Opposition — Hoffman v. Minnesota Lawyers Professional Responsibility Board

Office - Supreme Court, U.S. Ba

FILED

No. 82-1779 jun 2S

ALEXANDER 1 STEVAS,

IN THE CLERK

Supreme Court of the Gnited States

Gctober Term, 1982

William Charles Hoffman

vs.

Minnesota Lawyers Professional Responsibility Board

BRICF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTICRARI

TO THE MINNESOTA SUPREME COURT

WILLIAM C. HOFFMAN MICHAEL J. HOOVER

P.O. Box B Director of Lawyers Professional

Lake Elmo, Minnesota 55042 Responsibility

(612) 770-6582 444 Lafa Road - 4th Floor

Petitioner Pro Se St. Paul, Minnesota 55101

(612) 296-3952

Respondent

1983—Northwest Brief Printina Co., 3019 2nd St. No., Minneapolis 55411—588-7506

QUESTION PRESENTED

Should the petition for the writ of certiorari be denied

because the Court lacks jurisdiction due to mootness and

petitioner’s lack of standing?

TABLE OF CONTENTS

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Argument:

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TABLE OF AUTHORITIES

Cases:

Ashwander v. Tennessee Valley Auth., 297 U.S. 288

CESDE) oc vSencseestsesekiereteeaaese

Chicago and Grand Trunk R.R. Co. v. Wellman, 143

ie ee Fh eee reer re Serer er ere

Liverpool Steamship Co. v. Commissioners of Emigra-

Com, ESS GLE: De Cees vx kn tee erase ses

Midland-Guardian of Pensacola, Inc. v. Carr, 425 F.2

Pee Le Peer err rrr rr,

Mills v. Green, 159 U.S. 651 (1895) .............

United States v. Felin & Co., 334 U.S. 624 (1948) ..

Valley Forge College v. Americans United, 454 U.S.

i PEEP eeeePere ere rr rer ry ie 3

Warth v. Seldin, 420 U.S. 490 (1975) ............

Weinstein v. Bradford, 423 U.S. 147 (1975) ........

Constitutional Provisions:

U.S. Const. Art. TTT 2... ee ee ee ee eee eee

Minnesota Rules on Lawyers Professional Respon-

sibility:

ENED gon 65.050 o 06003 450445504000 624400644 2,

Rule 9... ee cee ee ee ee eee ee eens 2,

SE EP we dcboceceseueeeeneewsseeuvuesbexvecss

Law Review Articles:

Note, Cases Moot on Appeal: A Limit on the Judicial

Power, 103 U. Pa. L. Rev. 772 (1955)

iv

IN THE

Supreme Court of the Gnited States

October Term, 1982

No. 82-1779

William Charles Hoffman

vs.

Minnesota Lawyers Professional Responsibility Board

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

PARTIES TO THE PROCEEDING

William C. Hoffman is the petitioner in this proceeding.

All references to petitioner in this brief refer to petitioner

Hoffman. The Lawyers Professional Responsibility Board

(Board) is the respondent. The Director of Lawyers Pro-

fessional Responsibility (Director) is the administrator of

the Minnesota disciplinary system and is appearing on be-

half of the Board.

For clarity, it should be noted that the title of the parties

in the Minnesota disciplinary proceeding differ from the

titles of the parties in this proceeding. The parties in the

Minnesota disciplinary proceeding were the Director and

Hoffman, a Minnesota lawyer (respondent). The Minnesota

Civil Liberties Union appeared in an amicus curiae capacity

%

a

on behalf of respondent Hoffman. All pleadings set forth

in the appendix to the petition for a writ of certiorari refer

to the Director and respondent Hoffman.

While not a party, the Minnesota Supreme Court has

been provided with three copies of the brief in opposition.

OPINIONS BELOW

The petitioner has included in the appendix to the peti-

tion the findings of fact, conclusions of law and recommen-

dation of the referee, as well as the amended order of the

Minnesota Supreme Court dismissing the Minnesota dis-

ciplinary proceeding against petitioner.

