Petition — State Bar of Texas v. Howell
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FILED
AUG 20 1989
ALEXANDER L. STEVAS,
No. CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
THE STATE BAR OF TEXAS, PETITIONER,
V.
CHARLES BEN HOWELL, RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TC THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Counsel of Record: JERRY L. ZUNKER
General Counsel
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711
(512) 475-6202
DAVID A. DITTFURTH
STEVEN L. LEE
Assistant General Counsel
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
THE STATE BAR OF TEXAS, PETITIONER,
V.
CHARLES BEN HOWELL, RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Counsel of Record: JERRY L. ZUNKER
General Counsel
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711
(512) 475-6202
DAVID A. DITTFURTH
STEVEN L. LEE
Assistant General Counsel
Attorneys for Petitioner
QUESTIONS PRESENTED
This federal action was initiated by Charles Ben Howell to con-
sider various constitutional challenges to an attorney disciplinary
proceeding pending in Texas state court. After a state court judg-
ment imposing a public reprimand on Charles Ben Howell was
made final by action of the Supreme Court of Texas, the federal
district court, which had retained jurisdiction throughout,
dismissed its action for want of subject matter jurisdiction. See
page A-13 of Appendix hereto. The Fifth Circuit reversed and
remanded for trial of the constitutional claims of Charles Ben
Howell primarily because it concluded he had been deprived of a
full and fair opportunity to litigate his federal claims in state
court. No federal issues were raised or decided in state court
because Charles Ben Howell expressly reserved them for subse-
quent federal adjudication, purportedly in reliance on a statement
included in an order of the federal district court. See page A-11 of
Appendix hereto.
1. Whether, after state appellate remedies have been exhausted, a
federal district court may consider a constitutional challenge to a
state court judgment entered in an attorney disciplinary pro-
ceeding?
2. Whether a party is deprived of a full and fair opportunity to
litigate federal constitutional issues in state court if he fails to raise
those issues through no fault of the state court or of the opposing
parties?
3. Whether, in a §1983 action in federal court, the mandate of full
faith and credit or the federal doctrine of res judicata prevents the
adjudication of constitutional issues which could have been but
were not raised in a prior state court proceeding?
Although Franklin L. Jones, Jr. and Jerry L. Zunker, President and General
Counsel of the State Bar of Texas respectively, were joined as defendants with the
State Bar of Texas in the courts below, they have no interest as individuals in the
outcome of this case.
TABLE OF CONTENTS
Page
I sn i onc ccaieiihedsibens Gaeee seu cease 6
td ee eis ecu eun ecen ee ekhns babs 6
Statutory provisions involved ..................0ceeeeeee 7
SE ee ee eee 7
Dc cecekdeewesabesseneens 10
1. The decision below conflicts with the decisions of
other courts of appeals in regard to the application of
NE oe te ka eee eludliae’ peéen ees 10
2. The decision below turns on issues which have pot
been but should be settled by thisCourt .............. 14
i. aleve an te cilelasbacakesececksb inn ube 19
Appendix
Chronology of relevant events in federalcourt .......... A-1
Opinion and judgment of the Fifth Circuit ............. A-3
ee ls Caenceeadene eens A-10
Federal district court ‘‘abstention’’ order .............. A-11
Letter from Judge William Taylor, Jr.................. A-12
Order of dismissal by federal district court.............. A-8
Opinion of the Texas Court of Civil Appeals ............ A-14
Notice to state court with federal complaint [excerpts] .. . . A-24
Defendant’s First Original Amended
Answer [excerpts] - filed in state court ............... A-34
Amended Complaint [excerpts] - filed in federal court .. . . A35
Second Amended Complaint [excerpts] -
a ie ce ab eees cedeneeks A-46
TABLE OF AUTHORITIES
Cases:
Allen v. McCurry, 449 U.S. 90 (1980)... 2... 6 ee eee eee * 1617
Blankner v. City of Chicago, 504 F.2d 1037 (7th Cir. 1974),
CE, GE Gs Ss SEs 6 occ cccccccceceseccece 13
Burton, Inc. v. Durkee, 162 Ohio St. 433, 438, 123
i. sing ececeshectaeedagesetees 12
Coogan v. Cincinnati Bar Association, 431 F.2d 1209
EE ET Terror TT Tre TT et 1213
Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976), cert. denied,
IIE «64 6.56000-60ceubeheneceuccasessene 18
England v. Louisiana State Board of Medical Examiners,
6 a ee cee deat chee tuedhshnhs eee 11
Federated Department Stores v. Moitie, 452 U.S. 394 (1980) . 14,17
Gresham Park Community Organization v. Howell,
De ee eos coc eeueeneenses 18
Huffman v. Pursue, Lid., 420 U.S. 592 (1975) ...........5. 15
, Ce, PTT vc éccccecocsesenéecouns 16
Lovely v. Laliberte, 498 F.2d 1261 (Ist Cir.), cert. denied,
SEED « Mi ccccenctececccotoeses 101112
MacKay v. Nesbett, 412 F.2d 846 (9th Cir.), cert. denied,
i soe ie i eee eh asl senbunsesaneuey 18
Middlesex County Ethics Commitiee v. Garden State
Bar Association, 50 U.S.L.W.4712(U.S. June 21, 1982)... 15
Moore v. Sims, 442 U.S. 415 (1979) .. 0.6... cece eee eee 16
Phelps v. Kansas Supreme Court, 662 F.2d 649
DMD cc scp deneckectsuuntecvencndsadsenuns 18
Robbins v. District Court of Worth City, Iowa, 592 F.2d 1015
(8th Cir.), cert. denied, 444 U.S. 852 (1979) ...........5. 3
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .......... 1718
Scoggin v. Schrunk, 522 F.2d 436 (9th Cir. 1975), cert. denied,
i i. .cneesneesanesecncessenceuenens 13
Silverton v. Department of Treasury, 644 F.2d 1341 (9th Cir.),
cert. denied, 102S. Ct. 393 (1981)... 2... ee cece ee eee 18
Spence v. Latting, 512 F.2d 93 (10th Cir.), ceri. denied,
ED << c ccucedebsdbesedenedebeeeveses 13
Texas Water Rights Commission v. Crow Iron Works,
ST SOUND cecscoccecccnccescccecesees 17
Theard v. United States, 354 U.S. 278 (1957)... 2... 2.6... 1718
Wood v. Georgia, 450 U.S. 261 (1981) . 2... eee 19
Younger v. Harris, 401 U.S. 37 (1971) «2.2... eee 15.16
Miscellaneous:
Chang, Rediscovering the Rooker Doctrine: Section 1983, Res
Judicata and the Federal Courts, 31 Hastings L.J. 1337 (1980) %
Developments in the Law - Section 1983 and Federelism,
CDaRare. 0. Tipe. BEATE T i sc cv cccccesccésccsccucedss 18
18 C. Wright, A. Miller, and E. Cooper, Federal Practice and
Procedure §4469, at 654 (1981) 2.2... 6. cece eee eee 18
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
THE STATE BAR OF TEXAS, PETITIONER, :
V.
CHARLES BEN HOWELL, RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The State Bar of Texas, petitioner herein, respectfully prays
that a writ of certiorari issue to review the judgment and opinion
of the United States Court of Appeals for the Fifth Circuit entered
in this proceeding on May 3, 1982.
OPINION BELOW
The opinion of the Court of Appeals is reported in volume 674
of the Federal Reporter, second series, beginning on page 1027,
(674 F.2d 1027). No opinion was rendered by the United States
District Court for the Northern District of Texas.
JURISDICTION
The judgment of the Court of Appeals for the Fifth Circuit was
entered on May 3, 1982. A timely petition for rehearing was
denied on May 27, 1982, and this petition for certiorari was filed
within 90 days of that date. This Court’s jurisdiction is invoked
under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
28 U.S.C. §1738: State and Territorial statutes and judicial pro-
ceedings; full faith and credit.
The Acts of the legislature of any State, Territory, or Possession
of the United States, or copies thereof, shall be authenticated by
affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such
State, Territory or Possession, or copies thereof, shall be proved
or admitted in other courts within the United States and its Ter-
ritories and Possessions by the attestation of the clerk and seal of
the court annexed, if a seal exists, together with a certificate of a
judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof,
so authenticated, shall have the same full faith and credit in every
court within the United States and its Territories and Possessions
as they have by law or usage in the courts of such State, Territory
or Possession from which they are taken.
STATEMENT OF THE CASE
Charles Ben Howell was, in 1971, and is now an attorney li-
censed to practice in the State of Texas. As a result of certain
events Occurring in 1971, acomplaint was made charging him with
conduct in violation of the Texas Code of Professional Respon-
sibility. The nature of these events are explained in the opinion of
the Court of Civil Appeals of Texas (559 S.W.2d 432), included on
pp. A-14-A-23 of the Appendix hereto. After administrative pro-
ceedings on this complaint were completed, the State Bar of
Texas, through its Grievance Committee for State Bar District 6,
brought suit on October 29, 1974 in Texas state court asking that
Charles Ben Howell be disbarred, suspended, or reprimanded.
7
On February 19, 1976, while the disbarment action was still
pending in state trial court, Charles Ben Howell initiated this ac-
tion in the United States District Court for the Northern District
of Texas (hereinafter referred to as the district court). He invoked
the jurisdiction of that court under 28 U.S.C. §1343 seeking,
primarily through 42 U.S.C. §1983, declaratory and injunctive
relief from the disbarment proceeding in state court. Charles Ben
Howell filed written notice of his federal action in state court on
February 25, 1976. See p. A-24 of Appendix hereto.
On March 4, 1976, the district court, in denying a motion by
Charles Ben Howell for a preliminary injunction, entered an order
which also included the following:
Plaintiff of course has the right to raise federal constitu-
tional issues in federal court, should that prove
necessary after the state court proceeding is completed.
England v. Board of Medical Examiners, 375 U.S. 411
(1964).
(See p. A-11 of Appendix hereto.)
Shortly after the entry of this order, Charles Ben Howell filed his
First Original Amended Answer in state court expressly reserving
his federal constitutional claims for adjudication in federal court.
See p. A-34 of Appendix hereto. The state courts did, however,
decide certain issues he raised under the equal protection and due
process provisions of the Texas Constitution. See p. A-19 of Ap-
pendix hereto.
A judgment was entered by the state trial court on September
21, 1976 imposing a public reprimand on Charles Ben Howell.
This judgment was affirmed by the Texas Court of Civil Appeals
on November 23, 1977 (see p. A-14 of Appendix hereto); and the
Texas Supreme Court refused to review this decision, finding no
reversible error, on May 17, 1978. Charles Ben Howell then filed
another motion for preliminary injunction in the federal district
court, which had retained jurisdiction. On July 10, 1978, the
district court granted this motion and enjoined the State Bar of
Texas and the Texas courts from giving effect to the state court
judgment. For reasons that remain obscure, former counsel for
the State Bar of Texas in the federal action failed to oppose the en-
try of this preliminary injunction.
It was not until December 22, 1980 that the district court upon
motion by the State Bar of Texas dissolved its preliminary injunc-
tion and dismissed this action. See p. A-13 of Appendix hereto.
Subsequently, the public reprimand was published in the
February, 1981 edition of the Texas Bar Journal.
Prior to its dismissal, however, the district court gave Charles
Ben Howell leave to file his Second Amended Complaint (see p.
A-46 of Appendix hereto) which constitutes his final pleading for
the purpose of determining the claims made in this federal action.
In this pleading he seeks injunctive relief from the enforcement of
the state court judgment and a declaration that the judgment was
entered in violation of his rights under the Equal Protection, Due
Process, and Privileges and Immunities Clauses of the fourteenth
amendment to the United States Constitution. See p. A-50 of Ap-
pendix hereto. In essence, his prayer is for expungement of the
state court judgment from the records maintained in regard to at-
torneys licensed in this state. See p. A-50 of Appendix hereto.
The Fifth Circuit in the decision below reversed the district
court’s dismissal and remanded for trial on the merits of the
federal constitutional claims of Charles Ben Howell. See p. A-9 of
Appendix hereto. The Fifth Circuit assumed the district court’s
dismissal was premised on jurisdictional grounds (see p. A-5 of
Appendix hereto) and concluded that under the law of this circuit
a district court, while generally without jurisdiction to review the
final judgments of the highest court of a state, could exercise
jurisdiction when review of that judgment by the United States
Supreme Court was unavailable. See pp. A-6-A-8 of Appendix
hereto. Since no federal questions were raised or decided in the
State court, review of that judgment by this Court was deemed
unavaiable by the Fifth Circuit, which disregarded Charles Ben
Howell’s failure to seek such review.
In Part I11 of its opinion, the Fifth Circuit acknowledged that it
would ordinarily apply res judicata to forbid litigation in federal
court of issues that might have been raised in a prior state court
proceeding (see p. A-8 of Appendix hereto) but refused in this case
to punish Charles Ben Howell for his reliance on the federal
district court’s guidance. See p. A-9 of Appendix hereto. The
court recognized that the promise extended to Charles Ben Howell
by the district court was erroneous, but it held that because he
relied on that promise and sought to reserve his federal claims
under England he was deprived of a full and fair opportunity to
litigate those claims in state court. See p. A-9 of Appendix hereto.
The Fifth Circuit stated further that it was not establishing a *‘sim-
ple justice’ exception to res judicata but was instead relying on a
‘thybrid of the England and full and tair opportunity exceptions”’
to excuse Charles Ben Howell from the application of both the
doctrine of res judicata and the mandate of full faith and credit.
See p. A-9 of Appendix hereto, with particular reference to foot-
note 9 of the Fifth Circuit’s opinion.
