Petition — Olitt v. Murphy

‘i as

In The

Supreme Court of the Anited State

October Term, 1978

No, €8-1423

J. JEROME OLITT,

Petitioner,

-against-

FRANCIS T. MURPHY, JR., et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. JEROME OLITT

Petitioner, Pro Se

25 Broad Street

Penthouse Suite

New York, New York 10004

Telephone: (212) 952-4350

Printinghouse Press — Bar Ass'n Steno Serv. ( Appeals Section) 212-440-189

TABLE OF CONTENTS

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SG “<0 5 G6 es a «© 6 © «© «© © ee ow oS

EES Se ee

ee ee ee ee

Opinion of the Court of Appeals ....... ll

in. ie ese » 6 6 © « « 0 « « « LY

The Importance of DtCEEen « 6 « « » « « AS

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APPENDIX A

ORDER OF THE COURT OF APPEALS ..... 23

APPENDIX B

OPINION OF THE DISTRICT COURT. .... 27

(i)

TABLE OF CASES

Alabama Public Service Comm'n.

V. ‘Beaieees £. th. , 208 Us8. SSL « s oe oe Jy 43

Burford v. Sun Oil Co., 319 U.S. 315. ... 3, 13

England v. Louisiana State Board

of Medical Examiners, 375 U.S. 4l1l, 415,

S56, S520, G2e>Gae: « ss By 4S 14, 15, 16, 17,

18, 20, 22

Getty v. Reid, 547 F.2d 971 (1977). . .... 18

Government Employees v. Windscr,

ee ee ie Ce, Se ee ee SS Se ee

Bareseaus ©. Base, 36):0.6.. 167, 1277... + « 3, 34

Ie Be: Buttaio, 20 L:064.26 1636 . «2 «0 Jy 8 G

Louisana P. & L. Co. v. Thibodaux,

ees ee es oe ee eee Se ee se ge 88

Mitchum v. Foster, 407 U.S. 225 (1972). ... 21

Monroe v. Papp, 365 U.S. 167, 178 (1961). .. 20

DAAC: Ww. Dette. 371 Osby. 455 66 ss se « 3, 16

Palermo v. Warden, 545 F.2d 286,

cert. dismissed, 431 U.S. 911 (1977)... 9

ilroad Commission v. Pullman Co.,

312 Baws 496 . . . . 7 . . . . . . . . . . 15

Speiser v. Randall, 357 U.S. 513, 525... .e« 45

(ii)

Table of Cases

Thistlethwaite v. City of New York,

497 F.2d 339 (2d Cir.), cert.

denied, 419 U.S. 1093, 95 S.Ct. 686,

Me ence OO. CASTE) se + 6 6s se 8 ee ee Se

Townsend v¥. Sain, 372 U.S. 293; 312-319 . . .3, 15

Turco v. Monroe County Bar Association,

soe F.a6- cide Dees (a0 Gits), SOPs.

petted. O96. Cis Ge. CISTI} « « to: he. e se wR

Willcox v. Consolidated Gas Co.,

Bee Wines Bee Sse 4 6 ee we 6 Ole ew 2 OE ee

Younger v. Harris, 401 U.S. 37. . 2... .... 15

(iii)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

J. JEROME OLITT,

Petitioner,

~against-

FRANCIS T. MURPHY, JR., individually,as Pre-

siding Justice of the Appellate Division of

the Supreme Court of the State of New York,

First Judicial Department, and as Administra-

tor concerning the conduct of members of the

New York Bar, ARTHUR MARKEWICH, MYLES J.

LANE, SAMUEL J. SILVERMAN, HAROLD BIRNS,

JOSEPH P. SULLIVAN, THEODORE R. KUPFERMAN,

HERBERT EVANS, ARNOLD FEIN, LEONARD SANDLER

and VINCENT A. LUPIANO, individually, as

Associate Justices of the Appellate Division

of the Supreme Court of the Stateof-New York,

First Judicial Department, and as Administra-

tors concerning the conduct of members of the

New York Bar, JOSEPH J. LUCCHI, individually

and as Clerk of the Appellate Division of the

Surpeme Court of the State of New York, First

Judicial Department, JAMES D. PORTER, JR.,

individually and as Counsel to the Committee

on Grievances of the Association of the Bar

of the City of New York, THE ASSOCIATION OF

THE BAR OF THE CITY OF NEW YORK, THE APPEL-

LATE DIVISION OF THE SUPREME COURT OF THE

STATE OF NEW YORK, FIRST JUDICIAL DEPARTMENT,

SHELDON OLIENSIS, individually and as Chair-

man of the Committee on Grievances of the

whe [cont'd]

Association of the Bar of the City of New

York, and WILLIAM E. JACKSON, RICHARD KUH,

LOLA S. LEA, MATTHEW J. MALLOW, ARCHIBALD

R. MURRAY, ALFRED H. SCOTTI, WILLIAM B.

O'BRIEN, ANGELO T. COMETA, EMELIO P.

GAUTLER, JOHN DONOVAN, STEVEN’H. STEIN,

M. MORAN WESTON, JOHN G. McGOLDRICK,

GEOFFREY M. KALMUS, MARTIN LONDON, DONALD

B. STRAUSS, EDWARD J. BABB, JOHN W.

CASTLES III, EDWIN H. WESLEY, HAYWOOD

BURNS, EVELYN HALPERT, SELVYN SEIDEL,

HELENE M. BARNETTE, JOHN H. DOYLE III,

WILLIAM H. GILBRETH, DAVID RAMAGE, JR.,

ALVIN H. SCHYLMAN, individually and as

members of the Committee on Grievances

of the Association of the Bar of the

City of New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Petitioner praysthat a Writ of Certiorari

issue to review the Order of the United States

Court of Appeals for the Second Circuit, encered

November 16th, 1978.

OPINION BELOW

The Opinion of the United States Court of

Appeals for the Second Circuit (App. A. infra)

is not yet reported.

JURISDICTION

The Order of the United States Court of Ap-

peals for the Second Circuit was entered on Nov-

ember 16th, 1978. A Petition for Rehearing was

denied by said Court on January 4th, 1979. The

jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether, under the rulings in Burford v.

Sun Oil Co., 319 U.S. 315; Alabama Public Service

Comm'n. v. Southern R. Co., 341 U.S. 341; Willcox

v. Consolidated Gas Co., 212 U.S. 19, 40; Louisi-

ana P. & L. Co. v. Thibodaux, 360 U.S. 25, 29;

Harrison v. NAACP, 360 U.S. 167, 177; Townsend v.

Sain, 372 U.S. 293, 312-319; NAACP v. Button, 371

U.S. 415; Government Emplovees v. Windsor, 353

U.S. 364; and England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411, a litigant, who

has properly invoked the jurisdiction of the Fed-

eral District Court to consider federal constitu-

tional claims and following the Federal District

Court's abstention reserved in the State Court his

right to return to the Federal District Court for

the resolution of his federal constitutional claims,

can be compelled, without his consent and through

no fault of his own, to accept instead a State

Court's determination of those claims?

2. Whether, under the rulingsin Burford v.

Sun Oil Co., 319 U.S. 315; Alabama Public Service

Comm'n. v. Southern R. Co., 212 U.S. 341; Willcox

v. Consolidated Gas Co., 212 U.S. 19, 40; Louisi-

ana P. & L. Co. v. Thibodaux, 360 U.S. 25, 29;

Harrison V. NAACP, 360 U.S. 167, 177; Townsend v.

Sain, 372 U.S. 293, 312-319; NAACP v. Button, 371

U.S. 415; Government Employees v. Windsor, 353

U.S. 364; and England v. Louisiana State Board of

-3-

Medical Examiners, 375 U.S. 411, res judicata is

an affirmative defense to a Federal Civil Rights

Action predicated upon a State Court Judgment

rendered subsequent to an involuntary State

Court litigant's express reservation of right to

litigate his federal issues in the Federal Court?

