Reply Brief — Gerzof v. Grievance Committee for the Tenth Judicial District

(3)

3S.

ice-Supreme Court, v

- FILED

No. 84-952 FEB 14 1985

DER L. STEVAS,

ALEXAN CLERK

IN THE

Supreme Court of the United States

OCTOBER 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

APPELLANT’S BRIEF OPPOSING

MOTION TO DISMISS

STEPHEN W. SCHLISSEL, ESQ.

Attorney for Appellant

170 Old Country Road

Mineola, New York 11501

(516) 248-9500

Of Counsel:

DOUGLAS J. GOOD, Esq.

RUSKIN, SCHLISSEL, MOSCOU

& EVANS, PC.

TABLE OF CONTENTS

Introductory Statement ...... 1

MPOWNORT 6 6 ec st tlh hl ll .* 1

A. The Court has Jurisdiction of

this Appeal from the final

judgment of the New York

Court of Appeals Pursuant to 28

of Ror $1257(2) ° e ° - . . 1

B. Appellant has raised his

federal constitutional

objections at the earliest

point in the proceeding below

and has preserved those

objections throughout the

course of the proceedings in the

state court. . .« « «© «© « « e 4

C. The Constitutional questions are

SBUPETMRETOls « 8 se we he ee el 5

D. Responding to Appellee's Brief. . 13

Crete. « -h e e a e e ; 36

TABLE OF AUTHORITIES

CASES:

Armstrong v. Manzo, 380 U.S.

545 (1965). e o . . . - * .

Barry v. Barchi, 443 U.S. 55

Bell v. Burson, 402 U.S. 535

C2971). « « * «

Brady v. Maryland, 373 U.S. 83

3 . e . .

196 ee ° ° . * ° ° . .

Brotherhood of Railroad

Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U.S. 1

(1964). . . . ° * . . . .

Ex parte Garland, 4 Wail. 333

(1866). e 7 . * . ° e a > 7 o

Gerzof v. Gulotta, 87 Mise. 2d

768, affd. on other grnds., 57

A.D. 2d 821, app. dism. 42 N.Y.

2d 960 (1977). ...

Graham v. Richardson, 403 U.S.

365 (1971). . . . e . . .

Matthews v. Huwe, 269 U.S. 262

(1925). * e . 2 . > * - . °

Middlesex County Ethics

Committee v. Garden State Bar

Association, 457 U.S. 423

cSU@Srs 4 +s 6 Se eee

10

10

12

16

14

15

In re Ruffalo, 390 U.S. 544

(1968). a a eae eee

Titus v. Wallick, 306 U.S. 282

(1939). ae ar ae a a

Tumey v State of ais. 273 U.S.

510 (1927). oe ae ae

Willner v. Committee on

Character Fitness, 373 U.S. 96

(1963). * . e e ° e e a ° * «

Wolfe v State of North Carolina,

364 U.S. 177 (1960) ;

Younger v Harris, 401 U.S. 37

crc is eo. fw we ee «ef

STATUTES:

N.Y. Civil Practice Law & Rules

§9401 (McKinney 1981) .

N.Y. Constitution Article 6 §3.

re # ‘asi iad Law §90 ee

1983 ) oe

N.Y. Judiciary Law $460 eign

1983) la! e * « és

28 U.S.C. $1257

REGULATIONS

22 NYCRR §520

22 NYCRR $690

22 NYCRR §691

Page

15

13

4,9,10

OTHER AUTHORITIES

Pages

ABA Standing Committee on

Professional Discipline,

Evaluation of the Lawyer

Disciplinary System of the

State of New York (Final

Report, December 1982). .... 13

Stern and Gressman, Supreme

Court Practice, 5th ed. 1978. . 3,4

No. 84-952

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

JULIUS M. GERZOF,

Appellant,

-against-

THE GRIEVANCE COMMITTEE FOR

THE TENTH JUDICAL DISTRICT,

Appellee.

On Appeal from the Court of Appeals

of the State of New York

APPELLANT'S BRIEF OPPOSING

MOTION TO DISMISS

INTRODUCTORY STATEMENT

This Brief is submitted on behalf of

appellant, Julius M. Gerzof, to respond to

"Appellee's Brief in Opposition to

Jurisdictional Statement and Petition for

Writ of Certiorari" which the Court may be

treating as a motion to dismiss.*

ARGUMENT

A. The Court has Jurisdiction of this

Appeal from the final judgment of the New

York Court of Appeals Pursuant to 28

U.S.C. §1257(2).

