Motion — Gerzof v. Grievance Committee for the Tenth Judicial District

No. 84-952 oe" 6 em ~ vs |

IN THE JAN 25 1085

Supreme Court of the United ER L STEVAS,

Ocroser TerM, 1984

JULIUS M. GERZOF,

Appellant,

— against —

THE GRIEVANCE COMMITTEE FOR THE

TENTH JUDICIAL DISTRICT,

Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

APPELLEE’S BRIEF IN OPPOSITION TO

JURISDICTIONAL STATEMENT AND

PETITION FOR WRIT OF CERTIORARI

FRANK A. FINNERTY, JR., Esq.

Attorney for Appellee Grievance

Committee for the Tenth Judicial

District

900 Ellison Avenue

Westbury, New York 11590

(516) 832-8585

Of Counsel:

Louis J. PRoFERA, EsqQ.

de aye 9

= BEST AVAILABLE COPY

TABLE OF CONTENTS

PRELIMINARY STATEMENT.........2-.

REASONS FOR NOT TAKING

JURISDICTION AND DENYING

THE WRIT eeeee#e3s8e0ne3e8ktee#e#see#er#see#skee*etee#s#e#e*#

A. THE STATE OF NEW YORK

HAS NOT VIOLATED

APPELLANT'S RIGHT TO

DUE PROCESS ...-eeeeeecees

B. THE STATE OF NEW YORK

HAS NOT VIOLATED

APPELLANT'S RIGHT TO

EQUAL PROTECTION .......-.-

C. THE STANDARD OF PROOF

IN DISCIPLINARY

PROCEEDINGS IS STILL

A FAIR PREPONDERANCE

OF THE CREDIBLE EVIDENCE.

D. THE COURT SHOULD NOT TAKE

JURISDICTION OR GRANT A

WRIT OF CERTIORARI «---+---

CONCLUSION cececcceceecervvesvevevces .

10

12

13

13

ii

TABLE OF AUTHORITIES

Cases

Page

Anonymous v. Association

of the Bar of the City

of New York,

2L2 Foam Sar (2 Cis.) covcssscoes 17

Erdmann v. Stevens,

S50 F.-28 L205 secccccccesesesess 14

Ex parte Wall,

107 U.S. 265, 2 8S. Ct., 569,

27 L. Ed. 552 (1882) -++eeeeeeees 16

F. S. Royster Guano Co.

v. Virginia,

253 U.S. 412, 415 (1920) -.------ Ill

Gerzof v. Gulotta,

40 N.Y.2d 825, 385 N.Y.S.2d

790, @7 Mise. 24 FEB escves Be Ge AO

In re Ming,

469 er 1352,

[7 Cas. Bras «see ees er ee 15

Javits v. Stevens,

F.Supp. 140 .ccccccccccces ll, 16

Kelly v. Gresson,

N.Y.2d, 268,

296 B.7. Bc BR O37 ccccccecoessoeses 8

Matter of Rouss,

221 N.Y.81, 115 N.E. 782 -ceeceees 14

eee

iii

Page

Matter of Ruffalo,

390 U.S. 544, 88 S. Ct. 1222,

TTC. cca cancansseereees 8

Middlesex County Ethics Committee

v. Garden State Bar Association,

457 U.S. 423, 102 S. Ct. 2515

(1982) e*eeee#ee#ee##*# e*ee#e#ee#e eoeeeeee#e*# @ * 18

Mildner v. Gulotta,

oe ws SOpe. tee ... 8, @, ld, 12, 17

People ex rel. Karlin v. Culkin,

oi8 N.Y. 465, 163 N.E. 487

EMME GEESE dseeedceseseesecsocecs 14

Santosky v. Kramer,

455 U.S. 745, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982) ........2.. aa

Theard v. United States,

354 U.S. 278, 77 S. Ct. 1274,

1 L. Ed. 2d 1342 (1957) .......... 14

Younger v. Harris,

Walls ST CEPA cccecrcoeseccceses 17

Statutes

N.Y. CPLR, art. 4

(McKinney 1983) .-eeeeeeeeseeecees 8

N.Y. Judiciary Law §90

(McKinney 1983) ...-ccecceeccceceees 9

Const. art. 1, §6; U.S.C.A

Const. Amend. 14 ..... Ss te Be 20y 3A

ar eas

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No. 84-952

JULIUS M. GERZOF, Appellant,

Vv.

