”

rertsty v. Wilmington Parking Authority, 365 U.S. at 726

15

As previously explained, the court in Downs, supra,

relying almost exclusively upon the fact that the entire

board of directors of the hospital was appointed by public

officials, found state action with respect to the hospital.

By comparison, the board of the Society is elected by the

Society’s general membership and at no time did any public

official serve on the board nor did public officials auto-

matically become members of the board by virtue of their

office. Holodnak, supra, in which the court, using the

Burton approach, found state action, involved a privately

owned corporate defendant, whose buildings were owned

by the federal government and located on government

owned land, most of the equipment used was owned by

the government, a large proportion of the work performed

at the plant was under contract with the government which

maintained a substantial task force there to ensure com-

pliance and quality and production control.

The fact is that the Society, as a private entity, is under

contract with Suffolk County to perform certain services

not traditionally or, prior to the contract, exclusively per-

formed by the State. As in any contractual arrangement,

both parties thereto derive mutual benefits. Finding a

Burton symbiotic relationship here, without more, thereby

requiring a finding of state action would in effect require

finding virtually every private entity contracting with a

state entity subject to state action. This position is not only

untenable and undesirable, it goes far beyond the estab-

lished precedent of this court.

Having failed to find the Burton symbolic relationship

urged by Graseck, the Court of Appeals proceeded to ap-

ply the analysis set forth in Jackson v. Metropolitan Edison

Co., 419 U.S. 345, supra, with respect to the

“.. erucial question [as to] whether the actions of

Judges Mauceri and Green, and in particular their

16

communications with Graseck’s supervisors, provided

sufficient involvement in the discharge to distinguish

Lefcourt and render the conduct of the Society that of

the State.” Pet. App. at A23-A24.

Stressing his characterization of the “virtual monopoly

status” the Society has in Suffolk County, as the provider

of criminal defense services to the indigent (Petition at

72-73), Graseck, states that “. . . this Court indicated that a

sufficient ‘. . . relationship between the challenged actions

of the entities involved and their monopoly status. . .” might

render appropriate a finding of state action”. (emphasis

added) Petition at 74-75. This Court in Jackson, supra,

said, however, that a monopoly status is not determinative

of whether the action constitutes state action for the pur-

poses of the Fourteenth Amendment.

“... [T]he inquiry must be whether there is a sufficiently

close nexus between the State and the challenged action

of the [private] entity so that the action of the latter

may be fairly treated as that of the State itself.” Id.

at 351.

As the Second Circuit Court of Appeals.aptly stated in

Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968),

“. .. the state must be involved not simply with some

activity of the institution alleged to have inflicted in-

jury upon a plaintiff but with the activity that caused

the injury. Putting the point another way, the state

action, not the private action, must be the subject of

the complaint.”

Rejecting Graseck’s assertion that his discharge was in

direct response to judicial pressure imposed on the Society,

the Court of Appeals relied on the conclusion of Judge

Weinstein who, in dismissing the complaint against the

— -

17

state judges, “... found totally lacking any evidence that

they encouraged or even desired discharge.” Pet. App. at

A25.

Conceding that the conflicts between Graseck and the

judges were among the factors which prompted the Soci-

ety’s decision to discharge Graseck and therefore there was

an attentuated casual connection between the judges’ con-

duct and the action taken by the Society, (Pet. App. at

A29), the lower court concluded that

“fojur review of the three incidents deemed crucial by

appellant convinces us that the limited nature of the

judges’ conduct complained of precludes a finding of

state action” Jd. at A31. P

“Tt is not the effect alone that government conduct has

on private actions which establishes the governmental

character of the private action. Rather it is the degree

of government influence and control over the private en-

tity, and in particular over the decision itself that is

determinative.” (footnote omitted) Zd. at A34.

“In sum, we agree with the district court that the So-

ciety initiated the dismissal based on its own inde-

pendent evaluation of its needs, rather than at the

behest of the state judges” (footnote omitted) 7d. at

A37.

Graseck’s further contention that the Society’s “. . . vir-

tual exclusive control over the funds for the defense of

indigent criminal defendants . . . enables it to restrain its

staff from engaging in the vigorous representation to which

clients are entitled pursuant to the Code of Professional

Responsibility and in accordance with the Sixth Amend-

ment” (Petition at 73) finds no basis in the record. No

18

evidence was offered that the Society restrained its staff

from engaging in the vigorous representation of its clients.

With respect to Graseck, the District Court found that:

“Plaintiff offers no proof that the Society’s actions were

motivated by a desire to impede or interfere with his

representative duties. At no time during his employ-’

ment was plaintiff ever instructed how to try a lawsuit

or how to defend an indigent client whom he has as-

signed to represent. Nor was plaintiff ever restricted

by his supervisors in the execution of his duty to repre-

sent an indigent criminal defendant within the bounds

of the law.