REASONS FOR GRANTING THE WRIT
1. THE DECISION BELOW CONFLICTS WITH THE DFCI-
SIONS OF OTHER COURTS OF APPEALS IN REGARD
TO THE APPLICATION OF RES JUDICATA.
In Lovely v. Laliberte, 498 F.2d 1261 (ist Cir.), cert. denied,
419 U.S. 1038 (1974), the First Circuit held that the failure of a
party’s attorney to assert constitutional defenses in a state eviction
proceeding could not justify allowing that party to escape the ap-
plication of res judicata in a subsequent §1983 action in federal
court. In commenting on Lovely’s claim that his attorney in the
state proceeding had been “‘derelict,’’ the court stated that the
“*principle behind res judicata, the prevention of duplicative litiga-
tion, has the same force regardless of the ultimate ‘reason’ for the
second suit.”’ 498 F.2d at 1264. The court did note in its opinion
that it was ‘‘possible that a parallel [Eng/and] reservation might
preserve a federal constitutional defense and counterclaim in a
state possession action’’; but since none was made, the court con-
cluded that Lovely could ‘‘therefore not escape the ordinary effect
of res judicata.’’ Jd. at 1263-64. This dictum is best understood,
however, as only evidencing the court’s acceptance of such a
**possibility’’ solely for the purpose of rejecting Lovely’s argu-
ment on that basis.
The clearest conflict between Lovely and the Fifth Circuit’s
decision is in regard to the question whether res judicata should be
applied against a claimant who had a good reason for the failure to
assert constitutional claims in a prior s.ate court proceeding. The
Fifth Circuit believed itself free to consider such reasons while the
First Circuit in Lovely believed itself controlled by res judicata no
matter why a party sought to bring the subsequent federal action.
One distinction that appears at first glance is that Lovely was
disadvantaged because of the omissions of his attorney, while
Charles Ben Howell was held to have relied on the erroneous pro-
mise of the federal district court.' Upon further analysis, however,
one must conclude that this distinction misses the point. Charles
Ben Howell’s lawyer could have been considered derelict in relying
on the district court’s promise which, as the Fifth Circuit saw it,
was not supported by law. See p. A-8 of Appendix hereto.
Lovely’s attorney had, in fact, made a conscious decision not to
raise first amendment defenses in state court because he thought it
would be “‘unwise’’ to assert them there. 498 F.2d at 1263 n. 1.
The attorney for Charles Ben Howell, who himself is an attorney,
1. The State Bar of Texas contends that Charles Ben Howell did not rely on
the district court's promise since the decision to reserve his federal claims ap-
pears to have been made before the district court entered its order on March
4, 1976. On February 25, 1976, he gave notice to the state court of his federal
action and filed with this notice a copy of his federal complaint which listed a
number of his federal constitutional claims. See p. A-25 of Appendix hereto.
It is reasonable to conclude that since he had commenced a federal action to
litigat> his federal constitutional claims and had given notice of this fact to
the state court, he clearly intended at the time he gave notice to have those
federal claims adjudicated in federal not state court.
Furthermore, when Charles Ben Howell returned to federal district court
after the siate proceeding had been completed he filed his Second Amended
Complaint (see p. A-46 of Appendix hereto) which, almost entirely, includes
constitutional claims not contained in his earlier federal pleadings. Since
these additional claims were not brought to the attention of the state courts,
he failed at least in part to comply with the requirements of the England
case. See England v. Louisiana State Board of Medical Examiners, 375 U.S.
411, 420 (1964).
also made an erroneous decision with perhaps the same hope in
mind, that is, to have the federal issues adjudicated in a federal not
state court. The only real distinction is in regard to the legal bases
used by the different attorneys for concluding that such a strategy
would succeed. The First Circuit necessarily considered this point
irrelevant since it refused to consider any error of one’s attorney as
an exception from the effect of res judicata. Jd. at 1264.
In Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th
Cir. 1970), the Sixth Circuit considered a civil rights action
brought to challenge the constitutionality of an indefinite suspen-
sion from the practice of law ordered by the Supreme Court of
Ohio. Coogan had failed to appear personally during the
disciplinary proceeding, and though he was represented by
counsel of his own choosing, there was no indicatio:: any evidence
was offered in defense of the charges. Subsequent to the order of
the Supreme Court of Ohio, he challenged the indefinite suspen-
sion in federal court, claiming that he had entered into an agreed
suspension of practice for six months with the Cincinnati Bar
Association and that, therefore, his subsequent indefinite suspen-
sion violated the constitutional prohibition of doubie jeopardy.
Coogan also claimed he was deprived of a right of confrontation
under the fifth and fourteenth amendments because of the in-
troduction of an affidavit in evidence. /d. at 1210.
The Sixth Circuit held that res judicata precluded federal litiga-
tion of the issues ‘‘which he might have presented’’ in state court.
Id. at 1211. Immediately after this language, the court cited Bur-
ton, Inc. v. Durkee, 162 Ohio St. 433, 438, 123 N.E.2d 432, 435
(Ohio 1954), which states, as a matter of Ohio law, the same rule.
The Sixth Circuit did not expressly consider a claim that Coogan
failed because of his agreement with the Cincinnati Bar Associa-
tion to assert his federal claims in state court, but such an excuse
seems strongly indicated by the nature of the double jeopardy
claim and by a notation in the record of the state proceeding,
quoted by the Sixth Circuit, that implied Coogan had ceased prac-
ticing law in compliance with a voluntary suspension agreement.
See 431 F.2d at 1210. Certainly a legitimate reading of t!.c court’s
holding is that it saw any such excuse as irrelevant to the applica-
tion of either res judicata or the mandate of full faith and credit.
12
The Sixth Circuit also stated that Coogan had an ‘‘adequate
remedy for review of his suspension by petitioning the Supreme
Court of the United States,”’ but ‘‘[hJe chose not to resort to that
remedy.”’ /d. at 1211. The facts as given in the opinion show,
however, that Coogan would have had the same or even less
likelihood of obtaining review in this Court as Charles Ben
Howell, since he raised no issues whatever in the state proceeding.
This statement, though dictum, does evidence the Sixth Circuit's
unconcern with availability of review in this Court as it might bear
on the right to a federal trial forum.
The Fifth Circuit's decision in this case also conflicts in princi-
ple with the decisions of other circuits which, without qualifica-
tion, apply res judicata to foreclose federal litigation of constitu-
tional issues in $1983 actions when those issues could have been
but were not raised in a prior state proceeding. See Robbins v.
District Court of Worth City, lowa, 592 F.2d 1O1S, 1017 (8th
Cir.), cert. denied, 444 U.S. 852 (1979); Scoggin v. Schrunk, 522
F.2d 436, 437 (9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976);
Spence v. Latting, 512 F.2d 93, 98 (10th Cir.), cert. denied, 423
U.S. 896 (1975); Blankner v. City of Chicago, 504 F.2d 1037,
1040-41 (7th Cir. 1974), cert. denied, 421 U.S. 948 (1975). When a
party brings a $1983 action in federal court on constitutional
grounds which could have been raised in a prior state proceeding,
quite often the failure to raise those claims could be said to have
resulted from an error of counsel. In the Robbins case the facts in-
dicated that constitutional defenses had been raised in regard to
One statutory provision used as a basis for seeking the termination
of parental rights of the defendants in state court but not in regard
to another. 592 F.2d at 1017. There may, of course, be a wide
variety of reasons for a party's decision to withhold federal claims
from a state court proceeding, but it is only when the state court
prevents the raising of these issues or prevents their full and fair
adjudication that neither res judicata nor Younger abstention
should apply.
13
2. THE DECISION BELOW TURNS ON ISSUES WHICH
HAVE NOT BEEN BUT SHOULD BE SETTLED BY THIS
COURT.
Had the Fifth Circuit simply decided that because of the unique
facts of this case the interests of justice required opening the doors
of the federal district court, the State Bar of Texas would not feel
compelled to seek review in this Court. This is not itself a case in
which the public interest would be immediately and seriously en-
dangered by further litigation in federal court since the entenee-
ment of the state judgment will not be delayed.
The Fifth Circuit did not, however, so decide this case. It
reached its decision through the creation of two relatively amor-
phous exceptions to three of the rules asserted to preclude further
federal litigation. Moreover, its second, “‘hybrid’’ exception or at
least the ‘‘full-and-fair-opportunity’’ component thereof ( see p.
A-9 of Appendix hereto) is arguably applicable to another doc-
trine argued by the State Bar of Texas to preclude this federal
litigation, that is, Younger abstention. Interpreting the decision
below solely in light of its facts is made more difficult because the
Fifth Circuit expressly distinguished this case from one in which
**simple justice’’ or public policy called for an exception to res
judicata. See p. A-9 of Appendix hereto. This Court had, of
course, previously refused to accept such generalized exceptions to
that doctrine. See Federated Department Stores v. Moitie, 452
U.S. 394, 399 (1980). Also, by not requiring that the responsibility
for the failure to raise federal constitutional issues be traced to acts
of either the state court or to acts of the opposing parties in that
court, the Fifth Circuit freed its exception from a relevant, limiting
factor and thereby made it more subject to expansive interpreta-
tion.
The Fifth Circuit also held that the original jurisdiction of the
federal district court could be invoked because United States
Supreme Court review of the state court judgment was
unavailable. This holding seems necessarily based on the ques-
tionable assumption that a party has a right to at least one federal
forum in which to raise his federal claims. The major concern of
the State Bar of Texas, however, is that this holding will encourage
14
defendants in attorney disciplinary proceedings to withhold their
federal claims from state court in hopes of thereby enabling
themselves to subsequently invoke the jurisdiction of federal
district courts. It is reasonable to suggest that such parties,
perhaps foreseeing little likelihood of success on the merits of
these constitutional claims or of obtaining Supreme Court review,
might seek to use the opening provided by the Fifth Circuit to in-
itiate federal litigation to challenge or halt the enforcement of
state court orders. Furthermore, to the extent these threshold
federal issues are complicated by ambiguous statemenis of excep-
tions, the federal courts will be understandably hesitant to deny
such litigants adjudication on their constitutional claims.
The Fifth Circuit’s decision cannot be said to conflict directly
with any decision of this Court although the State Bar of Texas
argues it does conflict with the principles invoked in several. This
Court has recently held that the standards established in Younger
v. Harris, 401 U.S. 37 (1971), must be met to justify federal district
court intervention in a pending state attorney disciplinary pro-
ceeding. Middlesex County Ethics Commitiee v. Garden State Bar
Association, 50 U.S.L.W. 4712, 4715 (U.S. June 21, 1982). No
decision by this Court has, however, required the application of
Younger abstention after all state appellate remedies have been ex-
hausted as to an otherwise Younger-protected state proceeding.
Younger standards must be met to justify federal intervention at
least until all state appellate remedies have been exhausted, Hu/ff-
man v. Pursue, Litd., 420 U.S. 592, 609 (1975) ; but certain
language in the Huffman decision can be interpreted to allow
federal district court intervention after that point.’
The reasons for precluding federal court consideration of
claims for injunctive and declaratory relief from pending state
criminal and certain civil proceedings also justify preclusion of
this interference after state appellate remedies have been ex-
hausted. The Fifth Circuit’s decision will require the State Bar of
Texas to engage in a second trial of what is essentially the same
2. **[W]e believe that a necessary concomitant of Younger is that a party in
appellce’s posture must exhaust his state appellate remedies before seeking
relief in the District Court....°" 420 U.S. at 608 (emphasis added).
1S
case to protect its state court judgment. An even more serious con-
cern is that when a state court order imposes suspension or disbar-
ment, a federal court would also enjoin enforcement of that order
for the duration of the federal litigation, thereby retaining that at-
torney on the roll of those licensed to serve the public. These
results can hardly be said to be consonant with the concept of
federalism as defined in Younger v. Harris. See 401 U.S. at 43-45.
Virtually all the evils at which Younger is directed also inhere in
federal district court intervention after a state has provided a
litigant the full array of appellate remedies available in its court
system. Although the Fifth Circuit did not discuss the applicability
of Younger abstention, that doctrine was briefed and argued. By
necessary implication, it was rejected by the Fifth Circuit, but the
reasons for that rejection are unclear. Since it did hold that
Charles Ben Howell was deprived of a full and fair opportunity to
litigate his federal claims in state court and since such an oppor-
tunity is also required for application of Younger standards, re-
mand by this Court for consideration in light of the Middlesex
County case might well leave the Fifth Circuit’s ultimate holding
undisturbed.
There is no questior but that the courts of Texas were open to
the federal claims of Charles Ben Howell and competent to ad-
judicate fairly and to enforce effectively his constitutional rights.
While the purpose of §1983 and its jurisdictional counterpart is to
give the federal trial courts power to protect the people from un-
constitutional action even when committed by state courts, that
purpose is achieved so long as the federal courts provide an addi-
tional forum when the state courts are unable or unwilling to pro-
tect federal rights. See Allen v. McCurry, 449 U.S. 90, 100-01
(1980). In giving due regard to this purpose, this Court has stated
that for Younger standards to apply the state court must provide
the opportunity to present federal claims but need not ensure that
there is an actual hearing on those claims; the absence of an actual
hearing or the failure of litigants to avail themselves of such op-
portunities does not prove that the state procedures were inade-
quate. Juidice v. Vail, 430 U.S. 327, 337 (1977). The ‘‘only perti-
nent inquiry,”’ therefore, is whether a litigant was prevented by the
state court from raising his constitutional claims. See Moore v.
Sims, 442 U.S. 415, 430 (1979).
