Petition for Writ of Certiorari — Kerpelman v. Land

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84>1822"

Office - Supreme Court, U.S.

FILED ‘|

In The * MAY 20 1985

eme Qourt of t | , -

Supr of the Urpteetsttet es

“ie

LEONARD J. KERPELMAN,

| Appellant

} VS.

MARVIN LAND, ET AL.,

Appellees

October Term 1984

No.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD J. KERPELMAN

| 2403 W. Rogers Avenue

Baltimore, Maryland

21209

(301)367-8855

In Proper Person

aia (RR

Questions Presented For Review

he Did the Fourth Circuit Court of Appeals

in this case improperly dismiss, on the

basis of "judicial immunity", a case against

members and staff of the state "Attorney

Grievance Commission" in direct contradiction

to the May 14, 1984 decision of this court

in the case of Pulliam v. Allen, 52 LW 4525?

The Petitioner, like Pulliam, had sought

future injunctive relief, counsel fees and

damages against a judicial official in his

non-judicial capacity; and what may or may

not be quasi-judicial other parties for mali-

cious acts under color of their disciplinary

commission membership. Analogous to Allen's

acts (in Pulliam v. Allen) under colox of

‘her judicial office.

The gravamen of the complaint below

was the filing and knowing pursuit of an

entirely non-meritorious ethical complaint

against the Petitioner to harass him, chill

the vigor of his professional activity in

the future, or acquire his disbarment. The

action, as in Pulliam, was under P1983 of the

Civil Rights Act of 1968. Moreover, the

insubstantiality or harassing nature of the

complaint was never denied by the defendants.

The complaint, it was alleged was angrily

dismissed out-of-hand, unanimously, by a

three member "review board," not the Res-

pondents.

After an "informal brief" was filed,

the Fourth Circuit, immediately after Pul-

liam was decidedyequested "formal" briefing

upon the Pulliam qvestions, and additional

"formal" briefing upon the question of

whether the grievance commission defendants

had any judicial immunity at all, even from

Ordinary or punitive damages. These were

reasonable questions after Pulliam. How-

ever, thereafter, inexplicably, the case

was dismissed by the Fourth Circuit in a

one paragraph Per Curiam Opinion (App. 3 )

which never mentioned Pulliam or judicial

immunity but simply referred back to the

lower court’s reliance on Younger v. Harris,

401 U.S. 37 granting judicial immunity.

The question, then, is whether, by

virtue of Younger v. Harris, the defendants

are saved from the consequences of what, in

the posture of the case (it having been

decided on a Motion to Dismiss), is their

ill and unconstitutional conduct; or whether,

on the other hand, the Petitioner is to be

allowed to practice law without fear of

unjust and malicious harassment by the

Respondents either into madness, or out of

the legal profession2

iii

Younger, the Petitioner believes he

will show infra, is totally misapplied

to this case because this case, quite

simply, does not concern an “on-going"

prosecution, but one which has run its

course to its endt Which clearly and ex-

plicitly, by Younger's unambiguous language,

excepts it from Younger.

2. Doe repression of Free Speech give a

particular right to damages under Pulliam?

3. Are the disfavored, or those with

unpopular views or views offensive to those

in authority to be readily prevented from

practising law; or does Pulliam limit such

practices:

The Petitioner contends that the case

has economic, class and ethnic overtones

which it should not have, and he seeks, as

Pulliam sought, to present that contention

ultimately to a jury. Should this have been

ultimately permitted?

All Parties Below

The parties in the Fourth Circuit Court

of Appeals, all represented by the office of

the Attorney General of Maryland, are:

Melvin Hirschman, J. Martin McDonough, Jr.,

William Walsh, and Henry J. Myerberg, staff

and administrative officials of the “Attorney

Grievance" body, who were in charge of and

performed its daily work; the following ap-

pointed members of the Attorney Grievance

Commission of Maryland (the “board" of the

grievance body): George D. Solter, William

A. Franch, William Wells Beckett, James J.

Cromwell, R. Taylor McClean, Raymond S.

Smethurst, Jr., Walter E. Balck, Jr.,

Florence Udell, William Walsh, Felton E.