STATEMENT OF FACTS

Petitioner is an attorney at law presently

suspended from the practice of law in the Courts

of the State of New York, although in good stand-

ing with various Federal Courts. He was admitted

to practice in the Appellate Division of the

Supreme Court of the State of New York, Second

Judicial Department, in June of 1954. In October

of 1968, petitioner was called to testify before

a Grand Jury of the New York Supreme Court, New

York County, at which time he refused to testify

on the ground, inter alia, that his Answers to

the questions propounded might tend to incriminate

him. Thereupon, the Grand Jury, at the recommend-

ation of the New York County District Attorney,

granted petitioner immunity from any state action

or violation arising out of or incident to his

testimony before it.

Simultaneously, petitioner claims, the New

York County District Attorney promised not to

initiate or refer the subject matter of his

investigation to the Committee on Grievances of

the Association of the Bar of the City of New York

("Grievance Committee”).

Thereafter, petitioner testified fully, freely

and truthfully, pursuanc to the grant of immunity

in October and November of 1968.

In November of 1969, petitioner nas alleged

that the District Attorney violated his promise

alike

<<

’ by specifically alerting counsel to the Grievance

Committee to petitioner's involvement with the

State Grand Jury investigation.

In February of 1971, the District Attorney

made an ex-parte application to one of the Justices

of New York Supreme Court for an Order authorizing

him to turn over to the Grievance Committee the

minutes of petitioner's immunized Grand Jury tes-

timony. The application was granted and the min-

utes were turned over to counsel to the Grievance

Committee.

Counsel for the Grievance Committee delayed

the eventual commencement of the State Court

Disciplinary Proceeding against petitioner until

May of 1973. Petitioner claims that such delay

was without any justification therefore and

inured to his severe prejudice due to the death

of potential witnesses, the unavailability of

evidence, and the general dimming of memories.

During May of 1973, the Grievance Committee

instituted disciplinary proceedings against the

petitioner based solely and exclusively upon his

testimony under the grant of immunity before the

New York County Grand Jury. The Grievance Com-

mittee failed and refused, despite petitioner's

application therefor to preclude the use of

petitioner's State Grand Jury testimony and the

Grievance Committee used the minutes of this

testimony against petitioner in hearings before

it as well as the hearing ordered by the Appellate

Division.

In 1974, petitioner commenced an action in

the United States District Court for the Southern

District of New York seeking redress for the afore-

said claimed denial of his constitutional rights.

By Order dated July 3lst, 1974, the District Court

-_ =

dismissed the Complaint upon the ground of absten-

tion. Thereafter, the United States Court of

Appeals for the Second Circuit affirmed and this

Court denied certiorari.

Thereafter, and at every stage of the State

Court Disciplinary Proceeding, petitioner specif-

ically reserved his right to litigate his federal

constitutional claims in the Federal Court. His

Answer to the Petition therein, the motion sub-

mitted to the State Court and indeed the Opinion

of the Referee appointed by the Appellate Division

to hear and report contained specific and explicit

references to this reservation of rights.

At the hearing before the court-appointed

_ Referee, petitioner's state of mind was put inte

issue by the charges against him. The question

involved whether he believed certain things to be

true some years back. Notwithstanding this, the

State Court refused to allow petitioner to intro-

duce into evidence testimony as to his state of

mind, specifically testimony of Polygraph Experts,

one of whom has previously testified before the

Grievance Committee to the effect that petitioner

was teliing the truth when he denied knowledge of

illegality in connection with the operative events

which resulted in the State Court Disciplinary Pro-

ceeding.

Thereafter, the Grievance Committee filed a

motion in the Appellate Division of the Supreme

Court of the State of New York, First Judicial

Department, seeking to confirm the Referee's

Report insofar as it found petitioner guilty of

professional misconduct, to disaffirm the Referee's

Report insofar as it recommended liency to be

extended .to the petitioner, and sought to impose

discipline upon him. Petitioner cross-moved for

a stay of the imposition of discipline upon him

-

-6-

upon the ground, inter alia, that the State Court

lacked jurisdiction to impose discipline upon him

because he had reserved his right to litigate his

federal questions in the Federal Court.

In February of 1978, and before the State

Court had ruled on this motion, petitioner com-

menced a second action in the United States Dis-

trict Court for the Southern District of New York

seeking a declaration that the State Court was

without jurisidiction to discipline him pending

Federal Court determination of his Federal Court

claims and immediately moveifor Summary Judgment

and for a Preliminary Injuction. The District

Court dismissed the Complaint, without prejudice,

on the ground of abstention. No appeal was taken

from this Order.

On March 7th, 1978, the Appellate Division

issued its Order confirming the Report of the

Referee, suspending petitioner from the practice

of law "in any form" for a period of three-years

effective Apri* 7th, 1978, until the further

Order of the Court, and denying his cross-motion

to stay the imposition of discipline.

On March 2lst, 1978, the Appellate Division

by an Order predicated upon a written Stipulation

extended the time within which petitioner may wind

up and complete on behalf of certain clients, all

matters which were pending on behalf of those

clients on March 7th, 1978. This Stipulation

Order permitted petitioner to practice in such a

limited manner until and including June 6th, 1978.

On March 27th, 1978, petitioner wrote to the

Chief Counsel of the Grievance Committee asking

for a clarification of an apparent conflict be-

tween the Order suspending him and this Court's

Opinion In Re: Ruffalo, 20 L.Ed.2d 1436, in that

=.

a fair reading of the Appellate Division's Order

reveals that it suspended petitioner from the

practice of law in all Courts inclusive of the

Federal Courts and the holding of this Court

In Re: Ruffalo is to the contrary. This letter

remains unanswered,

Shortly thereafter, petitioner commenced his

third action in the United States District Court

for the Southern District of New York. Again,

petitioner's case was dismissed on the grounds of

abstention. Petitioner appealed the District

Court's Order to the United States Court of Appeals

for the Second Circuit and by Order dated May 16th,

1978, the United States Court of Appeals for the

Secon! Circuit dismissed the appeal,

At the same time as the District Court dis-

missed petitioner's third appeal, he filed a

Notice of Appeal as of right in the New York State

Court of Appeals and also moved there for Leave to

appeal from the Appellate Division Order of Sus-

ension,

On May 14th, 1978, the New York State Court

of Appeals denied petitioner's application for

leave to appeal and dismissed the appeal caken as

right.

Having then exhausted all State Appellate

remedies, petitioner commenced his fourth action

in the United States District Court for the

Southern District of New York seeking redress of

claimed violations of his Constitutional Rights,

which he asserted he expressly reserved for the

District Court. Those claims were:

1. That the use of petitioner's immunized

Grand Jury testimony was in derrogation of his

a»

et te er

Fifth Amendment rights;

2. The District Attorney's alerting, contrary

to his representation, the Grievance Committee to

petitioner's Grand Jury testimony and his partici-

pation in the events, thus bringing into play the

United States Court of Appeals for the Second Cir-

cuit's Decision in Palermo v. Warden, 545 F,2d

286, cert. dismissed, 431 U.S. 911 (1977);

3. The Grievance Committee's Laches in

instituting disciplinary proceedings in violation

of petitioner's right to a speedy trial;

4, The Referee's exclusion of petitioner's

Polygraph Expert's testimony, thereby denying the

petitioner the right to a fundamentally fair trial;

and

5. The ex=parte Order authorizing transmis-

sion of the immunized testimony violated petition-

er's due process rights.