THE GRIEVANCE COMMITTEE FOR

THE TENTH JUDICIAL DISTRICT, Appellee.

ON APPEAL FROM THE COURT OF APPEALS

OF NEW YORK

PRELIMINARY STATEMENT

This brief is submitted in opposition

to the appellant's jurisdictional state-

ment and request that it be treated as a

petition for a writ of certiorari.

The appellant was suspended from the

practice of law by the Appellate Division

of the New York State Supreme Court,

Second Judicial Department, by its order

of the court, after some three years of

motions, appeals and actions, effective

October 1, 1977. Such suspension was

based upon a disciplinary proceeding

wherein it was proven that the appellant

had given false testimony before the

Judicial Inquiry. He was suspended from

the practice of law for three years.

Shortly after his premature applica-

tion before the Appellate Division for

reinstatement, the appellee's office

received the affidavit of Joseph J.

La Belia, Jr., stating that the appel-

lant had engaged in the practice of law

while suspended.

Based on that affidavit and prelimi-

nary investigation, his application

before the Character & Fitness Committee

was stayed pending the determination

of the Grievance Committee.

Agves a report of the matter had been

presented to the Grievance Committee for

the Tenth Judicial District, it duly

voted, based on a finding of probable

cause, to seek authorization of the

Appellate Division to institute a

disciplinary proceeding against the

appellant. Such authorization was

granted and a notice of petition and

petition was personally served upon the

| appellant.

The petition alleged, briefly, that he

had engaged in the practice of law while

suspended (Charge One) and submitted

false statements to the Appellate

Division and the Character & Fitness

Committee that he ~ not practiged law

during his suspension (Charge Two).

Hon. Daniel G. Albert, a retired

Justice of the Supreme Court of the

State of New York, was appointed by

order of the Appellate Division, dated

es

December 9, 1981, as Special Referee, to

hear and report on the issues involved

and make recommendations.

A hearing was conducted which spanned

Some nineteen days and created a trans-

cript of more than 3,000 pages with

numerous exhibits. Post-hearing memo-

randa were submitted by both counsel and

the Special Referee's report of 19 pages

(reprinted in appellant's jurisdictional

statement at page - l4a -), along with

the entire record, was submitted to the

Appellate Division.

In his report, the Special Referee

Sustained Charge One, deferred on

Charge Two (the record of sworn affi-

davits by the appellant that he had not

engaged in the practice of law during

his suspension were already before the

Appellate Division and the Character &

Fitness Committee) and recommended

disbarment.

SP Ny aI pet Das

OO Na ate AN A Ait aE os eS Fel eli eR dl iNT cet bate AIS tee we

or ae

After some motion practice by the

appellant and the submission of motions

to confirm and disaffirm the Special

Referee's findings, the Appellate

Division confirmed said findings, sus-

tained Charge Two against the appellant

and issued its order of disbarment.

Leave to appeal tc the New York State

Court of Appeals was made, opposed and

denied on the ground that no substantial

question i directly involved.

Now the appellant challenges the con-

stitutionality of Judiciary Law §90 and

22 NYCRR Part 691 as he had previously

done in 1974 through 1976 (See Mildner v.

Gulotta, 405 F. Supp. 182; Gerzof v.