16
Having had a full and fair opportunity to raise his federal claims
in state court, Charles Ben Howell should not now be able to force
the State Bar of Texas back into federal court. In this regard,
Texas res judicata rules would preclude subsequent litigation on
issues which might have been litigated in the first suit. Texas Water
Rights Commission v. Crow Iron Works, 582 S.W .2d 768, 771-72
(Tex. 1979). Even though this Court has held that collateral estop-
pel and the mandate of full faith and credit generally apply in
§1983 actions, it has not decided whether a §1983 plaintiff in
federal court is precluded from litigating federal issues he could
have but did not raise in a prior state court suit against the same
adverse party. See Allen, 449 U.S. at 97 n. 10.
The Fifth Circuit conceded that res judicata would ordinarily
apply even though the constitutional issues were not raised in the
state proceeding bui held that this rule was not applicable because
Charles Ben Howell had been deprived of a full and fair oppor-
tunity to litigate them in state court. See pp. A-8-A-9 of Appendix
hereto. There seems little justification in the principles represented
by res judicata or by 28 U.S.C. §1738 (1976) for penalizing a
litigant and undercutting the finality of the judgment of a state
court when neither was responsible for the withhelding of federal
constitutional issues from that state court. In Allen, this Court
hinted that an exception might well exist if state law did not pro-
vide fair procedures or if a state court failed to even acknowledge
the existence of the constitutional principle on which a litigant
based his claim. 449 U.S. at 96-101. This language, although not
conclusive, indicates the proper focus in analysis of the opportu-
nity to litigate for res judicata and, perhaps, §1738 purposes. See
also, Federated Department Stores v. Moitie, 452 U.S. at 399.
The State Bar of Texas also argued before the Fifth Circuit that
jurisdiction to review final state court judgments lies exclusively
with the United States Supreme Court. This argument can be
based on two decisions of this Court — Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923) and Theard v. United States, 354 U.S 278
(1957). In Rooker this Court held that a federal district court had
no jurisdiction to consider a bill in equity to have declared null and
void a state court judgment that had been affirmed by the highest
court of the state. To do so, it was stated, would be an exercise of
17
appellate jurisdiction, which is a power lodged only with the Su-
preme Court. Rooker, 263 U.S. at 416. In Theard, while holding
that disbarment of an attorney by a state court did not require
federal court disbarment, this Court stated that the ‘“‘state
judicatures and the federal judiciary, have autonomous control
over the conduct of their officers among whom ... lawyers are in-
cluded.’’ Theard, 354 U.S. at 281. Although this language is dic-
tum, federal courts have relied on Theard in stating that federal
district courts have no jurisdiction to review state court judgments
relating to the admission or disciplining of lawyers. See Phelps v.
Kansas Supreme Court, 662 F.2d 649, 651 (10th Cir. 1981); Si/ver-
ton v. Department of Treasury, 644 F.2d 1341, 1344 n. 3 (9th
Cir.), cert. denied, 102 S. Ct. 393 (1981); Doe v. Pringle, 550 F.2d
596, 599 (10th Cir. 1976), cert. denied, 431 U.S. 916 (1977);
MacKay v. Nesbett, 412 F.2d 846 (9th Cir.), cert. denied, 396 U.S.
960 (1969).
The Fifth Circuit expressed doubt in the decision below as to the
continuing vitality of the Rooker doctrine. See p. A-6 of Appendix
hereto. Nevertheless, it went on to hold that in this circuit a district
court was without jurisdiction because of Rooker to consider a
constitutional challenge to a final state court judgment but only
when United States Supreme Court review of that judgment was
available. See p. A-6 of Appendix hereto. But see Gresham Park
Community Organization v. Howell, 652 F.2d 1227, 1236 (Sth
Cir. 1981). The commentators are also in conflict as to the conti-
nuing vitality of the Rooker doctrine. Compare Chang,
Rediscovering the Rooker Doctrine: Section 1983, Res Judicata
and the Federal Courts, 31 Hastings L.J. 1337, 1355 (1980), with
Developments in the Law-Section 1983 and Federalism, 90 Harv.
L. Rev. 1133, 1334.n. 14(1977). One commentator has argued that
the federal courts have applied Rooker when they should have ap-
plied res judicata. 18 C. Wright, A. Miller, and E. Cooper,
Federal Practice and Procedure §4469, at 664 (1981).
The Fifth Circuit expressly held in this case that the restriction
on federal district court jurisdiction was dependent on the
availability of Supreme Court review (see p. A-8 of Appendix
hereto) and thereby divorced this part of its opinion from the
nature of Charles Ben Howell’s excuse. Considering the practical
limitations on the power of this Court to review state court
judgments and the possibility of review even when no federal
question is clearly raised in a state proceeding, see Wood v.
Georgia, 450 U.S. 261, 265 n. 5 (1981), it is not clear what limits
really exist for this ‘‘unavailability’’ exception. Moreover, this ex-
ception is also clearly applicable in those circuits that restrict
district court jurisdiction on the basis of the Theard rather than
the Rooker doctrine.
Finally, the State Bar of Texas admits that it cannot know how
the Fifth Circuit’s exceptions will be used in the future. It is,
however, precisely because their limits cannot be readily discerned
that we fear these exceptions will be applied beyond the facts of
this case. If nothing clse, they are bound to add confusion to an
important area of federal law already unduly burdened by too
many potentially controlling doctrines. This case presents an op-
portunity for this Court to determine the controlling rule and
thereby alleviate ihe danger that serious constitutional claims will
be lost because of procedural missteps or that individuals will be
able to use the federal courts to frustrate the states’ attempts to
protect the public from unethical practitioners of the law.
CONCLUSION
For these reasons, a writ of certiorari should issue to review the
judgment and opinion of the Fifth Circuit.
Respectfully Submitted,
JERRY L. ZUNKER
General Counsel
State Bar of Texas
DAVID A. DITTFURTH
STEVEN L. LEE
Assistant General Counsel
Attorneys for Petitioner
August 20, 1982
19
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of August, 1982, three (3)
copies of the Petition for Writ of Certiorari were mailed, postage
prepaid, to Tom McCorkle, Jr., 500 Katy Building, Dallas, Texas
75202, attorney of record for Respondent Howell.
/s/ Jerry L. Zunker
Jerry L. Zunker
P.O. Box 12487
Austin, Texas 78711
APPENDIX
CHRONOLOGY OF RELEVANT EVENTS IN
FEDERAL COURTS
. February 19, 1976
. March 1, 1976
. March 4, 1976
. March 21, 1977
. June 30, 1978
. July 10, 1978
. June 27, 1980
. July 24, 1980
Howell files ‘‘Complaint”’ in federal
district court seeking, inter alia, that the
state disciplinary proceedings be en-
Howell files “Amended Complaint’’
which also seeks to enjoin state discipli-
nary proceedings.
Order denying Howell’s preliminary in-
junction against state proceedings
signed by Judge Wiliiam Taylor, Jr.
Fifth Circuit affirms March 4, 1976
denial of preliminary injunction. 551
F.2d 861.
Howell files “‘Motion for Preliminary
Injunction’’ seeking to enjoin the State
Bar of Texas from treating the judg-
ment of the state court in the disci-
plinary trial as final and enforceable.
Preliminary injunction granted. (While
not reflected in the injunction, this was
apparently an agreed injunction.)
Howell files his “Second Amended
9. December 22, 1980 Order dismissing cause filed.
10. May 3, 1982 Fifth Circuit reverses and remands for
trial on merits.
11. May 27, 1982 The State Bar’s Petition for Rehearing
denied.
A-2
CHARLES BEN HOWELL,
Plaintiff- Appellant,
v.
STATE BAR OF TEXAS, Et AL,
Defendants- Appellees.
No. 81-1069.
United States Court of Appeals,
Fifth Circuit.
May 3, 1982.
[674 F.2d 1027]
Appeal from the United States District Court for the Northern
District of Texas.
Before CLARK, Chief Judge, THORNBERRY and GARZA,
Circuit Judges.
CLARK, Chief Judge:
Charles Ben Howell appeals the district court’s dismissal of his
civil rights action challenging the result of a state court disciplinary
proceeding against him. We reverse the district court’s dismissal
and remand with instructions that the district court dispose of
Howell’s federal claims on their merits.
I
On February 19, 1976, Howell filed a civil rights action pur-
suant to 42 U.S.C. §§ 1983-85 against the State Bar of Texas and
three of its officers, seeking declaratory and injunctive relief to
prevent his disbarment in a then-pending Texas court proceeding.
On March 1, 1976, Howell moved for a preliminary injunction to
enjoin prosecution of the state disciplinary action. The district
court, in an order of crucial importance to this appeal, denied
Howell’s motion. That order, issued March 4, 1976, states:
A-3
Plaintiff's Motion for Preliminary Injunction was brought
before the Court on March 1, 1976. After having heard and
considered the affidavits of plaintiff and the oral and written
argument of counsel, this Court is of the opinion that the
preliminary injunction should be denied. Huffman v. Pursue,
Lid., 420 U.S. §92[,95 S.Ct. 1200, 43 L.Ed.2d 482] (197[5])[;]
Younger v. Harris, 401 U.S. 37[,91 S.Ct. 746, 27 L.Ed.2d 669]
(1971). Plaintiff of course has the right to raise federal constitu-
tional issues in federal court, should that prove necessary after
the state court proceeding is completed. England v. [Louisiana
State] Board of Medical Examiners, 375 U.S. 411[, 84 S.Ct.
461, 11 L.Ed.2d 440] (1964).'
On March 9, 1976, the State Bar of Texas moved under Rule 12,
Fed.R.Civ.P., for dimissal of Howell’s action. No supporting
brief was filed at the time.
After trial, Howell was found guilty of professional misconduct
and reprimanded by the state court. While his appeal of the repri-
mand was pending before the Texas Court of Civil Appeals,
Howell again moved the federal district court for a preliminary in-
junction. On April 15, 1977, the district court denied that motion
and reaffirmed its March 4, 1976 order.’ The Texas Court of Civil
Appeals affirmed the judgment of the lower court in the disbar-
ment action, a decision the Texas Supreme Court declined to
review. Howell v. State, 559 S.W.2d 432 (Tex.Civ.App.1977—
writ ref’d n.r.e.). Howell presented no federal constitutional
claims in the state proceedings at either the trial or appellate level.’
1. The district court’s order denying a preliminary injunction was affirmed by
this court in an unpublished, per curiam opinion. Howell v. State Bar of
Texas, 551 F.2d 861 (Sth Cir. 1977) (citing Fifth Circuit Rule 21).
2. Howell's appeal of the district court’s order was <lismissed for want of pro-
secution due to Howell's failure to file a brief. Howell v. State Bar of Texas,
No. 77—1805 (Sth Cir. Feb. 10, 1978).
3. We have not examined the entire siate court record, but note that counsel
for the State Bar conceded at oral argument that Howell did not raise his
federal claims in the state disciplinary proceeding.
Ad
On June 30, 1978, Howell returned to federal court, again seek-
ing a preliminary injunction, this time to enjoin the Texas courts
from giving effect to the judgment in the disbarment action. The
district court granted Howell’s motion on July 10, 1978. Howell’s
case then went through a one-and-a-half year period of dormancy
until February 5, 1980, at which time the State Bar of Texas
moved the court to dissolve the preliminary injunction and dismiss
the action for want of prosecution. The district court denied the
State Bar’s motion to dismiss on February 25, 1980.
On April 22, 1980, the State Bar submitted a brief in support of
the Rule 12 motion to dismiss that it had filed four years earlier.
The State Bar’s arguments were both jurisdictional and claim-
related. Before ruling on the State Bar’s motion to dismiss, the
district court granted Howell’s June 27, 1980 motion for leave to
amend his complaint. Howell’s second amended complaint, filed
that same day, sought a declaration that the state disciplinary pro-
ceeding violated the United States Constitution and an injunction
barring the State Bar and certain of its officers from enforcing the
state judgment. On December 22, 1980, the district court dis-
solved its earlier preliminary injunction and granted the State
Bar’s Rule 12 motion to dismiss. The court’s order failed to
specify which ground or grounds it relied upon in granting the mo-
tion to dismiss. On January 13, 1981, the district court denied
Howell’s Rule 60(b) motion for reconsideration and cited Kimball
v. Florida Bar, 632 F.2d 1283 (Sth Cir. 1980), evidently as authori-
ty for its earlier grant of the Rule 12 motion to dismiss. The court’s
explicit reliance on Kimball leads us to conclude that the district
court’s dismissal was premised on jurisdictional grounds.
Howell now appeals the district court’s grant of the State Bar’s
motion to dismiss and that court’s Genial of his reconsideration
motion. We reverse the district court’s dismissal and remand for
disposition of Howell’s federal constitutional claims on their
merits.
Il
The State Bar urges affirmance on the ground that Howell’s suit
seeks review of a state bar disciplinary action, review of which may
be had exclusively in the United State Supreme Court. According
AS —
to recent Fifth Circuit precedent, relied upon by the State Bar and
the district court alike, the federal district courts are without
jurisdiction to review state court disciplinary proceedings. See
Kimball v. Florida Bar, supra; Sawyer v. Overton, 595 F.2d 252
(Sth Cir. 1979). In Sawyer the attorney-plaintiff had been
suspended by the Florida Supreme Court for three months. This
court, in affirming the lower court’s dismissal of the suit, opined
that federal district courts
hold no warrant to review final judgments of the Florida
Supreme Court. That power is reserved to the Supreme Court
of the United States. Complaining of constitutional violations,
Mr. Sawyer has cast his complaint in the form of a civil rights
suit. What he seeks, however, is simply reversal of the state
court judgment.... [T]he state proceedings.... could have been
reviewed in the Supreme Court. Mr. Sawyer has boarded the
wrong flight.
Sawyer v. Overton, 595 F.2d at 252 (citation omitted). But for an
odd quirk in this case, Sawyer and Kimball would be controlling.