Petitioner also claimed that the Order sus-

ending him from the practice of law "in any form"

violated this Court's ruling In Re: Ruffalo,

20 L.Ed.2d 1436.

Basing these claims upon 42 U.S.C. §1982,

petitioner sought in the District Court Declaratory

and Injunctive Relief barring the Appellate Division

from imposing any disciplinary sanction against him

pending Federal Court determination of his Federal

Constitutional Claims, absent which petitioner con-=

tended that the State Court lacked jurisdiction;

and predicated upon 28 U.S.C. §1331 and §1343,

petitioner sought in the District Court a Judgment

declaring that the Appellate Division's Order of

Suspension was null and void and a further decla-

x

ration that the Appellate Division's Order does

not by itself automatically carry with it sus-

pension from practice in the Federal Courts.

Petitic-er moved fora Preliminary Injunction

aud the New York State Attorney General's office,

representing the Justices of the Appellate Division,

cross-moved for dismissal of the Complaint upon the

grounds of abstension and res judicata-collateral

estoppel.

The District Court denied the Motion for a

Preliminary [njunction and dismissed the Complaint.

Upon appeal to the United States Court of

Appeals for the Second Circuit, the Order of the

District Court was unanimously affirmed substan-

tially on the Opinion of the District Court.

However, the Court noted that the petitioner |

"also sought relief by way of Declaratory Judgment

that the three-part Order of relief set forth in

Exhibit 'B' attached to the Complaint herein and

constituting the Order of the Appellate Division

of the Supreme Court held in and for the First

Judicial Department in the County of New York on

March 7th, 1978, does not and cannot in and of it-

self preclude his practice of law before the Fed-

eral Courts, absent federal disciplinary proceed-

ings. At argument counsel for appellees conceeded

that the Appellate Division Order does not pertain

to practice in the Federal Courts, which is

governed by the Federal Rules,and in the case

that the United States District Courts for the

Southern and Eastern District of New York, General

Rule 5,"

On January 4th, 1979, petitioner's application

for rehearing was denied.

@=10=

OPINION OF THE COURT OF APPEALS

The Opinion of the Court of Appeals (App. A.,

infra), in effect provided petitioner with part

of the declaratory relief sought by him in his

District Court Complaint: It declared that the

State Court Order of Suspension did not affect

petitioner's right to practice in the Federal

Courts.

However, the Court of Appeals did hold that

res judicata is an affirmative defense to Federal

Civil Rights Claimswhere the federal plaintiff is

an involuntary state litigant. Moreover, the

' Court of Appeals did state that:

"Judge Oakes notes that he takes the

same position here relative to

Thistlethwaite v. City of New York,

497 F.2d 339, 346 (2d Cir.), cert.

denied, 416 U.S. 906 (1974), as stated

in his concurring opinion in Turco v.

Monroe County Bar Association, 554 F.2d

515, 522, (2d Cir.), cert. denied, 434

U.S. 334 (1977): absent an en banc he

is bound by the decision of this court

on the subject of res judicata of fed-

eral civil rights claims where the

federal plaintiff is an involuntary

state litigant."

In Turco, supra, Judge Oakes' concurring opin-

ion strongly urged:

"I believe that Thistlethwaite

v. City of New York, 497 F2d 339 (2d

Cir.), cert. denied, 419 U.S. 1093,

95 S.Ct. 686, 42 L.Ed.2d 686 (1974),

and Tang v. Appellate Division, 487

F.2d 138, 141 (2d Cir. 1973), cert.

denied, 416 U.S. 906, 94 S.Ct. 1611,

while

40 L.Ed.2d 111 (1974), were wrongly

decided, for the reasons stated in

my dissenting opinions in those cases.

Thistlethwaite, like this case, in-

volved an assertion of federal rights

in a state proceeding by an involun-

tary party to that proceeding; Tang

was erroneously supposed to involve

an election to pursue state remedies,

which an applicant for admission to

the bar was said to make merely by

applying for admission. I note that

Thistlethwaite is inconsistent with

several cases from other circuits,

see Theis, Res Judicata in Civil

Rights Act Cases: An Introduction

to the Problem, 70 Nw.L.Rev. 859,

865-66 & n. 35 (1976), and that the

Sixth Circuit agrees with the dis-

senting opinion in Tang, Getty v.

Reed, 547 F.2d 971, at 974-979 (6th

Cir. 1977). But unsound as I believe

Thistlethwaite and Tang to be, emas-

culative as they are of 42 U.S.C.

§1983 and federal constitutional

rights, I am bound to follow them as

the law of the circuit. I therefore

reluctantly concur in the judgment of

the court." [554 F2d 522]

In Thistlethwaite, supra, Judge Oakes’ dis-

senting oponion stated:

"I dissent. The decision of the

majority, without citation to any

relevant authority, for the first time

to my knowledge, applies to the doc-

trine of res judicata or collateral

estoppel to bar a §1983 action chal-

lenging the constitutionality of a

law solely on the basis that the

=o

plaintiff has been at one time con-

victed of a Violation of that law.

As such the majority opinion in an

entirely unwarranted extension of

the decisions of this court on col-

lateral estoppel in civil rights ac-

tions; it is contrary to the under-

lying law of collateral estoppel

generally; and it set a precedent

in the area of first amendment chal-

lenges that it, to say the least,

unfortunate." [497 F.2d 343]

ARGUMENT

No litigant, who has properly invoked the

jurisdiction of the Federal District Court to con-

sider Federal Constitutional Claims and following

the Federal District Court's abstention reserved

in the State Court his right to return to the

Federal District Court for the resolution of his

Federal Constitutional Claims, can be compelled,

without his consent and through no fault of his

own, to accept instead a State Court's determina-

tion of those claims. Nor can such a litigant

have his right to proceed in the Federal Court

summarily cut off on the theory of res judicata.

The Court of Appeals' Order to the contrary totally

emasculates 42 U.S.C. §1983.

There are fundamental objections tor any con-

clusion that a litigant who has properly invoked

the jurisdiction of the Federal District Court to

consider*Federal Constitutional Claims can be com-

pelled, without his consent and through no fault

of his own, to accept, instead, a State Court's

determination of those claims. (Cf. Burford v. Sun

Oil Co., 319 U.S. 315; Alabama Public Service Com-

mission v. Southern Railroad Co., 341 U.S. 341)

Such a result would be at war with the unqualified

terms in which Congress, pursuant to constitutional

io} 3

authorization, has conferred specific categories

of jurisdiction upon the Federal Courts, predi-

cated upen the principle that "(w)hen a Federal

Court is properly appealed to in a case in which

it has by law jurisdiction, it is its duty to take

such jurisdiction . .. The right of a party plain-

tiff to choose a Federal Court where there is a

choice cannot be properly denied." (Willcox v.

Consolidated Gas Cc., 212 U.S. 19, 40) Nothing in

the abstention doctrine requires or supports such a

result. (England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411, 415) Abstention's

recognition that the State Courts must be the final

determinators of the State Law implies no disregard

of the primacy of the federal jurisdiction in

deciding questions of federal law. (See, Kourland,

Towards a Co-Operative Judicial Federalism, The

Federal Court Abstention Doctrine, 24 F.R.D. 481,

487) As a result, this Court has frequently held

that abstention "does not, of course, involve the

abdication of federal jurisdiction, but only the

postponement of its exercise." (Harrison v. NAACP,

360 U.S. 167, 177; Accord, Louisiana P. & L. Co. v.

Thibodaux, 360 U.S. 29)

It may be argued that after a possible absten-

zion determination and rejection of a litigant's

federal claims by a State Court, a litigant could

seek direct review by this Court. However, "even

when available by appeal, rather than by discretion-

ary writ of certiorari, (such review) is an inad-

equate substitute for the initial District Court

determination . . . to wnich the litigant is

entitled in the Federal Courts. This is true as to

issues of law. It is equally true as to issues of

fact." (England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 416)

