# Opposition Brief — Perwin v. Wilentz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1108

## Text

@ WV 27 1924

No. 84-673 ALEXANDER L. STEVAS,

In The
Supreme Court of the United States

October Term, 1984

af'*.
ww

STANLEY J. PERWIN,
3 Petitioner,
vs.

ROBERT N. WILENTZ, Chief Justice,
Supreme Court of New Jersey, et al.,

Respondents.

_;
wT

BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI ON BEHALF OF
RESPONDENTS WILENTZ, ET AL.

'~=
Ww

IRWIN I. KIMMELMAN
Attorney General of New Jersey
Attorney for Respondents

Richard J. Hughes Justice Complex
CN 112

Trenton, New Jersey 08625

(609) 292-1568

JAMES J. CIANCIA
Assistant Attorney General
Of Counsel

MARY C. JACOBSON
Deputy Attorney General
Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 833

i
QUESTIONS PRESENTED

1. Does a United States District Court have juris-
diction over an action that challenges the final determina-
tion of a state court in an attorney disciplinary proceed-
ing and raises issues that are ‘‘inextricably intertwined’’
with the state court determination?

2. Does the doctrine of collateral estoppel prevent a
plaintiff from raising federal constitutional claims in a
United States District Court if those same claims were
previously raised and rejected in a state court?

3. Do the disciplinary rules and practices governing
attorney conduct established by the Supreme Court of
New Jersey violate due process and equal protection be-
cause they provide for the imposition of discipline on a
case by case basis and do not authorize readmission after
disbarment?

li

TABLE OF CONTENTS

Pages
Opinions Below 1
Statement of the Case 2

Reasons for Denying the Writ:

A. The Courts Below Correctly Determined
That Jurisdiction Was Lacking Because
Plaintiff’s Action Essentially Sought Review
By The Lower Federal Courts Of The Final
Determination Of A State Court In A Bar
Disciplinary Proceeding. 4

B. Since Plaintiff Freely Chose To Litigate His
Federal Constitutional Claims Before The Su-
preme Court Of New Jersey, The Courts Be-
low Properly Prevented Him From Collater-
ally Attacking The State Court’s Rejection Of
His Claims In A Federal Civil Rights Action. 7

C. The Courts Below Properly Held That The
Attorney Disciplinary Practices Of The Su-
preme Court Of New Jersey Which Treat Dis-
barment As Permanent And Impose Disci-
plinary Sanctions On A Case By Case Basis
Are Rationally Related To The Goals Of Pro-
tecting The Public And Enhancing Confidence
In The Bar And Hence Satisfy The Require-
ments Of Equal Protection And Substantive

Due Process. ........ 10
Conclusion. ......... 17
FS TO A Cen Re FeO Ce L TS. App. 1

TABLE OF ATTTHORITIES

CasEs:
Allen v. McCurry, 449 U.S. 90 (1980) 7, 9, 10

Aronson v. Ambrose, 479 F.2d 75 (3d Cir. 1973),
cert. denied 414 U.S. 854 (1973) 11

“ee

TABLE OF AUTHORITIES—Continued
Pages

Atlantic Coast Line R. Co. v. wise 398 U.S.
281 (1970) 5

Chaney v. State Bar of California, 386 F.2d 962
(9th Cir. 1976), cert. denied 390 U.S. 1011 (1968) ..... 12

City of New Orleans v. Dukes, 427 U.S. 297 (1976) ...12, 16
Cleveland Board of Education v. LaFleur, 414 U.S.

632 (1974) “a 13, 14, 15
Coogan v. Cincinnati Bar Association, 431 F.2d

ESET tc is nna ON 8
District of Columbia Court of —— v. Feldman,

460 U.S. 462 (1983) WWW... a passim
Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976), cert.

Geneen eee We. Ore C00r7) 2 6
Erdman v. Stevens, 548 F.2d 1205 (2nd Cir. 1972),

cert. denied 409 U.S. 889 (1972) _.________.._._ 5, 11

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ..... 11
Goodrich v. Supreme Court of State of South Da-

hots, 611 F206 316 (8th Cir. 1975) ________ 8
In Re Eastern Sugar Antitrust Litigation, 697 F.

LES, EAS LaRue aE 12
In Re Greenberg, 21 N.J. 213, 121 A.2d 520 (1956) .....13, 14
In Re Isserman, 35 N.J. 198, 172 A.2d 425 (1976) 0... 18
In Re Menk, 60 N.J. 609 (1973) —__—___. 14
In Re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979) ... 14
Kremer v. Chemical Construction Corp., 456 U.S.

as icapsticendinesictanemnenitirnnins ts ae
Lets v. Flant, 439 U.S. 438 (1979) nna anne cneneenneneeenee ence 11

Matter of Randall, 640 F.2d 898 (8th Cir. 1981),
Cert. Genied 454 U.S. S8O (1981) ene eeeeeeeeesseccsseeseneeeceneee 5, 8, 13

iv
TABLE OF AUTHORITIES—Continued

Pages

Middlesex County Ethics Committee v. Garden State
Bar Assn., 457 U.S. 423 (1982) 9, 10, 11, 12, 13

Mildner v. Gulotta, 405 F. Supp. 182 (E.D.N.Y.
1975), aff’d 425 U.S. 901 (1976) 12

Montana v. United States, 440 U.S. 147 (1979) .......... «ee
Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) 11

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322
(1979) 7

Potter v. New Jersey Supreme Court, 403 F. Supp.
10386 (D. N.J. 1975), summ. aff’d 546 F.2d 418
(3d Cir. 1976) : 14, 15

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) .......... 5)

Silverton v. Department of Treasury, 644 F.2d
1341 (9th Cir. 1981), cert. denied 454 U.S. 895 (1981) 5

Stanley v. Illinois, 405 U.S. 645 (1972) 13, 14, 15
Weinberger v. Salfi, 422 U.S. 749 (1975) 15
Whitfield v. Illinois Board of Law Examiners, 504

F.2d 474 (7th Cir. 1974) 12
Younger v. Colorado State Bd. of Law Examiners,

625 F.2d 372 (10th Cir. 1980) 14
STATUTES:
28 U.S.C. $1738 8
42 U.S.C. $1983 3, 7,8
ConsTITUTION :

N.J. Const. (1947), Article VI, Section IT 15

No. 84-673

ra’
Vv

In The

Supreme Court of the United States

October Term, 1984

4).
Vv

STANLEY J. PERWIN,
Petitioner,
vs.