May, David B. Mitchell, Charles H. Reed,

Elizabeth Tennery, Howard Wood, III.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR

REVIEW EXPRESSED IN THE

TERMS OF THE CASE i

ALL PARTIES TO THE PROCEEDING

IN THE LOWER COURT v

THIS TABLE OF CONTENTS vii-ix

TABLE OF AUTHORITIES x

REFERENCE TO OFFICIAL

AND UNOFFICIAL REPORTS 1

CONCISE STATEMENT OF

GROUNDS FOR JURISDICTION 2

CONSTITUTIONAL PROVISIONS,

STATUTES, RULES OF THE

MARYLAND COURT 2

CONCISE STATEMENT OF THE

CASE CONTAINING FACTS

MATERIAL TO CONSIDERATION

OF QUESTIONS PRESENTED )

ARGUMENT

Summary of Argument Outline 14

Essence of the Summary 14

Summary

Outline of Argument (Recap

from Table of Contents)

I. A Distressing Compilation

(Table A)

Zz. Pulliam

III. Reasons for Rejection

by the Fourth Circuit

IV. Rebuttal to Reasons

for Rejection by

Fourth Circuit

A. Younger v. Harris

Applies to Ongoing

Prosecutions Only

B. "No Hope of Success"

C. The Presumption of

Sainthood, First

Amendment .spects

D. "The Petitioner Caused

The San Francisco Earthcuake

E. Allegations of Conspiracy;

“"Conclusory” Language

F. On the Constitutional

Protections Requirement

of Younger/Middlesex

V. CONCLUSION

A. Pulliam Must Govern

viii

VI.

B. Some General

Considerations

EPILOGUE. The Unique

Pursuit of this Petitioner

TABLE OF AUTHORITIES

Cases

Page

Abington Township v. Schempp,

The School Prayer Case, 374

U.S. 203 19

Dacey v. New York County

Lawyers’ Assn, 403 F.2d.

188 cert den. 398 U.S.

929 (1969) 35

In re Ronwin, 113 Ariz. 357,

sao P.2¢G@ 3135 (2977) 48

Kerpelman v. Board of Public

Works, 261 Md. 436 20

Middlesex Township v. Garden

State, 102 S.cet. 2523 24,26,27,41,

Pulliam v. Allen, 52 LW 4525 4,44 ,i0 ¢¥ 41

12,13,14,15,

16,21,22,25,

30,34,45,46,

48,53

Ronwin v. Arizona, 52 LW

at 4533 48

Younger v. Harris, 401

0.8. 37 £4,4V 84,44,

13,146,408 ,26,

27,29 ,36 ,41,

44,45,48,49

Constitutional Provisions

Biil of Rights

First Amendment

Statutes

Civil Rights Act 1964,

42 U.S.C. g 1983

Civil Rights Attorneys

Fees Awards Act of 1976

Rules

Maryland Rule, Chapter BV

Maryland Rule 1228

Texts

"Divorce; A Guide for Men",

Kerpelman (ICARUS PRESS 1983)

4,11,42,43,44

4,23

TABLE OF CONTENTS

OF APPENDIX

Per Curiam Opinion, Fourth Circuit

Judgment of Court Denying

Rehearing (Fourth Circuit)

"Order" (Judgment of Lower

Court

"Memorandum" (Opinion of Lower

Court)

Briefing Letter from Fourth

Circuit Court of Appeals

Letter, Chairman Inquiry

Panel to Defendant

Hirshman Dismissing

"Grievance"

Unprintable Expletive

Table A

Letters, Petitioner to Judge

Raine and Defendant Land

Complaint Extract

Annual Report Extract

Attorney Grievance

Commission

Maryland Rules, on

Grievance Commission

xii

A6é

A31

A33

A35

A47

A49

Maryland Rules, Clients'

Security Fund A58

Oxley (Son) Wife's

Letter to Petitioner A60

Statute of I George I A61

Laws of Maryland

Ch. 305 of 1977 A62

Wests' Maryland Digest

Pocket Part Extract A64

xiii

IN THE

SUPREME COURT OF THE UNITED STATES

LEONARD J. KERPELMAN,

Petitioner

vs.

MARVIN LAND, ET AL.,

Respondents

October Term 1984

No.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Opinions Reported

The Per Curiam Opinion of the Fourth

Circuit Court of Appeals is unpublished. It

appears in full at Aland A2. That Court's

denial of the Petitioner's Petition for

Rehearing is unpublished, appears at A4.

Grounds for Invoking the

Jurisdiction of the Supreme Court

(i) and (ii)

Judgment was entered in the United

States Circuit Court of Appeals for the

Fourth Circuit in Case No. 84-1737 (this

case) on January 24, 1985, the judgment

being dated the same day; a Petition for

Reconsideration was timely filed, which

was denied by an Order dated February 20,

1985 entered the same day.