To limit the litigant to review by this Court

would be to deny the litigant the benefit of a Fed-

eral Trial Court's role in constructing the Record

oti

and making fact findings. How the facts are found

frequently dictates the Court's decision as to fed-

eral claims. "It is typical, not the rare case, in

which constitutional claims turn upon the resolution

of contested factual issues." (Townsend v. Sain,

372 U.S. 293, 312) "There is also in litigation a

margin of error, it being error in fact find-

ing... " (Speiser v. Randall, 357 U.S. 513, 525)

In "cases where, but for the application of

the abstention doctrine the primary fact determina-

tion would have been by the District Court, a liti-

gant may not be unwillingly deprived of that deter-

mination." (England v. Louisiana State Board of

Medical Examiners, 375 U.S. 411, 417) Respondents

have argued that such rule applies only in cases

where the abstention is classified as arising under

the Pullman (Railroad Commission v. Pullman Co.,

312 U.S. 496) variety. However, this Court did not

limit the application of this principle to Pullman

abstention and accordingly it is equally applicable

to all forms of abstention. Assuming arguendo, that

England merely interprets Pullman, it is argued that

the principles underlying England are equally appli-

cable to all forms of abstention. The rationale

which this Court used to predicate its holding in

England is equally applicable to all forms of absterm

tion and, we respectfully submit, it is merely hap-

penstance that the first case presented to this

Court on this issue arises out of a case of Pullman

abstention. It could just as easily have arisen

out of a case involving Younger (Younger v. Harris,

401 U.S. 37) abstention.

To insert the word "Pullman" into this Court's

decision in England and thereby limit the applica-

bility of England to only one of the four overlap-

ping types of abstentionwould be to paraphrase this

Court's Decision to the extent of modifying its

holding.

wo» 1 Sx

The possibility of appellate review of a

State Court's determination by this Court may not

be substituted, against a party's wishes, for his

right to litigate his federal claims fully in the

Federal Courts. (NAACP v. Button, 371 U.S. 427)

"A party has the right to return to the District

Court after obtaining the authoritative State Court

construction for which the Court abstained, for a

final determination of his claim." (NAACP v.

Button, supra)

These principles, expounded in England, are

equally applicable to all forms of abstention.

Whether or not England shell be used by this Court

as a citation supporting petitioner's right to

return to the District Court for the final deter-

mination of his federal claims may be subject to

argument. However, petitioner's right to return

is absolute. The holding of the Court below,

that petitioner's claims ar: barred under the

theory of res judicata, therefore is erroneous.

The Court below relied upon a line of cases

supporting the general proposition that a litigant

in a Federal Court is precluded from relitigating

issues which were litigated and determined adversely

to him in a prior State Court proceeding. However,

the cases cited by tne lower Court are inapplicable

to the case at bar, in which petitioner's federal

claims were not litigated in the State Court pro-

ceeding. Unlike the cases cited by the Court below,

in the case at bar, following the Grievance Commit-

tee's use of petitioner's immunized Grand Jury

testimony against him, petitioner sought redress in

the District Court. He was prevented there from

obtaining an adjudication by the application of the

abstention doctrine. He thereafter did not litigate

any of the federal claims in the State Court. In

compliance with the holding contained in Government

Employees v. Windsor, 353 U.S. 364, as interpreted

= 166

in England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 420, petitioner exposed

his claims to the State Court and informed the

State Court specifically as to the substance of

those claims, so that the state questions could be

construed "in light of" those claims, expressly

reserving his right to litigate his federal con-

stitutional claims in the District Court there-

after. To deny certiorari is to place petitioner

in an impossible quagmire. Originally, if one

raised his federal claims in the State Court pro-

ceeding, he was barred thereafter from relitigating

them in the Federal Court under the principle of

res judicata. If he did not litigate his federal

questions in the State Court, he was informed that

he could have done so and was still prevented from

obtaining a District Court adjudication thereof on

the theory of res judicata. Im England, this Court

held that the litigant had an absolute right to a

District Court determination; but that it was the

litigant's duty to preserve that right and that

the right could only be preserved in one way, to

wit: by exposing and explaining to the State Court

what his federal claims are, while simultaneously

reserving his right to litigate them in the Federal

Court. This is just what petitioner did in the

case at bar.

Accordingly, to claim that petitioner may not

pursue his claims in the District Court on the

theory of res judicata is to reverse the majority

in England by stating that either (a) petitioner

has no right to a Federal Court adjudication of his

federal claims; or (b) he has the right, but there

is no conceivable procedure for exercising it.

Justice Douglas, in his concurring opinion in —

England, carefully explained "that the reservation

of right" is perhaps the Supreme Court's way of

permitting the litigant to avoid the consequence of

=iJe

res judicata. (England v. Louisiana State Board

of Medical Examiners, 375 U.S. 411, 428-429)

Res judicata may not be therefore a bar to

the case because petitioner did not litigate his

federal constitutional claims there: he merely

explained the claims while simultaneously reserv-

ing his right tc litigate them in the District

Court.

THE IMPORTANCE OF THIS PETITION

»

This petition seeks to review a Decision of

the United States Court of Appeals for the Second

Circuit (a) in conflict with the Decisions of

other Courts of Appeals on the same matter;

(b) which has decided an important question of

federal law which has not been, but should be,

settled by this Court; and (c) which had decided

a federal question in a way in conflict with

applicable Decisions of this Court.

The Decision of the Court of Appeals brought

up for review conflicts with the Decision of the

Sixth Circuit on the same matter [Getty v. Reid,

547 F.2d 971 (1977)]. Prof. William H. Theis,

identifying other conflicts in Res Judicata inCivil

Right Act Cases: An Introduction to the Problen,

70 Nw.U.L.Rev. 859, 865, has stated that "the

decisions of the lower courts teem with incon-

sistencies" in this matter. Theis appended the

following footnote to illustrate his point:

"Compare Thistlethwaite v. City

of New York, 497 F.2d 339 (2d Cir.),

cert. denied, 419 U.S. 1093 [95 S.Ct.

686, 42 L.Ed.2d 686] (1974), with

Lombard v. Board of Educ., 502 F.2d

631 (2d Cir. 1974), cert. denied, 420

U.S. 976 [95 S.Ct. 1400, 43 L.Ed.2d 656]

atGn

(1976); Roy v. Jones, 484 F.2d 96 (3d

Cir. 1973), with Kauffman v. Moss, 420

F.2d 1270 (3d Cir.), cert. denied, 400

U.S. 846 [91 S.Ct. 93, 27 L.Ed.2d 84]

(1970); Brown v. Chastain, 416 F.2d

1012 (5th Cir. 1969), with Mack v.

Florida State Bd. of Dentistry, 430

F.2d 862 (5th Cir. 1970), cert. denied,

401 U.S. 9460 [91 S.Ct. 971, 28 L.Ed.2d

245] (1971) (White, J., dissenting

from denial of writ); Coogan v. Cin-

cinnati Bar Ass'n, 431 F.2d 1209 (6th

Cir. 1970), with Mulligan v. Schlacter

{[Schlachter],389 F.2d 231 (6th Cir.

1968); Blankner v. City of Chicago,

504 F.2d 1037 (7th Cir. 1974), with

Hampton v. City of Chicago, 484 F.2d

602, 606 n. 4 (7th Cir. 1973); Fran-

cisco Enterprises, Inc. v. Kirby, 482

F.2d 481 (9th Cir. 1973), cert. denied,

415 U.S. 916 [94 S.Ct. 1413, 39 L.Ed.2d

471] (1974), with Ney v. California,

439 F.2d 1285 (9th Cir. 1971).

"For an analysis of these and

other cases, see Averitt. Federal Sec-

tion 1983 Actions After State Court

Judgment, 44 U.Colo.L.Rev. 191 (1972);

McCormack, Federalism and Section 1983:

Limitations on Judicial Enforcement of

Constitutional Claims, Part II, 60 Va.L.