ROBERT N. WILENTZ, Chief Justice,
Supreme Court of New Jersey, et al.,

Respondents.

L,
I

BRIEF IN OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI ON BEHALF OF
RESPONDENTS WILENTZ, ET AL.

fy
Vv

The Respondents, Robert N. Wilentz, Chief Justice of
the Supreme Court of New Jersey, et al., respectfully re-
quest that this Court deny the Petition for Writ of Certio-
rari seeking to review the opinion of the United States
Court of Appeals for the Third Circuit entered in the
above-entitled case on July 24, 1984.

Ly
Vv

OPINIONS BELOW

The opinion of the United States Court of Appeals for
the Third Circuit in this matter is contained in Appendix

1

2

A of Petitioner’s Appendix and is as yet unreported.
The opinion of the United States District Court for the
District of New Jersey in this case was entered on Novem-
ber 21, 1983 and is contained in the Appendix to this brief.
The opinion of the District Court is also unreported,

°

STATEMENT OF THE CASE

The petitioner in this case, Stanley J. Perwin, was
disbarred by the Supreme Court of New Jersey in 1972
following a criminal conviction for defrauding an insur-
ance company. When Perwin succeeded in having the con-
viction voided on double jeopardy grounds in the context
of a habeas corpus proceeding, he applied for reinstate-
ment to the New Jersey bar. Following a hearing con-
ducted by the Essex County Ethics Committee, the Su-
preme Court of New Jersey in October 1976 accepted the
Committee’s recommendation that the application for re-
instatement be denied. Perwin submitted a second appli-
cation for reinstatement to the bar in 1981. The petition
and brief filed in support of this application argued that
Perwin had been rehabilitated and that New Jersey’s policy
of permanent disbarment was constitutionally infirm under
the equal protection and due process clauses. The Su-
preme Court of New Jersey denied Perwin’s second appli-
eation for readmission in April 1982, thereby also reject-
ing his federal constitutional claims.

Although dissatisfied with this result, Perwin did not
seek review in the Supreme Court of the United States.
Rather, he filed a Complaint against the Supreme Court of

3

New Jersey in the United States District Court for the
District of New Jersey under 42 U.S.C. §1983. In his Com-
plaint, Perwin alleged that the New Jersey disciplinary
rules governing disbarment, both facially and as applied
to him, violated equal protection and due process because
they provided for the imposition of sanctions on a case
by case basis and failed to establish a mechanism for re-
admission following disbarment. In response to the Com-
plaint, defendants moved for summary judgment and ob-
tained a favorable ruling from the district court.

The district court rendered three alternative holdings
in support of its determination rejecting Perwin’s claims.
It first concluded that to the extent the Complaint chal-
lenged the denial of Perwin’s application for reinstatement
to the bar by the Supreme Court of New Jersey, or raised
issues ‘‘inextricably intertwined” with that denial, federal
jurisdiction was lacking under District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983). The district
court also found that the doctrine of collateral estoppel
barred review of Perwin’s federal constitutional claims be-
cause he had previously raised the same claims before the
Supreme Court of New Jersey in the context of his rein-
statement proceeding. Finally, the district court held that
even if it could have entertained Perwin’s constitutional
claims, it would have found them totally lacking in merit.
In this regard, the court held that the imposition of attor-
ney discipline on a case by case basis was rationally re-
lated to a legitimate state interest and hence complied
with the dictates of equal protection and substantive due
process. The court also rejected Perwin’s irrebuttable
presumption claim because the Supreme Court of New
Jersey had, in fact, granted reinstatement to several dis-

4

barred attorneys despite its general policy of permanent
disbarment. The Third Circuit affirmed the ruling of the
district court on each of these three alternate grounds.

REASONS FOR DENYING THE WRIT

The writ sought here should be denied because the
courts below correctly interpreted and applied the prece-
dents of this Court to the particular facts of this case.
Moreover, the judgment issued in favor of the defendants
rested on three separate grounds, each of which supports
the result reached below. To grant the writ as to any one
issue would be futile, therefore, since the judgment would
be upheld in any event on an alternate ground. Finally,
certiorart review is not warranted here on the constitu-
tional issues because they are frivolous, and is not war-
ranted as to the jurisdictional rulings below because they
were narrowly drawn, turned on the specific factual con-
text invoived, and rested squarely upon the prior decisions
of this Court.

A. The Courts Below Correctly Determined That Jur-
isdiction Was Lacking Because Plaintiff’s Action
Essentially Sought Review By The Lower Federal
Courts Of The Final Determination Of A State
Court In A Bar Disciplinary Proceeding.

This Court recently held that federal district courts
lack subject matter jurisdiction to review orders of state
courts denying particular applications for bar admission.
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462 (1983). By analogy, this holding applies as well
to attorney disciplinary actions taken by state courts. See,

5

e.g. Stlverton v. Department of Treasury, 644 F.2d 1341
(9th Cir. 1981), cert. denied 454 U.S. 895 (1981); Matter
of Randall, 640 F.2d 898 (8th Cir. 1981), cert. denied 454
U.S. 880 (1981). Where state courts render final deter-
minations in judicial proceedings such as disbarment or
reinstatement actions, review of those determinations can
be sought only in the Supreme Court of the United States;
the district courts, having only original jurisdiction, ean-
not sit as appellate courts in regard to such judicial de-
cisions rendered by state courts. Feldman, supra, 460
U.S. at 476; Atlantic Coast Line R. Co. v. Engineers, 398
U.S. 281, 296 (1970); Rooker v. Fidelity Trust Co., 263
U.S. 413, 415 (1923). If Perwin desired further review
of the disciplinary actions taken against him by the Su-
preme Court of New Jersey, including the recent rejection
of his second motion for reinstatement, he should have fol-
lowed “the traditional method of obtaining adjudication
of federal constitutional questions arising out of such dis-
ciplinary proceedings” mentioned in Erdman v. Stevens,
548 F.2d 1205, 1211 (2nd Cir. 1972), cert. denied 409 U.S.
889 (1972)—that is, by taking an appeal or filing a petition
for a writ of certiorari with the Supreme Court of the
United States. To the extent that Perwin’s federal action
can be construed as a challenge to the final determinations
of the Supreme Court of New Jersey imposing disbarment
upon him and rejecting his motions for reinstatement,
then this action is barred for lack of subject matter juris-
diction in federal district court.