Appellee does not assert that this case

is not properly before the Court. No

suggestion is made that any of appellant's

Due Process or Equal Protection challenges

to New York Judiciary Law §90 (McKinney,

1983) and the Second Department Rules

promulgated pursuant thereto were not duly

*"On telephone inquiry, the Clerk's Office

staff reported that appellee's submission

would be treated as a motion to dismiss.

raised at every appropriate stage of the

state court proceeding.

The Court has recognized that a state

court may not avoid deciding federal

questions and thus defeat jurisdiction of

the Court. See, e.g. Wolfe v. State of

North Carolina, 364 U.S. 177, 185 (1960).

In analogous situations, the Court has

entertained appeals from state courts of

last resort which, although not

considering appeals after full briefing,

have rejected them for want of "debatable"

constitutional questions. See e.g. Titus

v. Wallick, 306 U.S. 282 (1939); Matthews

v._ Huwe, 269 U.S. 262 (1925). Here, the

New York Court of Appeals dismissed

appellant's appeal on the ground that "no

Substantial constitutional question is

directly involved." See, Appendix to

Appellant's Jurisdictional Statement, p.

la. Thus, as in Titus, supra, and

Matthews, supra, this Court has

jurisdiction.

Under New York law (see, Judiciary Law

§90 (4); New York Constitution Art. 6,

§3), in attorney discipline cases, an

appeal to the New York Court of Appeals

from a final order of the Appellate

Division lies as a matter of right only

where there is directly involved the

construction of the Constitution of the

United States (and in one other

circumstance not relevant herein).

When the New York Court of Appeals

dismissed appellant's appeal on the ground

that no substantial constitutional

question was directly involved (see

Appendix, p. la), its action constituted

an affirmance of the Appellate Division's

order of disbarment (see Appendix, p. 9a),

which order (and its underlying opinion)

rejected, sub silentio, appellant's

federal constitutional claims. Thus, this

appeal properly lies from the Court of

Appeals' order. See, Stern and Gressman,

Supreme Court Practice, (5th ed. 1978),

§3.22, p. 206; see also, Tumey v. State of

Ohio, 273 U.S. 510, 515 (1927).

B. Appellant has raised his federal

constitutional objections at the earliest

point in the proceeding below and has

preserved those objections throughout the

course of the proceedings in the state

court.

Appellee does not, in its motion to

dismiss, directly assert that appellant

has failed to raise duly any of the

constitutional claims he has asserted in

his Jurisdictional Statement. Appellee

does, however, state:

"Now the appellant challenges the

constitutionality of Judiciary Law §90

and 22 NYCRR Part 691 as he had

previously done in 1974 through 1976

-" Appellees' Brief, p. 5.

Certainly, the word "now" in that sentence

was

>

ot intended to mean "in this Court,

for th

@

first time." Appellee well knows,

and the record amply demonstrates that

appellant raised his federal

constitutional claims, not only in his

answer to the "Charges" filed, against

him, but in motion practice in the

Appellate Division even prior to the

formal commencement of the disciplinary

proceeding. The constitutional objections

were preserved throughout the proceeding

below and on appeal to the New York Court

of Appeals. Thus, the constitutional

questions are properly presented to the

Court for determination.

C. The Constitutional questions are

substantial.*

At least since Graham v. Richardson, 403

U.S. 365 (1971) was decided, it has been

clear that labels such as "right" and

"privilege" are not dispositive in

*The issues discussed herein are intended

to demonstrate examples of the

substantiality of appellant's claims; they

do not constitute a narrowing of

appellant's constitutional claims as set

forth in his Jurisdictional Statement.

determining whether due process must be

afforded before an individual is deprived

of certain interests. Among those

protected interests is the practice of

law. See, e.g. Ex parte Garland, 4 Wall.

333, 379 (1866); Willner v. Committee on

Character and Fitness, 373 U.S. 96 (1963);

In re Ruffalo, 390 U.S. 544 (1968).

