Petition for Writ of Certiorari — In re Sekerez

; Office -Supreme Court, U_S.

FkFiLlLEOD

JUL 20 1984

No. ALEXANDER L. STEVAS,

————— a cr

In Tue

Supreme Court of the United States

Octoser Term, 1984

ZARKO SEKEREZ,

Attorney-Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

WILLIAM J. HARTE *

Wuuam J. Harte, Lr.

111 West Washington Street

Suite 2025

(312) 726-5015

Attorney for Petitioner

Of Counsel:

JOHN B. AUSTIN * Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

ste sate Pa ae

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Due Process Clause of

the Fourteenth Admendment requires that

disbarment of an attorney be grounded upon

a standard of proof insuring greater

factual certainty than that yielded by a

“preponderance of the evidence.”

2. Whether the Indiana Supreme Court

violated due process when it applied a

procedural rule, governing an attorney's

access to that court's review of a hearing

officer's findings of fact, in such a way

as to ignore: (1) the fact that the rule

itself contained internal inconsistencies

resulting in vagueness; and (2) the fact

that the court's previous interpretation

of the rule provided no warning of the

ruling it ultimately made, when it was too

late for petitioner to conform.

iii

TABLE OF CONTENTS

Questions Presented For Review .....i

EE DS ee a a a a

Citation to the Opinion of the

Court Below * . _Z . * . 2 s . - . . s 1

ee a a a a a ee ee ee

Constitutional Provision Involved... 2

State Rule Involved . .- .« « « « « «© « « 3

Statement of the Case . . «© «2. « «© « « « 3

SE Se ee ee ee ae ee ee ee ee

Statement of the Case Pertaining

to Argument I. ..-+«-+«-e«seee-ee ee 9

Petitioner's Raising In The Indiana

Supreme Court Of His Fourteenth

Amendment Due Process Claim That

Mere Preponderance Of The

Evidence Is A Standard Of Proof

Insufficient To Support

ee ee ee ee S|

Stetement of the Case Pertaining to

Argument II — ad e a a e e © e s e = - 14

Petitioner's Timely Raising Of

His Claim That The Court's Harsh

And Unpredictable Application

Of Admission And Discipline Rule

23, Section 15(c), Violated Due

ee ee ee ee ee ee ee ee ee

Argument 7. o > aa om a s e . 7 s * * . e 29

I.

Il.

iv

“PREPONDERANCE OF THE

EVIDENCE" IS A

CONSTITUTIONALLY INSUFFICIENT

STANDARD UPON WHICH TO BASE

FACTUAL FINDINGS SUPPORTING

THE DISBARMENT OF AN

ALeuEs © 6 © 6 & & te 6s eo ee 629

l. Identifying The Dictates

Of Due Process By

Consideration Of Three

DESEINGE FGCOCEs. « 4 6 o 2 « «€86933

2 The Degree Of Factual

Security Due Process

Requires Is A Reflection

Of Society's Assessment

Of The Particular Interest

AS SCak@. «© «© we se ec we we eo wo © 4

THE INDIANA SUPREME COURT'S

APPLICATION OF RULE 23,

SECTION 15(c), DEPRIVED

PETITIONER OF HIS OPPORTUNITY

UNDER THE RULE TO GAIN THE

COURT'S REVIEW BECAUSE

NEITHER THE RULE ITSELF NOR

THE COURT'S INTERPRETATION

OF IT SUFFICIENTLY APPRISED

PETITIONER THAT ONLY THE RULE'S

FIRST SENTENCE WOULD BE HELD

OPERABLE. THIS VAGUE STANDARD

OF OBEDIENCE VIOLATED DUE

PROCESS. «© e2e ee ee eseeee 47

Conclusion ° + . s se a e o e s °. . e . 54

Vv

Appendix A Disbarment Order In

Indiana Supreme Court .

Appendix B- Indiana Disciplinary

Rules se se . » id es 7 . .

Appendix C Order of October 26, 1982,

Indiana Supreme Court .

Appendix D Denial of Petition for

Rehearing, Indiana

Supreme Court .... .-«

Appendix E Table of Standards of

PEGOR « «© 8s © 6 0 e

Appendix F Individual Counts and

Finding of the Indiana

Supreme Court . . « « «

TABLE OF AUTHORITIES

Addington v Texas, 441 U.S.

28

34

36

37

42

418 (1979) ~~. © « « « »« 35, 38,40,43

Bates v. State Bar of Arizona,

433 U.B. 356 tadfe) « * «© « 6 *@

Board of Regents v. Roth, U.S.

408 U.S 565 (1972) . * ~ ~ ~ +.

Brinkerhoff-Faris Trust & Savings

Co. ve Hill, 281 U.S. 637

(1930) 2 - ° . . a e « ° * . *

Chaunt v. United States, 364 U.S.

350 (1960) = * - a ° * 7 ” . e

vi

Ex Parte Wall, 107 U.S. 265

(1883) s a es J e a o s s J * . - s 30

Giaccio v. State of Pa., 382 U.S.

399 (1966) oe — . e . - 7 a - se a a 50

In re Ruffalo, 399 U.S. 544 (1968). . 30

In re Winship, 397 U.S. 358

(1970) «© «© = se © © © wo ot ew) hg SUSE

Konigsberg v. State Bar of

California, 353 U.S. 252

(1957) es * . 7 e +. + . 7 e es ae = 7 29

Matthews v. Eldridge, 424 U.S.

319 (i976) 2 «© © @ © © © » 6 Sepeeeaee

37

Matter of Moore, 453 N.E.2d 971

(Ind. 2963) « «@ © © © 6 0 «0 Speen

45,46,54

Matter of Murray, 266 Inc. 221,

362 N.E.2d 128 (1977) .. . o* «a ©

Missouri v. Gehner, 281 U.S.

313 (1930) o 7” 2 e o © © e . 2 > 25% ag

Orr v. Gilman, 183 U.S. 278

(1902) 7 + 7 . - . . + e - . o e 47

Santosky v. Kramer, 455 U.S.