Although Perwin attempts to characterize his federal
action solely as a challenge to the New Jersey disciplinary
procedures regarding disbarment, it is evident that he
also tried to have the district court review the disciplinary

6

actions taken against him by the Supreme Court of New
Jersey. The district court held as much when it concluded
that Perwin’s federal lawsuit included the allegation that
the State court acted improperly in denying his application
for reinstatement. Regardless of the form or label given
by Perwin to his federal action, however, it in fact con-
stituted a challenge to a particular disciplinary deter-
mination rendered by the Supreme Court of New Jersey
and, as such, must be dismissed as an impermissible col-
lateral attack upon that determination.

While Feldman does allow a federal district court to
entertain a constitutional challenge to a disciplinary rule
of general applicability, 460 U.S. at 483-486, this jurisdic-
tion extends only to claims that challenge the validity of
rules promulgated by a state court in a non-judicial pro-
ceeding where no final state court adjudication is involved.
Ibid. Sce also Doe v. Pringle, 550 F.2d 596 (10th Cir. 1976),
cert. denied 431 U.S. 916 (1977). Here, however, Perwin
freely raised his constitutional challenge to the disciplinary
rules before the Supreme Court of New Jersey in the con-
text of his reinstatement proceeding. When that court re-
jected his application for readmission, therefore, it also re-
jected his federal constitutional attack upon the disciplin-
ary rules. By intertwining his rules challc nge with his rein-
statement effort in state court, Perwin foreclosed any op-
portunity he may otherwise have had to seek review of the
New Jersey disciplinary rules in the lower federal courts.
For, once the Supreme Court of New Jersey rejected his
rules challenge in a judicial proceeding such as a rein-
statement action, Perwin’s only option was to seek further
review of the denial of his constitutional claims in this
Court; review of his rules challenge in the district court

7

was simply not avaiiable to him. Feldman, supra, 460
U.S. at 476.

Since the lower federal courts properly interpreted
and applied Feldman to the facts of this case, Perwin’s
petition for a writ of certiorari on this issue should be
denied.

B. Since Plaintiff Freely Chose To Litigate His Fed-
eral Constitutional Claims Before The Supreme
Court Of New Jersey, The Courts Below Properly
Prevented Him From Collaterally Attacking The
State Court’s Rejection Of His Claims In A Fed-
eral Civil Rights Action.

The doctrine of collateral estoppel, also known as ‘‘is-
sue preclusion,” prevents a party in a second lawsuit from
raising issues that were litigated in and were necessary
to the outcome of the first action. Allen v. McCurry, 449
U.S. 90, 94 (1980); Parklane Hosiery Co., Inc. v. Shore,
439 U.S. 322 (1979). The purpose of the doctrine is to
prevent parties from relitigating issues that they already
had a full and fair opportunity to contest in an earlier
ease. Such preclusion is favored because it conserves
judicial resources, prevents the vexation of multiple law-
suits, and supports the finality of judicial decisions. Mon-
tana v. United States, 440 U.S. 147, 153-154 (1979).

It is well-established that the principles of collateral
estoppel apply when plaintiffs in federal actions brought
under 42 U.S.C. 41983 attempt to relitigate issues previous-
ly decided against them in state court. Allen v. McCurry,
supra, 449 U.S. at 102. In Allen, the Court refused to
hear a 41983 damage action which alleged as its basis an
unconstitutional search and seizure because the same issue

8

had been raised by and decided against the federal plain-
tiff in a prior state court criminal proceeding. Where a
party freely and without reservatiun submits federal
claims for decision to the state courts and has them de-
cided there, considerations of comity and repose militate
against redetermination of those claims in a federal forum.
Montana v. United States, supra, 440 U.S. at 163. More-
over, federal deference to state court decisions is required
by 28 U.S.C. $1738 which directs federal courts to give full
faith and credit to state court judgments. Kremer v.
Chemical Construction Corp., 456 U.S. 461, 466 (1982).

Federal courts have frequently applied collateral es-
toppel in attorney discipline cases. For example, in Good-
rich v. Supreme Court of State of South Dakota, 511 F.2d
316 (8th Cir. 1975), the Court dismissed a §1983 action
brought by an attorney who alleged that the state disciplin-
ary proceedings taken against him had not complied with
due process. Since the Supreme Court of South Dakota
had previously considered and decided these federal con-
stitutional issues, the Goodrich Court held that relitiga-
tion was barred by the doctrine of collateral estoppel. A
similar result was reached in Coogan v. Cincinnati Bar
Associaton, 431 F.2d 1201 (9th Cir. 1970), where the court
dismissed a civil rights action brought by an attorney to
enjoin the enforcement of his suspension from the practice
of law by the Supreme Court of Ohio. See also Matter of
Randall, 640 F.2d 898 (8th Cir. 1981), cert. denied 454 U.S.
880 (1981) (collateral estoppel applied to prevent the rais-
ing of issues previously litigated in the context of state
attorney disciplinary procecdings).