Assuming, arguendo, that the right to

practice law is classified as a "property"

interest rather than a "liberty" interest,

it is clear that it is a right which

exists by virtue of state law. See,

Judiciary Law §$§90(1) (a), 460 et seq.; NY

Civil Practice Law & Rules §§9401 et seq.

(MeKinney 1981); 22 NYCRR §§ 520, 690

(Second Department). As such, procedural

due process governs any attempt by the

State to deny, limit or revoke the right

of one qualified, to practice law. One

additional factor is present in this case:

appellant had previously been subject to a

three-year suspension from the practice of

law. The order of suspension, by fixing a

three-year term of suspension, created an

expectancy that at the expiration of three

years appellant would be entitled to

pursue his reinstatement and a promise

that his reinstatement application would

be acted on with due expediency.

Yet, in the instant case, after having

been granted leave to file his

reinstatement application, and after

having filed it, appellant was effectively

suspended anew for the reason that new

eharges were being first investigated,

then preferred, and finally, adjudicated.

From the time action was first deferred on

his reinstatement application until the

new charges were heard and determined,

appellant was denied the right to practice

law for a period of approximately three

and one-half years, without any hearing of

any kind. In effect, his suspension was

continued indefinitely.

From the time the appellee fiied its sua

sponte complaint against appellant until

it applied to the Appellate Division for

leave to institute and prosecute formal

disciplinary proceedings, more than four

months passed. It took more than an

additional four months after leave to

proceed was granted for the appellee to

file and serve its petition and charges.

During that period of approximately nine

months, it appears that no probable cause

determination was made; certainly

appellant was never given notice and an

opportunity to be heard in connection with

any probable cause determination as may

have been made. Yet, during that entire

nine-month period appellant was suspended

from the practice of law, notwithstanding

that the three-year period of the prior

Suspension had expired.

There are two points at which some

preliminary determination could have been

made:

(a) by the appellee Grievance Committee,

prior to seeking leave to institute formal

proceedings (see, 22 NYCRR §691.4(e)); and

(b) by the Appellate Division, in granting

the Grievance Committee leave to institute

and prosecute formal disciplinary

proceedings. As to the first, appellant

was never afforded an opportunity to be

heard by the Grievance Committee, although

he sought that opportunity. As to the

second, he was not provided with notice of

the Grievance Committee's application to

the Appellate Division for leave to

proceed. Further, the Appellate Division

granted leave to the Grievance Conmittee

to prosecute appellant on charges set

forth in its application to that

court". . . and on any other charges of

professional misconduct . . . which may

come to the Committee's attention." See,

Appendix p. 88a. Since appellant has

been denied access to the application by

the Grievance Committee, and to its

"Report," he has been deprived of the

means to support an effective challenge to

that procedure, if it indeed purports to

be a "probable cause" mechanism.

Appellant's due process right to a prior

hearing flows from such cases as Bell v.

Burson, 402 U.S. 535 (1971). His right to

a prompt hearing is supported by Barry v.

Barchi, 443 U.S. 55 (1979). Surely,

Judiciary Law §90 and 22 NYCRR $691 have

been applied in an unconstitutional

manner, contrary to principles clearly

established by prior rulings of this

Court.

This appeal also presents substantial

questions of procedural due process not

previously determined by the Court. In

Armstrong v. Manzo, 380 U.S. 545, 552

(1965), the Court stated that when

property is taken by the state, a due

process hearing must be furnished"...

at a meaningful time and in a meaningful

manner." Appellant contends that the New

York statute and Second Department

regulations applicable to attorney

discipline cases are unconstitutional in

that attorneys are not guaranteed that a

hearing will be conducted in a meaningful

manner. Appellant asserts that he was

denied the hearing required by due process

for the reasons, inter alia, that:

--the charges failed to give adequate

notice of the alleged misconduct so as

to permit him to prepare to meet,

confront and rebut adverse evidence and

to prepare his defense;

--the inadequate notice was compounded

by the denial of all pre-hearing

disclosure and vacatur of his demand for

a bill of particulars;

--the absence of disclosure was

compounded by the limitation and denial

of requested trial subpoenae*;

--the inadequacies of the hearing were

compounded by the denial of appellant's

motion to remit to the Special Referee

for findings of fact and conclusions of

law;

--the absence of findings of fact and

conclusions of law was compounded by the

denial by the Appellate Division of

appellant's request for oral argument

before that court;

--the foregoing inadequacies were

compounded by application of the

"preponderance of the evidence" standard

of proof and by the absence of an appeal

as of right on errors of fact and plain

es ee ee TTT

but denied him, both in pre-trial

disclosure and by trial subpoena was

exculpatory information contained in the

file of appellee, the prosecuting body.