Gulotta, 40 N.Y. 2d 825, 386 NYS 2nd 790,

87 Misc. 2d 768).

REASONS FOR NOT TAKING JURISDICTION

AND DENYING THE WRIT

A. THE STATE OF NEW YORK HAS NOT

VIOLATED APPELLANT'S RIGHT TO

DUE PROCESS

The questions raised and the arguments

made by the appellant on the constitu-

tionality of the New York State disci -

plinary procedure have been time and

time again addressed and answered by

this Court and the State Courts.

In Gerzof v. Gulotta supra , the

Court held as follows:

Suspension from practice of law

that resulted fromdisciplinary

proceedings held pursuant to

Judiciary Law were not subject

to being characterized as vio-

lative of due process on ground

that the Appellate Division acted

as the grand jury, prosecutor,

judge and jury. Const. art. l,

§6; U.S.C.A. Const. Amend. 14.

Disciplinary proceedings held

pursuant to Judiciary Law were

not violative of due process by

reason of fact that they called

for procedures that were substan-

tially similar to those followed

in civil actions by providing

for a determination based upon

a transcript and reported find-

ings. Const. art. l, § 6; USCA.

Const. Amend. 14.

Provisions of Judiciary Law per-

taining to procedures to be

followed in disciplinary matters

are not violative of due process

in denying an individual the

right to present an oral argument

before the trier of facts.

Const. art. 1, § 6, U.S.C.A.

Const. Amend. 14

Procedure whereby individual

who was subject of disciplinary

proceedings was presented with

notice of charges against him,

was given an opportunity to

confront and cross-examine ad-

verse witnesses during a hearing

before a special referee, and

was represented by counsel who

was given an opportunity to

present a summation to referee,

was not violative of due process,

notwithstanding claim that indi-

vidual was not given a statement

of reasons for the eventual

decision of the Appellate

Division, where the referee not

only prepared a report and a

supplemental report which con-

tained detailed findings of fact

and conclusions respecting the

specified charges, but a full

transcript of the proceedings

before the referee was submitted

to the Appellate Division with

the individual thereafter

being given the opportunity

to file an extensive and

detailed memorandum to that

court. Consett. art. i, $63

U.S.C.A. Const. Amend. 14

Although Matter of Ruffalo, 390 U.S.

544, 88 S.Ct. 1222, 20 L. Ed. 2d 117,

speaks of a disciplinary proceeding as

being of a "quasi-criminal" nature, it

"hardly stands for an equation of crimi-

nal and disciplinary proceedings, a

most unlikely view". Kelly v. Greason,

23 N.Y. 2d 268, 296 NYS 2d 937.

In New York State disciplinary proceed-

ings are deemed to be "special proceed-

ings" and as such, are generally accorded

disclosure devises only by leave of the

court, so that the court may preserve the

summary nature of such proceedings.

(See CPLR, art. 4, §C400:3(6); § 408 and ~

§408.1, McKinney's Consolidated Laws of

New York)

A very significant case in the area of

attorney discipline is Mildner v. Gulotta

supra. In that case Judge Neaher says

that Judiciary Law §90 "is plainly not

unconstitutional on its face and does,

in fact, appear to comport with tradi-

tional notions of due process". He

| speaks of a disciplinary proceeding as

being"an inquest - a gathering of facts

concerning the conduct of an attorney,

a subject more likely to be illuminated

by the evidence of the attorney's own

acts than by what is said or not said

by someone else." |

Also, he states, that there is no con-

stitutional recuirement "that the

Appellate Division, as final arbiter of

the facts, has personally heard the

accused attorneys or other witnesses or

have allowed oral argument upon the

motions to confirm or disaffirm the

oe ne en a

refesees' reports".

Special factors applying to adminis-

trative proceedings which call for a

written statement of findings and

OO

= 10 «

reasons are not present here.

Also the argument of no evidence

appears to be an attempt to relitigate

the merits of the State proceedings.