In this case, Perwin freely submitted the due process
and equal protection claims contained in his federal civil

9

rights action to the Supreme Court of New Jersey when
he applied to that Court for reinstatement to the bar in
1982. While Perwin could have based his petition and sup-
porting brief solely on the allegation that he was entitled
to reinstatement because of rehabilitation, he chose not to
do so. Rather, he broadened the basis of his application
and charged as well that the New Jersey disciplinary rules
and practices governing disbarment and readmission vio-
lated the due process and equal protection clauses of the
Constitution of the United States. In fact, Perwin’s brief
in support of his petition fer reinstatement contained a
lengthy discussion of the disciplinary rules and practices
in question. Perwin’s assertions were opposed by the Divi-
sion of Ethies and Professional Services which submitted
a brief disputing both Perwin’s right to reinstatement and
his federal constitutional claims. The Supreme Court of
New Jersey thus considered all of these issues before deny-
ing the petition for reinstatement. Since this decision ef-
feetively rejected Perwin’s federal constitutional chal-
lenge to the attorney disciplinary rules, the courts below
properly found that he was barred under the doctrine of
collateral estoppel from raising the same claims in this
subsequently filed action. See Allen v. McCurry, supra,
449 U.S. at 95-103.

In his petition Perwin attempts to circumvent the ap-
plication of collateral estoppel by characterizing the re-
jection of his application for reinstatement by the Su-
preme Court of New Jersey as the ‘‘administrative deci-
sion” of ‘‘a licensing board.” This Court recognized in
District of Columbia Court of Appeals v. Feldman, supra,
460 U.S. at 482, however, that state bar disciplinary pro-
ceedings are judicial in nature. See also Middlesex County

10

Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423
(1982). When the Supreme Court of New Jersey rejected
Perwin’s application for reinstatement, it determined as a
legal matter that Perwin was not entitled to readmission
to the bar and that his constitutional challenge to the dis-
ciplinary rules was without merit. Such an action is, at
its essence, judicial in nature, and is neither legislative, nor
ministerial, nor administrative. Feldman, supra, 460 U.S.
at 479-482. As a final judgment of a state court in a judicial
proceeding, therefore, the determination of the Supreme
Court of New Jersey was entitled to collateral estoppel
effect in federal court. Allen v. McCurry, supra, 449 U.S.
at 95-103. Since the courts below properly applied the
doctrine of collateral estoppel as developed in the prece-
dents of this Court to the particular facts of this case in
barring Perwin’s federal action, the petition for a writ of
certiorari should be denied.

C. The Courts Below Properly Held That The Attor-
ney Disciplinary Practices Of The Supreme Court
Of New Jersey Which Treat Disbarment As Per-
manent And Impose Disciplinary Sanctions On A
Case By Case Basis Are Rationally Related To
The Goals Of Protecting The Public And Enhanc-
ing Confidence In The Bar And Hence Satisfy
The Requirements Of Equal Protection And Sub-
stantive Due Process.

In support of his petition, Perwin argues that New
Jersey’s practice of imposing permanent disbarment for
egregious ethical violations is constitutionally infirm un-
der substantive due process because it allegedly creates
an impermissible irrebuttable presumption as to the lack
of fitness of a disbarred attorney to practice law. Under
the guise of equal protection, Perwin also claims that the

11

imposition of attorney discipline on a case by case basis—
a process that enables the Supreme Court to tailor sane-
tions to the circumstances involved in any particular ethi-
cal violation—is inconsistent with equal protection because
it allegedly leads to the discriminatory treatment of disci-
plined attorneys. Defendants contend that the mere state-
ment of these claims highlights their lack of merit—a con-
tention endorsed by both courts below when they summar-
ily rejected all of Perwin’s constitutional claims. Before
analyzing these claims, however, it is important to discuss
the context in which they have arisen as well as the defer-
ence which should be afforded to the disciplinary rules
and practices established by the Supreme Court of New
Jersey.

Since the practice of law is primarily a state concern,
state courts have traditionally been accorded wide discre-
tion in establishing standards of professional conduct and
disciplinary mechanisms to enforce those standards. Mid-
dlesex County Ethics Committee v. Garden State Bar
Ass'n, supra, 457 U.S. at 434; Aronson v. Ambrose, 479
F.2d 75, 77 (3d Cir. 1973), cert. denied 414 U.S. 854 (1973);
I'rdman v, Stevens, supra, 458 F.2d at 1210. In fact, this
Court has noted that “the States have a compelling inter-
est in the practice of professions within their boundaries
.. . [with] broad power to establish standards for licens-
ing practitioners and regulating the practice of profes-
sions.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792
(1975). The states’ interest in regulating lawyers is ‘‘ ‘es-
pecially great since lawyers are essential to the primary
governmental function of administering justice. ...’” Ohra-
lik v. Ohio State Bar Assn., 436 U.S. 447, 460 (1978), quot-
ing Goldfarb, supra, 421 U.S. at 792. See also Lets v.
Flynt, 439 U.S. 4388, 442 (1979).

12

In recognition of the substantial state interest in and
control over the local bar, federal courts typically give
deference to state rules, procedures, and determinations in
the areas of bar admission and attorney discipline. Muld-
ner v. Gulotta, 405 F. Supp. 182 (E.D.N.Y. 1975), aff’d 425
U.S. 901 (1976). See also Whitfield v. Illino’s Board of
Law Examiners, 504 F.2d 474 (7th Cir. 1974). Each state
is free, for example, to impose high standards for bar ad-
mission and discipline, even if the standards chosen are
different from—and more stringent than—the standards
endorsed by other states. See Chaney v. State Bar of
California, 386 F.2d 962, 965 (9th Cir. 1976), cert. denied
390 U.S. 1011 (1968). Close supervision by the states over
attorney discipline is especially justified because of the
public interest involved. Middlesex County Ethics Com-
mittee v. Garden State Bar Ass'n, supra, 457 U.S. at 433-
435. It is with the foregoing principks as a backdrop that
Perwin’s constitutional claims must be analyzed.