745 (1962) « «© «© © ew © © 35,39,40,

41,42,43

Saunders v. Shaw, 244 U.S. 317

(1917) * « . + 7 & 7 © . . . . 26,27

Small Co. v. American Sugar

Refining Co., 267 U.S. 233

(1925) 7 . . oe 7 ” 2 e - ° 7 * 7 48,50

vii

Spevack v. Klein, 385 U.S. 51l

(1967) * . o e . a” e e * * ° . e ” 31

Wisconsin v. Constantineau,

400 U.S. 433 (1971) ° . . * > * * 7 42

Woodby v. INS, 385 U.S. 276

(1966) se o a e a . . - . e . o 2 o 43

Zellerbach Paper Co. v. Helvering,

293 U.S. 172 (1934) . * © e * . 50,53

Indiana Rules For Admission and Discipline

of Attorneys

Rule 23, Seetion 6 ..« «© «ee ee ee « 44

Rule 23, Section 14(f)...-«-e«-e«esee J

Rule 23, Section 15(c) . . 3,14,16,18,19,

20,21,22,28,48

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No.

IN RE

ZARKO SEKEREZ,

Attorney-Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

Attorney-petitioner, ZARKO SEKEREZ

("petitioner"), respectfully requests that

a writ of certiorari issue to review the

judgment and opinion of the Supreme Court

of Indiana entered January 18, 1984, by

which that court disbarred petitioner from

practicing law in the State oi Indiana.

ale

OPINION BELOW

A hearing officer appointed by the

Indiana Supreme Court heard evidence as

to a seven-count Complaint for

Disciplinary Action and filed a Report,

finding against petitioner on all seven

counts and deeming him to be in violation

of eleven provisions of the Indiana

Disciplinary Rules. (Appendix B) The

Indiana Supreme Court dismissed two of

the counts but, finding against

petitioner under the remaining five,

disbarred him from the practice of law in

Indiana. (Appendix A, Ind. ;

458 N.E.2d 229 (1984)).*

*The Indiana Supreme Court's order,

entitled "Disciplinary Action,” will be

referred to herein as the "Disbarment

Order.”

ii

-2-

JURISDICTION

The Disbarment Order of the Indiana

Supreme Court was entered January 18,

1984. A timely-filed Petition for

Rehearing was denied on April 23, 1984.

This Petition for Writ of Certiorari was

filed within ninety days of the denial of

rehearing. Jurisdiction of this Court is

invoked under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT XIV TO THE CONSTITUTION OF THE

UNITED STATES:

Section l.

-+-No State shall make or enforce any

law which shall abridge the

privileges or immunities of citizens

of the United States; nor shall any

State deprive any person of life,

liberty or property, without due

process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATE RULE INVOLVED

Indiana Rule For Admission and

Discipline of Attorneys 23, Section

15(c) (in pertinent part):

In the event a party does not concur

in a factual finding made by the

hearing officer and asserts error in

such finding in the petition for

review, such party shall file with

the petition for review a record of

all the evidence before the hearing

officer relating to this factual

issue. Within thirty (30) days of

the filing of the transcript,

opposing parties may file such

additional transcript as deemed

necessary to resolve the factual

issue so raised in the petition for

review....

STATEMENT OF THE CASE

Introduction

Petitioner was disbarred in Indiana

on the basis of facts established by a

mere preponderance of the evidence--a

standard that petitioner contends is

constitutionally insufficient to support

-4-

the serious economic loss as well as

damage to reputation inflicted by

disbarment. The application of this

inadequate standard of proof was the

result of the Indiana Supreme Court's

harsh and unpredictable interpretation of

a procedural rule. This interpretation

itself violated due process because it

did not give petitioner sufficiently

clear notice of how he could avoid being

held to have waived his right to have the

Indiana Supreme Court exercise its

function as the “ultimate fact finder"*

in an attorney disciplinary action in

which it "sits as a trial court and must

determine issues of fact."**

*Matter of Moore, 453 N.E.2d 971, 973

(Ind. 1983).

**Matter of Murray, 266 Ind. 221, 362

N.E.2d 128, 130 (1977).

-5-

Lack of an Independent State Ground for

the Indiana Supreme Court's Disbarment of

Petitioner.

In its Disbarment Order, the Indiana

Supreme Court stated:

Having determined that the

Respondent has engaged in misconduct

we must evaluate the appropriate

sanction. Taken individually, the

violations may not appear to be of a

magnitude which would indicate a

severe sanction. However, when

examined as a whole, the numerous

violations suggest that Respondent's

entire system of clinics was operated

in an unprofessional manner... |

(Disbarment Order, p. 27, Appendix A.) |

Thus, by the Court's own admission, the

disbarment rests not upon any single

finding of misconduct or even upon

several such findings but, rather, upon

all the findings of a hearing

officer--adopted without review--which

supported the five counts the Indiana

Supreme Court retained. The weight of

the evidence, the standard of proof, and

-6-

petitioner's right to the court's review

are therefore inescapable issues.*

Background

Petitioner had been practicing as a

traditional law firm in Indiana since

1965 when, as a result of this Court's

*Count VI concerned petitioner's use

and advertisement of what the court

concluded were trade names prohibited by

the Indiana Code of Professional

Responsibility for Attorneys at Law.

Since the evidence supporting this count

was purely documentary, this count can be

said to involve no issues of fact.

However, all the remaining counts

contributing to petitioner's disbarment

were based upon factual testimony and

required not only that determinations he

made as to what actually happened but

also that such determinations be weighed

against the frequently general wording of

the disciplinary rule in question. (E.g.,

"Conduct...prejudicial to the

administration of justice;" "Conduct

that adversely reflects on...fitness to

practice law;" "...reasonable steps to

avoid forseeable prejudice to the rights

of his client, including giving due

notice...;" "Intentional failure to seek

the lawful objectives of his client

through reasonably available means...")

Pa

decision in Bates v. State Bar of

Arizona, 433 U.S. 350 (1977), he opened

branch offices--or “legal clinics"--in a

number of cities within the state.

Petitioner hoped that by concentration on

routine legal services and by efficient

use of staff supervised by a licensed

attorney in each office, he could provide

services at modest rates.

Attorneys in petitioner's clinic

handled a high volume of legal matters,

and gave large numbers of initial free

consultations, frequently advising that

the services of a lawyer were not needed

and instructing on pro se procedures.

Petitioner's clinics received referrais

from a roster of diverse sources.*

*E.g., the Better Business Bureau,

credit and labor unions, courts,

hospitals, Valparaiso University.