Rev. 250 (1974) {hereinafter cited as

McCormack]; Vestal, State Court Judgment

as Preclusive in Section 1983 Litigation

in a Federal Court, 27 Okla.L.Rev. 185

(1974); Note, Relationship of Federal

and State Courts, 88 Harv.L.Rev. 453

(1974); Comment, The Coliateral Estoppel

Effect of State Criminal Convictions in

»19-

Section 1983 Actions, 1975 U.I11.1.F. 95

{hereinafter cited as Illinois Comment]."

[865-66, n. 35]

Thus, the Court of Appeals has rendered a

Decision in conflict with another Court of Appeals

on the same matter and, more importantly, the

Decisions of the various circuits teem with incon-

sistencies awaiting guidance from this Court. We

are, therefore, presented with a vital question

of federal law which has not been, according to the

Circuit Courts, but should be, settled by this -

Court.

Furthermore, we respectfully submit that the

Decision of the Second Circuit has decided a fed-

eral question in conflict with England and the

cases therein cited.

_ Clearly the legislative history of the civil

rights legislation as well as its judicial evolu-

tion do not permit its emasculation by the theory

of res judicata. The arguments in support of the

1871 Civil Rights Act clearly indicate that it was

to fulfill a needed remedy necessitated since the

State Courts had not adequately protected those

rights to be guaranteed by this legislation. The

State Courts were thought to have applied a dual

Standard; one form of justice for Unionists and

blacks and another form of justice for the Ku Klux

Klan and its supporters [See Monroe v. Pape, 365

U.S. 167, 178 (1961) (quoting the remarks of

Senator Pratt)]. |

Accordingly, Congress invested the Federai

Trial Courts with original jurisdiction to enforce

constitutional rights because the State Courts had

failed to respect those rights. Previously, the

State Courts had primary responsibility for enforc-

ing the Constitution, checked only by this Court's

«Mn

5

review. Now primary responsibility would be shift-

ed by Act of Congress to the Federal Trial Courts.

Theis explained that the drastic nature of

this shift of responsibility is highlighted by the

fact that not until four years later did Congress

provide the Federal Trial Courts with general "fed-

eral questions" jurisdiction. In Mitchum v. Foster,

407 U.S. 225 (1972), this Court, commenting on the

1871 Civil Rights Act, stated:

"[L]egislative history ae © evident

that Congress clearly conceived that

it was altering the relationship be-

tween the States and the Nation with

respect to the protection of feder-

ally created rights; it was concerned

that state instrumentalities could not

protect those rights; it realized that

state officers might, in fact, be anti-

pathetic to the vindication of those

rights; and it believed that these

failings extended to the state courts."

To permit the res judicata effect of state

litigation to operate as a bar to a federal civil

rights action runs directly counter to this legis-

lative distrust of the State Court judiciary as

conscientious protectors of constitutional rights.

Thus, the legislature never expected to have prior

state litigation preclude a civil rights action

where the federal plaintiff was an involuntary

State Court litigant.

Significantly, this Petition brings up for

review a case which is uniquely suitable for review

by certiorari on the question of the res judicata

effect of a State Court Judgment on a subsequent

civil rights action in the Federal Court because in

the case atbar the federal plaintiff was an invol-

-2l-

untary State Court litigant who expressly reserved

his right to litigate his federal constitutional

questions in the Federal Court and he made this.

expression of his reservation of right at each and

every stage of the State Court litigation, pursuant

to this Court's holding in England, supra.

The legislative history behind the 1871 Act,

to the extent that it evidences an attempt to per-

mit the federal plaintiff to have a choice of

forum, counsels against any expansive reading of

res judicata. Only when the plaintiff has freely

presented his constitutional claims for conclusive

State Court resolution should relitigation be bar-

red in the Federal Courts.

CONCLUS LON

Petitioner respectfully prays that the

Petition for a Writ of Certiorari be granted.

Respectfully submitted,

J. JEROME OLITT

Petitioner, Pro Se

25 Broad Street

Penthouse Suite

New York, N.Y. 10004

(212) 952-4350

New York, New York,

March 5th, 1979

=22-

APPENDIX A

ORDER OF THE COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court

of Appeals for the Second Circuit, held at the

United States Courthouse in the City of New York,

on the sixteenth day of November, one thousand

nine hundred and seventy-eight.

Present:

Hon. J. Edward Lumbard,

Hon. Henry J. Friendly,

Hon. James L. Oakes,

Circuit Judges.

J. Jerome Olitt,

Appellant,

Vv. 78-7295

Francis T. Murphy, Jr., et al.,

Appellees.

ORDER

This cause came on to be heard from the

United States District Court for the Southern

District of New York and was argued by the appel-

lant pro se and by counsel for the appellees.

ON CONSIDERATION WHEREFORE, it is now here-

by ordered, adjudged and decreed that the opinion

of said district court is affirmed substantially

on the opinion of Judge Weinfeld below. Judge

Oakes notes that he takes ti.. same position here

relative to Thistlethwaite v. City of New York,

o2%

| 4

Order of the Court of Appeals

497 F.2d 339, 346 (2d Cir.), cert. denied, 416

U.S. 906 (1974), and Tang v. Appellate Division,

487 F.2d 138, 14% (2d Cir. 1973), cert. denied,

416 U.S. 906 (1974), as stated in his concurring

opinion in Turco v. Monroe County Bar Association,

554 F.2d 515, 522 (2d Cir.), cert. denied, 434

U.S. 834 (1977): absent an en banc he is bound

by the decisions of this court on the subject of

res judicata of federal civil rights claims where

the federal plaintiff is an involuntary state

litigant.

The court notes that appellant also sought

relief by way of a declaratory judgment that the

three-part order of relief set forth in Exhibit B

attached to the complaint herein and constituting

the order of the Appellate Division of the Supreme

Court held in and for the First Judicial Department

in the County of New York on March 7, 1978, does

not and cannot in and of itself preclude his prac-

tice of law before the federal courts, absent

federal court disciplinary proceedings. At argu-

ment counsel for appellees conceded that the Appel-

late Division order does not pertain to practice in

che federal courts, which is governed by the Fedeml

Rules, and in the case of the United States District

Courts for the Southern District and Eastern Dis-

trict of New York, General Rule 5. While state

Ciecipligaty proceedings have an effect under General

Rule 5,1 certain procedural and substantive pro~

tections may be available under that rule to counsel

affected by those state proceedings.

/S/_ J. EDWARD LUMBARD

/S/ HENRY J. FRIENDLY

/S/ JAMES L. OAKES

U.S. Circuit Judges

=24<

Order of the Court of Appeals

Rule 5(d) of the General Rules forthe South-

ern District and Eastern District of New York pro-

vides in part:

Any member of the bar of this court

who shall be disciplined by a court in

any State, Territory, other District, °

Commonwealth or Possession, shall be

disciplined to the same extent by this

court unless an examination of the re-

cord resulting in such discipline dis-

closes (1) that the procedure was so

lacking in notice or opportunity to be

heard as to constitute a deprivation

of due process; or (2) that there was

such an infirmity of proof establishing

the misconduct as to give rise to the

clear conviction that this court could

not consistently with its duty accept

as final the conclusion on that sub-

ject; or (3) that the imposition of the

same discipline by this court would

result in grave injustice; or (4) that

the misconduct established has been

held by this court to warrant substan-

tially different discipline.

Upon the presentation to the court

of a certified or exemplified copy of

the order imposing such discipline, the

respondent attorney so disciplined shall,

by order of the court, be disciplined to

the same extent by this court, provided,

however, that within 30 days of the ser-

vice upon the respondent attorney of the

order of this court disciplining him,

either the respondent attorney or a bar

association designated by the chief

=45-

a lll EE

Order of the Court of Appeals

judge in the order imposing discipline

may apply to the chief judge for an

order to show cause why the discipline

imposed in this court should not be

modified on the basis of one or more

of the grounds set forth in this Para-

graph (d).