The rule of Sawyer and Kimball is necessarily premised on the
availability of Supreme Court review of an offensive state court
judgment.‘ Supreme Court review of Howell’s disciplinary pro-
ceeding was impossible. Since Howell raised no fedvral claims in
the Texas courts, due no doubt to the federal district court’s
assurance that he could return to federal court with his federal
4. The unmentioned but obvious antecedent of Sawyer and Kimball is Rooker
v. Fidelity Trust Co., 263 U.S. 413, 44S.Ct. 149, 68 L.Ed. 362 (1923), the case
that spawned the so-called Rooker doctrine. Rooker held that only the
Supreme Court can entertain jurisdiction of a proceeding to reverse or modify
a state court judgment. /d. at 415—16, 44 S.Ct. at 150, 68 L.Ed. at 365. A
panel of this court recently disputed that Rooker still stands, if it ever stood,
for that proposition. See Gresham Park Community Org. v. Howell, 652 F.2d
1227, 1233—36 (1981). One recent commentator, while conceding that
Rooker has been subjected to narrowing constructions, argues for its continu-
ing vitality. See Chang, Rediscovering the Rooker Doctrine: Section 1983, Res
Judicata and the Federal Courts, 31 Hastings L.J. 1337, 1344 & n.46,
137S—77 (1980). But see Developments in the Law—Section 1983 and
Federalism, 90 Harv.L.Rev. 1133, 1334 n.14 (1977).
A-6
claims, Supreme Court review was unavailable. Our holding that
the unavailability of Supreme Court review distinguishes this case
from Sawyer and Kimball and obliges the district court to assume
jurisdiction of Howell’s action is mandated by a recent decision of
this court.
In Dasher v. Supreme Court of Texas, 658 F.2d 1045 (Sth Cir.
1981), the plaintiff brought a civil rights action in federal court
challenging the Texas Supreme Court’s decision not to admit her
to the Texas bar as violative of the United States Constitution. The
plaintiff had not raised any federal constitutional claims before
the Texas Supreme Court, thus, rendering the state court’s deci-
sion unreviewable by the United States Supreme Court under 28
U.S.C. § 1257(3).° This court noted that the availability of
Supreme Court review ‘“‘has served as a predicate for numerous
decisions in the lower federal courts holding that district courts
have no jurisdiction to review, under the guise of a § 1983 suit,
state court decisions in cases involving individuals’ applications
for admission to the state’s bar.’’ Dasher, 658 F.2d at 1049—S0.
The court held that the plaintiff's suit was within the district
court’s jurisdiction since her federal claims were not presented in
the state court and thus review was not available in the Supreme
Court. /d. at 1051.°
Howell withheld his federal constitutional arguments from the
state courts after the federal district court relegated hin. to the
state system with a promise that he could return with his federal
claims pursuant to England v. Louisiana State Board of Medical
Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).
5. 28U.S.C. § 1257(3) provides, in part, that *‘[flinal judgments . . . rendered
by the highest court of a State. . . may be reviewed by the Supreme Court. . .
where any title, right, privilege or immunity is specially set up or claimed under
the Constitution.”’
6. The undropped shoe in Dasher is res judicata. The opinion does not men-
tion res judicata and we presume that it was not pleaded in the district court as
an affirmative defense. Thus, we note that in the ordinary case res judicata
would apply where state and federal legal theories are “‘split’’ between two
forums.
A-7
The district court held out that promise erroneously, since the
England reservation mechanism is an incident of Pullman absten-
tion.’ The district court more properly should have dismissed
Howell’s action and relegated him to the state courts to present all
of his claims. Instead, the district court’s citation to England
assured Howell that he could present his state claims in state court
and then, if necessary, return to federal court with his federal
claims. As a result, the Texas disbarment action could not have
been reviewed by the United States Supreme Court. Thus, Dasher
establishes that the district court has jurisdiction over Howell’s
federal claims.
Ill
The State Bar, as an alternative argument for affirmance,
claims that res judicata forbids litigation of claims in federal court
that might have been litigated in state court. While we agree that in
the normal case res judicata would apply, the facts of this case
once again fall outside of the general rule.
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308
(1980), has settled most of the ground rules with respect to the
preclusive effect of a state court judgment in a subsequent civil
rights action in federal court. Traditional rules of preclusion are
generally applicable in the cross-forum context. However, rules of
preclusion and the mandate of 28 U.S.C. § 1738* can still be
suspended under the England reservation mechanism or when the
federal party against whom preclusion is asserted did not have a
full and fair opportunity to litigate his federal claims in state
court. /d. at 101 & n.17, 101 S.Ct. at 418 & n.17, 66 L.Ed.2d at 317
& n.17; see also Montana v. United States, 440 U.S. 147, 163—64,
99 S.Ct. 970, 978—79, 59 L.Ed.2d 210, 223 (1979). Although both
McCurry and Montana involved collateral estoppel, we are confi-
7. Railroad Comm’n v. Pullman Co., 312 U.S. 4%, 61 S.Ct. 643, 85 L.Ed.
971 (1941).
8. 280U.S.C. § 1738, the Full Faith and Credit Act, provides that the “‘judicial
proceedings of any court of any . . . State. . . . shall have the same full faith
and credit in every court within the United States . . . as they have by law or
usage in the courts of [the] State. . . . from which they are taken.”
A8
dent that the same exceptions apply to suspend application of res
judicata in federal civil rights action. We hold that a hybrid of the
England and full-and-fair-opportunity exceptions requires that
res judicata not apply in this case. This decision is based on federal
law exception to both res judicata and the normal rule that a state
court judgment’s preclusive effect is determined by reference to
the law of the judgment-rendering state.
We have already noted that the district court’s promise to
Howell that England offered a road back to federal court was not
supported by the law. Nonetheless, that promise induced Howell
to hold back his federal claims once he was relegated to state
court. As a result, he could hardly be said to have had a full and
fair opportunity to present his federal claims in state court even
though such an opportunity was in theory present. Had Howell
lodged his federal claims in state court, he would have forsaken
the chance he had been offered to return to federal court. We are
unwilling to punish Howell for his reliance on the federal district
court’s guidance.’ His federal claims are not barred by res
judicata.
IV
In sum, there is neither a jurisdictional nor a preclusive bar to
Howell’s presentation of his federal claims in federal court. In-
sofar as those bars have fallen, we reverse the district court’s order
of dismissal and remand this case to the district court for disposi-
tion on the merits.
REVERSED and REMANDED.
9. This opinion should not be construed as an endorsement of the type of
“simple justice’ or “‘public policy’’ exception to res judicata that the
Supreme Court spurned in Federated Dep't Stores v. Moitie, 452 U.S. 394,
399, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 110—11 (1981). The court in
Moitie found Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532, 76 L.Ed. 1054 (1932),
to be controlling. In Reed, the court noted that the party trying to escape res
judicata was in a “‘predicament . . . of his own making.”’ /d. at 198, 52 S.Ct.
at 533, 76 L.Ed. at 1056. On the contrary, Howell’s predicament resuited
from the district court’s faulty ruling. Rather than carve out a “‘simple
justice’ exception to res judicata, we rely on a hybrid of the two exceptions
(England and full-and-fair-opportunity) expressly noted in McCurry and
Montana.
A-9
Before CLARK, Chie\
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 81-1069
CHARLES BEN HOWELL,
Plaintiff-Appellant,
versus
STATE BAR OF TEXAS, Et AL.,
Defendants- Appellees.
Appeal from the United States District Court for the
Northern District of Texas
ON PETITION FOR REHEARING
(May 27, 1982)
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing filed in the
above entitled and numbered cause be and the same is hereby
denied.
ENTERED FOR THE COURT:
/S/ Charles Clark
CHIEF JUDGE
[Filed May 27, 1982]
A-10
idge, THORNBERRY and GARZA,
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES BEN HOWELL OS)
vs. ) CA 3-76-0280-C
STATE BAR OF TEXAS )
JOHN M. LAWRENCE, III)
GRANT DAVIS, )
ROBIN P. HARTMAN )
ORDER
Plaintiff's Motion for Preliminary Injunction was brought
before the Court on March 1, 1976. After having heard and con-
sidered the affidavits of plaintiff and the oral and written argu-
ment of counsel, this Court is of the opinion that the preliminary
injunction should be denied. Huffman v. Pursue, Ltd., 420 U.S.
592 (1974), Younger v. Harris, 401 U.S. 37 (1971). Plaintiff of
course has the right to raise federal constitutional issues in federal
court, should that prove necessary after the state court proceeding
is completed. England v. Board of Medical Examiners, 375 U.S.
411 (1964).
It is therefore ORDERED, ADJUDGED and DECREED that
Plaintiff's Motion for Preliminary Injunction be and hereby is
denied.
/S/ W.M. Taylor, Jr.
UNITED STATES DISTRICT JUDGE
March 4, 1976
Date
[Filed March 4, 1976]
A-ll
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS 75242
a Gast dae
_ July 24, 1980
TO COUNSEL OF RECORD
Re: Charles Ben Howell
vs.
State Bar of Texas,
et al. CA 3-76-0280-C
Gentlemen:
I have concluded that the State Bar’s Motion to Dismiss should
be granted.
It is clear to me that Polk v. State Bar of Texas, 480 F.2d 998
(Sth Cir. 1973) is inapplicable. Not only because of footnote 11,
but because it did not involve an attack on a state court judg-
ment. I also do not believe that England v. Medical Examiners,
375 U.S. 411 (1968), is applicable. Plaintiffs there were told to
file a lawsuit in state court for an authoritative construction of
a state statute so that a constitutional claim would not be de-
cided if the statute were construed in Plaintiff’s favor. Piaintiff
here was not the Plaintiff in the state court suit here and was
not seeking the construction of a state statute. He was the
Defendant in a case in which the Plaintiff there won an affir-
mative judgment against him. His constitutional claims were
more of the nature of a compulsory defense in that suit. See
Moore v. Sims, 442 U.S. 415 (1979).
Defendant’s counsel is requested to prepare an appropriate
form of order.
Yours very truly,
/S/ W.M. Taylor, Jr.
W.M. TAYLOR, JR.
A-12
IN THE UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES BEN HOWELL X
Vv. X CIVIL ACTION NO.
THE STATE BAR OF TEXAS, X CA-3-76-0280-C
FRANKLIN JONES, JR..AND X
JERRY L. ZUNKER x
ORDER
The above-styled and numbered cause having come before the
Court regularly to be heard and considered upon the briefs sub-
mitted to the Court and the argument of counsel for the parties
upon the motion of the Defendants to dismiss; and it appearing to
the court that such motion should be granted, it is accordingly
ORDERED that the Defendant’s Motion to Dismiss Pursuant
to Rule 12 be, and it is hereby granted, as to all Defendants and the
Plaintiff's complaint is dismissed.
It is further ORDERED that the preliminary injunction
heretofore eniered by this Court on July 10, 1978, be, and the
same is dissolved.
Signed this 22nd day of Dec., 1980.
/S/ W.M. Taylor Jr.
United States District Judge
[Filed December 22, 1980]
A-13
CHARLES BEN HOWELL, Appellant,
v.
The STATE of Texas, Appellee.
No. 1060.
Court of Civil Appeals of Texas,
Tyler.
Nov. 23, 1977.
Rehearing Denied Dec. 29, 1977.
[559 S.W.2d 432]
Tom S. McCorkle, Jr., Dallas, Waggoner Carr, Austin, Melvyn
Carson Bruder, Dallas, for appellant.
Robert C. Bass, Jr., Asst. Gen. Counsel, Austin, for appellee.
McKAY, Justice
This is a disbarment suit brought by the State of Texas, acting
by and through its Grievance Committee for the Sixth District of
the State Bar of Texas, appellee, against Charles Ben Howeil, ap-
pellant, alleging that certain acts and conduct of appellant con-
stituted malpractice, fraudulent and dishonorable conduct in
willful violation of the Code of Professional Responsibility which
warranted the disciplining of appellant under the State Bar rules.
The prayer of appellee asked that appellant be disbarred, suspend-
ed or reprimanded. Trial was had before a jury, and the trial court
disregarded part of the verdict and rendered judgment that ap-
pellant was guilty of professional misconduct in engaging in con-
duct prejuditial to the administration of justice, and that appellant
be reprimanded. Appellant has perfected his appeal.
Appellant is a duly licensed attorney of the State of Texas and a
member of the State Bar of Texas. It was alleged in appellee’s
pleadings that appellant appeared before Judge Dee Brown
A-14
Walker, 162nd District Court, sitting for the Judge of Domestic
Relations Court No. 2, Dallas County, and presented Judge
Walker with the file of a bill of review and divorce proceeding
from Domestic Relations Court No. 2 and moved for a default
judgment on the grounds that no answer had been filed. It was
further alleged that appellant did not tell Judge Walker that there
was another case pending between the same parties for a divorce in
Domestic Relations Court No. 3, and that Judge Dan Gibbs of
that court had set a hearing on both cases for the following week,
and that appellant had appeared before Judge Gibbs only two
days before concerning both cases. Judge Walker rendered a
default judgment awarding custody of the minor children. When
Judge Walker learned of the facts concerning the case pending in
Domestic Relations Court No. 3 he cited appellant for contempt
and transferred the matter for a hearing before another judge.
Appellant later appeared before Judge Louis Holland, a retired
district judge sitting in Domestic Relations Court No. 3, to deter-
mine whether appellant was guilty of contempt of court before
Judge Walker. During the hearing appellant became a witness in
support of his motion for continuance, and he testified that he had
attempted to employ four different lawyers to represent him, and
each of them had refused due to alleged fear of prejudice in future
cases before Judge Walker. The assistant district attorney
representing appellee asked appellant to name the four lawyers he
contacted, and appellant refused to do so. Judge Holland then in-
structed appellant to answer the question and name the lawyers
and appellant refused to do so, asked that his motion for conti-
nuance be withdrawn, and persisted in his refusal after being ad-
vised that he would be held in contempt of court. Judge Holland
then ruled that appellant was in contempt of court. [See Ex parte
Howell, 488 S.W.2d 123 (Tex.Cr.App.1973) for factual state-
ment.]