The disciplinary rules and practices of the Supreme
Court of New Jersey are valid under the rational basis
test because they are supported by legitimate state inter-
ests. Sev City of New Orleans v. Dukes, 497 U.S. 297,
303 (1976). Analysis of the rules must be conducted un-
der the rational basis test because neither a suspect classi-
fication nor fundamental right has been alleged in this
ease. Ibid. It is obvious that there is a rational basis
for the imposition of attorney discipline on a case by case
basis. As the Third Cireuit recently observed in In Re
Eastern Sugar Antitrust Litigation, 697 F.2d 524, 530 (3d
Cir. 1982), ‘*‘Analysis of ethical duties . .. proceeds on a
case by case basis, involving the careful sifting and weigh-
ing of all relevant facts and circumstances.” See also In

13

re Greenberg, 21 N.J. 213, 121 A.2d 520, 527 (1956), where
the court concluded in regard to disciplinary actions that,
“Tn the ultimate, cach case must rest largely upon its own
particular circumstances.” A similar conclusion was
reached in Matter of Randall, supra, 640 F.2d at 903 to
904. The very nature of attorney disciplinary proceed-
ings thus demands a case by case approach, with sanc-
tions being tailored to the particular facts and cireum-
stances presented. Not only does such an approach make
sense, but it furthers the important state interest in pro-
tecting the public through the close supervision of the bar.
Middlesex County Ethics Committee v. Garden State Bar
Ass'n, supra, 457 U.S. at 434. It consequently is consistent
with the dictates of equal protection, as the courts below
found.

Perwin also alleges that the gencral practice followed
in New Jersey of precluding readmission after disbarment
violates the due process clause in that it creates an imper-
missible irrebuttable presumption that the disbarred at-
torney is unfit to practice law. In support of this position,
Perwin cites Cleveland Board of Education v. LaFleur,
414 U.S. 682 (1974), and Stanley v. Illinois, 405 U.S. 645
(1972). The irrebuttable presumption doctrine used in
those two cases is not applicable here, however, for sev-
eral reasons.

First, no irrebuttable presumption exists. In several
instances, the Supreme Court of New Jersey has granted
reinstatement to disbarred attorneys. Where individual
situations justify readmission, therefore, it is not abso-
lutely precluded. Even if some sort of presumption were
found to exist in the New Jersey practice, then, it cer-
tainly is not “irrebuttable.” See, e.g. In re Isserman, 35

14

N.J. 198, 172 A.2d 425 (1976); In re Mink, 60 N.J. 609
(1973) (New Jersey attorneys admitted to practice fol-
lowing disbarment).

Moreover, the New Jersey Supreme Court’s policy
toward disbarred attorneys does not “presume” anything,
but rather reflects the conscious choice of one substantive
policy over another. To protect the users of legal serv-
ices and to instill in the public confidence in the bar, the
Supreme Court of New Jersey has decided that those at-
torneys who engage in the most serious misconduct should
generally be prohibited from resuming the practice of
law. In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979);
In re Greenberg, supra, 21 N.J. at 224-225, 121 A.2d at
527. Since the primary aim of imposing disbarment on a
permanent basis is to protect the public, the policy does
not rest on the continuing lack of fitness of the particular
attorney, as Perwin alleges, but rather on the determina-
tion of the court that public confidence in the bar would
be eroded if attorneys who engage in serious and abhor-
rent misconduct in violation of their public trust are re-
admitted to practice. This judgment is reflected in the
substantive standard of the Supreme Court of New Jer-
sey generally precluding reinstatement following disbar-
ment. No presumptions—irrebuttable or otherwise—are
involved here, therefore, rendering inapplicable the hold-
ings in LaFleur and Stanley upon which the plaintiff re-
lies. See Younger v. Colorado State Bd. of Law Exam-
imers, 625 F.2d 372, 378 (10th Cir. 1980) (irrebuttable pre-
sumption doctrine found not to apply to bar admission
rule which prevented individuals who had failed the Colo-
rado bar exam three times from sitting for the exam
again) ; Potter v. New Jersey Supreme Court, 403 F. Supp.

15

1036, 1038-1039 (D. N.J. 1975), summ. aff’d, 546 F.2d 418
(3d Cir. 1976) (irrebuttable presumption doctrine found
not to apply to bar rule preventing the admission of in-
dividuals who attended nonaccredited law schools). In
fact, were the irrebuttable presumption doctrine to be ap-
plied here as Perwin urges, it would effectively strip the
Supreme Court of New Jersey of its constitutional author-
ity to regulate the practice of law. See Jd. at 403 F. Supp.
at 1039; see also N.J. Const. (1947), Article VI, Section I,
Par. 3.

Plaintiff’s attempt to use the irrebuttable presump-
tion doctrine in this ease should also be rejected because
the doctrine has been severely limited by this Court to
situations quite dissimilar from the one presented here.
The demise of the doctrine was advocated in a strong con-
curring opinion by Justice Powell in Cleveland Board of
Education v. LaFleur, supra, 414 U.S. at 651, were he
maintained that “irrebuttable presumptions” were really
nothing more than legislative classifications which should
be reviewed under equal protection analysis—that is, most
commonly, under the rational basis standard. This view
quickly found favor with a majority of the Court in Wetn-
berger v. Salft, 422 U.S. 749, 767-770 (1975). There the
Court used the rational basis test to review duration of
relationship requirements which widows needed to satisfy
before qualifying for Social Security benefits. The Court
distinguished Lalleur and Stanley as meriting greater
scrutiny because those cases involved fundamental rights
associated with the family and protected by the Constitu-
tion. Weinberger v. Salft, supra, 422 U.S. at 771-772.
Since the right to practice law is not a fundamental right
protected by the Constitution, LaFleur and Stanley do
not apply here and the rational basis test governs instead.

16 Es

It is beyond question that the objectives of the New
Jersey disciplinary practice challenged here—the protec-
tion of the public and the preservation of the public trust
in the bar—are legitimate state objectives. Moreover, it
is also beyond question that a policy of permanent disbar-
ment with limited exceptions does protect the public from
further harm by proven violators of the public trust, and
enhances confidence in the bar by assuring the public that
the most egregious violators of the eannons of professional
conduct will not be permitted to resume the practice of
law. Consequently, the rule in issue here is rationally
related yimportant state objectives, as‘the courts below
found.