JURISDICTION

This Court lacks subject matter jurisdiction to grant the

petition for a writ of certiorari because the Minnesota

disciplinary proceeding against petitioner has been dis-

missed rendering the matter moot for purposes of federal

judicial review. Petitioner lacks standing to seek federal

judicial review of other Minnesota disciplinary proceedings

to which he is not a party.

STATEMENT OF THE CASE

In April, 1980, a complainant filed an ethics complaint

against the petitioner. After an investigation, the Director

issued a warning pursuant to Rule 8 of the Rules on Law-

yers Professional Responsibility (RLPR). The petitioner

demanded a hearing on the warning. Charges of unprofes-

sional conduct were presented to a panel of the Lawyers

Professional Responsibility Board (panel) on January 16,

!981. Pursuant to Rule 9, RLPR, the panel directed the

filing of a petition for public discipline against respondent.

3

On April 7, 1981, petition for disciplinary action was

filed in the Minnesota Supreme Court. The petitioner filed

an answer. The matter was heard before a referee, a Minne-

sota county court judge, on May 11 and 12, 1982. On De-

cember 29, 1982, the referee recommended to the Minne-

sota Supreme Court that discipline was not warranted. The

Director concurred with the referee’s recommendation and

joined in the referee’s recommmendation that discipline was

not warranted. On February 16, 1983, the Minnesota Su-

preme Court dismissed the proceeding against petitioner.

There has been a full hearing on this matter. All matters

have been dismissed. No disciplinary action was taken

against petitioner. There is no action pending against peti-

tioner. There is no legal proceeding from which to seck re-

view.

ARGUMENT

The disciplinary proceeding against the petitioner was

dismissed. All issues were resolved in favor of petitioner.

There is no case or controversy between the parties. The

petition for writ of certiorari should be denied because the

Court lacks jurisdiction due to mootness and lack of stand-

ing by petitioner.

A. Mootness

Article III of the Constitution limits the judicial power

of the United States to the resolution of cases and contro-

versies. This fundamental constitutional principle has been

upheld in numerous decisions, most recently in Valley

Forge College v. Americans United, 454 U.S. 464 (1982).

The district court had dismissed the suit because the p'ain-

4

tiff lacked standing. The Court of Appeals, Third Circuit,

reversed the dismissal. The Supreme Court reversed the

Third Circuit holding the federal courts lacked jurisdiction

because there was no case or controversy. Justice Renquist,

writing for the majority, set forth in detail the constitution-

al basis of the case or controversy jurisdictional require-

ment:

Article II of the Constitution limits the “judicial pow-

er” of the United States to the resolution of “cases”

and “controversies.” The constitutional power of the

federal courts cannot be defined, and indeed has no

substance, without reference to the necessity “to ad-

judge the legal rights of litigants in actual controver-

sies.” (citation omitted). The requirements of Art. III

are not satisfied merely because a party requests a

court of the United States to declare its legal rights,

and has couched that request for forms of relief his-

torically associated with courts of law in terms that

have a familiar ring to those trained in the legal proc-

ess. The judicial power of the United States defined

by Art. III is not an unconditioned authority to de-

termine the constitutionality of legislative or executive

acts. The power to declare the rights of individuals

and to measure the authority of governments, . . . “is

legitimate only in the last resort, and as a necessity in

the determination of real, earnest and vital controver-

sy.”

Valley Forge, at 471 (citing Liverpool Steamship Co. v.

Commissioners of Emigration, 113 U.S. 33, 39 (1885) and

Chicago and Grand Trunk R.R. Co. v. Wellman, 143 US.

339, 345 (1892)).

The Court, in defining case and controversy, has adopted

a self-imposed jurisdictional limit. The Court has estab-

5

lished that it has no power to decide moot cases. Mootness,

once proved, will prevent the decision of the case on the

merits. U.S. v. Felin & Co., 334 U.S. 624, 640 (1948).