B. THE STATE OF NEW YORK HAS NOT

VIOLATED APPELLANT'S RIGHT TO

EQUAL PROTECTION

On the issue of equal protection we

have extracted the following precepts

from Gerzof v. Gulotta supra :

The existence of treatment for

different individuals is not,

in and of itself, a violation

of the right to equal protection.

Comet. @£t. 15 8 Gt U.8.G ek;

Const. Amend. 14

Equal protection is not violated

unless it is shown that there is

no reasonable basis for differing

treatment of different classes of

individuals. Cons€é. Art. 1, §6,

U.S.C.A. Const. Amend. 14

Equal protection requires only

that a legislative classifica-

tion be reasonable, not arbitrary,

and rest upon some ground of dif-

ference having a fair and substan-

tial relation to the object of the

legislation so that all persons

%

j

7

.

» 2) «

Similarly circumstanced shall be

treated alike. Const. art. l,

§ 6, U.S.C.A. Const. Amend. 14.

In Mildner v. Gulotta, Judge Neaher

can he quoted as stating:

"There must be recognition that,

in disciplining professionals,

the State may legitimately find

reason to conclude that differing

procedural safeguards are appro-

priate for different profession-

als. (citations omitted). Thus

there is no equal protection pro-

blem when the denial of appellate

rights to attorneys to the same

extent afforded other profession-

als or litigants is reasonable,

resting 'upon some ground of

difference having a fair and sub-

stantial relation to the object

of the legislation, so that all

persons similarly circumstanced

shall be treated alike'".

Javitsv. Stevens, 382 F. Supp.

at 140, quoting from F.S. Royster

Guano Co. V. Virginia, 253 U.S.

412, 415 (1920).

The discipline of attorneys is a

special sespunsibilicy which rests with

the courts and the vesting of original

jurisdiction with the Appellate Division

is no denial of equal protection, nor is

the denial of an appeal as of right on

all questions of law and fact arbitrary

Or capricious. (Mildner v. Gulotta,

supra).

ci THE STANDARD OF PROOF IN

DISCIPLINARY PROCEEDINGS

IS STILL A FAIR PREPONDERANCE

OF THE CREDIBLE EVIDENCE

The standard of proof in disciplinary

proceedings in New York State has tradi-

tionally been a fair preponderance of

the credible evidence, and although the

appellant attempts to impose the stand-

ards of “beyond a reasonable doubt" and

"clear and convincing evidence", he has

failed in doing so time and time again.

As a matter of fact, the Special

Referee who heard the case, not only

recognized the standard as being "a

fair preponderance of the credible

evidence" but stated in his report that:

"I therefore conclude that the

petitioner has established

Ln a a En ENR sas =

Charge One as set forth in the

Petition, and I so find beyond

any reasonable doubt." (Empha-

Sis supplied)

(See report of Special Referee

pages 42a and 43a, reprinted in

appellant's appendix).

Nor can the appellant rely upon

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

202 S. Ct. 1368, 71 L. Ed. 2d, 599

(1982) as having changed the standard as

that case pertains to parental rights

and makes no mention of attorney disci-

pline.

The appellant's constitutional right

of due process has not been violated be-

cause another standard of proof has not

been required in his case.

D. THE COURT SHOULD NOT TAKE

JURISDICTION OR GRANT A WRIT OF

CERTIORARI

It appears to be well settled law that

the Federal Courts will abstain from tak-

ing jurisdiction in State disciplinary

=» 1g «

proceedings.

In Erdmann v. Stevens, 458 F. 2d, at

1209-10, the relationship between the

court and attorneys was expressed as

follows:

" The court alone admits an appli-

cant to practice before it.

Thereupon he becomes an officer

of the court. The power to disci-

pline, like the power to admit

an applicant to membership of

the bar, rests exclusively with

the court. Theard v. United

States, 354 U.S. 276, 7i &. Ct.