In applying the rational basis test, courts do not de-
bate the wisdom of a particular policy, but rather leave
such judgments to the legislative body charged with mak-
ing the classification—that is, as long as its choice is rea-
sonably related to a legitimate state objective. Whether
another policy could achieve similar ends is immaterial,
therefore, as long as the chosen policy meets the rational
basis test. See City of New Orleans v. Dukes, supra, 427
U.S. at 303. Consequently, it is irrelevant of Perwin
thinks that another rule would be better, or if other jur-
isdictions prefer different and less stringent rules more
to his liking. Because the courts below correctly held that
the challenged rules and practices met the rational basis
test, this court should deny the petition for a writ of
certiorari.

o

17
CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari in this ease should be denied.

November 26, 1984

Respectfully submitted,

IRWIN I. KIMMELMAN
Attorney General of New Jersey
Attorney for Respondents,
Robert N. Wilentz, et al.

By: Mary C. Jacobson
Deputy Attorney General
Counsel of Record

, —-

App. 1

APPENDIX

Opinion of the United States District Court
for the District of New Jersey

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civil No. 82-4444M
(Judge Muir-by designation)
Complaint Filed 12/30/82

STANLEY J. PERWIN,
Plaintiff
vs.

ROBERT N. WILENTZ, Chief Justice,
Supreme Court of New Jersey, et al.,

Defendants
OPINION
(Filed November 21, 1983)

MUIR, District Judge.

Plaintiff Stanley J. Perwin practiced law in the State
of New Jersey until the Supreme Court of New Jersey
disbarred him in 1972. Perwin has twice unsuccessfully
attempted to gain reinstatement to the New Jersey bar.
In this civil suit, instituted under 42 U.S.C. §1983 Perwin
claims that the disciplinary rules promulgated by the Su-
preme Court of New Jersey pursuant to which he was
disbarred violate Perwin’s right to due process and to equal
protection of the laws.

The Defendants in this action are the Justices of the
Supreme Court of New Jersey (hereinafter the Supreme
Court Defendants) and Allyn Z. Lite, Clerk of the United

App. 2

States District Court for the District of New Jersey. The
Defendants have filed motions for summary judgment
which are now ripe for this Court’s decision.

Background

In 1971, a New Jersey jury convicted Perwin of charges
of conspiracy and obtaining money under false pretenses.
State vs. Yormark, 117 N.J. Super. 313, 284 A.2d 549 (App.
Div. 1971), certif. den., 60 N.J. 138, 286 A.2d 511 (1972),
cert. den., 409 U.S. 862 (1972). Perwin’s conviction arose
out of a scheme whereby various lawyers, doctors, and an
insurance company employee presented false claims to an
insurance company. Following Perwin’s conviction, the
Supreme Court of New Jersey entered an order disbar-
ring Perwin from the practice of law in the State of New
Jersey. In Re Perwin, 60 N.J. 171, 287 A.2d 3 (1972).
The Supreme Court’s disbarment order stated that in light
of Perwin’s expressed intent to seek further review of his
conviction “[s]Jhould he prevail in those efforts, he may
apply to us for reconsideration of this Order.” Memo-
randum of Law in Opposition to Defendants’ Motion for

Summary Judgment (hereinafter “memo in opposition”),
exhibit A.

Following his disbarment, Perwin successfully peti-
tioned the United States District Court for the District of
New Jersey for a writ of habeas corpus pursuant to 28
U.S.C. §2254. The habeas corpus order declared Perwin’s
conspiracy conviction defective on double jeopardy
grounds. The order declared Perwin’s conviction on the
related charges defective for other reasons and indicated
that retrial on those charges would be appropriate. The
state elected not to retry Perwin.

App. 3

In 1974, Perwin petitioned the Supreme Court of New
Jersey for reconsideration of its disbarment order and
reinstatement of Perwin to the New Jersey bar. See Affi-
davit of Stephen W. Townsend (hereinafter “Townsend ©
affidavit”), exhibit A. The New Jersey Supreme Court
remanded the matter to the Essex County Ethics Commit-
tee “for a hearing on the record made at the criminal trial
and preparation of its findings thereon. ...” Id., exhibit
B. The Ethies Committee held a hearing at which Perwin
testified and thereafter recommended that Perwin’s peti-
tion for reinstatement be denied. Jd., exhibit F. On Oc-
tober 20, 1976, the New Jersey Supreme Court denied, with-
out opinion, Perwin’s petition for reinstatement. Id., ex-
hibit G.

In 1981, Perwin again petitioned the New Jersey Su-
preme Court for reinstatement to the New Jersey bar.
Id., exhibit H. In filing this petition, ag well as his first
petition, Perwin was represented by counsel. In the brief
in support of his petition, Jd., exhibit 1, Perwin argued
that under New Jersey law Perwin was eligible for rein-
statement. In addition, pages 20 through 22 of the brief
argued that the disciplinary rules promulgated by the New
Jersey Supreme Court contravened the due process and
equal protection clauses of the fourteenth amendment of
the United States Constitution. Specifically, Perwin stated
that “the failure of the Court, under its Constitutional pro-
cedures, to establish reasonable standards and guidelines
by which a disbarred attorney can seek reinstatement and,
by its action in reinstating only a select few who have ap-
plied, denies him the right to practice law without due
process and in so doing denies him equal protection of
the law.” The Division of Ethies and Professional Serv-
ices of the Administrative Office of the Courts of the State

App. 4

of New Jersey submitted a brief in opposition to Perwin’s
petition for reinstatement. The Division’s brief devoted
four pages to a discussion of Perwin’s constitutional
claims. Jd., Exhibit J. On April 27, 1982, the Supreme
Court of New Jersey issued an order denying, without
opinion, Perwin’s motion for reinstatement. J/d., exhibit
L. Perwin did not appeal the supreme court’s order to
the United States Supreme Court. Rather, in December
of 1982, Perwin filed his civil rights action in federal
court. Perwin seeks declaratory and injunctive relief
including an order requiring the Supreme Court of New
Jersey to grant him a hearing regarding readmission to
the New Jersey Bar and ‘‘a writ of mandamus requiring
the Supreme Court of New Jersey to show cause why the
Plaintiff should not be admitted to the practice of law.”