See also, Note, Cases Moot on Appeal: A Limit on the Ju-

dicial Power, 103 U. Pa. L. Rev. 772 (1955).

Mootness results when an event occurs which renders it

impossible for the Supreme Court, if it should decide. to

grant the case in favor of the plaintiff, to grant him any

effectual relief whatsoever. Mills v. Green, 159 U.S. 651

(1895). A case is moot when a party has no legal interest in

the outcome. To constitute a case in controversy there must

be adverse parties with real interests whose contentions are

submitted to the Court for adjudication. Weinstein v. Brad-

ford, 423 U.S. 147 (1975). Midland-Guardian of Pensaco-

la, Inc. v. Carr, 425 F.2d 793 (Sth Cir. 1970). The dis-

missal of the disciplinary action against the petitioner ren-

dered his case moot.

B. Lack of Standing

Petitioner lacks standing to seek the requested relief.

The relief petitioner seeks is not the resolution of an actual

case or controversy. Rather he seeks an advisory opinion re-

garding the nature of the Minnesota disciplinary proceed-

ings. Petitioner does not assert that in his disciplinary pro-

ceeding the Minnesota Supreme Court rendered a decision

in conflict with federal law. Nor does he claim a distinct

injury that is likely to be redressed if the requested relief is

granted. Valiey Forge, at 472. Rather he claims the Minne-

sota Supreme Court, in Minnesota disciplinary proceedings

to which petitioner was not a party has erroneously inter-

preted federal law. Respondent asks the Court to review

6

these decisions as well as several of the Rules on Lawyers

Professional Responsibility’ adopted by the Minnesota Su-

preme Court to determine if any of these violate federal

law. Such abstract questions of judicial interpretation are

clearly beyond the scope of federal judicial power.

In addition, even when the plaintiff has alleged re-

dressable injuries sufficient to meet the requirements

of Art. III, the Court has refrained from adjudicating

“abstract questions of wide public significance” which

amount to “generalized grievances,” pervasively shared

and most appropriately addressed in the representative

branches.

Id. at 474-475 (citing Warth v. Seldin, 422 U.S. 490, 499-

500 (1975)).

This recent opinion affirms the Court’s recognition that

it cannot resolve the merits of the lawsuit until it first de-

termines it has jurisdiction to review the matter.

Article III obligates a federal court to act only when it

is assured of the power to do so, that is, when it is

called upon to resolve an actual case or controversy.

Then, and only then, may it turn its attention to other

constitutional provisions and presume to provide a

forum for the adjudication of rights.

Id. at 476 n. 13 (citing Ashwander v. Tennessee Valley

Auth., 297 U.S. 288, 345 (1936) (Brandeis, J., concur-

ring)).

The Court recognizes that its power of review is not un-

limited.

*During the pendency of the Minnesota disciplinary proceeding, the

Minnesota Rules on Lawyers Professional Responsibility were signifi-

cantly amended. Petitioner seeks review of Rules, such as Rules 8,

9 and 25, which have been repealed, substantially amended, or adopted

since initiation of disciplinary proceedings against petitioner.

7

Article III, which is every bit as important in its cir-

cumscription of the judicial power of the United States

as in its granting of that power, is not merely a trouble-

some hurdle to overcome if possible so as to reach the

“merits” of a lawsuit which a party desires to have ad-

judicated; it is a part of the basic charter promulgated

by the Framers of the Constitution at Philadelphia in

ae

Id. at 476.

CONCLUSION

The Minnesota disciplinary action was dismissed. The

matter is moot. No case or controversy exists between the

parties. Therefore, the Court lacks jurisdiction to grant the

relief sought. Respondent asks that the Court deny peti-

tioner’s petition for a writ of ceriorari.

Respectfully submitted,

MICHAEL J. HOOVER

DIRECTOR OF LAWYERS PROFESSIONAL

RESPONSIBILITY

444 Lafayette Road, 4th Floor

St. Paul, MN 55101

(612) 296-3952

Respondent