The Civil Rights Statute Involved

The Petitioner brought an action

against the Respondents in the federal dis-

trict court under 42 U.S.C. Section 1983

(1976 ed., Supp. V):

§ 1983. Civil action for deprivation

of rights

Every person who, under color of

any statute, ordinance, regulation,

custom, Or usage, Of any State or

Territory or the District of

Columbia, subjects, or causes to

be subjected, any citizen of the

United States or other person

within the jurisdiction thereof

to the deprivation of any rights,

privileges, or immunites secured

by the Constitution and laws,

shall be liable to the party in-

jured in an action at law, suit

in equity, or other proper pro-

ceeding for redress. For the

purposes of this section, any Act

of Congress applicable exclusively

to the District of Columbia shall

be considered to be a statute of

the District of Columbia.

(R.S. § 1979; Pub. L. 96-170,

§ 1, Dec. 29, 1979, 93 Stat. 1284.)

Also, the Civil Rights Attorney Fess

Awards Act of 1976:

In any action or proceeding to en-

force a provision of sections 1981,

1982, 1983, 1985 and 1986 of this

title, title IX of Public Law 92-

318 (20 U.S.C. 1681 et seq.) or

title VI of the Civil Rights Act

of 1964 (42 U.S.C. 2000d et segq,),

the court, in its discretion, may

allow the prevailing party, other

than the United States, a reason-

able attorney's fee as part of the

costs.

(R.S. § 722; Pub. L. 94-559, § 2,

Se ndinetntitn ee

Oct. 19, 1976, 90 Stat. 2641;

Pub. L. 96-481, title II, g 205

(eo), Oet. 22. 29060, 94 Stat. 2330.)

Also, Chapter "BV" of the "Maryland

Rules," covering

These are too voluminous to

are printed in the Appendix

A 59. U. S. Constitution,

Free Speech.

Maryland Rules BV2-1l

found in the Maryland Code.

"Attorney Discipline".

include here so

at pp. A 49 -

Amendment I,

‘1228 are

These are

lengthy and appear in the Appendix at

A 49 to a 59

STATEMENT OF

THE CASE CONTAINING THF FACTS

MATERIAL TO CONSIDERATION OF THE

QUESTIONS PRESENTED

The Petitioner is an attorney. He

had been suspended from practice for three

years. That maladvent re is no part of

this Petition. However, no attainder of

blood was imposed and he is still as much

under the protection of the Bill of Rights

as the next man, which is one of the

points of this case.

During the Petitioner's suspension

and after having held back the prosecution

of a claimed “grievance"™ for a year and

a half, the defendants did prosecute it.

It was an entirely meritless "grievance"

(A 41 hs In the federal District Court

complaint this "grievance" was alleged to

have been entirely baseless and to have

been prosecuted nevertheless in an expected

successful endeavor to get the Petitioner

disbarred (A 40 ). In fact, the sub-

stance of it came to be called "A piece

of (unprintable)”" by one lawyer member

of the reviewing panel (A35 ). The

unanimous three person panel found the

“grievance” not worthy of a hearing and

it was dismissed (A33-4 ).

The case below, on which the "“grie-

vance" was based, ultimately involved two

persons named Oxley, and bearing the same

given name, “Gail”. There was a “Gail”

Oxley, mother; and a "Gail Oxley, son.

The case was a divorce and custody

matter in the Circuit Court for Baltimore

County wherein Kerpelman, the Petitioner,

was attorney for Oxley(son), Kerpelman

contended that he had been told by Oxley

(son) that if the opposing party wished

to take Oxley(mother)'s deposition, that

he, Kerpelman, was to represent Oxley

(mother) at the deposition. This was

unrefuted. Kerpelman had also received

a letter from Oxley(son)'s wife, in

addition to the oral instructions from

Oxley(son), directing him to perform the

representation of Oxley(mother).

The deposition was scheduled. Where-

upon Kerpelman tried to reach Oxley (mother)

by phone, and could not. He then applied

to the court for a postponement --it was

never disputed that he had a valid

schedule conflict --hy contacting the

Defendant Land, who was the state circuit

court judge in the case at the time

stating, as to the Oxley(mother) deposi-

tion, that he represented her.