Plaintiff's claim, though theoretically correct, is un-

supported by the evidence. A study of the record re-

veals that the decision to discharge plaintiff was not

made because he was attempting to obtain evidence

useful in cross-examination, or seeking to vindicate his

client’s right to a speedy trial, or attempting to com-

municate with a client.” Pet. App. at B42.

The flexible approach adopted by the Court of Appeals

in state action cases by requiring a higher degree of state

involvement in non-race discrimination cases before finding

state action than it requires in race discrimination cases

is not unique to the Second Cireuit. Jackson v. Statler

Foundation, 496 F.2d 623, 628-29 (2d Cir. 1974); Weise v.

Syracuse Unwersity, 522 F.2d 397, 406 (2d Cir. 1975);

Taylor v. Consolidated Edison Co. of New York, Inc., 552

F.2d 39 (2d Cir. 1977) cert. den. 434 U.S. 845 (1977) ; Com-

pare, Coleman v. Wagner College, 429 F.2d 1120 (2d Cir.

1970); Powe v. Miles, 407 F.2d 73, 82-83 (2d Cir. 1968) ;

Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974),

cert. den. 419 U.S. 874 (1974); Grafton v. Brooklyn Law

School, 478 F.2d 1137 (2d Cir. 1973); Lefcourt v. Legal

Aid Society, 445 F.2d 1150, 1155 n. 6 (2d Cir. 1971).

19

See, Taylor v. Consolidated Edison Co. of New York,

Inc., supra at 43 stating that a lighter burden may also be

applicable to sex discrimination cases, For cases in other

circuits see, Granfield vy. Catholic University of America,

530 F.2d 1035, 1046 n. 29 (D.C.C. 1976), cert. den. 429 U.S.

821 (1976); Greco v. Orange Memorial Hospital Corp.,

513 F.2d 873, 879 (5th Cir. 1975), cert. den. 423 U.S. 1000

(1975); Turner v. Impala Motors, 503 F.2d 607, 611 (6th

Cir. 1974); Fletcher v. Rhode Island Hospital Trust Na-

tional Bank, 496 F.2d 927, 931 (1st Cir. 1974), cert. den.

419 U.S. 1001 (1974); Adams v. Southern California First

Nationa! Bank, 492 F.2d 324, 334-35 (9th Cir. 1973), cert.

den, 419 U.S. 1006 (1974).*

As the court explained in Taylor v. Consolidated Edison

Co. of New York, Inc., 552 F.2d 39, 42, cert. den., 434 U.S.

845 (1977), supra,

“lblecause of the generally recognized anathematic

status of any government-sponsored racial discrim-

ination, for instance, we have held that a lesser degree

of state involvement is needed to meet the state action

requirement in cases alleging such discrimination.

[citations omitted] ... .”

In explaining the rationale underlying the difference in

standards used in state action cases, the court in Greco v.

Orange Memorial Hospital Corp., supra, stated:

“The doctrine of state action developed primarily in

the area of racial discrimination. [citation omitted]

The concepts developed in this area, explicitly sup-

* Graseck’s only cited authority to the contrary is the First Cir-

cuit case of Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978), cert. den.,

US. , 99 S.Ct. 278 (1978), which involved an action

against a hospital but did not involve racial discrimination, Find-

ing state action, the court, in dicta, observed that it had in an

earlier case expressed reservations as to the flexible approach used

in the Second Cirewit. 7d. at 6 n. 5.

20

ported by constitutional and legislative mandates, were

necessarily broadly drawn in order to implement Con-

gressional intent in circumstances of positive and fre-

quent state obfuscation and delay. The potentially

explosive impact of the application of state action con-

cepts designed to ferret out racially discriminatory

policies in areas inaff ected by racial considerations has

led the courts to define more precisely the applicability

of the state action doctrine.” (emphasis added).

The Circuit Court approved the District Court’s use of

the higher standard in the instant case stating that the

“. .. less stringent state action standard utilized in racial

discrimination cases is inapplicable here”. Pet. App. at

A19-A20, n. 17.

Graseck’s reliance upon the recent decision in University

of California Regents v. Bakke, —— U.S. ——, 98 S. Ct.

2733 (1978), is taken out of context and totally misplaced.

Bakke involved a “quota” system used by the University

which gave admission preference to members of minority

groups. It was in that context that the Court’s statement,

relied upon by Graseck, that “. . . there are serious prob-

lems of justice connected with the idea of preference itself,”

Bakke, supra, at 2752, was made, The preference referred

to in Bakke dealt with preference in favor of one racial

group over another. It did not refer to the standards used

in different state action cases.