-26-

iia 22>

APPENDIX B

OPINION OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

J. JEROME OLITT,

Plaintiff, °

-against-

FRANCIS T. MURPHY, JR., individually, as Pre-

siding Justice of the Appellate Division of

the Supreme Court of the State of New York,

First Judicial Department, and as Administra-

tor coucerning the conduct of members of the

New York Bar, ARTHUR MARKEWICH, MYLES J.

LANE, SAMUEI, J. SILVERMAN, HAROLD BIRNS,

JOSEPH P. SULLIVAN, THEODORE R. KUPFERMAN,

HERBERT EVANS, ARNOLD FEIN, LEONARD SANDLER

and VINCENT A. LUPIANO, individually, as

Associate Justices of the Appellate Division

of the Supreme Court of the State of New

York, First Judicial Department, and as Ad-

ministrators concerning the conduct of mem-

bers of the New York Bar, JOSEPH J. LUCCHI,

individually and as Clerk of the Appellate

Division of the Supreme Court of the State

of New York, First Judicial Department,

JAMES D. PORTER, JR., individually and as

Counsel to the Committee on Grievances of

the Association of the Bar of the City of

New York, THE ASSOCIATION OF THE BAR OF THE

CITY OF NEW YORK, THE APPELLATE DIVISION OF

THE SUPREME COURT OF THE STATE OF NEW YORK,

= [cont'd]

Opinion of the District Court

FIRST JUDICIAL DEPARTMENT, SHELDON

OLIENSIS, individually and as Chairman of

the Committee on Grievances of the Associa-

tion of the Bar of the City of New York, and

WILLIAM E. JACKSON, RICHARD KUH, LOLA S. LEA,

MATTHEW J. MALLOW, ARCHIBALD R. MURRAY,

ALFRED H. SCOTTI, WILLIAM B. O'BRIEN, ANGELO

T. COMETA, EMELIO P. GAUTIER, JOHN DONOVAN,

STEVEN H. STEIN, M. MORAN WESTON, JOHN G.

McGOLDRICK, GEOFFREY M. KALMUS, MARTIN

LONDON, DONALD B. STRAUSS, EDWARD J. BABB,

JOHN W. CASTLES III, EDWIN H. WESLEY,

HAYWOOD BURNS, EVELYN HALPERT, SELVYN

SEIDEL, HELENE M. BARNETTE, JOHN H.

DOYLE III, WILLIAM H. GILBRETH, DAVID

RAMAGE, JR., ALVIN H. SCHYLMAN, indi-

vidually and as members of the Committee

on Grievances of the Association of the

Bar of the City of New York,

Defendants.: ©

J. JEROME OLITT, ESQ.

25 Broad Street

New York, New York

Pro Se

LOUIS H. LEFKOWITZ, ESQ.

Attormey General of the State of New York

Two World Trade Center

New York, New York

Attorney for Defendant Justices

-28-

Dias ri sih ee Oe ne EES TER

Opinion of the District Court

A. SETH GREENWALD, ESQ.

Assistant Attorney General

Of Counsel

SAUL FRIEDBERG, ESQ.

36 West 44th Street

New York, New York

Attorney for Defendants

James D. Porter, Jr. and

Committee on Grievances

Opinion of the District Court

EDWARD WEINFELD, D.J.

This is the fourth action instituted in this

Court by plaintiff, an attorney who has been the

subject of state bar disciplinary proceedings. In

this, his latest action, he seeks to stay and void

an order of the Appellate Division, First Depart-

ment, suspending him from the practice of law for

three years, which was entered upon a report of a

Referee who had conducted a full evidentiary hear-

ing. Plaintiff's three prior actions, discussed

hereafter in greater detail, were dismissed under

the doctrine cf abstention because of the still

pending state disciplinary proceedings. Following

the dismissal of his third action, plaintiff re-

turned to the state courts and filed as of right

an appeal to the New York State Court of Appeals

from the order of suspension and also moved for

leave to appeal to that Court, both of which were

dismissed for want of a substantial constitutional

question.

In this current federal action, plaintiff

seeks an adjudication of his federal constitutional

claims, wnich he asserts he expressly reserved for

this Court's decision under England v. Louisiana

State Board of Medical Examiners. (1) Basing these

claims upon 42 U.S.C. section 1983, plaintiff here

seeks declaratory and injunctive relief barring the

Appellate Division from imposing any disciplinary

sanction upon him pending federal court determina-

tion of his federal constitutional claims, absent

which he contends the state courts lack jurisdiction;

a judgment declaring the Appellate Division order

of suspension null and void and a declaration that :

(1) 375 U.S. 411 (1964).

= I<

a iit isis Set cd

Opinion of the District Court

the Appellate Division order does not by itself

automatically carry with it suspension from prac-

tice in the federal courts. (2) Plaintiff's

essential claim is an absolute right to have the

federal courts consider and pass upon those claims

of violation of his federal constitutional rights.

As stated by him, the key issue is "whether or not

the State Court may discipline me pending the

resolution of my Federal claims in this Court as

a result of my reserving my rights to litigate

those Federal questions involved in the State Court

disciplinary proceedings in the United States

District Court." The matter is now before the

Court on plaintiff's motion for a preliminary

injunction and the defendants’ cross-motion to

dismiss the complaint. (3)

The underlying factual situation which led

to plaintiff's suspension was summarized by the

Appellate Division in its per curiam order con-

firming the Referee's finding that plaintiff

(there respondent) was guilty of professional

misconduct: (4)

The Referee found that in 1965

the respondent, representing a builder,

sought to have a zoning change applica-

tion, submitted on behalf of a rival

(2) Jurisdiction is alleged under 28 U.S.C.

§§ 1331, 1343.

(3) The grounds of defendants' motion are failure

to state a claim, lack of subject matter

jurisdiction, "abstention (Younger type)" and

res judicata-collateral estoppel.

(4) N.Y.L.3., Mar. 13, 1978, at 1, col. 3.

“a

-5l-

Opinion of the District Court

builder, delayed. The respondent

thereafter delivered money in cash

to a person who claimed he could

effect such delay.

In October, 1968, plaintiff, following the asser-

tion of his Fifth Amendment privilege against

seif-incrimination, was granted transactional

immunity and testified before a grand jury con-

cerning his involvement in the above matter. He

alleges that the District Attorney, in addition

to this grant of immunity, represented that he

would neither refer the subject matter of the

investigation to the defendant Grievance Committee

(the "Committee") nor himself initiate disciplinary

proceedings. Allegedly through independent sources,

the Committee became aware of plaintiff's involve-

ment with both the factual situation and the grand

jury proceedings. In February 1971, an ex parte

application was made to a Justice of the State

Supreme Court, who granted an order which made

available the immunized testimony to the Committee.

Disciplinary proceedings against plaintiff were

instituted in January 1973, in the course of which

plaintiff's immunized testimony was introduced as

part of this Committee's case.

During the pendency of the disciplinary pro-

ceedings, plaintiff commenced the first of his

federal actions, contending that the Committee's

use of the immunized testimony violated his rights

under the Fifth Amendment of the United States Con-

stitution. This Court, per Judge Griesa, dismissed

plaintiff's case due to the ongoing state proceed-

-32-

<q

:

3

‘

4

3

4

a

q

Opinion of the District Court

ing, (5) citing Younger v. Harris (6) and

Erdmann v. Stevens, (7) the Second Circuit's

decision applying Younger to bar disciplinary

proceedings; Judge Griesa observed that plaintiff's

future course should be "'the traditional method

of obtaining adjudication of federal constitutional

questions arising out of . . disciplinary pro-

ceedings' -- i.e., state court action followed by

request for Supreme Court review." Judge Greisa's

dismisal of plaintiff's action was unanimously

affirmed by our Court of Appeals, which relied

not only upon Younger and its own decision in

Erdmann, but also upon the then recently decided

Huffman vy. Purs Ltd., (8) stating: (9)

Whatever federal constitutional

questions are involved here can cer-

tainly be raised in the state courts

and ultimately addressed to the Supreme

Court, and appellant proffers no con-

trary contention.