The present suit is an outgrowth of the contempt matters before
Judge Walker and Judge Holland. The trial court submitted the
A-15
case to a jury on ten special issues.' We are concerned in this ap-
peal with issues 9 and 10. In issue 9 the jury found appellant failed
to asiswer a question relating to his motion for continuance when
he was instructed by Judge Holland to answer, and failed to find
in issue 10 that such conduct was prejudicial to the administration
of justice. Upon motion of appellee the trial judge set aside the
jury’s answer to issue 10 and disregarded same, holding that issue
10 was a question of law which should be decided by the court. In
its judgment the trial court held that, based upon the jury’s answer
to issue 9, in its opinion appellant was guilty of professional
misconduct ‘‘in that he did engage in conduct that was prejudicial
to the administration of justice.’’ It was further ordered that ap-
pellant be reprimanded for his professional misconduct.
1. “SPECIAL ISSUE NO. I
**Do you find from a preponderance of the evidence that on or about the
26th day of May, 1971, at the time he obtained a default judgment in an action
pending in Domestic Relations Court Number 2 involving divorce, property,
and custody of minor children, Charles Ben Howell did not tell Judge Walker
that another action involving the same parties regarding divorce, property,
and custody of minor children was pending in Domestic Relations Court
Number 3?
“Answer ‘yes’ or ‘no’.
“ANSWER ‘No’.
[Issues 2, 3, 4, 6, 7 and 8 not answered according to instructions]
“SPECIAL ISSUE NO. 9
“Do you find from a preponderance of the evidence that Charles Ben
Howell failed to answer a question relating to his motion for continuance
when he was instructed by Judge Holland to answer?
“Answer ‘yes’ or ‘no’.
“ANSWER ‘yes.”
“*If you have answered Special Issue No. 9 ‘yes’, and only in that event, you
will answer the following Special Issue:
“SPECIAL ISSUE NO. 10
“*Do you find from a preponderance of the evidence that when Charles Ben
Howell failed to answer a question relating to his motion for continuance
which he was instructed by Judge Holland to answer, if you have so found,
that he engaged in conduct that was prejudicial to the administration of
justice?
“*Answer ‘yes’ or ‘no’.
“ANSWER ‘no’.””
A-16
By his first three points appellant contends that the trial court
erred in that appellant was denied due process of law, equal pro-
tection of law, and the right of trial by jury because (1) the facts do
not indisputably establish the jury verdict to be so clearly wrong
that reasonable minds cannot agree to the contrary; (2) the ques-
tion as to whether the conduct of appellant was prejudicial to the
administration of justice is not one of law to be decided by the
court only; and (3) the trial court has no power to revise a jury ver-
dict in a punitive or quasi-criminal case. The basic question raised
by appellant in these points is whether a finding that conduct is
prejudicial to the administration of justice is a fact issue for the
jury or a question of law for the court. We hold that it is a function
of the court and that the trial court properly disregarded the
answer of the jury to issue 10.
Article 12, Sec. 28, State Bar Rules, V.T. C.S., provides in part:
**If the court shall find from the evidence in a case tried without
a jury, or from the verdict of the jury, if there be one, that the
defendant is guilty of no professional misconduct, he shall enter
judgment so declaring and dismiss the complaint; but if he shall
find the defendant guilty, he shall determine whether the party
shall be (a) reprimanded, or (b) suspended from practice (in
which case he shall fix the term of suspension), or (c) disbarred;
and he shall enter judgment accordingly.”’
As we view Sec. 28 the function of the trial court is (1) to make
the actual determination whether the conduct of an attorney con-
stitutes professional misconduct; and if it finds it was professional
misconduct, (2) exercise its disciplinary authority. Article 12, Sec.
9, State Bar Rules, V.T.C.S., provides in part that:
‘ta. Professional misconduct consists of any of the following:
**(1) Misconduct as specified in DR1—102, Code of Pro-
fessional Responsibility .. . .”’
Article 12, Sec. 8, DR1—102, provides in part:
**(A) A lawyer shall not:
® @ @ ® e
**(5) Engage in conduct that is prejudicial to the adminis-
tration of justice.”’
A-17
The jury found (Issue 9) that appellant refused to answer the
question as to the identity of the attorneys he contacted to repre-
sent him in his contempt hearing before Judge Holland after being
instructed to do so by the court. Issue 10 asks whether such con-
duct was prejudicial to the administration of justice, to which the
jury answered ‘‘no.’’ There were no definitions or explanations in
the charge (and none requested) to guide the jury in its answers.
Appellant argues that State v. Baker, 539 S.W.2d 367
(Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.), is authority for
submitting issue 10 to the jury. We disagree. The opinion (Page
371) states that such an issue was submitted to the jury, but
nowhere does it approve or disapprove of such issue as being pro-
per.
Appellant’s contention that the trial court has no power to
revise a jury verdict in a punitive or quasi-criminal case is without
merit. The trial here was a civil suit, and the trial court was
authorized to disregard on its own motion any issue that was im-
material or one which constituted a question of law. Art. 12, Sec.
21, State Bar Rules; C & R Transport, Inc. v. Campbell, 406
S.W.2d 191 (Tex.1966); Grubb v. Grubb, 525 S.W.2d 38
(Tex.Civ.App.—El Paso 1975, writ ref’d n.r.e.). The case of Ar-
cher v. State, 548 S.W .2d 71 (Tex.Civ.App.—El Paso 1977, writ
ref’d n.r.e.), a disbarment suit, has the following language:
‘*Appellant contends that the Court’s act of disregarding the
jury’s answer to Special Issue No. 1(a) violated his right of trial
by jury as provided in tue Code. The provision of the Code is
that the accused attorney shall have the right of a trial by jury in
the county of his residence. It cannot be given the construction
that Appellant places on it, for the Code also says that the Rules
of Civil Procedure shall govern, and, under those rules, the
Court can disregard an issue. Appellant’s contention has been
decided otherwise in the case of State v. Baker, supra. It was
there held that the trial Court erred in not granting the State’s
motion for judgment non obstante veredicto.”’
Points 1—A_ 1—B, and 1—C are overruled.
A-18
By his next three points appellant maintains that Article 12, sec.
8, DRI—102(A)(5), State Bar Rules, is vague and indefinite (1) on
its face, (2) as construed by the courts of Texas, and (3) as con-
strued and applied in this case, and is unconstitutional because it
violates the due process and equal protection clauses of the Con-
stitution of Texas. We disagree. It is undisputed in the record that
appellant, in the capacity of a witness, refused to answer a ques-
tion after instructed to do so by the trial court and after being ad-
vised that his failure to do so would result in appellant being in
contempt of court. Was such conduct on the part of appellant
‘*prejudicial to the administration of justice’’? In our opinion it
was. ‘‘Prejudicial’’ has been defined as tending to injure or im-
pair; detrimental; harmful; hurtful; injurious. 33 Words and
Phrases, page 471; Webster’s Seventh New Collegiate Dictionary,
G & C Merriam Co. 1969. ‘‘Administration of justice’’ has been
described thusly: ‘‘The administration of justice consists in the
trial of cases in the court, and their judicial determination and
disposition by orderly procedure, under rules of law, and putting
of the judgment into effect.’’ Massey v. City of Macon, 97
Ga.App. 790, 794, 104 S.E.2d 518, 521—522 (1958).
We do not believe that the language ‘‘a lawyer shall not: .. .
engage in conduct that is prejudicial to the administration of
justice’ is so vague and indefinite that it violates the due process
and equal protection clauses of the Constitution of Texas. Con-
duct prejudicial to the administration of justice may consist of any
one or more of many acts too numerous to list. See 7 C.J.S. At-
torney and Client sec. 23, p. 741, et seq. However, although the
State Bar rule may be in general terms, in our opinion conduct
which falls within the above definitions is prejudicial to the ad-
ministration of justice and is professional misconduct.
The Supreme Court of Kansas has written on the question as to
whether State Bar Rule DRI—102(A)(5) is vague in State v.
Nelson, 210 Kan. 637, 639, 504 P.2d 211, 214 (1972):
**With respect to issue 3, respondent argues that the word ‘pre-
judicial’ as it appears in DR1—102(A)(5) is unconstitutionally
vague and casts a ‘chilling effect on First Amendment
freedoms’. Respondent’s position is unsupported in both in-
A-19
stances. The word ‘prejudicial’ is universally found throughout
the legal and judicial system. Specific definitions are found in
any dictionary. In Prunty v. Light Company, 82 Kan. 541, 108
P. 802, this court, referring to Webster's Universal Dictionary,
defined prejudicial as ‘hurtful’, ‘injurious’ , ‘disadvantageous’.
It cannot be seriously contended that ‘prejudicial’ does not suf-
ficiently define the degree of conduct which is expected of an at-
torney.””
The Supreme Court of Oregon has also addressed the question
in Complaint of Rook, 276 Or. 695, 556 P.2d 1351, 1357 (1976):
**As for the contention by the accused that the terms of
DR1—102(A)(5) are unconstitutionally vague, we believe that
as standards of professional conduct they are sufficiently
definite for the purpose of a professional disciplinary pro-
ceeding. . . .We have previously held that such a proceeding is
not a criminal proceeding, and that the technicalities of
criminal law, which are properly invoked to safeguard the liber-
ty of citizens, are not necessarily relevant in the investigation of
unethical conduct by an attorney. .. .”’
We conclude that the conduct of appellant was injurious, hurt-
ful and detrimental to the orderly trial of the case before the court,
and such conduct was prejudicial to the administration of justice.
These points are overruled.
In his next three points appellant contends that the trial court
erred in overruling his plea to the juridiction and his alternative
plea alleging lack of a competent plaintiff because members of the
Grievance Committee were at all material times unsworn, never
having taken the oath of office as provided in Article 16, sec. 1,
Constitution of Texas. Appellant also filed a motion to dismiss
and a motion for directed verdict on the same grounds. The provi-
sion in Article 16, sec. 1 of the Texas Constitution reads in part:
**The Secretary of State, and all other appointed officers,
before they enter upon the duties of their offices, shall take the
following Oath and Affirmation: . . .”’
A-20
The Legislature by Article 320a—1, V.T. C.S., sec. 4, subdivision
(a), provided that
‘*From time to time as the court may seem proper, the Supreme
Court of Texas shall prepare and propose rules and regulations
for disciplining, suspending, and disbarring attorneys at law; . .
Pursuant to the specific legislative grant of power the Supreme
Court, in Article 12, State Bar Rules, promulgated rules for
disciplining members of the State Bar of Texas, and such rules in-
clude the establishing of grievance committees and the appointing
of members to those committees.
The ‘‘office’’ of a grievance committee member is created by
rule promulgated by the Supreme Court of Texas pursuant to a
specific statutory act. It was not created by the Constitution of
Texas, and the constitutional oath required of officers appointed
pursuant to a specific or implied constitutional grant is not re-
quired. In Lopez v. State, 437 S.W.2d 268 (Tex.Crim. App. 1969),
it was held that a special prosecutor was not required to take the
constitutional oath of office before appearing in the case. It is
specifically pointed out in State v. Sewell, 487 S W.2d 716, 719
(Tex.1972), that ‘the Grievance Committee is an administrative
agency of the Judicial Department and is the arm of the Supreme
Court in the discharge of its professional policing duties.’’ Before
becoming a licensed attorney every person admitted to practice
law takes an oath, Article 309, V.T.C.S., and we hold that when a
member of the State Bar of Texas is appointed to a Grievance
Committee, such attorney is not required to take the constitu-
tional oath of office. See Smith v. Grievance Committee, 475
S.W.2d 396, 399 (Tex.Civ. App.—Corpus Christi 1972, no writ).
These points are overruled.
In his last three points appellant maintains that the trial court
erred in overruling his plea to the jurisdiction because the
Grievance Committee decision to proceed by a formal complaint
was not made by a majority vote of the Grievance Committee;
that the trial court erred in in sustaining appellee’s special excep-
tion to appellant’s pleading under oath that the Grievance Com-
mittee members failing to attend a grievance hearing were dis-
A-21
qualified to vote, thus causing a less than majority vote to proceed
by formal complaint; and that the court erred in not dismissing the
case or directing the verdict for appellant when appellant pleaded
under oath that there was no majority vote by the Grievance Com-
mittee to institute a formal complaint, and appellee rested its case
without controverting appellant’s sworn allegation.
Appellant argues that the trial court was without jurisdiction
because less than a majority of the Grievance Committee was pre-
sent when a vote was taken to file a formal complaint against ap-
pellant. The record reflects that the Grievance Committee had
twelve members, and at a meeting on September 7, 1972, there
were eight members present. No decision was made or action
taken at that meeting. Thereafter, on January 18, 1973, there were
ten members of the committee present at the meeting, and the
minutes of that meeting read:
“CHARLES BEN HOWELL—The committee voted a six-
month’s suspension in connection with Mr. Howell’s contempt
of court matter. Only the members present at the time of the
hearing voted on this. Larry Beason did not vote. Mr. Burleson
is to advise Mr. Howell of this decision. If he does not accept,
the committee voted to proceed with filing suit for suspension
or disbarment.
Of the ten members present on January 18, 1973, six of those were
present at the meeting on September 7, 1972.
Article 12, sec. 5 of the State Bar Rules provides:
**... Amajority of the [grievance] committee shall constitute a
quorum for all purposes.”’