He could just as well have made the

request on the hasis of representing

Ox .sy (son), who was a party; who was,

therefore entitled to representation at

the deposition. It appears from all

there is that it was a mere matter of

random choice as to whether mother or son

had been named by Kerpelman.

After an explanation had been re-

quested of Kerpelman, which he gave, in-

cluding the oral and written instructions

the attempted telephone contact, neverthe-

less, Land filed a complaint. The com-

plaint was that Kerpelman had “defrauded”

the court in seeking the postponement.

These “Oxley” facts are all, it is

believed, contained in the letters ex-

tracted at A38&-9 from the file in Circuit

Court Case 92369 Equity, Baltimore County.

ee P

So the “grievance", as has been

said, was thrown out, even thought the

panel which did so was alleged to have

been hand picked (A 42 ) by the defen-

dants. It appears that a jury could

readily find it had no merit whatever.

The Petitioner brought suit in the

United States District Court for the Dis-

trict of Maryland under § 1983 of the

Civil Rights Act of 1964 and the Attorney's

Fees in Civil Rights Cases Act of 1978.

He sought damages, punitive damages and

a prohibitory injunction against the

bringing of future baseless suits founded

on malicious motivations. These he said

would cause him to spend all of his pro-

fessional time defending against meritless

“grievances” and would effectively prevent

him from practicing law (M43-4 ). =The

suit was brought against the operating

staff of the Attorney Grievance Commis-

sion, and also against all of the com-

mission members themselves, that is the

"board" members. Incumbency changed

during the course of the prosecution of the

"grievance" against the Petitioner and

both groups were dued as well as Judge Land

who had filed the "grievance". The board

members all defended on the grounds that

they had not acted maliciously, that they

knew ncthing of what the staff members

were doing and on "judicial immunity".

The staff members and Ludge Land on

grounds of “judicial immunity" and that

they had acted reasonably.

By the Maryland Rules of Procedure

under which they operated the "board"

members not only had the specific duty to

appoint and supervise the head of the

staff (Rule BV3b(1); page A 49a ) but

to "evaluate the effectiveness" from time

to time of the system they were super-

vising (Rule BV3(viii); page A 49a ).

The District Court judge, acting on

motions to dismiss dismissed the Petitioner's

complaint summarily, upon the pleadings.

er ar

He did so just a matter of days before

this court decided Pulliam v. Allen, U.S.

, 52 U.S.L.W. 4525 (April 23 and

May 14 are the dates). The dismissal was

based on judicial immunity of all parties

(except Mrs. Oxley and her husband who

) had never been served) and on the absten-

tion doctrine set forth by this Court in

Younger v. Harris, 401 U.S. 37, 91 S.Ct.

746, for criminal and quai-criminal state

prosecutions.

When the decision in Pulliam v.

Allen, supra, was handed down, however,

the Fourth Circuit Court of Appeals, under

its optional rules, immediately requested

formal and more elaborate briefing than

had been submitted, on two questions:

(1) The right of the Peti-

tioner to claim for attorney's

fees and costs in light of

Pulliam, and

(2) The question of immunity

from damages --at all --of

the Attorney Grievance Com-

mission staff and board members

(A 2-3 ).

However, after highlighting these

Pulliam questions by its request for

briefing, the Fourth Circuit then, in due

time, issued an unpublished three para-

graph Per Curiam Opinion (A 2 ) merely

reverting back to the grounds of dismissal

of the district court and adding as a new

ground, that the allegations of "conspiracy"

in the Petitioner's complaint were, "con-

clusory".

ili ah ce Sale LR lead Mae Ray Se oe

te alti i Ah We BE Nc i Baas II ea italien th aly 8

The Petitioner, speaking for him-

self, was surprised. There clearly seems

to be a Pulliam conflict.

SUMMARY OF ARGUMENT

AND OUTLINE OF ARGUMENT

Essence of the Summary

Pulliam required reversal by the

Fourth Circuit; its failure to do so places

it in conflict with that decision of this

Summary of Argument

Petitioner brought a civil

rights action against Respondents

for misuse of complex and expen-

sive attorney "discipline" proceedings

to maliciously have him disbarred.

The lower court dismissed on a motion

On grounds of a broad judicial

immunity and on Younger v. Harris

abstention from "ongoing" quasi-

criminal proceedings. Then Pulliam

v. Allen was decided holding that

"judicial immunity" offers only

limited protection in a civil

rights action. The Fourth Circuit

immediately posed two briefing

questions indicating it waS aware

of the effect of Pulliam. But in

its two --substantive --paragraph

Per Curiam Opinion the Fourth

Circuit, surprisingly failed to

discuss its own questions and

A AD ahahaha Acoust

merely referred back to the

pre-Pulliam lower court decision.