(5) Anonymous v. Association of the Bar of the

City of New York, No. 74 Civ. 2398 (TPG)

(S.D.N.Y. July 31, 1974), aff'd, 515 F.2d 427

(2d Cir.), cert. denied, 423 U.S. 863 (1975).

(6) 401 U.S. 37 (1971).

(7) 458 F.2d 1205 (2d Cir.), cert. denied, 409 U.S.

889 (1972).

(8) 420 U.S. 592 (1975).

(9) Anonymous v. Association of the Bar of the

City of New York, 515 F.2d 427, 632 {24 Cir.),

cert. denied, 423 U.S. 863 (1975).

nO

Opinion of the District Court

Plaintiff returned to the state courts,

raising his Fifth Ameidment claim as weil as

other federal const.tutional claims as affirma-

tive defenses. (10) At the same time, however,

plaintiff expressly "reserv[ed}] his right to

litigate his Federal Constitutional Claims in

the Federal court," as suggested in England v.

Louisiana State Board of Medical Examiners. (11)

After plaintiff's motion to dismiss the dis-

ciplinary proceedings on the basis of his affirm

ative defenses was denied by the Appellate Divi-

sion, the Referee rendered his repert sustaining

the charges. The Committee moved to confirm the

report and impose discipline; plaintiff cross-

moved to stay the imposition of discipline, con-

tending that because of his “England reservation"

the Appellate Division was without jurisdiction

to impose discipline prior to resolution of

plaintiff's federal claims in federal court.

During the pendency of the foregoing motion

and cross-motion, plaintiff commenced his second

federal action, seeking an order enjoining the

state's imposition of discipline until his federal

claims were resolved in the federal courts. Again,

the action was dismissed on Younger/Huffman

grounds. (12) Judge Ward also noted, however, that

plaintiff's purported reliance on England was "mis-

Placed because the procedures formulated in that

case relate specifically to the Pullman doctrine

of abstention (13) .. . not to the Younger

(10) See text accompanying notes 21-23 infra.

(11) 375 U.S. 411 (1964).

(12) Olitt v. Murphy, No. 78 Civ. 744 (R.J.W.)

(S.D.N.Y. Mar. 8, 1978).

(13) Railroad Comm'n v. Pullman Co., 312 U.S.

496 (1941).

o

*.

Pts a Oe OW SO ee OTC Se) CMS. |S ee eee ee

ScD GLEE ia

Fe Ne Pax ot

ane

aa Pb te

Opinion of the District Court

doctrine which abstention in plaintiff's federal

action has been premised." Upon dismissal of

plaintiff's second federal action, the Appellate

Division entered an order confirming the Referee's

report and ordering plaintiff suspended for a

period of three years.

Shortly thereafter, plaintiff commenced his

third federal action, again seeking a declaration

that the state was without jurisdiction to impose

discipline pending resolution in this Court of his

federal constitutional claims. Again, plaintiff's

case was dismissed on Younger grounds (14) as he

had not yet exhausted his state appellate remedies

as required under Huffman. (15) Again, plaintiff

was told that his reliance upon England was mis-

placed -- indeed, the Court restated the Second

Circuit's comment quoted above.

Plaintiff then filed a notice of appeal as

of right in the New York State Court of Appeals

and also moved there for leave to appeal from the

Appellate Division order of suspension. (16)

Although continuing to contend that his federal

claims were reserved for federal court determina-

tion, he claimed an appeal as of right "upon the

(14) Olitt v. Murphy, No. 78 Civ. 1473 (EW)

(S.D.N.Y. Apr. 8, 1978).

(15) See Huffman v. Pursue, Ltd., 420 U.S. 592,

607-11 (1975); Anonymous v. Association of

the Bar of the City of New York, 515 F.2d

427, 434-35 (2d Cir.), cert. denied, 423

U.S. 863 (1975).

(16) See N.Y. Civ. Prac. L. §§ 5601(b), 5602(a);.

N.Y. Jud. L. §90(8).

=3$-

Opinion of the District Court

ground that there is directly involved the con-

struction of the United States Constitution."

The proffered claims of violations of federal

constitutional rights and also the grounds in

support of plaintiff's motion for leave to appeal

were: (a) the use of his immunized grand jury

testimony inderrogation of his Fifth Amendment

rights; (b) the Distict Attorney's alerting, con-

trary to his representation, the Grievance Com-

mittee to plaintiff's grant jury testimony and

his participation in the events, thus bringin*

into play the Second Circuit's decision in

Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976),

cert. dismissed, 431 U.S. 911 (1977); (c) defend-

ants' laches in instituting the disciplinary pro-

ceeding in violation of plaintiff's right to a

speedy trial; (d) the referee's exclusion of

plaintiff's polygraph expert's testimony, thereby

denying plaintiff the right to a fundamentally

fair trial; and (e) the ex parte order authorizing

transmission of the immunized testimony violated

plaintiff's due process rights. As already noted,

the New York Court of Appeals denied plaintiff

leave to appeal and dismissed the appeal as of

right on the ground that "no substantial constitu-

tional question is directly involved." Thereupon

the order of suspension became effective as of May

10, 1978.

Plaintiff then commenced this, his fourth

federal action. The constitutional issues he seeks

to have adjudicated are exactly the same five

listed above presented to the state courts. He

nevertheless contends that since he expressly

reserved these issues for this Court's decision by

his purported England reservation, he is entitled

to have this Court pass upon and decide them.

«3§<

ee

Opinion of the District Court

Plaintiff's persistent and stubborn reliance

upon England v. Louisiana State Board of Medical

Examiners (17) is misplaced. As plaintiff is

been repeatedly told, England is simply irrelevant

when a federal court has dismissed a case on

Younger/Huffman grounds. England is an adjunct

of Pullman abstention and provides that where con-

stitutional challenge is made to a state statute

in federal court, and that statute is susceptible

of construction avoiding or modifying the federal

questions presented, the federal plaintiff will be

required to obtain an authorative construction of

that statute in the state court; and, if England

is thus observed, that plaintiff is assured a

return to the pending federal suit to litigate

the federal claims. (18) When a state proceeding

is pending and Younger applies, however, the

(17) 375 U.S. 411 (1964).

(18) See, e.g., Juidice v. Vail, 430 0.3. 327;

347, 348 (1977) (Stewart, Jr., dissenting) ;

Huffman v. Pursue, Ltd., 420 U.S. 592, 613,

616 n.2 (1975) (Brennan, J., dissenting);

England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411, 415-16 (majority)

423-37 (Douglas, J., dissenting) (1964);

Roy v. Jones, 484 F.2d 96, 100 (3rd Cir.

1973) ("It is apparent that the procedures

outlined in England were engrafted onto the

law of abstention to insure that implementa-

tion of the Pullman doctrine not run afoul

of Congressional mandate.") See generally

Field, Abstentionin Civil Cases: The Scope

of the Pullman Abstention Doctrine, 122

U. Pa. L. Rev. 1071 (1974).

ye

Opinion of the District Court

federal case is dismissed and the constitutional

claims are to be presented in the state proceed-

ings. (19)

Plaintiff not only had the opportunity to

present his federal constitutional claims in the

State proceedings, in fact he did present them and

they were there determined, notwithstanding his

England reservations. Accordingly, those claims

are barred under the doctrine of res judicata. (20)

Three of plaintiff's present claims were offered

as affirmative defenses and in support of his

Original motion to dismiss the proceedings: his

Fifth Amendment claim, the Palermo violation of

(19) Gibson v. Berryhill, 411 U.S. 564, 577 (1973)

("Younger v. Harris contemplates the outright

dismissal of the federal suit and the present-

atiof of all claims, both state and federal,

to the state courts."); see,e.g., Trainor v.