1274, i &. Se. 26 1342 (1957) 3

People ex rel. Karlin v. Culkin,

248 N.Y. 465, 162 N.E. 487, (1928)

Justice Frankfurter, speaking for an

unanimous court in Theard quotes Justice

Cardozo, while Chief Judge of the New

York Court of Appeals, as having said:

"Membership in the bar is a privi-

lege burdened with conditions."

(Matter of Rouss, 221 N.Y. 8l,

S4 115 B.B. fea, 783).

Here, the appellant has been found to

have made false statements to judicial

bodies on at least two occasions, in

his first disciplinary proceeding and

a an el

-———— oe

again in Charge Two of his second

disciplinary proceeding. He has also

violated the order of suspension of

three years by the Appellate Division

by engaging in the practice of law

during that period, as proven in Charge

One of his second disciplinary proceed-

ing. He has obviously disregarded the

conditions of membership in the bar

which had been bestowed upon him along

with the privilege granted him through

such membership.

As the court put in it In re Ming,

469 F. 2d 1352, 1353 (7 Cir. 1972):

""({sJuch proceedings are not

lawsuits between parties liti-

gant but rather are in the

nature of an inquest or inquiry

as to the conduct of the respond-

ent. They are not for the pur-

pose of punishment but rather

seek to determine the fitness

of an officer of the court to

continue in that capacity and

to protect the courts and the

public from official ministra-

tion of persons unfit to

- 16 -

practice.'".

Ex parte Wall, 107 U.S. 265,

4 S. Ct. 369, 27 Ls BA. 352

(1882).

Judge McMahon summarized the special

relationship between the attorney and

the court, as follows:

"The intimate and delicate

relationship between courts

and lawyers has long justified

the judiciary's careful scrutiny

of the integrity and qualifica-

tions of thosewho practice be-

fore it. Thus, it would be

peculiar, if not unreasonable,

for the New York Legislature

to place responsibility for

disciplinary proceedings else-

where than in the courts. No

other body is as well qualified

or as interested in determining

whether an attorney is quali-

fied to practice law."

Javits v. Stevens, supra, 382

F. Supp. at 14l.

In this case, the Appellate Division

of the Supreme Court of the State of

New York, Second Judicial Department,

the court in which the appellant was

originally admitted and had practiced

before for many years, is the proper

court to determine and has determined

that he is unfit to practice law.

In Mildner v. Gulotta, supra, Judge

Neaher stated that:

"{[t]he federal courts must be

extraordinarily reluctant to

interject themselves into such

proceedings."

The decision in that disciplinary pro-

ceeding was for abstention. Such deci-

sion was supported by Younger v. Harris

401 U.S. 37 (1971) and Anonymous v.

Association of the Bar of the City of

New Yoru, SiS FP. 26 427, (2. Cir.)

More recently Chief Justice Burger

held that: (1) state bar disciplinary

proceedings were of a character to

warrant federal court deference;

(2) importance of state interest in

- 18 -

pending state disciplinary proceedings

and in federal constitutional challenge

to disciplinary rules called Younger

abstention into play; and (3) because

attorney had opportunity to raise and

have timely decided by competent state

tribunal federal issues involved, and

because no bad faith, harassment or

other exceptional circumstances dic-

tated to contrary, federal courts should

abstain from interfering with ongoing

state disciplinary proceedings against

him. Middlesex County Ethics Committee

v. Garden State Bar Association,

457 U.S. 423, 192 &. Ct. 2515 (1962)

CONCLUSION

Based upon the above and upon this

appellant's litigious history, we urge

the Court to apply the Younger absten-

tion and deny the appellant's applica-

tion whether it be in the form of a

jurisdictional statement or a writ of

certiorari.

Respectfully submitted,

——e—"

Th i

FRANK A. FINNERTY, JR,

GRIEVANCE COMMITTEE F,

TENTH JUDICIAL DISTRICT

9090 Ellison Avenue

Westbury, NY 11590

(516) 832-8585

LOUIS J. PROFERA, ESQ.

Of Counsel