Supplemental Brief — Vakas v. Rodriquez

84-116

No.

Supreme Court, U.S.

>in ED

AUG 1 188

ALEXANDER L STEVAS

In the Supreme Court of the United Stites -

October Term, 1984

JOHN L. VAKAS, M_D.,

Petitioner,

vs.

PAUL RODRIQUEZ, M.D., WILLIAM C. SWISHER,

M.D., FREDERICK J. GOOD, D.C., BETTY JO McNETT,

JOAN MARSHALL, D.C., JULIA BARBEE, D.O., HER-

MAN H. JONES, JR., M.D., F. LEE DOCTOR, D.O.,

JERRY L. JUMPER, D.O., JAMES A. McCLURE, M_.D.,

DON L. McKELVEY, D.C., GORDON E. MAXWELL,

M.D., HAROLD L. SAUDER, D.P.M., JAMES D. BRUNO,

M.D., RICHARD J. CUMMINGS, M.D., F. J. FARMER,

D.O., HELEN GILLES, M.D., DAN A. KELLY, M_D.,

RICHARD A. UHLIG, D.O., JAMES R. CROY, D.C., REX

A. WRIGHT, D.C., THE STATE OF KANSAS, and THE

KANSAS STATE POARD OF HEALING ARTS,

Respondents.

SUPPLEMENTAL BRIEF TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Gerrit H. WoRMHOUDT

(Counsel of Record )

LARRY W. WALL

JOHN E. COWLES

FLEESON, Goornc, CouLson & KITCH

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201

316-267-7361

Attorneys for Petitioner

c., 926 C Street, Kansas City, Mo. 64106, (816) 421-3030

BEST AVAILABLE COPY

TABLE OF CONTENTS

SUPPLEMENTAL REASON FOR GRANTING THE

WUT. scvicincicrnhsscncs ieee tical hneeaieliciletdaiancltbiasteldnsgiain 2

I. The Recent Decision of the Fifth Circuit Court

of Appeals Creates a Direct Conflict of De-

cision With the Tenth Circuit’s Disposition of

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A. Decision of the Fifth Circuit Court of Appeals .... Al

TABLE OF AUTHORITY

Bishop v. State Bar of Texas, ........ ¢ as (5th Cir.

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No.

In the Supreme Court of the United States

October Term, 1984

JOHN L. VAKAS, M_.D.,

Petitioner,

vs.

PAUL RODRIQUEZ, M.D., WILLIAM C. SWISHER,

M.D., FREDERICK J. GOOD, D.C., BETTY JO McNETT,

JOAN MARSHALL, D.C., JULIA BARBEE, D.O., HER-

MAN H. JONES, JR., M.D., F. LEE DOCTOR, D.O.,

JERRY L. JUMPER, D.O., JAMES A. McCLURE, M_.D.,

DON L. McKELVEY, D.C., GORDON E. MAXWELL,

M.D., HAROLD L. SAUDER, D.P.M., JAMES D. BRUNO,

M.D., RICHARD J. CUMMINGS, M.D., F. J. FARMER,

D.O., HELEN GILLES, M.D., DAN A. KELLY, M_D.,

RICHARD A. UHLIG, D.O., JAMES R. CROY, D.C., REX

A. WRIGHT, D.C., THE STATE OF KANSAS, and THE

KANSAS STATE BOARD OF HEALING ARTS,

Respondents.

SUPPLEMENTAL BRIEF TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUPPLEMENTAL REASON FOR GRANTING

THE WRIT

I. THE RECENT DECISION OF THE FIFTH CIR-

CUIT COURT OF APPEALS CREATES A DI-

RECT CONFLICT OF DECISION WITH THE

TENTH CIRCUIT’S DISPOSITION OF PETI-

TIONER’S CLAIMS.

In decisions filed within months of one another, the

Fifth and Tenth Circuits resolved the identical issue of

abstention in civil rights cases in a diametrically opposed

manner. The correct adjudication of the Fifth Circuit

dramatically exposes the speciousness of the Tenth Cir-

cuit’s disposition of petitioner’s case; this absolute con-

fusion among the circuits is evidence of the disarray that

will continue to exist until this Court speaks on the issues

contained in the case now before the Court. This conflict

makes issuance of a writ of certiorari imperative in this

case.

In the opinion below, the Tenth Circuit affirmed

the federal district court’s dismissal of petitioner’s com-

plaint on grounds that adjudication of his constitutional

claim for damages would constitute an impermissible in-

tervention into the administrative scheme of a state dis-

ciplinary body. See Petition for Certiorari, App., p. Al.

In contrast, the Fifth Circuit recently resolved an iden-

tical claim with precisely the opposite result, creating

a direct conflict between the two circuits.