The record shows that there were seven or more members present
on September 7, 1972, and on January 18, 1973, and seven
members constituted a quorum. A majority of the quorum was
authorized to act. ‘‘Majority’’ means the greater number, or the
number greater than half of any total. Black’s Law Dictionary,
Fourth Ed. Appellant argues that there had to be a majority of the
members of the committee voting for the bringing of this suit
A-22
before such action could be taken. We disagree. If a majority of
the committee was present, which majority constituted a quorum,
then a majority of the quorum could act. There being ten members
present at the January 18, 1973, meeting, only six were required to
vote for the filing of the present suit. When a majority constitutes
a quorum of a deliberative body, it can take any action the body
has power to transact. Herring v. City of Mexia, 290 S.W. 792
(Tex.Civ. App.—Waco 1926, writ ref’d). These points are over-
ruled.
Judgment of the trial court is affirmed.
*
NO. 74-9611-E
STATE OF TEXAS § IN THE DISTRICT COURT
Vv. § OF DALLAS COUNTY, TEXAS
CHARLES BENHOWELL = § 101ST JUDICIAL DISTRICT
NOTICE
Comes now the defendant, Charles Ben Howell, who gives
notice that on February 19, 1976, this defendant filed a complaint
in the United States District Court, Northern District of Texas,
Dallas Division, cause No. CA3-76-0280-C entitled Charles Ben
Howell, Plaintiff, v. State Bar of Texas, et al, defendants. A true
copy of the said complaint is attached hereto.
Respectfully submitted,
CHARLES BEN HOWELL
226 Lakewood Tower Bldg.
Dallas, Texas 75214
Tel. No. 823-8400
ATTORNEY PRO SE
A copy of the foregoing has been provided to opposing counsel
in accordance with the Texas Rules of Civil Procedure.
[A copy of Howell’s complaint was attached hereto]
A-24
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES BENHOWELL, § CAUSE NO.
v. § CA 3-76-0280-6
STATE BAR OF TEXAS, §
JOHN M. LAWRENCE, Ill, §
DAVIS GRANT, §
and ROBIN P. HARTMANN, §
Defendants
COMPLAINT
JURISDICTION:
This is an action seeking a declaratory judgment that certain
disbarment proceedings being prosecuted by and on behalf of
defendants and against this plaintiff are being so prosecuted in
violation of plaintiff’s rights guaranteed by the Constitution and
laws of the United States. Plaintiff includes an alternative plea for
injunctive relief. This action is brought under the provisions of 42
U.S.C. §§ 1983-1985, et seq. The District Courts of the United
States have jurisdection over this cause of action under the provi-
sions of 28 U.S.C. §§ 1331, 1343, 1344, 1355 and 1357.
[Paragraphs 2-17 Deleted]
FEDERAL DEPRIVATIONS:
The aforesaid disbarment action pending in the State Court of
Texas is being prosecuted in violation of plaintiff’s rights
guaranteed to him by the Due Process Clause, the Equal Protec-
tion Clause and the Privileges and Immunities Clause of the Four-
teenth Amendment to the United States Constitution. Such action
further deprives and threatens to deprive plaintiff of rights,
A-25
privileges and immunities secured by the Constitution and laws of
the United States.
19.
The aforesaid disbarment action now pending in the State
Court of Texas is, according to the allegations thereof, being pro-
secuted under the procedure specified in Article XII of the rules
governing the State Bar of Texas, specifically sections 21-31 of
subheading C thereunder. In addition, defendants allege in their
State Court action that plaintiff Howell is guilty of professional
misconduct through willful violation of the code of professional
responsibility as adopted in Texas, thereby invoking and relying
upon sections 8 and 9 of said Article XII.
20.
The said rules upon their face are void as repugnant to the Due
Process, the Equal Protection and the Privileges and Immunities
Clauses of the Fourteenth Amendment to the United States Con-
stitution. Alternatively, the said rules, as they have been
definitively construed by the Courts of the State of Texas are so
void and unconstitutional. In the further alternative, said rules,
either aided or unaided by limiting constructions placed thereon
by the Texas Courts are so void and unconstitutional insofar as
they apply to the plaintiff Charles Ben Howell and the said disbar-
ment proceedings. Such State Court action, insofar as it is based
upon the aforesaid unconstitutional State Bar Rules, is being pro-
secuted in violation of the Constitution and laws of the United
States.
21.
First Deprivation: Trial Before His Competitors: The aforesaid
Grievance Committee, functioning as a quasi-judicial tribunal for
the purpose of trying the complaints against this plaintiff in the
first instance on or about September of 1972, was not a represen-
tative group of attorneys practicing law in Dallas County, Texas.
To the contrary, such Committee was a stacked deck selected
from and dominated by lawyers devoting the bulk of their time to
A-26
the representation of banks, insurance companies, large corpora-
tions and others in possession of the money and property of the
community.
22.
Plaintiff is a general practitioner concentrating his practice
upon the representation of persons occupying the bottom 95% of
the economic and social barrel. As such, plaintiff, and other
general-practitioner type lawyers in the same position as plaintiff,
is required to earn his livelihood by appearing on the opposite side
of the docket from the lawyers dominating the said Grievance
Committee. General practitioners such as plaintiff have been,
were and now are systematically excluded and systematically
under-represented upon the said Grievance Committee. Plaintiff,
was in effect, unconstitutionally tried before a tribunal composed
of his competitors.
23.
Second Deprivation: Selective Prosecution: Plaintiff Howell has
been singled out and selectively prosecuted on account of his
political activities aforesaid. Each time that plaintiff has been a
candidate for judicial office in Dallas County, Texas, plaintiff has
opposed judicial candidates who had the overwhelming backing,
sponsorship and endorsement of that segment of the Dallas Coun-
ty Bar serving the monied and propertied interests of the com-
munity and which type of practitioner dominated the tribuna!
conducting the September, 1972, grievance trial against petitioner.
24.
In support of his claim that he was singled out for selective pro-
secution, plaintiff would show that over the years, literally
thousands of default judgments have been taken in the Dallas
County Courthouse and elsewhere in the State of Texas. A large
number of these defaults have been subsequently set aside on the
grounds that the parties have made false statements or have omit-
ted to make some disclosure or the other. However, no record can
be found where any lawyer has ever been prosecuted before a
Grievance Committee for the mode or manner in which he secured
a default judgment.
A-27 —
25.
In support of his claim that he was singled out for selective pro-
secution, plaintiff would show that over the years, there have been
many instances occurring in the Dallas County Courthouse and
elsewhere in the State of Texas, wherein a lawyer has failed or
refused to obey a direct order issued orally from the bench and
relating to the conduct of a trial or similar legal proceedings then
and there in progress. A large number of these lawyers have been
fined and imprisoned or both for such disobedience. However, no
record can be found where any lawyer has ever been prosecuted
before a Grievance Committee for any such disobedience. All
such cases are subject to the presumption thai the punishment in-
flicted at the time of the offense is sufficient punishment for the
violation of the Court’s orders in such instances.
26.
In further support of his claim that he was singled out for selec-
tive prosecution, plaintiff would show that through the estab-
lished and accepted usage of the grievance machinery over the
years and through all of the published pronouncements thereon,
the principle function of the Grievance Committee has been to ex-
clude from the practice of law those lawyers who have
demonstrated themselves to be insufficiently skilled and ex-
perienced, and to further exclude those lawyers who have
demonstrated the tendency to betray the trust and confidence of a
client. Even if entirely true, the allegations against plaintiff
Howell do not tend to establish that he is insufficiently skilled and
experienced. Neither do they establish any tendency to betray a
client’s trust and confidence. Thus, the said allegations are entire-
ly outside the scope of the normal and usual grievance prosecution
as conducted over the years in Dallas County, Texas.
27.
In further support of his claim that he was singled out for selec-
tive prosecution, plaintiff would show that the said Grievance
Committee consistently refuses to entertain complaints or enter
any type of disciplinary judgment or order against its own kind;
that is, establishment-type lawyers representing the monied and
propertied interests. In such instances, the said Grievance Com-
A-28
mittee has consistently passed by on the other side, even when the
offending lawyer has been guilty of the most glaringly duplicitous,
sometimes feloniously criminal conduct. On the other hand, the
Grievance Committee has again and again singled out this plain-
tiff and other general practitioners, similarly situated, for pros-
ecution for peripheral or trivial errors and mistakes.
28.
Third Deprivation: Prosecutorial Misconduct: The said Grievance
Committee, at least with respect to the proceedings against this
plaintiff, has assumed the combined functions of investigator or
arresting officer, prosecutor and tribunal. In the course thereof,
the said Grievance Committee has been guilty of gross pro-
secutorial misconduct. It has attempted to cover up and conceal
the fraudulent action and professional misconduct of Judge
Walker in attempting to coerce the institution, prosecution and
outcome of these proceedings. It has failed and refused to institute
proceedings against Judge Walker for his fraudulent action and
professional miconduct in tampering with Court papers and his
fraudulent action and professional misconduct in the giving of
false and misleading testimony when directly questioned before
the Grievance Committee itself at the said September, 1972, hear-
ing. (See exhibit hereto quoting his testimony) It has failed and
refused to take any action against the attorney representing the
husband in the said Ralston case, Mr. Gerald R. Coplin, for his
fraudulent action and professional misconduct in failing to prop-
erly represent his client and in making false and misleading
stateinents when directly questioned regarding his activities in the
premises. It has further failed and refused to institute any pro-
ceedings against Judge Walker’s legal adviser, Whitley R. Sessions
for his fraudulent action and professional misconduct in failing to
disclose, even when directly questioned, that he had advised and
assisted Judge Walker in the institution of contempt proceedings
and grievance proceedings against plaintiff Howell, and his
fraudulent action and professional misconduct in making
derogatory statements regarding Judge Holland and in the giving
of false testimony when directly questioned with respect thereto,
both at the September, 1972, grievance hearing and the July, 1972,
contempt hearing.
A-29
29.
As a part of its prosecutorial misconduct, the said grievance
committee deliberately suppressed and withheld evidence
favorable to the defense which your plaintiff could have used at
the September, 1972, grievance hearing and should be entitled to
use at the State Court disbarment suit now pending against plain-
tiff. In particular, plaintiff Howell refers to evidence of miscon-
duct of the said Judge Walker and attorneys Coplin and Sessions,
which evidence constitutes valuable cross-examination and im-
peachment material.
30.
Fourth Deprivation: Punitive Burden Upon Right of Appeal: The
aforesaid conditional judgment, order or decision for a six month
suspension subject to the proviso that when this plaintiff refused
to accept the same as final and sought appellate review, then the
defendants would and did in fact institute proceedings for com-
plete and permanent disbarment, constitute a punitive burden on
the right of appeal. The avenues of appeal must be kept free of
unreasoned distinctions. Even though Texas law provides that
disbarment proceedings shall be tried according to civil rules of
procedure, the inherent substantive nature of such proceedings is
quasi-criminal. The respondant in a disciplinary proceedings may
not be placed in apprehension that if he is unsuccessful in his de-
mand for appellate review of his conviction, he may be handed a
stiffer and more onerous sentence. Insofar as the aforesaid State
Bar rules provide for or permit such procedures, they are un-
constituticual and void.
31.
Fifth Deprivation: Punitive Burden upon the Right to Choose an
Occupation: This plaintiff is possessed of the Constitutionally
guaranteed right to pursue any honorable and worthwhile occupa-
tion or calling which he may choose. This right is only limited by
the public right to be protected from those who are insufficiently
skilled and experienced or from those who have demonstrated a
tendency to betray the client’s trust and confidence. No conduct
has been alleged against this plaintiff that would create a sufficient
A-30
protection right of the public to override the personal right of the
plaintiff to follow his chosen occupation.
32.
Plaintiff alleges that the State Bar rules do not provide and have
not been construed as providing for exclusion from practice
without regard to the balancing of the public interest against the
personal interest as aforesaid, when specific and intelligible rules
and regulations for the conduct of the practice of law are violated.
Plaintiff alternatively alleges that any such provisions and con-
structions do not meet Constitutional standards and the same are
void. Plaintiff further alleges that such question is not material to
this case for reason that the State Court disbarment proceedings
against this plaintiff do not charge plaintiff with the violation of
any specific and intelligible statute, rule or regulation governing
the practice of law by a licensed attorney.
33.
Sixth Deprivation: Vagueness and Overbreadth: The State Bar
rules under which this plaintiff is being prosecuted are unconstitu-
tionally vague in that men of ordinary intelligence and under-
standing must guess at their meaning and reasonable persons can
easily differ in opinion as to whether or not certain conduct may or
may not be proscribed. Such rules purport to place limitations
upon what a lawyer may or may not do in order to advance the in-
terest of his client. Licensed attorneys are subject to the continu-
ing apprehension that their conduct on behalf of their clients may
be retrospectively declared by the Grievance Committee to con-
stitute professional misconduct, and they are thereby inhibited
from exercising zealous advocacy on behalf of their clients. The
said rules are possessed of such overbreadth as to exercise a chill-
ing effect upon the right of petition guaranteed by the First
Amendment to the United States Constitution. The said rules are
void for vagueness in violation of the Due Process Clause of the
Fourteenth Amendment and are further void on grounds that they
are tainted with First Amendment overbreadth.
A-31
34.
In the alternative, plaintiff alleges the State Bar rules are un-
constitutional as applied to the claim that the taking of a default
judgment around May of 1971 constituted a violation thereof. In
securing this default judgment, plaintiff violated no specific and
intelligible statute, rule or regulation. Neither was his conduct of a
clearly opprobrious nature. The misconduct, if any, was of a
borderline nature and may not be punished under the said State
Bar rules.
35.