PO

~R-

However, in August, 1980, the

Disciplinary Commission of the Supreme

Court of Indiana ("Commission") filed a

seven-count complaint against Mr.

Sekerez. Five counts were based on

grievances of individuals; two were based

on misconduct alleged by the Commission

itself.

After a five-day evidentiary hearing

in August, 1981, involving a number of

witnesses produced by both petitioner and

the Commission, the hearing otficer

adopted--verbatim--the findings and

conclusions submitted by the Commission

for each of the seven counts.

In July, 1982, petitioner petitioned

the Indiana Supreme Court for a review of

the hearing officer's Report. Petitioner

challenged certain of the findings of

fact and asserted the constitutional

-Q-

inadequacy of the preponderance of the

evidence standard under which the hearing

officer had made his findings.*

STATEMENT OF THE CASE PERTAINING TO

ARGUMENT I

In its order of January 18, 1984, the

Indiana Supreme Court perfunctorily

dismissed petitioner's due process

objection to the preponderance of the

evidence standard and, in spite of its

declared intent to review the evidence

under the “clear and convincing"

standard, recently declared by that same

court to be appropriate in disbarment

proceedings, ultimately refused to review

any of the hearing officer's factual

determinations.

*As provided by Indiana Admission and

Discipline Rule 23, Sec. 14(f).

-19-

The Court dismissed two of the counts,

but disbarred petitioner on the basis of

the cumulative effect of the surviving

five counts. In so doing, the Court

deprived petitioner of the license to

practice his profession on the basis of

the minimum standard of factual

reliability. (Disbarment Order, Appendix

A.)

Petitioner's Raising in the Indiana

Supreme Court of His Fourteenth Amendment

Due Process Claim that a Mere

Preponderance of the Evidence is a

Standard of Proof Insufficient to Support

Disbarment.

In his Brief of Respondent, filed

July 19, 1982, petitioner argued that:

Admission and Discipline Rule

23, Section 14(f), which provides for

the standard of proof to be used in

disciplinary proceedings, is in

violation of the due process Clause .

of the Fourteenth Amendment to the |

United States Constitution, in that

it allows the imposition of

disciplinary sanctions upon attorneys

without a showing of clear and

— repr oreseny bss: sameness PS

eij-

convincing proof. (Brief of

Respondent, p. 9)

Subsequently, in his Reply Brief,

petitioner stated:

---[T]he standard of proof issue

is important. Disciplinary

proceedings may have a profound

impact upon the respondent-attorney,

both in terms of his reputation and

his ability to continue to practice

in his chosen profession. Although

it is a privilege to be allowed by

the State of Indiana to practice law,

once this privilege is granted, the

attorney acquires a property right,

which can only constitutionally be

altered by due process of law. Given

the interests of the respondent-

attorney at stake, and the quasi-

criminal nature of disciplinary

proceedings, the higher standard of

proof of “clear and convincing

evidence" is constitutionally

required.

The United States Supreme Court

has held that the "clear and

convincing" standard should be

adhered to in quasi-criminal cases,

which “are significantly different

from the ordinary economic case:

where significant individual rights

are not at stake." In re Winship,

(1970) 397 U.S. 358, 371...[Citations

to Indiana civil cases applying the

Clear and convincing standard of

proof omitted.] The logic and

ol 2@

rationale of the above-cited cases

leads to the conclusion that clear

and convincing proof should be

required in attorney disciplinary

proceedings... (Reply Brief of

Respondent, filed February 18, 1983,

pp. 54-55).

Choosing to ignore the expanded due

process argument in his Reply Brief, the

Indiana Supreme Court stated that

petitioner made no attempt to

substantiate his due process claim

regarding the standard of proof.

Nevertheless, the court, citing its own

recent case, Matter of Moore, 453 N.E.2d

971 (1983), stated:

{T)he ‘clear and convincing' standard

of proof more reasonably conforms to

our analysis of the nature of the

disciplinary process and follows the

weight of authority. Accordingly, we

will review the evidence in this case

under a ‘clear and convincing'

standard. (Disbarment Order, p. 7,

Appendix A.)

However, the Court ultimately denied

such a review by adopting and accepting

ee ee

o]3=

as its own the findings of fact submitted

by the hearing officer, findings made

under a mere preponderance of evidence

standard. (Ibid.)

In his Brief In Support Of Petition

For Rehearing, petitioner again argued

the inadequacy of the hearing officer's

standard of proof:

In light of this Court's recent

decision in In re Moore, (1983) 453

N.E.2d 971, wherein the Court held

the “clear and convincing” standard

of proof applicable to disciplinary

actions, the challenged findings of

the hearing officer in this cause

must be critically examined, since he

made his findings and conclusions

using the "preponderance of evidence”

standard of proof...(Brief in Support

of Respondent's Petition For

Rehearing, p. ll.)

The Indiana Supreme Court summarily

denied petitioner's Petition For

Rehearing. (Order, April 23, 1984,

Appendix D.)

a

-14-

STATEMENT OF THE CASE PERTAINING TO

ARGUMENT II

In addition to arguing the

insufficiency of the standard of proof

supporting the hearing officer's

factfindings, petitioner challenged a

number of specific findings.* He did so

pursuant to the directive of Admission

and Discipline Rule 23, Section 15(c)

which states in pertinent part:

In the event a party does not

concur in a factual finding made by

the hearing officer and asserts error

in such finding in the petition for

review, such party shall file with

the petition for review a record of

all the evidence before the hearing

officer relating to this factual

issue. Within thirty (30) days of

the filing of the transcript,

opposing parties may file such

additional transcript as deemed

necessary to resolve the factual

issue so raised in the petition for

review.

*See Appendix F.

-15-

After requesting an extension of time

from the Court in order to submit even a

limited record with his Petition for

Review, on July 19, 1982, petitioner

provided a partial record consisting of

his own testimony (both on direct and

cross examination), testimony of

employees and of attorneys familiar with

him, and various documents, including a

letter from a client supporting

petitioner's claim in regard to an

important factual issue of Count V.*

Subsequent to petitioner's submission

of the evidence, the Commission

*Mrs. Hatcher's letter acknowledged

that well before he accepted the case,

petitioner had indeed talked to Mr.

