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

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## Record

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

## Text

(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.

---

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