Seventh Deprivation: Attempts to Punish Misconduct of a Non-
Professional Nature: Any misconduct of which plaintiff Howell
may have been guilty in failing and refusing to reveal the names of
attorneys consulted by him was not of a professional nature and
plaintiff Howell may not be prosecuted for professional miscon-
duct because of the same. The officers of the State Bar of Texas
are governmental officers of the State of Texas and the sheriff of
Dallas County, Texas, is likewise a governmental officer of the
State of Texas. The State grievance machinery and the State
criminal justice system are not dual sovereignties and the acts of
one are binding upon the other.
36.
On or about October of 1972, plaintiff Howell appeared before
the Court of Criminal Appeals of Texas to prosecute a petition for
habeas corpus endeavoring to secure release from the custody of
the sheriff of Dallas County, Texas, upon a conviction for failing
and refusing to disclose to Judge Holland the names of the at-
torneys consulted by plaintiff Howell. The Assistant District At-
torney of Dallas County, Texas, also a governmental officer of the
State of Texas, appeared in the said proceedings and urged on
behalf of the respondent State officer that in refusing to make the
requested disclosures, plaintiff Howell was acting in a private, per-
sonal and non-professional capacity. Such claim was received and
adopted by the said Court and the election by the Sheriff and
District Attorney to so contend in that proceeding, is binding
A-32 .
upon all officers and instrumentalities of the State of Texas. The
Due Process and Equal Protection Clauses prohibit the officers of
the same sovereignty from making conflicting claims in a different
action against the same party while litigating essentially the same
event.
[Paragraph 37 and Prayer Deleted]
[Filed February 19, 1976}
A-33
NO. 74-9611
THE STATE OF TEXAS IN THE DISTRICT COURT
Vv. DALLAS COUNTY, TEXAS
CHARLES BEN HOWELL 101ST JUDICIAL DISTRICT
DEFENDANT?’S FIRST ORIGINAL AMENDED ANSWER
COMES NOW Charles Ben Howell, Defendant in the above
styled and numbered cause, and subject to his motion to show
authority, his plea in abatement and his alternative motion for
severance herein /iled, files this his First Criginal Amended
Answer to the Piaintiff’s First Amended Petition filed herein, and
respectfully represents and shows the Court as follows:
[Paragraphs 1-19 Deleted]
XX.
Defendant hereby expressly excepts and reserves for litigation in
the federal courts of the United States all rights, privileges and im-
munities provided to him under the Constitution and Laws of the
United States. Wherever Defendant uses, in this pleading or
elsewhere in the course of this State Court case the terms ‘‘due
process’’, ‘equal protection of the law’’, ‘‘constitutional rights’,
or otherwise invokes any constitutional provision or protection,
the same shall be deemed to refer to only the Constitution of the
Siate of Texas of 1876 and Amendments thereto.
[Paragraphs 21 and 22 Deleted]
[Filed March 22, 1976]
A-34
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES BEN HOWELL,
Plaintiff
V.
STATE BAR OF TEXAS, § CAUSE NO.
JOHN M. LAWRENCE, Ill, § CA 3-76-0280-6
DAVIS GRANT, §
and ROBIN P. HARTMANN, §
Defendants
AMENDED
COMPLAINT
JURISDICTION:
This is an action seeking a declaratory judgment that certain
disbarment proceedings being prosecuted by and on behalf of
defendants and against this plaintiff are being so prosecuted ir
violation of plaintiff’s rights guaranteed by the Constitution and
laws of the United States. Plaintiff includes an alternative plea for
injunctive relief. This action is brought under the provisions of 42
U.S.C. §§ 1983-1985, et seq. The District Courts of the United
States have jurisdection over this cause of action under the provi-
sions of 28 U.S.C. §§ 1331, 1343, 1344, 1355 and 1357.
2.
This cause of action arose within the territorial boundaries of
the United States District Court for the Northern District of
Texas, Dallas Division.
[Paragraphs 3-17 Deleted]
FEDERAL DEPRIVATIONS:
A-35
The aforesaid disbarment action pending in the State Court of
Texas is being prosecuted in violation of plaintiff’s rights
guaranteed to him by the Due Process Clause, the Equal Protec-
tion Clause and the Privileges and Immunities Clause of the Four-
teenth Amendment to the United States Constitution. Such action
futher deprives and threatens to deprive plaintiff of rights,
privileges and immunities secured by the Constitution and laws of
the United States.
19.
The aforesaid disbarment action now pending in the State
Court of Texas is, according to the allegations thereof, being pro-
secuted under the procedure specified in Article XII of the rules
governing the State Bar of Texas, specifically sections 21-31 of
subheading C thereunder. In addition, defendants allege in their
State Court action that plaintiff Howell is guilty of professional
misconduct through willful violation of the code of professional
responsibility as adopted in Texas, thereby invoking and relying
upon sections 8 and 9 of said Article XII.
20.
The said rules upon their face are void as repugnant to the Due
Process, the Equai Protection and the Privileges and Immunities
Clauses of the Fourteenth Amendment to the United States Con-
stitution. Alternatively, the said rules, as they have been
definitively construed by the Courts of the State of Texas are so
void and unconstitutional. In the further alternative, said rules,
either aided or unaided by limiting constructions placed thereon
by the Texas Courts are so void and unconstitutional insofar as
they apply to the plaintiff Charles Ben Howell and the said disbar-
ment proceedings. Such State Court action, insofar as it is based
upon the aforesaid unconstitutional State Bar Rules, is being pro-
secuted in violation of the Constitution and laws of the United
States.
A-36
21.
lst Deprivation: Trial Bef -¢ "lis Competitors: The aforesaid
Grievance Committee, functioning as a quasi-judicial tribunal for
the purpose of trying the complaints against this plaintiff in the
first instance on or about September of 1972, was not a represen-
tative group of attorneys practicing law in Dallas County, Texas.
To the contrary, such Committee was a stacked deck selected
from and dominated by lawyers devoting the bulk of their time to
the representation of banks, insurance companies, large corpora-
tions and others in possession of the money and property of the
community.
22.
Plaintiff is a general practitioner concentrating his practice
upon the representation of persons occupying the bottom 95% of
the economic and social barrel. As such, plaintiff, and other
general-practitioner type lawyers in the same position as plaintiff,
is required to earn his livelihood by appearing on the opposite side
of the docket from the lawyers dominating the said Grievance
Committee. General practitioners such as plaintiff have been,
were and now are systematically excluded and systematically
under-represented upon the said Grievance Committee. Plaintiff
was, in effect, unconstitutionally tried before a tribunal composed
of his competitors.
23
2nd Deprivation: Selective Prosecution: Plaintiff Howell has been
singled out and selectively prosecuted on account of his political
activities aforesaid. Each time that plaintiff has been a candidate
for judicial office in Dallas County, Texas, plaintiff has opposed
judicial candidates who had the overwhelming backing, sponsor-
ship and endorsement of that segment of the Dallas County Bar
serving the monied and propertied interests of the community and
which type of practitioner dominated the tribunal conducting the
September, 1972, grievance trial against petitioner.
A-37
24.
In support of his claim that he was singled out for selective pro-
secution, plaintiff would show that over the years, literally
thousands of default judgments have been taken in the Dallas
County Courthouse and elsewhere in the State of Texas. A large
number of these defaults have been subsequently set aside on the
grounds that the parties have made false statements or have omit-
ted to make some disclosure or the other. However, no record can
be found where any lawyer has ever been prosecuted before a
Grievance Committee for the mode or manner in which he secured
a default judgment.
25.
In support of his claim that he was singled out for selective pro-
secution, plaintiff would show that over the years, there have been
many instanc 2s Occurring in the Dallas County Courthouse and
elsewhere in the State of Texas, wherein a lawyer has failed or
refused to obey a direct order issued orally from the bench and
relating to the conduct of a trial or similar legal proceedings then
and there in progress. A large number of these lawyers have been
fined and imprisoned or both for such disobedience. However, no
record can be found where any lawyer has ever been prosecuted
before a Grievance Commitee foi any such disobedience. All such
cases are subject to the presumption that the punishment inflicted
at the time of the offense is sufficient punishment for the violation
of the Court’s orders in such instances.
26.
In further support of his claim that he was singled out for selec-
tive prosecution, plaintiff would show that through the estab-
lished and accepted usage of the grievance machinery over the
years and through all of the published pronouncements thereon,
the principal function of the Grievance Committee has been to ex-
clude from the practice of law those lawyers who have
demonstrated themselves to be insufficiently skilled and ex-
perienced, and to further exclude those laywers who have
demonstrated the tendency to betray the trust and confidence of a
A-38
client. Even if entirely true, the allegations against plaintiff
Howell do noi tend to establish that he is insufficiently skilled and
experienced. Neither do they establish any tendency to betray a
client’s trust and confidence. Thus, the said allegations are entire-
ly outside the scope of the normal and usual grievance prosecution
as conducted over the years in Dallas County, Texas.
27.
In further support of his claim that he was singled out for selec-
tive prosecution, plaintiff would show that the said Grievance
Committee consistently refuses to entertain complaints or enter
any type of disciplinary judgment or order against its own kind;
that is, establishment-type lawyers representing the monied and
propertied interests. In such instances, the said Grievance Com-
mitee has consistently passed by on the other side, even when the
offending lawyer has been guilty of the most glaringly duplicitous,
sometimes feloniously criminal conduct. On the other hand, the
Grievance Committee has again and again singled out this plain-
tiff and other general practitioners, similarly situated, for pro-
secution for peripheral or trivial errors and mistakes.
28.
3rd Deprivation: Prosecuiorial Misconduct: The said Grievance
Committee, at least with respect to the proceedings against this
plaintiff, has assumed the combined functions of investigator or
arresting officer, prosecutor and tribunal. In the course thereof,
the said Grievance Committee has been guilty of gross pro-
secutorial misconduct. It has attempted to cover up and conceal
the fraudulent action and professional misconduct of Judge
Walker in attempting to coerce the institution, prosecution and
outcome of these proceedings. It has failed and refused to institute
proceedings against Judge Walker for his fraudulent action and
professional misconduct in tampering with Court papers and his
fraudulent action and professional misconduct in the giving of
false and misleading testimony when directly questioned before
the Grievance Committee itself at the said September 1972, hear-
ing. (see exhibit hereto quoting his testimony) It has failed and
refused to take any action against the attorney representing the
husband in the said Ralston case, Mr. Gerald R. Coplin, for his
A-39
fraudulent action and professional misconduct in failing to prop-
erly represent his client and in making false and misleading
statements when directly questioned regarding his activities in the
premises. It has further failed and refused to institute any pro-
ceedings against Judge Walker’s legal adviser, Whitley R. Sessions
for his fraudulent action and professional misconduct in failing to
disclose, even when directly questioned, that he had advised and
assisted Judge Walker in the institution of contempt proceedings
and grievance proceedings against plaintiff Howell, and his
fraudulent action and professional misconduct in making
derogatory statements regarding Judge Holland and in the giving
of false testimony when directly questioned with respect thereto,
both at the September, 1972, grievance hearing and the July, 1972,
contempt hearing.
29.
As a part of its prosecutorial misconduct, the said grievance
committee deliberately suppressed and withheld evidence
favorable to the defense which your plaintiff could have used at
the September, 1972, grievance hearing and should be entitled to
use at the State Court disbarment suit now pending against plain-
tiff. In particular, plaintiff Howell refers to evidence of miscon-
duct of the said Judge Walker and attorneys Coplin and Sessions,
which evidence constitutes valuable cross-examination and im-
peachment material.
30.
4th Deprivation: Punitive Burden Upon Right of Appeal: The
aforesaid conditional vote to impose a six month suspension sub-
ject to the proviso that when this plaintiff refused to accept the
same as final and sought appellate review, then the defendants
would and did in fact institute proceedings for complete and per-
manent disbarment, constitute a punitive burden on the right of
appeal. The avenues of appeal must be kept free of unreasoned
distinctions. Even though Texas law provides that disbarment
proceedings shall be tried according to civil rules of procedure, the
inherent substantive nature of such proceedings is quasi-criminal.
The respondant in a disciplinary proceedings may not be placed in
A-40
apprehension that if he is unsuccessful in his demand for appellate
review of his conviction, he may be handed a stiffer and more
onerous sentence. Insofar as the aforesaid State Bar rules provide
for or permit such procedures, they are unconstitutional and void.
31.
5th Deprivation: Punitive Burden upon the Right to Choose an
Occupation: This plaintiff is possessed of the Constitutionally
guaranteed right to pursue any honorable and worthwhile occupa-
tion or calling which he may choose. This right is only limited by
the public right to be protected from those who are insufficiently
skilled and experienced or from those who have demonstrated a
tendency to betray the client’s trust and confidence. No conduct
has been alleged against this plaintiff that would create a sufficient
protection right of the public to override the personal right of the
plaintiff to follow his chosen occupation.
32.
Plaintiff alleges that the State Bar rules do not provide and have
not been construed as providing for exclusion from practice
without regard to the balancing of the public interest against the
personal interest as aforesaid, when specific and intelligible rules
and regulations for the conduct of the practice of law are violated.
Plaintiff alternatively alleges that any such provisions and con-
structions do not meet Constitutional stancards and the same are
void. Plaintiff further alleges that such question is not material to
this case for reason that the State Court disbarment proceedings
against this plaintiff do not charge plaintiff with the violation of
any specific and intelligible statute, rule or regulation governing
the practice of law by a licensed attorney.
33.