Hatcher about the auto accident in

question. The letter thus seriously

challenges the hearing officer's finding

that petitioner had not provided the

initial free consultation which he

advertised.

Ov

-16-

petitioned the court to require

petitioner to supplement the record

submitted under Rule 23, Section 15(c).

By Order of October 25, 1982, the court

ruled that:

that portion of the (Commission's)

petition seeking to require the

supplementation of the record should

not be granted in that the findings

of the hearing officer are a

sufficent basis for the

implementation of discipline and that

it is incumbent on the petitioning

party to present a sufficient record

to countermand the significance of

the hearing officer's findings. If

the record submitted is insufficient,

the petitioning party must stand on

it... (Order, October 26, 1982;

Appendix C.)

With his Reply Brief, filed February

18, 1983, petitioner included the

transcript of testimony, on direct

examination by the Commission of his

client, Susan McCoy, who filed the

grievance set forth in Count III. MThis

testimony brought into question an

-17-

important factual fiinding* and, when

combined with documents also submitted at

this time, cast seriious doubt on the

client's veracity as a foundaticn for the

misconduct of Count III as a whole.**

In its Disbarment Order, the Indiana

Supreme Court stated that petitioner

"filed only a transcript of the testimony

of his witnesses," an assertion that not

only overlooks the McCoy testimony but

*The finding being that petitioner

had not provided the free initial

consultation advertised.

**A check drawn by Mrs. McCoy and

verified by the drawee bank proved that

she had made contact with petitioner's

office almost two months before she said

she had on direct examination. Her lack

of reliability is relevant not only to

the free consultation issue but casts

serious doubt on her allegation that

petitioner had advised her to promise to

pay her husband's attorney's fees but

then return to California and never pay

them. _

a ii i

-18~

that seems to imply that all the evidence

petitioner submitted in his factual

challenges was either produced by him or

by persons in his camp, an implication

belied by the McCoy and Hatcher documents

as well as others. However, using this

pronouncement as its justification, the

Court, quoting only from the first

sentence of Rule 23, Section 15(c),

stated:

--+- Admission and Discipline Rule

23,Section 15, defines the procedure

for review by this Court of our

Hearing Officer's findings. This

provision authorizes a petition for

review and requires a party who

challenges the factual findings to

submit with his petition a record of

all of the evidence relating to the

Challenged factual issue (our

emphasis). Upon examination of the

pleadings filed by Respondent, it

appears to this Court that the

Respondent has chosen not to follow

this procedure...

-19-

This Court finds that a transcript

containing only one party's case in

chief does not constitute all of the

evicence as required under the above

noted rule.

--- As previously held, the

transcript submitted by the

Respondent did not comply with our

rule. Therefore, in that the

Respondent has not provided the

requisite record to assert error and

in that the Disciplinary Commission

has not submitted any record, this

Court now adopts and accepts as its

own the findings of fact submitted by

the hearing officer and will only

review the conclusions thereunder and

the Respondent's constitutional

challenges.

(Disbarment Order, pp. l, 3, 5,

Appendix A.)

Thus, the court foreclosed review of

the challenged findings, as well as of

the findings as a whole, on the basis cf

a mis-characterization of the evidence

petitioner submitted in support of his

challenges and a consequently harsh and

surprising interpretation of Rule 23,

-20-

Section 15(c), which overlooked the

ambiguities created by the second

sentence of the Rule and the more liberal

interpretation contained in its own Order

of October 26, 1982. It is noteworthy

that regarding the severity of its

sanctions, the Court stated:

Having determined that the

Respondent has engaged in misconduct

we must evaluate the appropriate

sanction. Taken individually, the

violations may not appear to be of a

magnitude which would indicate a

severe sanction. However, when

examined as a whole, the numerous

violations suggest that Respondent's

entire system of clinics was operated

in an unprofessional manner.

ass Order, p. 27, Appendix

Tt is no more possible to guess what

resolution the Court would have made of

those facts challenged under Rule 23,

Section 15(c), than it is to speculate

what the hearing officer's findings might

=-2]-

have been under a proper standard of

proof.

Petitioner's Timely Raising Of His

Claim That The Court's Harsh And

Unpredictable Application of

Admission and Discipline Rule 23,

Section 15(c) Violated Due Process.

Petitioner first raised his due

Process objection to the Indiana Supreme

Court's refusal to consider his

Challenges in his Brief in Support Of

Respondent's Petition For Rehearing, in

which he asserted, pp. 8-9:

---The rules do not require that the

entire record be su submitted, unless

all findings are challenged.

Fundamental fairness therefore

dictates that Respondent's evidence

be considered and reviewed. The

Commission should not be rewarded for

its inaction, and neither should

Respondent be penalized therefor.

Petitioner's objection to the Court's

refusal to review the challenged facts

was timely because, the Court's

application of Rule 23 was unexpected and

o22<

unpredictable:

A. The first sentence of Rule 23,

Section 15(c), does state that a party

asserting error in a hearing officer's

factfinding:

shall file with the petition for

review a record of all the evidence

before the hearing officer relating

to this factual issue.

However, the next sentence of the Rule

belies its literal meaning:

Within thirty (30) days of the filing

of the transcript, opposing parties

may file such additional transcript

as deemed necessary to resolve the

factual issue so raised in the

petition for review.

Clearly, the second sentence makes it

plain that a petitioner is to supply what

he believes to be all the necessary

evidence and that there is a resultant

burden upon the defender of the challeged

finding to file any additional evidence

he deems essential to resolution of the

-23-

dispute.

B. The Indiana Supreme Court's Order

of October 25, 1982, added to the

unpredictability of the Court's applying

the Rule as it eventually did when,

instead of saying it is the duty of the

party petitioning for review of the

hearing officer's findings to submit all

possible evidence regarding those

findings, it stated:

-+-it is incumbent on the petitioning

party to present a sufficient record

to countermand the significance of

the hearing officer's findings...

(Emphasis added; see Appendix C.)

The Court's interpretation of its

rule was not lost upon petitioner:

---Although opposing counsel has

criticized the limited Record

submitted to this Court by

Respondent, Respondent has, in the

words of this Court's ruling, on

October 25, 1982, presented "a

sufficent record to countermand the

significance of the Hearing Officer's

findings" in which he cannot

acquiesce. (Reply Brief, pp. l, 2.)