Although not presented to the Court of Appeals for its

consideration, Graseck further urges that even if the higher

standard is applied, “. . . this case does have significant

racial implications”. Petition at 64. That racial implica-

tions may be involved (a suggestion the Society vigorously

resists) does not ipso facto mean that the standard applied

to state action involving racial discrimination has been met.

a

21

More importantly for this case, there is absolutely no ev-

idence in the record showing the racial composition of the

indigent clients of the Legal Aid Society of Suffolk County

who are accused of crimes. Nor did Graseck attempt to

introduce such evidence at either trial. His assertion that

“i]t is apparent that racial minorities are over-repre-

sented ...as clients of such free legal assistance programs

tition at 67-68) finds no support in the record. Obviously

raised as an afterthought, this claim should be dismissed.

POINT Ill

There is no proof in the record to support a finding

that the refusal of the courts below to find that Graseck’s

dismissal was the result of state action will permit eva-

sion of the Sixth Amendment duty to provide effective

legal representation to the indigent.

Graseck asserts that the refusal of the Court of Appeals

to find his dismissal was the result of state action on the

part of the Society could seriously undermine the special

protection afforded under the Sixth Amendment. By re-

fusing to find that his dismissal was the result of state

action will, he asserts, provide a loophole which will make

possible evasion of the Sixth Amendment duty to provide

effective counsel to indigents. Petition at 75-76.

No proof was offered at either trial to support Graseck’s

position. And as discussed above, the District Court spe-

cifically found that Graseck himself was never restricted

by his supervisors in fully and effectively representing the

Society’s clients within the bounds of the law. Pet. App

at B42. Although the conclusion urged by Graseck is the-

oretically possible, it is, in this case, purely hypothetical

and speculative given the fact that there is nothing in the

22

record developed before the courts below to support his

position even if this court were inclined to consider the

issue.°

The implication of Graseck’s position is that any com-

munication by a judge to the supervisors of an attorney

responsible for providing counsel to the indigent which

reflects adversely upon the attorney will undermine the

Sixth Amendment rights of the indigent.** The logical

conclusion of this position would preclude a judge from

ever commenting upon the performance of attorneys such

as those employed by the Society who represent the in-

digent. Not only would this result, as a matter of policy,

be highly undesirable if not absurd, it would directly con-

tradict subsection (B)(3) of Canon 3 of the Code of

Judicial Conduct of the American Bar Association adopted

August 16, 1972 which provides:

* Consideration of this issue might well require this Court to

consider the standard to be used in determining whether there has

been adequate and effective representation by counsel. The stan-

dard applied in the Seeond Circuit is whether the attorney’s con-

duct was “.. . of such a kind as to shock the conscience of the Court

and make the proceedings a farce and mockery of justice”, United

States v. Wright, 176 F.2d 376, 379 (2d Cir. 1949), cert. den. 338

U.S. 950 (1950). Accord, United States v. Yanishefsky, 500 F.2d

1327 (2d Cir. 1974).

** Graseck’s position apparently is that attorneys representing

the indigent must be completely insulated from the judiciary.

It can be argued that the attorneys employed by the Society are

less subject to the influence of the State judiciary than public de-

fenders who are directly employed by the government. See, N.Y.

County Law §716, authorizing the board of supervisors of a county

to designate the public defender. Federal Public Defenders are ap-

pointed by the judicial council of the circuit. 18 U.S.C. §3006A (h)

(2)(A). See, United States v. Robinson, 553 F.2d 429 (5th Cir.

1977), cert. den. 434 U.S. 1016 (1977), holding that where defen-

dant had failed to show prejudice, he was not deprived of consti-

tutional right to counsel merely because his attorney was employed

by the federal government as a federal public defender. See also,

United States ex rel. Reed v. Richmond, 277 F.2d 702 (2d Cir.

1960) ; Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972).

23

“A judge should take or initiate appropriate disciplinary

measures against a judge or lawyer for unprofessional

conduct of which the judge may become aware.

Commentary: Disciplinary measures may include re-

porting a lawyer’s misconduct to an appropriate dis-

ciplinary body.”

As stated by Judge Weinstein in the first trial of this

action,

“Tijt’s the duty of judges to observe lawyers before

them, bring to the lawyers’ attention defects that they

see in their work and where they see, to bring it to the

attention of the lawyers or if they are lawyers, to the

Bar Association or others.” Pet. App. B28.

This is much too difficult and important an issue to de-

cide in the abstract based upon hypothetical speculation.

Even if this Court were to take it under consideration, there

is nothing in the record from which even an inference could

be drawn to support the finding urged by Graseck.

24

CONCLUSION

For all of the foregoing reasons the petition for a

writ of certiorari should be denied.

Respectfully submitted,

Meyer, Enouisu, Crancruuur & Perrez, P.C.

Attorneys for Appellees-Respondents

John F. Middlemiss, Jr. and

Legal Aid Society of Suffolk County,

New York

160 Mineola Boulevard

Mineola, New York 11501

(516) 741-6565

JosepH P. Hoey,

Of Counsel