It added a ground of its own

also, namely that the complaint

attempted to charge "conspiracy"

but only by "conclusory" alle-

gations.

The Argument is that the Fourth

Circuit has patently placed itself

in conflict with Pulliam; that

Younger is entirely inapplicable

because the prosecution against

the Petitioner was not “ongoing”

but had ended long ago; he now

sought subsequent relief only,

as permitted by Pulliam; that

the Fourth Circuit was factually

incorrect about the suit being a

"conspiracy" suit and about "con-

clusory"™ allegations; numerous

specific acts and failures to act

stated in the Complaint are pointed

out; and the argument further is,

that the Maryland "disciplinary"

procedure is so notably at odds

with constitutional requirements

that it comes within that exception

to Younger anyway; that if Younger

still applies after Pulliam this case

is clearly within the Younger exceptions;

and finall that the Commission's claim

to be in the business of protecting

the public as a reason to continue

"judicial immunity" is cast into

much doubt by a statistical table

in the Appendix which itself sug-

gests other purposes.

OUTLINE OF ARGUMENT (Recap from

Table of Contents)

i A Distressing Compilation (Table A)

I Pulliam

i Reasons for Rejection by the

Fourth Circuit

Iv. Rebuttal to Reasons for Rejection

by Fourth Circuit

A. Younger v. Harris

Applies to Ongoing Prosecutions

only

B. "No Hope of Success"

C. The Presumption of Sainthood

D. "The Petitioner Caused the

San Francisco Farthquake”"

E. Allegations of Conspiracy;

"Conclusory"™ Language

F. On the Constitutional Protections

Requirement cf Younger/ Middlesex

V. CONCLUSION

A. Pulliam Must Govern

B. Some General Considerations

vi. EPILOGUE. The Unique Pursuit of

this Petitioner

In nn ete epee art ee OO

ARGUMENT

A Distressing Compilation

(Table A)

The Petitioner was a sole practitioner

attorney until suspended from practice.

(He has been reinstated now.) What does

being a small practitioner have to do with

this case? The Appendix contains a summary

of information obtained from the current

West's Maryland Digest Pocket Part on Attor-

neys-at-Law. See A 64- A 65 and particu-

larly Table A, page A 36 . It shows that

of the sixty one cases brought to the Mary-

land Court of Appeals by the Respondents

and their commission, from its inception

in 1977, to the present time, excluding

only cases involving alcoholics and cases

involving conviction of crimes, all but

one appear to be against small practitioners,

to one familiar with the Maryland bar. That

is, 60 out of 61 non-criminal, non~alco-

holism disciplinary cases were against

the little people in our industry. This

could be wrong, but if so the Respondents

will offer a correction.

And as to Jews: Possibly 20 out of

the 61. One-third. Since these are the

same cases, Jews of large firms are ex-

cluded from the statistics. An examination

of a Maryland Lawyers' Directory indicates

that these large firm Jewish persons are

considerable in number.

Therefore the ethnic-Jewish-name sta-

tistic is uncomfortable. It appears to be

perhaps double the ratio of small practi-

tioner Jews among all small practitioners.

This is unpleasant stuff. But in our

demoncracy we do it. It is emphasized that

the Jewish ethnic names statistics are sub-

ject to some serious criticism. The analyses

Rae SALE Gi iE a Soe Prairie

cc G AP RANG I LE EY HOI REM URL Aa erin OEY

bi cdeaaaialin

are admittedly loose and based on more

subjective judgment than makes for a nice

certainty. But let us at least be sus-

picious, for later this argument discusses

the presumption of sainthood which the

District Court judge made for the Respondents.

So much for that. It is shaky on the

ethnic question.

However, anyone knowledgeable about

firm personnel in Maryland, checking against

Martindale-Hubbell can see that the small

practitioner statistic is unquestionably

monstrous.

Petitioner is,among other things a

small practitioner and, he will mention,

a troublemaker. See counsel note to the

School Prayer Case 374 U.S.203. He was

Murray's lawyer. He has been involved in

many environmental and preservation cases.

(E.g. The Wetlands Case, Kerpelman v.

