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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1200

## Text

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

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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

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