In Bishop v. State Bar of Tezas, ........ eee (5th

Cir. July 16, 1984), plaintiff alleged that the state Loard

had filed disciplinary proceedings against him to deter

his exercise of constitutionally protected conduct. The

3

district court had dismissed on the basis of abstention;

the Fifth Circuit was unequivocal and swift in its cor-

rection of the improper dismissal:

Although Texas disciplinary proceedings are capable

of deciding constitutional challenges to specific pro-

cedures, recourse in those proceedings is not a suffi-

cient avenue to remedy the constitutional injury done

by bad faith proceedings themselves ... The district

court also erred in dismissing Bishop’s claim for dam-

ages, a species of relief wholly unaffected by Younger.

Bishop, App., p. Al. The Fifth Circuit’s correct decision,

when coupled with the Tenth Circuit’s incorrect disposi-

tion of an indistinguishable but more egregious violation

of petitioner’s constitutional rights, creates an absolute

conflict of decision that can only be resolved by this

Court.

CONCLUSION

This recent and inescapable conflict between two

circuits graphically exhibits the divisiveness that will

continue to exist on this crucial issue until this Court

speaks. The opportunity to resolve the conflict and cor-

rect a manifest injustice to petitioner is now before this

Court. Petitioner urges the Court to accept the oppor-

tunity.

Respectfully submitted,

Gerrit H. WORMHOUDT

(Counsel of Record)

Larry W. WALL

JOHN E, COWLES

FLEESON, GooINc, Coutson & KitTcH

Suite 1600, 125 North Market

P.O. Box 997

Wichita, Kansas 67201

316-267-7361

Attorneys for Petitioner

Al

APPENDIX ITEM #1

George M. BISHOP,

Plaintiff-Appellant,

VS.

STATE BAR OF TEXAS, et al.,

Defendants-Appellees.

No. 84-2001

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

July 16, 1984.

Watkins, Kempner, Daughtrey & Associates, A.J. Wat-

kins, Houston, Tex., for plaintiff-appellant.

Steven D. Peterson, State Bar of Texas, Jerry L.

Zunker, Asst. Atty. Gen., Austin, Tex., for State Bar of

Texas.

Hill & Ghiselli, Bertrand C. Moser, Houston, Tex.,

for Adam & Adam.

Appeal from the United States District Court for the

Southern District of Texas.

Before REAVLEY, RANDALL and JOHNSON, Circuit

Judges.

REAVLEY, Circuit Judge:

Attorney George M. Bishop alleged in a very sparse

complaint that the State Bar of Texas has prosecuted

disciplinary proceedings against him for many years, and

A2

that these proceedings have been taken in “bad faith”

and have been infected with various violations of due

process. He sought injunctive relief, damages, and attor-

ney’s fees against the State Bar, and also asserted a

pendent state claim of defamation against two lawyers,

Terry J. and Robert J. Adam. The district court dis-

missed the complaint without prejudice on the ground

that injunctive relief against pending bar disciplinary

proceedings is barred by Younger v. Harris, 401 U.S. 37,

91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We vacate and

remand.

Younger and its progeny establish a strong policy

against federal court interference with certain pending

state proceedings absent extraordinary circumstances.

See Huffman v. Pursue, Ltd., 420 U.S. 592, 599-602, 95

S.Ct. 1200, 1206-07, 43 L.Ed.2d 482 (1975); Younger, 401

U.S. at 41, 91 S.Ct. at 749. But Younger acknowledged

the continued vitality of Dombrowski v. Pfister, 380 U.S.

479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), by stating that

federal courts should afford injunctive relief to a plaintiff

who successfully establishes “the kind of irreparable in-

jury, above and beyond that associated with a single

prosecution brought in good faith, that had always been

considered sufficient to justify federal intervention.”

Younger, 401 U.S. at 48, 91 S.Ct. at 752; see id. at 53, 91

S.Ct. at 755. The Court’s opinions construing Younger

have continued to recognize that a showing of “bad faith,

harassment or other exceptional circumstances” may jus-

tify federal intervention. See Trainor v. Hernandez, 431

U.S. 434, 446, 97 S.Ct. 1911, 1919, 52 L.Ed.2d 486 (1977);

Huffman, 420 U.S. at 611-12, 95 S.Ct. at 1212.

We have applied Younger’s exception for “bad faith

prosecutions” in two major circumstances: first, when

a state commences a prosecution or proceeding to retal-.