Discussion

The exact nature of the legal theories upon which
Perwin bases this civil rights action is somewhat difficult
to discern. Perwin claims that Rule 1:20 of the Supreme
Court of New Jersey violates the equal protection and due
process clauses of the federal constitution both facially
and as applied to him because it does not contain formal
standards governing attorney discipline and readmission
of disbarred attorneys. He argues that the sanctions of
disbarment and temporary suspension from the practice
of law are ‘‘unevenly administered’’ and therefore the
New Jersey Supreme Court’s imposition of attorney dis-
cipline violates the equal protection clause. Perwin al-
leges that the New Jersey Supreme Court has imposed
discipline essentially on a case by case basis and that
‘discipline has been disparate and discriminatory and

App. 5

therefor in violation of the equal practice of the law
[sic] provision of the Constitution.” Complaint, {18.

Further, Perwin argues that the general rule that dis-
barment is permanent creates an irrebutable presumption
that disbarred attorneys are forever unfit to practice law,
thereby violating the due process clause of the fourteenth
amendment. He claims that the New Jersey disciplinary
rules are ‘‘overbroad and vague, indefinite, and imprecise,
in violation of the First and Fourteenth Amendments.
They deprived the Plaintiff of the liberty to choose his
profession and the right to pursue his chosen profession,
depriving Plaintiff of due process and equal protection
of the law.’’ Complaint, {24. Perwin also alleges that
the rules are ‘‘arbitrary and capricious.”

In the second count of his complaint, Perwin contends
that New Jersey Supreme Court Rule 1:20 is inconsistent
with Rule 7G of the United States District Court for the
District of New Jersey, which provides that ‘‘an attorney
who has been disbarred may seek readmission after the
expiration of five years.” Complaint, Count II, §3. Per-
win asserts that because of this alleged inconsistency,
Rule 1:20 violates the Supremacy Clause of the United
States Constitution. In the third count of his complaint,
Perwin seeks an order directing Defendant Lite, Clerk of
the United States District Court, to provide him with the
forms required for admission to the Bar of the United
States District Court for the District of New Jersey. This
request appears to rest on the theory that although the
District Court limits admission to its bar to members of
the Bar 6fthe State of New Jersey and because Perwin’s
non-meuibership in the New Jersey state bar is unconsti-
tutional, he must be allowed to apply for admission to thie

App. 6

bar of the District Court. In his memorandum in opposi-
tion to the Defendants’ motion for summary judgment,
Perwin makes no reference to the Rules of the U.S. Dis-
trict Court for the District of New Jersey or to Defendant
Lite.

We first consider the motion of Defendant Allyn Z.
Lite, Clerk of the United States District Court for the
District of New Jersey, for summary judgment. Lite
claims that he is entitled to judgment as a matter of law
because Perwin fails to state any claim upon which relief
can be granted against Lite. Perwin’s complaint cites
New Jersey District Court Rule 7G in support of his claim
against Defendant Lite. Rule 7G, however, applies to re-
instatement of attorneys previously admitted to ‘practice
before the New Jersey District Court. Perwin does not
assert that he was once admitted to the bar of the District
Court. Therefore, Rule 7G has no application to him.
Furthermore, Rule 4 of the District Court of which we
take judicial notice, provides, with limited exceptions, that
admission to the New Jersey State Bar is a prerequisite
to admission to the District Court Bar. Thus, even ii
Perwin asserted that he had once been admitted to the
District Court bar, his present non-membership in the
New Jersey bar precludes his admission to the District
Court Bar. We perceive no merit in Perwin’s theory that
he is entitled to apply for admission to the District Court
bar because of his pending claim that his non-membership
in the New Jersey Bar is unconstitutional. Perwin has
not established any basis whatsoever for a judgment
against Defendant Lite.

We next consider the Supreme Court Defendants’ mo-
tion for summary judgment. The Supreme Court De-

App. 7

fendants assert the following arguments in support of
their motion. First, they claim that Perwin is asking this
Court to review a judicial proceeding by the Supreme
Court of New Jersey and that this Court therefore lacks
subject matter jurisdiction of Perwin’s complaint. Sec-
ond, they argue that Perwin already raised his constitu-
tional claims before the Supreme Court of New Jersey and
that litigation of those claims in this Court is now barred
by the doctrine of collateral estoppel. Third, they claim
that Perwin’s due process claim lacks merit in that Perwin
has not established that he has a property or liberty in-
terest in reinstatement to the bar and therefore has no
interest protected by the due process clause, or that, as-
suming Perwin does have a protected interest, the New
Jersey disciplinary rules comport with due process. Fin-
ally, the Supreme Court Defendants claim that Perwin’s
equal protection claim must fail because any distinctions
drawn by the New Jersey Supreme Court’s rules and prac-
tices are rationally related to legitimate state interests.

The United States Supreme Court recently held that
federal district courts lack subject matter jurisdiction to
review a state supreme court decision denying admission
to the bar to a particular applicant. District of Columbia
Court of Appeals vs. Feldman, 103 S. Ct. 1303 (1983).
Such a decision constitutes a judicial proceeding and
therefore is reviewable only in the Supreme Court of the
United States. Feldman does not preclude district court
jurisdiction to hear constitutional challenges to disciplin-
ary rules of general applicability which were promulgated
in non-judicial proceedings. However, where such a chal-
lenge is ‘‘inextricably intertwined” with a state supreme
court decision involving a particular candidate for admis-
sion to the bar, a federal district court has no jurisdiction

‘App. 8

to review the state supreme court decision. Jd. at 1315
n. 16. Perwin does challenge the disciplinary rules of the
New Jersey Supreme Court in general. At the same time,
however, he argues that the New Jersey Supreme Court
acted improperly in denying his application for reinstate-
ment. Perwin’s affidavit (attached to his memorandum
in opposition) and his brief both assert that Perwin has
been rehabilitated and is now fit to practice law. Perwin
argues that he as an individual was more harshly dis-
ciplined than other individuals similarly situated. See,
é.g. memo in opposition at p. 6, 28. To the extent that
Perwin asks this Court to review the wisdom or constitu-
tionality of the New Jersey Supreme Court’s action de-
nying his petition for reinstatement, this Court clearly
lacks jurisdiction to do so under Feldman. With regard
to Perwin’s challenge to the disciplinary rules in general,
we are of the view that Perwin’s general challenge is ‘‘in-
extricably intertwined” with his challenge to the New
Jersey Supreme Court’s decision regarding his own ap-
plication, thereby depriving this Court of jurisdiction to
hear this case.