-24-

Nevertheless, petitioner included more

evidentiary material with his Reply

Brief. (See Statement of the Case,

supra.) The Commission submitted nothing

in support of the findings.

Having thus invited reliance upon a

sensible interpretation of a rule that

itself contains internal conflicts, the

Indiana Supreme Court proceeded

unpredictably to foreclose petitioner

from making any factual challenges

whatsoever. In doing so, the court

ignored both the Rule's ambiguity and the

import of its own previous Order on the

subject. (See Disbarment Order, pp. 2-3,

7, Appendix A.)

On February 27, 1984, petitioner

filed with the court a Motion For Leave l

To Supplement Record, stating that he had

"in good faith attempted to comply with

-25-

all applicable rules and present this

Court with what [he] believed to be an

adequate record of evidence relating to

the challenged findings..." This Motion

was denied, along with his Petition for

Rehearing. (Order, April 23, 1984,

Appendix D.)

The instant case falls into the class

ot decisions in which this Court reviews

a State Supreme Court's unpredictable

foreclosure either of a party's

opportunity to litigate a substantive

federal issue (see, Missouri v. Gehner,

281 U.S. 313 (1930), in which an

unpredictable construction of a state tax

statute resulted in the taxation of U.S.

Government bonds without the holder's

chance to invoke federal protection

against such taxation), or of a party's

general due process right to be heard

-26-

regarding the matter at issue (see,

Saunders v. Shaw, 244 U.S. 317 (1917), in

which the Missouri Supreme Court's

unanticipated ruling resulted in the |

admission of evidence which had been

excluded at trial and which therefore had

not been rebutted by the opposing party; |

and Brinkerhoff - Faris Trust & Savings |

Co. v. Hill, 281 U.S. 673 (1930), in

which the overruling of a clear precedent

upon which the trust company relied left

the company without any means of

challenging a tax levy).

Petitioner's assertion of his federal

claim regarding the application of Rule

23 in his Petition for Rehearing was

timely, since “it was raised at the first

opportunity." Brinkerhoff-Faris, supra,

281 U.S. at 678. The Indiana Supreme |

Court's unforeseeable application of its

=27-

rule brings this case within this

protective principle as amplified in

Missouri v. Gehner, supra, 281 U.S. at

320:

It is well settled that this court

will not consider questions that were

not properly presented for decision

in the highest court of the State.

Ordinarily it will not consider

contentions first made in a petition

to the State court for rehearing

where the petition is denied without

more. ..»But here the company at the

first opportunity invoked the

protection of the federal

Constitution and statute. It could

not earlier have assailed the [State

statute] as violative of the

Constitution and laws of the United

States... It may not reasonably be

held that the company was bound to

anticipate [the Missouri Supreme

Court's] construction or in advance

to invoke federal protection... 281

U.S. at 320. (Citations omitted.)

And, in Saunders v. Shaw, supra, 244 U.S.

at 320, Justice Holmes wrote:

---But when the act complained of is

the act of the [State] Supreme Court,

done unexpectedly at the end of the

proceeding, when the plaintiff in

error no longer had any right to add

-28-

| to the record, it would leave a

serious gap in the remedy for

infraction of constitutional rights

if the party aggrieved in such a way

could not come here. The defendant

) was not bound to contemplate a

decision of the case before his

evidence was heard and therefore was

not bound to ask a ruling or to take

other precautions in advance...

The Indiana Supreme Court's October,

1982, Order actually reconciled the first

two sentences of Rule 23, Section 15(c).

Therefore, the Court's reinterpretation

of the rule in its Disbarment Decision

constitutes not only an abrupt change of

stance but also makes the rule's second

sentence meaningless. The twelfth-hour

foreclosure of review at the same time

defines petitioner's raising of the issue

as procedurally timely and frames the

substantive due process deprivation.

-29-

ARGUMENT

I.

“PREPONDERANCE OF THE EVIDENCE” IS A

CONSTITUTIONALLY INSUFFICIENT STANDARD

UPON WHICH TO BASE FACTUAL FINDINGS

SUPPORTING THE DISBARMENT OF AN ATTORNEY.

The gravity of the interests derived

from a law license has been recognized by

this Court in several contexts.

Even before admission to the bar, a

potential attorney's interests are

considerable. Preparatory to ruling on

the constitutionality of the California

Supreme Court's denial of a law license,

Justice Black stated, in Konigsberg v.

State Bar of California, 353 U.S. 252,

257-58 (1957):

While this is not a criminal case,

its consequences for Konigsberg take

it out of the ordinary run of civil

cases. The Committee's action

prevents him from earning a living by

practicing law. This deprivation has

grave consequences for a man who has

spent years of study and a great deal

of money in preparing to be a lawyer.

-30-

Certainly, upon earning the privilege to

practice law, "an attorney's calling or

profession is his property, within the

true sense and meaning of the

Constitution.” Ex Parte Wall, 107 U.S.

265, 289 (1883). And disbarment, the

deprivation of a lawyer's license,” is a

punishment or penalty imposed on the

lawyer" by way of “adversary proceedings

of a quasi-criminal nature.” In re

Ruffalo, 390 U.S. 544, 550, 551 (1968).

Thus, it is clear that the label “civil”

does not necessarily obviate the need for

stricter safeguards than those that

pertain to the trial of purely civil

matters. In re Winship, 397 U.S. 358,

365-66 (1970). The characterizations in

Korigsberg and Ruffalo of an attorney's

interest in his license, and of the

nature of the proceedings depriving him

=31-

of it, suggest that standards more

exacting than those governing ordinary

civil cases must be applied to disbarment

hearings. Spevack v. Klein, 385 U.S. 51l

(1967), in its discussion and treatment

of disbarment as a penalty, implies that

an attorney facing disbarment proceedings

must be afforded considerable protection,

including a higher standard of proof than

that required in the ordinary civil

case.

In reversing New York's disbarment of

an attorney because of his refusal both

to produce records pursuant to a subpoena

duces tecum and to testify at a judicial

proceeding, the Spevack majority,

speaking through Justice Douglas, stated:

"The Fourteenth Amendment secures

against state invasion... the right

of a person to remain silent unless

he chooses to speak in the unfettered

exercise of his own will, and to

suffer no penalty... for such

a

Silence." [Quoting from Malloy v.