Appellee never denied the existence of

exculpatory information. No such

information was disclosed or required to

be disclosed. Cf. Brady v. State of

Maryland, 373 U.S. 83 (1963).

(non-constitutional) errors of law.

The Court has not ruled on any of these

questions in the context of attorney

discipline proceedings. Yet these are

issues of considerable public importance

and of especial importance to members of

the bar.*

D. Responding to Appellee's Brief

As stated supra, appellee does not

assert that the Court is without

jurisdiction of this appeal pursuant to 28

U.S.C. §1257(2). Rather, appellee

appears to argue that some of appellant's

due process and equal protection

challenges are without merit. It is

significant to note, however, that

appellee cites no decision of this Court

——_—- oo oe er er CS re ee ee SS Se ee ee Oe OC

New York State. ABA Standing Committee on

Professional Discipline, Evaluation of the

Lawyer Disciplinary System of the State of

New York (Final Report, December, 1982),

p.od.

which forecloses any of appellant's

constitutional arguments.

Appellee does rely extensively on Gerzof

v. Gulotta, 87 Mise. 2d 768, 386 N.Y.S. 2d

790 (Sup. Ct. Nassau 1976) affd. on other

grnds. 57 A.D. 2d 821, 395 N.Y.S. 2d 26

(lst Dept. 1977), app. dism. 42 N.Y. 2d

960, 398 N.Y.S. 2d 146 (1977), a case

whieh it cites as "40 N.Y. 2d 825, 386

N.Y.S. 2d 790, 87 Mise. 2d 768."

Appellee's Brief, p. 5. On pages 6-8 and

10-11 of its Brief, appellee purports to

quote extensively the "holdings" of that

ease. We must point out to the Court that

appellee's quotations are of the

"headnote" material contained in the

unofficial report of a lower court

decision, although from appellee's

citation it would appear that the New York |

Court of Appeals was being quoted. The

ruling of the lower court in Gerzof v.

Gullotta, supra, was affirmed, but on

a a

other grounds than those referred to by

appellee. See 57 A.D. 2d 821.

Finally, in Point D of appellee's brief,

appellee urges that this appeal be

rejected under the abstention doctrine

established in Younger v. Harris, 401 U.S.

37 (1971), also citing Middlesex County

Ethies Committee v. Garden State Bar

Association, 457 U.S. 423 (1982).

It is obvious that appellee's argument

is misplaced. Younger abstention is a

doctrine which militates against federal

court interference with pending state

proceedings. Here, jurisdiction of the

Court is being invoked on appeal. The New

York state courts have had an ample

opportunity to consider appellant's

constitutional arguments, but have

rejected them if only by their silence.

As the Court has responded to a similar

argument:

"Virginia undoubtedly has broad powers

to regulate the practice of law within

its borders; but we have had occasion

the past to recognize that in regulating

the practice of law a State cannot

ignore the rights of individuals secured

by the Constitution."

Brotherhood of Railroad Trainmen v.

Virginia ex rel. Virginia State Bar,

377 U.S. 1, 6 (1964) (footnote

ommitted).

CONCLUS ION

For the reasons set forth herein and in

Appellant's Jurisdictional Statement, the

Court should deny appellee's "motion to

dismiss" and should take juriedietion of

this appeal, direct the submission of

briefs and schedule the case for oral

argument. Alternatively, it is

respectfully requested that the Court

treat appeliant's papers herein as a

petition for a writ of certiorari and

grant the writ.

Respectfully submitted,

Stephen W. Schlissel

Attorney for Appellant

170 Old Country Road

Mineola, New York 11501

(516) 248-9500

Of Counsel:

Douglas J. Good

Ruskin, Sechiissel, Moscou

& Evans, P.C.