6th Deprivation: Vagueness and Overbreadth: The State Bar rules
under which this plaintiff is being prosecuted are unconstitu-
tionally vague in that men of ordinary intelligence and under-
standing must guess at their meaning and reasonable persons can
easily differ in opinion as to whether or not certain conduct may or
A-4l
may not be proscribed. Such rules purport to place limitations
upon what a lawyer may or may not do in order to advance the in-
terest of his client. Licensed attorneys are subject to the continu-
ing apprehension that their conduct on behalf of their clients may
be retrospectively declared by a Grievance Committee to con-
stitute professional misconduct, and they are thereby inhibited
from exercising zealous advocacy on behalf of their clients. The
said rules are possessed of such overbreadth as to exercise a chill-
ing effect upon the right of petition guaranteed by the First
Amendment to the United States Constitution. The said rules are
void for vagueness in violation of the Due Process Clause of the
Fourteenth Amendment and are further void on grounds that they
are tainted with First Amendment overbreadth.
34.
In the alternative, plaintiff alleges the State Bar rules are un-
constitutional as applied to the claim that the taking of a default
judgment around May of 197! constituted a violation thereof. In
securing this default judgment, plaintiff violated no specific and
intelligible statute, rule or regulation. Neither was his conduct of a
clearly opprobrious nature. At most, the alleged misconduct
amounts to no more than the defective exercise of judgment of a
borderline nature and may not be punished under the said State
Bar rules.
35.
7th Deprivation: Attempts to Punish Misconduct of a Non-
Professional Nature: Any misconduct of which plaintiff Howell
may have been guilty in allegedly failing and refusing to reveal the
names of attorneys consulted by him was not of a professional
nature and plaintiff Howell may not be prosecuted for profes-
sional misconduct because of the same. The officers of the State
Bar of Texas are governmental officers of the State of Texas and
the sheriff of Dallas County, Texas, is likewise a governmental of-
ficer of the State of Texas. The State grievance machinery and the
State criminal justice system are not dual sovereignties and the acts
of one are binding upon the other.
A-42
36.
On or about October of 1972, plaintiff Howell appeared before
the Court of Criminal Appeals of Texas to prosecute a petition for
habeas corpus endeavoring to secure release from the custody of
the sheriff of Dallas County, Texas, upon a conviction for failing
and refusing to disclose to Judge Holland the names of the at-
torneys consulted by plaintiff Howell. The Assistant District At-
torney of Dallas County, Texas, also a governmental officer of the
State of Texas, appeared in the said proceedings and urged on
behalf of the respondent State officer that in refusing to make the
requested disclosures plaintiff Howell was acting in a private, per-
sonal and non-professional capacity. Such claim was received and
adopted by the said Court and the election by the Sheriff and
District Attorney to so contend in that proceeding is bind.ag upon
all officers and instrumentalities of the State of Texas. The Due
Process and Equal Protection Clauses prohibit the officers of the
same sovereignty from making conflicting claims in a different ac-
tion against the same party while litigating essentially the same
event.
JURY DEMAND:
37.
Plaintiff demands trial by jury of all issues which, under the law
are subject to trial by jury.
PRAYER FOR RELIEF:
WHEREFORE, PLAINTIFF DEMANDS JUDGMENT AS
FOLLOWS:
(1) For declaratory judgment that the disbarment suit against
plaintiff was instituted and tried in the first instance before an in-
validly constituted tribunal the Grievance Committee for the - - -
------ Fifth Bar District of Texas, that such proceedings are
therefore void and that the present proceedings are likewise void.
A-43
(2) For declaratory judgment that in the aforesaid disbarment
suit, plaintiff has been singled out and selectively prosecuted and
for such reason, the said disbarment proceedings are void.
(3) For declaratory judgment that the said disbarment pro-
ceedings are so tainted with prosecutorial misconduct that plain-
tiff Howell has been deprived of a fundamentally fair trial and
fundamentally fair proceedings, that the disbarment proceedings
before Grievance Committee are void, and that the present pro-
ceedings are likewise void.
(4) For declaratory judgment that the procedu:es employed in
wee eee eeenee conditionally voting for six months suspension and
thereafter asking the State Court to enter complete and permanent
disbarment constitutes a punitive burden upon the right of appeal,
making the said disbarment proceedings void or alternatively,
void insofar as they seek suspension of this plaintiff in excess of six
months.
(5) For declaratory judgment that the disbarment suit against
plaintiff does not allege conduct that would constitute due process
grounds to remove plaintiff from his chosen occupation and that
the said proceedings are therefore void as a punitive burden upon
the right to pursue the occupation of this plaintiff's own choosing.
(6): For declaratory judgment that the State Bar rules either
facially or as applied; in both instances, after taking any limiting
constructions into consideration, are void for vagueness and over-
breadth or either.
(7) For declaratory judgment that defendants are bound by
elections heretofore made by other officers of the State of Texas
contending in a judicial proceeding other than the present disbar-
ment proceedings that plaintiff's conduct in allegedly failing or
refusing to make disclosures to Judge Holland constituted con-
duct of a personal and non-professional nature. Plaintiff further
asks declaratory judgment that the disbarment suit alleging such
acts as professional misconduct is void.
(8) If it should develop before entry of final judgment herein
A-44
that a declaratory judgment as requested above will not adequate-
ly protect the plaintiff, then plaintiff alternatively asks that the
final judgment contain an injunction against the prosecution of
the aforesaid disbarment suit or parts thereof on each of the
foregoing grounds.
(9) Pending a trial hereof on the merits, plaintiff prays the is-
suance of a preliminary injunction against proceeding to trial in
the state action No. 74-961 1E; the same being necessary in order to
to preserve the status quo and protect the plaintiff from ir-
reparable injury.
(10) Plaintiff asks for the costs of this action.
(11) Plaintiff asks for all other and further relief in such cases
provided.
Respectfully submitted,
/S/ Charles Ben Howell
CHARLES BEN HOWELL
APPEARING PRO SE
226 Lakewood Tower Building
Dallas, Texas 75214
Telephone 823-8400
[Filed March i, 1976]
A-45
IN THE UNITED STATES DISTICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES BEN HOWELL §
Plaintiff §
Vv. § NO. CA-3-76-0280-C
STATE BAR OF TEXAS, et al §
Defendants §
SECOND AMENDED COMPLAINT WITH EXHIBITS:
1. Petition #74-9611-E
2. Judgment #74-9611-E
JURISDICTION:
This is an action seeking a declaratory judgment that certain
disbarment proceedings brought by and on behalf of defendants
and against this plaintiff have been prosecuted in violation of
plaintiff’s rights guaranteed by the Constitution and laws of the
United States. Plaintiff further prays for injunctive relief. This ac-
tion is brought under the provisions of 42 U.S.C. §§1983-1985, et
seq. The District Courts of the United States have jurisdiction
over this cause of action under the provisions of 28 U.S.C.
§§1331, 1343, 1344, 1355, and 1357.
[Paragraphs 2-10 Deleted]
FEDERAL DEPRIVATIONS:
The aforesaid disbarment action was prosecuted in violation of
plaintiff Howell’s rights guaranteed to him by the Due Process
Clause, the Equal Protection Clause and the Privileges and Im-
munities Clause of the Fourteenth Amendment to the United
A-46
States Constitution. Such action further deprived plaintiff of
rights, privileges and immunities secured by the Constitution and
laws of the United States, and the same was done under color of
state law.
12.
lst Deprivation: Disregarding Jury Verdict: Through state law,
plaintiff was provided with the right of jury trial. While a jury was
duly empaneled in the state court, defendants persuaded the state
court judge after receiving the jury verdict to disregard the same
and to enter a finding contrary to the express finding of the jury
that plaintiff Howell did not engage in conduct that was pre-
judicial to the administration of justice. Disbarment actions are
punitive or quasi-criminal in nature. Both Due Process and Equal
Protection concepts prohibit a state court judge from disregarding
a jury verdict in cases of this nature, and under the circumstances
herein shown.
13.
2nd Deprivation: Vagueness and Over-reach: Plaintiff Howell
was found guilty of violating a provision of the Texas Code of
Professional Responsibility providing that a lawyer shall not
engage in conduct that is prejudicial to the administration of
justice. The said quasi-statutory provision, either facially, as ap-
plied or as construed by the Texas courts, is either void for
vagueness or is unconstitutionally over-reaching or suffers from
both vices. The provision is such that men of ordinary intelligence
and understanding must guess at its meaning and reasonably per-
sons can easily differ in opinion as to whether or not certain con-
duct may ur may not be proscribed. Licensed attorneys are subject
to the continuing apprehension that their conduct may be
retrospectively declared prejudicial to the administration of
justice. Lawyers are thereby inhibited from exercising zealous ad-
vocacy on behalf of their clients. The said provision is possessed of
such overbreadth as to exercise a chilling effect upon the right of
petition guaranteed by the First Amendement to the United States
Constitution. The said provision is void for vagueness in vioaltion
of the Due Process Clause of the Fourteenth Amendment and is
further void on grounds that it is tainted with First Amendment
overbreadth.
A-47
14.
3rd Deprivation: The Unconstitutional Switch: Plaiv iowell
was brought to trial upon the allegation that his co: failing
and refusing to reveal the names of attorneys c: ‘ted by him
constituted malpractice, fraudulent and dishonorable conduct in
wilful violation of the aforesaid Code of Professional Respon-
sibility. No evidence was introduced in support of such allegation
and a directed verdict should have been issued thereon. However,
defendants persuaded the state court to convict plaintiff of con-
duct prejudicial to the administration of justice even though no
such charge had ever been made against plaintiff prior to the close
of the evidence in the state court trial. Such action by defendants
constituted an unconstitutional switch of grounds and deprived
plaintiff of a fundamentally fair trial.
1S.
In this connection, plaintiff would show that the said Code of
Professional Responsibility specifically provides that a lawyer
may disregard a ruling of a tribunal in good faith to test the validi-
ty of such ruling. In this connection, defendants produced no
allegations or evidence of any lack of good faith on the part of
plaintiff Howell and through the switch in grounds, defendants
deprived plaintiff Howell of a fair opportunity to affirmatively
plead or introduce evidence in support of a good faith claim.
16.
4th Deprivation: Punishment as Professional Misconduct for
Conduct of a Non-Professional Nature: Any misconduct of which
plaintiff Howell may have been guilty in allegedly failing and
refusing to reveal the names of attorneys consulted by him was not
of a professional nature and plaintiff Howell may not be pro-
secuted for professional misconduct because of the same. The
Texas attorney disciplinary machinery and the Texas criminal
justice system are not dual sovereignties and the acts of one are
binding upon the other.
A-48
17.
On or about October of 1972, piaintiff Howell appeared before
the Court of Criminal Appeals of Texas to prosecute a petition for
habeas corpus endeavoring to secure release from the custody of
the Sheriff of Dallas County, Texas, upon a conviction for failing
and refusing to disclose to Judge Holland the names of the at-
torneys consulted by plaintiff Howell. The Assistant District At-
torney of Dallas County Texas, also a governmental officer of the
State of Texas, appeared in the said proceedings and urged on
behalf of the respondent State officer that in refusing to make the
requested disclosures, plaintiff Howell was acting in a private, per-
sonal and non-professional capacity. Such claim was received and
adopted by the said Court and the election by the Sheriff and
District Attorney to so contend in that proceeding, is binding
upon all officers and instrumentalities of the State of Texas.
The Due Proces and Equal Protection Clauses prohibit the of-
ficers of the same sovereignty from making conflicting claims in a
different action against the same party while litigating essentially
the same event. The subsequent judgment in the disbarment case
holding plaintiff guilty of professional misconduct was and is void
in that the State of Texas, by and through its duly constituted
authorities secured from another court a holding that plaintiff
Howell in failing and refusing to reveal the names of attorneys
consulted by him was then and there engaged in conduct outside
his professional sphere.
19.
5th Deprivation: Defective Grand Jury Proceedings: Under Texas
law, grievance committee proceedings are comparable to grand
jury action and no state court suit (formal complaint) may be filed
against an attorney unless a majority vote be secured. In the state
court action, it was alleged that the grievance committee had, by
majority vote, decided to institute a formal complaint against
plaintiff Howell. However, no constitutionally valid quorum was
A-49
present when the said committee voted to proceed. Under Texas
law, the presence of seven grievance committee members was re-
quired in order to constitute a quorum. Because four of the ten
members physically present were constitutionally disqualified and
the remaining six did not constitute a quorum with respect to the
business at hand, the subsequent prosecution of plaintiff was and
is void.
JURY DEMAND:
20.
Plaintiff demands trial by jury of all issues which, under the
law, are subject to trial by jury.
PRAYER FOR RELIEF:
WHEREFORE, PLAINTIFF DEMANDS JUDGMENT AS
FOLLOWS:
(1) For declaratory judgment that the aforesaid judgment was
obtained and secured under color of state law in violation of the
Constitution and Laws of the United States.
(2) That defendants and their privies be enjoined from treating
or regarding the aforesaid trial court judgment as an enforcable
final judgment or from taking Out any writs or process to enforce
the said judgment or to recover the costs therein awarded.
(3) That defendants and their privies be further restrained and
enjoined from the transmittal of certified copies of the aforesaid
judgment and the complaint relating thereto or either of them to
the Secretary of the State Bar of Texas or to the Clerk of the
Supreme Court of Texas or from making any notation regarding
the judgment on the membership roles thereof or from publishing
the same in the official journal of the State Bar of Texas.
(4) That defendants and their privies be enjoined from entering
the aforesaid disciplinary proceedings and judgment in the Na-
tional Disciplinary Data Bank maintained by the American Bar
A-50
(5) Plaintiff asks judgment for the costs and expenses of defend-
ing the said state court proceedings or, alternatively such portion
thereof as was incurred after this court denied preliminary injunc-
tion and invoked abstention.
(6) Plaintiff asks judgment for the costs and expenses of the
within cause of action.
(7) Plaintiff asks for all other and further relief in such cases
provided.
{Signature Block, Certificate of Service, and Exhibits Deleted]
[Filed June 27, 1980]
A-SI
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.