Hogan] 378 U.S., at &...

In this context “penalty” is not

restricted to fine or imprisonment.

It means... the imposition of any

sanction which makes assertion of the

Fifth Amendment privilege “costly.”...

The threat of disbarment and the

loss of professional standing,

professional reputation, and of

livelihood are powerful forms of

compulsion to make a lawyer

relinquish the privilege. That

threat is indeed as powerful an

instrument of compulsion as "the use

of legal process to force from the

lips of the accused individual the

evidence necessary to convict

him..."...

385 U.S. at 514-16.

Tne acknowledged drastic effects of

disbarment, and the recognition that it

is more than a merely civil matter, call

for a due process requirement that the

factual foundation for disbarment be laid

upon a more firm underpinning than that

provided by proof by a mere preponderance

-33-

of the evidence.

This Court appears to have

established two approaches to

ascertaining minimum permissible due

process which are helpful in considering

the problem at hand--one general, and one

specifically concerning minimum standards

of proof. Petitioner contends that under

either approach, a preponderance of

evidence is constitutionally deficient in

disbarment proceedings.

l. Identifying The Dictates Of Due

Process By Consideration Of Three

Distinct Factors.

In Mathews v. Eldridge, 424 U.S. 319

(1976), the issue was the

constitutionality of terminating Social

Security disability benefits before the

recipient was afforded an evidentiary

hearing. Writing for the majority,

Justice Powell first stated the broad

-34-

principle that: “Due Process is flexible

and calls for such procedural protections

as a particular situation demands." He

then elaborated this principle by

saying: "“"[{Rjesolution of the issue

whether the administrative procedures

provided here are constitutionally

sufficent requires analysis of the

governmental and private interests that

are affected." Justice Powell finally

focused the balancing of these interests

on an analysis of “three distinct

factors”:

First, the private interest affected

by official action; second, the risk

of erroneous deprivation of such

interests through the procedures used

and the probable value, if any, of

additional or substitute procedural

safeguards; finally, the government's

interest, including the function

involved and the fiscal and

administrative burdens that

additional or substitute procedural

requirements would entail.

Mathews, supra, 424 U.S. at 334-335.

et a ee ee i ps eee

-35-

A balancing of the private and

governmental interests in a disbarment

case leaves no doubt that a preponderance

of the evidence does not afford

sufficient reliability.

A. The private interest affected by

disbarment, loss of livelihood earned at

great sacrifice of money, effort and

time, as well as grave damage to

reputation, is indisputably great.

B. The reliability of facts

established by only a preponderance of

the evidence standard reflects society's

conclusion that the litigants should

“share the risk of error in roughly equal

fashion." Addington v. Texas, 441 U.S.

418, 423 (1979), and that it is "no more

serious in general for there to be an

erroneous verdict in the defendant's

favor than for there to be an erroneous

-36-

verdict in plaintiff's favor." In re

Winship, 397 U.S. 358, 371 (1970)

(Harlan, J., concurring). There can be

no doubt that in a disbarment proceeding

which, like the instant case, is based in

part on facts propounded by parties

filing grievances and contested by the

attorney, application of a firmer

standard of proof could decisively change

the outcome.* It is, of course,

unnecessary to speculate upon whether it

would have done so in petitioner's case.

See Santosky v. Kramer, 455 U.S. 745, 770

(1982).

*Cf. Mathews, in which, because the

evidence upon which termination of

disability benefits was, for the most

part, easily documented medical

assessments of the recipient's physical

or mental condition, an evidentiary

hearing--with its opportunity to raise

questions of truth and veracity--would

not have changed the result. 424 U.S. at

344-45.

ee

-37-

C. The State's interest in

disbarment proceedings, as defined in

Mathews, provides no impetus for favoring

a preponderance of the evidence standard

over one providing more factual

accuracy: A higher standard of proof

will not change the nature of the

proceedings, add to their expense, or

reallocate limited fiscal or

administrative resources. (See Mathews,

424 U.S. at 347-48.) On the contrary,

the factfinder will simply apply the more

demanding standard of proof to the same

deliberations he must perform. To argue

that the other State interest--that of

protecting the public against incompetent

Or unethical attorneys--militates for a

low grade of factual accuracy in

disbarment hearings would be inconsistent

with basic constitutional principles.

-38-

Surely the State's stake in ensuring the

satisfactory conduct of its lawyers is no

greater than is its role in protecting

its people against criminal injury. Yet,

in criminal proceedings "the interests of

the defendant are of such magnitude that

historically and without any explicit

constitutional requirement they have been

protected by standards of proof designed

to exclude as nearly as possible the

likelihood of an erroneous judgment."

Addington v. Texas, supra, 441 U.S. at

423. As this Court has recognized, the

interests of an attorney in his

reputation and livelihood are themselves

of great magnitude. In itself, then, the

State's desire to maintain a healthy bar

does not justify even courting, much less

embracing, a minimal standard of proof

ee eas

-39-

supporting disbarment. *

Application of the Mathews analysis

to the instant case compels the

recognition that due process requires a

greater degree of factual proof than that

assured by the minimum standard of

preponderance of the evidence. Those

*The fact that the State's interest

in the integrity of its bar is of a sort

not discussed in Mathews suggests that in

those instances in which a government

exercises a police power in a way that

affects such basic interests as a

person's freedom, liberty to engage in

his occupation (or in his vested property

interest in his profession), or his

liberty to enjoy his good name and

reputation, the focus of the due process

inquiry should no longer even include the

Mathews concern with financial and

administrative burdens imposed on the

State by greater procedural safeguards.

However, Santosky v. Kramer, 455 U.S. 745

(1982), dealing with the standard of

proof required in hearings affecting the

fundamental liberty interest of parents

in their natural children, honors, in

passing, Mathew's purely practical

measurement of governmental interests.

455 U.S. at 767.

-40-

cases dealing specifically with the

constitutional sufficiency of various

standards of factual security confirm

this general conclusion.

2. The Degree Of Factual Security Due

Process Requires Is A Reflection Of

Society's Assessment Of The

Particular Interest At Stake.

The function of a standard of proof,

as that concept is embodied in the

due process Clause and in the realm

of factfinding, is to “instruct the

factfinder concerning the degree of

confidence our society thinks he

should have in the correctness of

factual conclusions for a particular

type of adjudicaton." Addington v.