Assuming, however, that this Court has jurisdiction
to hear Perwin’s challenge to the constitutionality of the
disciplinary rules in general, we agree with the Supreme
Court Defendants that Perwin’s due process and equal
protection claims are barred by the doctrine of collatera!
estoppel. Perwin raised his due process and equal pro-
tection claims before the New Jersey Supreme Court and
that court rejected those claims. After Perwin’s consti-
tutional claims were rejected by the New Jersey Supreme
Court, Perwin’s only recourse was to appeal to the United
States Supreme Court under 28 U.S.C. §1257(2). Be-
cause he chose not to appeal to the United States Supreme

App. 9

Court, he is now barred from collaterally attacking the
judgment of the New Jersey Supreme Court by relitigat-
ing his federal constitutional claims in this Court. Allen
vs. McCurry, 449 U.S. 90 (1980); Tang vs. Appellate Di-
vision of New York Supreme Court, First Department,
487 F.2d 138 (2d Cir. 1973), cert. denied, 416 U.S. 906
(1974); Korup vs. Flaherty, 524 F.Supp. 1160 (E.D. Pa.
1981) (Luongo, J.); Adams vs. Supreme Court of Penn-
sylvania, 502 F.Supp. 1282 (M.D. Pa. 1980) (Nealon, J.).

Perwin attempts to avoid the collateral estoppel doc-
trine by arguing that he did not have a full and fair op-
portunity to litigate his constitutional arguments before
the Supreme Court of New Jersey and that that court did
not decide the constitutional issues presented by Perwin.
As noted above, both Perwin and the Division of Ethics
and Professional Services addressed due process and
equal protection arguments in their briefs regarding Per-
win’s 1981 application for readmission. The Supreme
Court of New Jersey was constitutionally obligated to
consider Perwin’s federal constitutional claims. Allen vs.
McCurry, 449 U.S. at 105. Thus, we must reject Perwin’s
claim that the New Jersey Supreme Court might not have
considered Perwin’s constitutional claims. That Court
necessarily decided those claims adverse to Perwin.

The fact that the New Jersey Supreme Court denied
Perwin’s second application for reinstatement without
opinion does not require a different conclusion. Several
courts have noted that the absence of a written opinion
does not eliminate the presumption that constitutional
claims presented to a court were decided by the court.
In Tang vs. Appellate Division, 487 F.2d at 141, n. 2, the

App. 10

Court quoted the United States Supreme Court’s state-
ment of this principle:

The question of the constitutional validity of the
order was distinctly presented by the appellants’ pe-
tition and necessarily was resolved against him by
the judgment affirming the order. Omitting to men-
tion that question in the opinion did not eliminate it
from the case or make the judgment of affirmance
any the less an adjudication of it. Grubb vs. Public
Utilities Commission, 281 U.S. 470, 477-78 (1930).

In a case factually similar to this case, Judge Luongo
held that a frustrated bar applicant’s constitutional argu-
ments were barred by collateral estoppel after those argu-
ments had been presented to the Pennsylvania Supreme
Court in the applicant’s petition, despite the fact that his
petition was denied without opinion. Korup vs. Flaherty,
524 F.Supp. 1165 (E.D. Pa. 1981). See also, Winters vs.
Lavine, 574 F.2d 46, 60-61 (2d Cir. 1978).

To the extent that any of Perwin’s constitutional
claims were not decided by the Supreme Court of New
Jersey, those claims appear to be meritless. Perwin’s
Supremacy Clause claim is frivolous. ‘The Rules of the
United States District Court for the District of New Jer-
sey do not purport to affect the State of New Jersey’s
power to adopt and enforce attorney disciplinary rules.

Perwin’s due process claim fails for two reasons.
First, Perwin does not have any liberty or property in-
terest in readmission to the New Jersey bar and there-
fore cannot claim that he is entitled to due process clause
protection. New Jersey state law does not support any
‘‘legitimate claim of entitlement” by a disbarred attorney
to readmission to the bar. See Board of Regents vs. Roth,

App. 11

488 U.S. 564, 577 (1972). Perwin recognizes this when he
argues that there is an ‘‘irrebutable presumption” that a
disbarred attorney is forever unfit to practice law. See
Memo in Opposition, at 22-23. In Re Wilson, 81 N.J. 451,
409 A.2d 1153 (1979). Any liberty interest that Perwin
may have had in maintaining his reputation and livelihood
as an attorney was lost by him following his disbarment.
Moreover, Perwin was granted a hearing in connection
with his first petition for reinstatement in 1974. Even
assuming that Perwin does have a liberty or property
interest in reinstatement to the New Jersey Bar, New
Jersey’s lack of formal rules governing reinstatement do
not violate due process. See Law Student’s Civil Rights
Research Council vs. Wadmond, 401 U.S. 154, 159 (1971).
Perwin’s “irrebutable presumption” argument is under-
mined by Perwin’s recognition of the fact that the New
Jersey Supreme Court has, on occasion, reinstated dis-
barred attorneys. See memo in opposition at 27-28. Per-
win’s equal protection claim fails because the action of
the Supreme Court of New Jersey in imposing attorney
discipline on a case by case basis is rationally related to
a legitimate state interest. See Matter of Randall, 640
F.2d 898 (8th Cir.), cert. denied, 454 U.S. 880 (1981).

For all of the foregoing reasons, the Court will grant
summary judgment in favor of all of the Defendants.

/s/ Maleolm Muir,
U.S. District Judge

Dated: 11/17/83

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3213%3A2. Public record. Not legal advice.