A3

iate for or to deter constitutionally protected conduct,

e.g., Smith v. Hightower, 693 F.2d 359 (5th Cir. 1982);

Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979); and

second, when the prosecution or proceeding is taken in

bad faith or for the purpose to harass. E.g., Fitzgerald

v. Peek, 636 F.2d 943 (5th Cir. 1981) (per curiam); Shaw

v. Garrison, 467 F.2d 113, 119-21 (5th Cir.) cert. denied,

409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). In

either case, irreparable injury under Younger is estab-

lished by a sufficient showing of retaliatory or bad faith

prosecution, and a federal injunction may issue. See

Wilson, 593 F.2d at 1382-83 (retaliatory prosecution);

Shaw, 467 F.2d at 120 (bad faith prosecution); cf. Smith,

693 F.2d at 366-67 (retaliation must be a “major moti-

vating factor and (have) played a prominent role in the

decision to prosecute”’).

In Middlesex County Ethics Committee v. Garden

State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73

L.Ed.2d 116 (1982), the Supreme Court held that attorney

disciplinary proceedings are among those judicial proceed-

ings invested with sufficiently important state interests

to warrant Younger deference. Id. at 433-434, 102 S.Ct.

at 2522-23. New Jersey’s disciplinary proceedings afford

adequate opportunity for attorneys to raise constitutional

claims, reasoned the Middlesex Court, and the federal

courts should therefore have abstained under Younger

from interfering by injunction. Bishop does not and could

not argue that Texas’ interest in its pending disciplinary

proceeding is less significant than New Jersey’s. Nor

does he contend that disciplinary proceedings in Texas

1. We recently affirmed the continued vitality of Shaw’s

major holding—that persons enjoy a constitutional right to be

free of criminal prosecution initiated without probable cause.

Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254 (5th Cir. 1984)

(considering effect of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854,

43 L.Ed.2d 54 (1975)).

A4

are any less judicial in nature than those in New Jersey.

See Tex.Rev.Civ.Stat.Ann. art. 320a-1, §§ 12(a), 15, 16

(Vernon Supp. 1984).

Bishop does argue that the Texas disciplinary pro-

ceedings are inadequate to consider his constitutional

claims. The State Bar responds that the proceedings offer

sufficient opportunity to adjudicate all of Bishop’s claims,

including bad faith prosecution. Neither is correct. Plain-

tiff cites several constitutional infirmities in the disci-

plinary proceedings themselves; he alleges, for example,

that he has been denied notice of the disbarment charges,

a fair hearing, and an opportunity to confront and pro-

duce witnesses. Record at 200. We need not pass on

the validity of these claims, for we conclude that, like

New Jersey’s in Middlesex, the Texas scheme for dis-

ciplining attorneys is fully capable of considering the

constitutional arguments of attorney-defendants relating

to specific procedures followed in their cases. E.g., Galindo

v. State, 535 S.W.2d 923 (Tex.Civ.App.—Corpus Christi

1976, no writ).

But the State Bar’s argument goes too far. In ap-

plying Younger to attorney disciplinary proceedings, the

Middlesex Court expressly noted that a showing of bad

faith or harassment might justify federal injunctive re-

lief. 457 U.S. at 436, 102 S.Ct. at 2524. Although Texas

disciplinary proceedings are capable of deciding consti-

tutional challenges to specific procedures, recourse in those

proceedings is not a sufficient avenue to remedy the con-

stitutional injury done by bad faith proceedings them-

selves. The right under Shaw is to be free of bad faith

charges and proceedings, not to endure them until their

speciousness is eventually recognized. Shaw, 467 F.2d

at 122 n. 11. See Younger, 401 US. at 46, 91 S.Ct. at

751; id. at 56, 91 S.Ct. at 757 (Stewart, J. concurring);

A5

Wilson, 593 F.2d at 1382-83. Thus, Younger forbade the

district court from interfering with Bishop’s disciplinary

proceedings on the ground of specific constitutional flaws

in the procedure followed in the state system. It did

not foreclose injunctive relief based on Bishop’s allega-

tions of bad faith.

Because we consider a Rule 12 dismissal, our record

is slim and our standard generous: we may affirm only

if it appears beyond doubt that Bishop can prove no

set of facts in support of his claim that would entitle

him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78

S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Jones v. United

States, 729 F.2d 326, 330 (5th Cir. 1984). Bishop might

have been more specific and artful in drafting his com-

plaint, but its generality was not fatal. He alleged that

the State Bar’s efforts to discipline him had proceeded

since 1976 and that they had been taken “in bad faith

and for an improper motive.” In this, he stated a claim

for injunctive relief. The district court also erred in dis-

missing Bishop’s claim for damages, a species of relief

wholly unaffected by Younger. Finally, the district court

exercised its discretion under United Mine Workers v.

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966),

and dismissed Bishop’s pendent defamation claims. Be-

cause our action today removes the ground for this dis-

cretionary dismissal, we vacate the dismissal of Bishop’s

claims against Terry and Robert Adams and remand for

reconsideration in light of our revival of the federal claims.

REVERSED in part, VACATED in part, and RE-

MANDED.