Texas, 441 U.S. 418, 423 (1979),

quoting In re Winship, 397 U.S. 358,

370 (1970) (Harlan, J., concurring).

In Santosky v. Kramer, 455 U.S. 745,

755 (1982), this approach is elaborated

as follows:

Addington teaches that, in any given

proceeding, the minimum standard of

proof tolerated by the due process

requirement reflects not only the

weight of the private and public

interests affected, but also a

societal judgment about how the risk

of error should be distributed

-4l-

between the litigants.

Pursuing Addington's and Santosky's

evaluation of differing standards of

proof required by due process, it is

clear that while disbarment is not a

proceeding which may result in

incarceration or loss of life and

therefore does not require a standard of

proof "designed to exclude as nearly as

possible the likelihood of an erroneous

judgment," it is a proceeding in which

society has more than the "minimal

concern with the outcome” which it has in

civil disputes between private parties

Over money damages. Santosky, 455 U.S.

at 755. Konigsberg, Ruffalo and Spevack

all indicate that a State's deprivation

of an attorney's means of livelihood,

with its attendant devastation of

reputation, concerns interests which, in

-~42-

the words of Addington and Santosky, are

"both ‘particularly important’ and ‘more

substantial than mere loss of money'" and

that disbarment proceedings threaten him

with a “significant deprivation of

liberty"* as well as subject him to a

risk of grave “stigma."** Santosky, 455

U.S. at 756. Thus, disbarment requires

more factual security than that guaranteed

**Without doubt, [the liberty

guaranteed by the Fourteenth Amendment]

denotes... the right of an

individual...to engage in any of the

common occupations of life...” Board of

Regents v. Roth, 408 U.S. 564, 572

(1972), quoting Meyer v. Nebraska, 262

U.S. 390, 399. Certainly, after an

attorney has earned his license, he has

gained--in the terms of "liberty”--the

right to practice law.

**An action by a State which only

affects a person's reputation activates

the due process protection of liberty.

See Wisconsin v. Constantineau, 400 U.S.

433 (1971). Petitioner, of course, has

lost the practice of his profession as

well.

-43-

by the minimal one of preponderance of

the evidence.

The foregoing reasoning demonstrates

that proceedings affecting the interests

at stake in the present case properly

fall into that category of cases for

which this Court “has mandated an

intermediate standard of proof--'clear

and convincing evidence.'" Santosky, 455

U.S. at 756. The kinds of cases

requiring this standard of proof have

been a “variety of government-

initiated proceedings” such as civil

commitment (Addington v. Texas, 441 U.S.

418 (1979)); deportation (Woodby v. INS,

385 U.S. 276 (1966)); denaturalization

(Chaunt v. United States, 364 U.S. 350

(1960)); and the termination of parental

rights in natural children. (Santosky v.

Kramer, 455 U.S. 745 (1982)). The fact

-44-

that the initiation of attorney

disciplinary proceedings may sometimes be

thought of as done under the aegis of a

self-regulating bar* does not put

disbarment beyond the pale of these

cases. Disbarment itself is meted out by

the State's highest court, by which time

the matter has clearly lost any vestiges

of a merely civil dispute between private

parties but, instead, has become a

vehicle for a State-imposed sanction of a

punitive nature.

The overwhelming majority of states

recognize that the disbarment of an

attorney must be based on proof more

*In Indiana, the seven members of the

"Disciplinary Commission of the Supreme

Court of Indiana*--two of whom need not

be members of the state bar--are

appointed by the Indiana Supreme Court

itself. Admission and Discipline Rule

23, Section 6.

-45-

reliable than mere preponderance of the

evidence. Eighteen states require "clear

and convincing” or greater proof and

eighteen states set similar, though

somewhat differently phrased, standards

demanding substantially more factual

security than a mere preponderance. Only

twelve states are satisfied with the

preponderance of the evidence standard

which came to be the foundation of

petitioner's disbarment.* The Indiana

Supreme Court itself in Matter of Moore,

453 N.E.2d 971 (1983), while concluding

that the United States Constitution does

not require it, stated:

This intermediate standard of proof,

"clear and convincing", more

reasonably conforms to this Court's

analysis of the nature of the

Gisciplinary process and follows the

*(See attached table, Appendix E.)

-46-

weight of authority. See, Matter of

Palmer, (1979) 296 N.C. 638, 252

S.E.2d 784 and cases cited therein.

453 N.E.2d at 973.

In reviewing the hearing officer's

finding of facts in the present case, the

Indiana Supreme Court stated that it

would apply the "clear and convincing”

standard but then, by a rather harsh

procedural sleight-of-hand (which is the

subject of Argument II, infra), proceeded

to “adopt and accept as its own the

findings of fact submitted by the hearing

officer.” (Disbarment Opinion, p. 7

Appendix A.)

Petitioner submits that the relevant

cases and weight of prevailing practice

demonstrate that findings of fact

supporting the drastic losses incurred by

disbarment demand a higher standard of

factual proof than that upon which his

disbarment was based.

-47-

II.

THE INDIANA SUPREME COURT'S APPLICATION

OF RULE 23, SECTION 15(C), DEPRIVED

PETITIONER OF HIS OPPORTUNITY UNDER THE

RULE TO GAIN THE COURT'S REVIEW BECAUSE

NEITHER THE RULE ITSELF NOR THE COURT'S

INTERPRETATION OF IT SUFFICIENTLY

APPRISED PETITIONER THAT ONLY THE RULE'S

FIRST SENTENCE WOULD BE HELD OPERABLE.

THIS VAGUE STANDARD OF OBEDIENCE VIOLATED

DUE PROCESS.

It is, of course, settled that this

Court will adopt the construction of a

State's statute (or procedural rule, as

here) by its own court. But a question

may yet remain as to whether the statute

so construed violates federal

constitutional rights. Orr v. Gilman,

Brinkerhoff-Faris Trust & Savings v.