Hernandez, 431 U.S. 434, 441 (1977), quoting

Younger v. Harris, 401 U.S. 37, 45 (1971),

quoting Fenner v. Boykin, 271 U.S. 240, 243-44

(1926) ("The accused should first set up

and rely upon his defense in the state courts,

even though this involves a challenge of the

validity of some statute, unless it plainly

appears that this course would not afford

adequate protection."). See generally Note,

Younger Grows Older: Equitable Abstention in

Civil Proceedings, 50 N.Y.U.L. Rev. 870 (1975).

(20) "[A] litigant in a federal court is precluded

from relitigating issues which were litigated

and determined adversely to him in the prior

state court proceeding." Winters v. Lavine,

Dkt. No. 77-7101 at 6499 (2d Cir. Jan. 16,

1978). See, e.g., id. at 6497-98 and cases

-38-

Opinion of the District Court

promise claim, and his laches claim. When the

Appellate Division denied plaintiff's motion to

dismiss the desciplinary proceeding, as stated by

the Referee, it thereby "resolved . . . all of the

legal issues" except as otherwise directed. (21)

The Appellate Division did direct the Referec to

consider plaintiff's Palermo claim; the Referee

did this, finding that no promise had in fact been

made. (22) The Referee also considered plaintiff's

laches claim, finding that the delay in instituting

the proceedings resulted in no specific prejudice

to plaintiff warranting barring the proceedings. (23)

And as stated earlier, the Referee's report was con-

firmed by the Appellate Division.

These three claims, as well as the other two

asserted herein were, as noted above, raised by

plaintiff on his appeal to the Court of Appeais.

foctnote 20 cont'd

there cited: Graves v. Olgiati, 550 F.2d

1327, 1328-29 (2d Cir. 1977); Newman v.

Board of Educ., 508 F.2d 277, 278 (2d Cir.),

cert. denied, 420 U.S. 1004 (1975); Lombard

v. Board of Educ., 502 F.2d 631, 635-37 (2d

Cir. 1974), cert. denied, 420 U.S. 976 (1975);

Morpurgo v. Board of Higher Educ., 423 F.Supp.

704, 710 (S.D.N.Y. 1976), aff'd on opinion

below, Dkt. No. 77-6164 (2d Cir. May 10,1978).

(21) Referee's Report at 7, Matter of Olitt,

W.¥.L.J., Mar. 13, 1978, at 1, col. 3.

(22) Id. at 35-43

~~

Opinion of the District Court

a

And although that Court dismissed summarily on the

ground that no substantial constitutional question

was directly involved, that decision was final and

was on the merits. (24)

(24) See, e.g., Winters v. Lavine, Dkt. No. 77-7101

at 6505-06 (2d Cir., Jan. 16, 1978); Turco v.

Monroe County Bar Ass'n, 554 F.2d 515, 521 (2d

Cir.), cert. denied, 98 S. Ct. 122 (1977)

("([W]e must assume that the Court of Appeals'

denial of an appeal as of right here, as well

as of discretion, determined that the con-

stitutional issues specifically raised were

insubstantial on the merits."); Tang v. Appel-

late Division, 487 F.2d 138, 141 n.2 (2d Cir.

1973), cert. denied., 419 U.S. 1093 (1974);

Lecci v. Cahn, 493 F.2d 826, 830 (2d Cir. 1974).

It cannot seriously be contended that the

New York courts did not consider the merits of

plaintiff's claims because of his England

reservation. England's inapplicability to

plaintiff's situation is patent; moreover,

before the Appellate Division rendered its

summary judgment decision or its order con-

firming the Referee's report, two federal

courts had specifically told plaintiff to

assert his federal claims in the state pro-

ceedings. And by the time plaintiff filed his

appeal in the Court of Appeals, two other

federal courts had specifically held that

plaintiff's reliance on England was "misplaced."

Finally, plaintiff grounded an appeal as of

right on the federal constitutional questions

his case presented, and opposed a motion to

dismiss the appeal on the same basis. Thus

any claim that the New York courts withheld

judgment on plaintiff's federal claims -- the

-40-

Opinion of the District Court

Plaintiff complains that the dismissals of

his three prior federal actions on abstention

grounds forced him to litigate his constitutional

claims in the state courts and that since he did

not voluntarily elect to do so, the state court

rulings should not be given preclusive impact -- in

effect, that the double-pinch of Younger and res

judicata should not completely close the federal

courts to these federal claims. There may be those

who question whether barring section 1983 plaintiffs

from lower federal tribunals a of res

judicata at all makes for sou

federalism, espe-

cially where the federal plaintiff was an involun-

tary state court litigant. (25)° But as our Court of

Appeals noted in Turco v. Monroe County Bar Ass'n,

that contention "was foreclosed in this circuit by

our decision in Thistlethwaite v. City of New York,

footnote 24 cont'd

(25)

(26)

only issued raised in defense and on appeal --

because of plaintiff's England reservation is

wholly specious.

See, e.g., Turco v. Monroe County Bar Ass'n,

554 F.2d 515, 522 (2d Cir.) (Oakes, J., con-

curring), cert. denied, 98 S. Ct. 122 (1977);

Thistlethwaite v. City of New York, 497 F.2d

339, 346 (2d Cir.) (Oakes, J., dissenting),

cert. denied, 416 U.S. 906 (1974); Note,

Younger Grows Older: Equitable Abstention in

Civil Proceedings, 50 N.Y.U.L. Rev. 870, 912-

21 (1975).

554 F.2d 515, 520 (2d Cir.), cert. denied, 98

Bs Ge: 282 (i877),

akin

Opinion of the District Court |

Opinion of the District Court

497 F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093

(1974), in which the very argument was made and

rejected." As the Court explained: (27)

situation there is but one federal tribunal, the

Supreme Court of the United States, that has such

jurisdiction.

State courts, as much as federal

courts, are bound by and required to |

follow the United States Constitution.

Turco, as appelles did in Huffman v.

Pursue, Ltd., . .. is “urging [the

Court] to base a rule on the assump-

tion that state judges will not be

faithful to their constitutional

responsibilities." And like the

Supreme Court, "[t]his we refuse to

do." 420 U.S. at 611.

Plaintiff's motion for a preliminary

injunction is denied. The motion to dismiss the

complaint is granted.

It is so ordered.

Dated: New York, New York

May 22, 1978

EDWARD WEINFELD

United States District Judge

Finally, it is noted that our Court of Appeals.

has commented that it "has been particularly chary

of intrusion into the relationship between the State

and those who seek license to practice in its courts.’

(28) Plaintiff's suit here seeks to cast this Court

as an appellate court to the highest court in New

York State (29) -- and in that instant situation

(27) Id.

(28) Tang v. Appellate Division, 487 F.2d 138, 143

(2d Cir. 1973), cert. denied, 416 U.S. 906 |

(1974). See, e.g., Turco v. Monroe County Bar |

Ass'n, 554 F.2d 515 (2d Cir.), cert. denied,

98 S. Ct. 122 (1977); Erdmann v. Stevens, 458

F.2d 1205 (2d Cir.), cert. denied, 409 U.S. 889

(1972); Mildner v. Gulotta, 405 F. Supp. 182

(E.D.N.Y. 1975) (three-judge court), aff'd,

425 U.S. 909 (1976). | footnote 29 cont'd

88 S. Ct. 122 (1977); Tang v. Appellate

Division, 487 F. 2d 138, 141-42 (2d Cir. 1973),

cert. denied, 416 U.S. 906 (1974).

-42- | “4

515m 521m 522 n.11 fd Cir), cert. denied,

(29) See Turco v. “nll lh cx Bar Ass'n, 554 F.2d