Hill, 281 U.S. 673 (1930) (in which the

Missouri Supreme Court overruled a

previous decision denying the existence

of an administrative tax remedy and held

-48-

that it was too late for the plaintiff to

pursue the newly-recognized

administrative relief) stands for the

general proposition that a court's change

of ruling on procedure governing pursuit

of a litigant's claims, after the

opportunity to comply with the new

interpretation has passed, is a

deprivation of due process. In

Brinkerhoff the administrative avenue to

relief had been unequivocally closed off

to the plaintiff by the Missouri Court's

previous decision. In the instant case,

differing interpretations of Rule 23,

Section 15(c), are possible. Brinkerhoff

is applicable because due process

requires reasonable certainty in the

description of standards exacting civil

as well as criminal obedience.

In Small Co. v. American Sugar

-49-

Refining Co., 267 U.S. 233 (1925), a

seller of refined sugar sued for the

buyer's breach of two contracts of sale.

In its answer, the buyer set up two

defenses based on the Lever Act's

proscription against the exaction for

such a product of "more than a reasonable

profit" and against contracts for

delivery at a future date which "tended

to increase the price of sugar and to

promote the hoarding thereof."

Plaintiff, citing criminal cases brought

under the Lever Act, successfully

demurred to these defenses on the ground

that the asserted provisions of the Act

conflicted with the Fifth Amendment's

requirement of clear warning in the

establishment of forbidden conduct. The

Court dismissed the defendant's argument

that the “void-for-vagueness”" doctrine

-50-

applied in the criminal prosecutions was

inapplicable to the civil suit at hand,

and stated:

The defendant attempts to

distinguish those cases because they

were Criminal prosecutions. But that

is not an adequate distinction. The

ground or principle of the decisions

was not such as to be applicable only

to criminal prosecutions. It was not

the criminal penalty that was held

invalid, but the exaction of

obedience to a rule or standard which

was sO vague and indefinite as really

to be no rule or standard at all.

267 U.S. at 239. (Emphasis added.) *

Zellerbach Paper Co. v. Helvering, 293

U.S. 173 (1934), while not cast in

*And see Giaccio v. State of Pa., 382

U.S. 399 (1966), in which this Court held

unconstitutionally vague a Pennsylvania

Act (and the court's explanation of it)

providing for the assessment of

prosecution costs against defendants

acquitted of misdemeanors. In so doing,

the Court rejected the Pennsylvania

Supreme Court's ruling that because the

Act was not a penal statute but merely

one for the collection of costs of a

“civil character" the void-for-vagueness

doctrine did not apply. 382 U.S. at 402.

-5)]-<

explicit due process terms, contains an

important similarity to the instant case

and states a principle which, in extreme

situations, like disbarment without fair

opportunity for the attorney to complete

the litigation of his defense, transcends

being a mere rule of statutory

construction and becomes a standard for

measuring due process. Zellerbach

concerned a controversy over the date

when the statute of limitations began to

run against the levying of deficiency

assessments by the Commissioner of

Internal Revenue. Controlling the result

was the question of whether the Revenue

Act of 1921 required taxpayers to file a

return, in addition to one properly filed

under the Act of 1918, in those cases in

which there would be no increase in tax

Obligation under the 1921 Act. For

-§2-

almost seven years before assessing large

tax deficiencies, the Bureau of Internal

Revenue told petitioner nothing about an

Obligation to file an additional tax

form. Furthermore, 1922 Treasury

Decisions, by instructing taxpayers who

had filed returns under the 1918 Act and

who were subject to additional tax under

the 1921 Act to file supplemental returns

covering such additional tax, implied

that additional returns were not required

of taxpayers whose taxes were not

increased by the new law. In reversing

the ruling of the Board of Tax Appeals

that the four-year statute of limitations

had never started to run because

petitioner's return filed under the 1918

Act, wasS a nullity, Justice Cardozo

stated:

---A statute would have to be very

plain to justify a holding in such

=§3-

circumstances that there was an

obligation to report anew. Certainly

the average man would be slow to

suspect that he was subject to such a

duty. If he had looked into the

Treasury Decisions, he would learn

that the Commissioner agreed with

him... A statute of uncertain meaning

will not readily be made an

instrument for so much of hardship

and confusion. 293 U.S. at 178.

As in Zellerbach, the conduct-setting

language of Rule 23 was not only

problematical itself, but its executing

authority, the Indiana Supreme Court,

interpreted that language in a way which

invited the conduct which it later held

to be insufficient. The court's

surprising renunciation of its flexible

standard in favor of an absolute one to

which petitioner could no longer conform

surely made the Rule "an instrument for..

much of hardship and confusion."

Here--unlike Small and Zellerbach--the

hardship concerns not just monetary loss

-54-

but petitioner's loss of his law license

and damage to his good reputation. In

such a case, a state court's harsh and

unpredictable interpretation of language

normally within its exclusive domain

should not be immune from the due process

requirements of the Fourteenth

Amendment. Petitioner submits that due

process mandates more clarity in the

description of requirements when failure

to comply with those requirements results

in deprivation of the opportunity to have

the Indiana Supreme Court exercise its

avowed function as the "ultimate fact

finder."*

CONCLUSION

The relevant cases and weight of

practice among the States indicate that

*Matter of Moore, 453 N.E.2d 971, 973

(1983).

-55-

due vrocess requires that an attorney

should not suffer disbarment and the

consequent loss of so hard-earned a

livelihood, as well as injury to

reputation, on the basis of facts

established by the bare minimum standard

of reliability, “preponderance of the

evidence." Petitioner respectfully

submits that the instant case presents an

excellent opportunity to settle this

important question.

Petitioner further contends that the

Indiana Supreme Court's refusal to review

his factual challenges violated due

process for a twofold reason: First, the

procedural rule governing such review is

in itself fatally vague; second, the

court, in its prior order regarding the

rule, interpreted it in a way which not

only appeared to resolve the internal

-56-

conflict, but excluded the extreme

application of the rule that the court

exacted at the last minute. Such

procedural injustices cannot be allowed

to affect the fundamental interests at

Stake in this case. Petitioner submits

that this aspect of his case deserves

consideration by this Court as a

confirmation of the concept that, in

matters affecting such important

interests, the State may not place the

risk of procedural vagueries upon the

individual citizen.

Respectully submitted,

WILLIAM J. HARTE

William J. Harte, Ltd.

lll West Washinaton Street

Suite 2025

Chicago, Illinois 60602

(312) 726-5015

Of Counsel:

JOHN B. AUSTIN