Board of Public Works 261 Md. 436; The

White Clouds Mountains Case (Md. District

Court). He has written a book, more re-

cently, “Divorce; A Guide for Men” (ICARUS

Press, 1983) which castigates the legal

system in a bad area. The Petitioner plays,

he himself would say, openly, without inhi-

bition, and always honestly.

In thirty years of practice, his pro-

fessional record was unblemished, until the

Maryland Attorney Grievance Commission was

established. So all-in-all it may not be

so illogical to believe that the purposeful

filing of the false “grievance” alleged in

the complaint may really have happened.

The District Judge seems to have in-

vented a Presumption of Sainthood, however,

to save them. That is not good law.

Pulliam

The holding in Pulliam v. Allen, 52

LW 4525 is entirely unequivocal. The sylla-

bus states:

. . « «(R)espondents brought an

action against Petitioner in Fed-

eral District Court under 42 U.S.C.

§ 1983 (1976 ed. Supp. V),

Claiming that Petitioner's prac-

tice of imposing bail upon persons

arrested for non-bailable offenses

under Virginia law and of incar-

cerating those persons if they

could not meet the bail was

unconstitutional. The court

agreed and enjoined the practice,

and also awarded Respondents costs

and attorney's fees under the Civil

Rights Attorney's Fees Awards Act

of 1976. Determining that judicial

immunity did not extend to injunc-

tive relief under § 1983 and that

prospective injunctive relie: pro-

perly had been awarded against

| Petitioner, the Court of Appeals

affirmed the award of attorney's

fees. Held:

1. Judicial immunity is not a

bar to prospective injunctive

relief against a judicial

officer, ... acting in her

judicial capacity. ...

Congress intended § 1983 to

be an independent protection

for federal rights, and there

is nothing to suggest that

Congress intended to expand |

the Common Law doctrine of

judicial immunity to insulate

state judges completely from

federal collateral review.

2. Judicial immunity is no bar

to the award of attorney's fees

-+- and the legislative history

confirms Congress’ intent

that an attorney's fee award be

made available even when damages

would be barred or limited by

immunity doctrines.

Yet, in spite of this clear language and

in spite of the Fourth Circuit's own original

inquiry, asking that the question of im-

munity for the Grievance Commission be for-

mally briefed, (A ) the Pourth Circuit,

which was aware of Pulliam, upheld the lower

court's decision against the Petitioner,

though that lower court decision had been

made before Pulliam was decided.

Moreover, it can be by no means fore-

gone that the Maryland Attorney Grievance

Commission is either a “judicial” or a

“quasi-judicial” body. It has no statutory

sanction. It is ostensibly an independent

body whose members are paid out of the Mary-

land “client's Security Trust Fund” (Maryland

Rule 1228, A 5a ), which is a fund, again

set up by the Maryland Court of Appeals on

its own, requiring a payment (currently $54

per year) by all practicing lawyers as a

pre-requisite to practicing. Again, there

is no Legislative sanction --and the levy

looks suspiciously like a tax. Only the

Legislature can tax. But that is matter

for a different brief. -~-Nevertheless,

these funds are a private collection. The

The “Commission” was set up in Maryland

sua sponte under the “rule-making” power

of the Maryland Court of Appeals without

other Legislative sanction --nor any state

constitutional sanction, and in spite of a

prior history showing that for 200 years the

power of regulating the bar resided in the

Maryland Legislature. There are no Maryland

cases recognizing any such “inherent” power.

None.

Commission itself, too, is a private body.

There is no electoral control, no Execu-

tive control, no Legislative control and

there is a pretension that there is no

control by the judiciary. In fact, the

judiciary strictly controls the appoint-

ments f@49-52 ) and so to say it has no

control would be to say that the Grand

Armee was independent of Napoleon. But

private body it is.

It is difficult to hem together any

theory by which a private body could have

"judicial" immunity.

Of course, this Court stated in

Middlesex that these committees can be

an “arm" of the judiciary. But an “arm"

is one thing, a “hammer" is another.

Later discussion herein in this Petition

concerns the evil use which may befall

these committees, or “commissions”.

The Court may wish to speak to this, or

to simply reverse in this case as being in

direct conflict with the principles already

set forth in Pulliam.

III

Reasons for Rejection By

The Fourth Circuit

The Fourth Circuit rejected the appeal

and upheld the District Judge based on

Younger v. Harris; and on “judicial immu-

nity"; and on the theory that the Petitioner

had sought to allege a conspiracy but

failed by not including specific allegations

of action or nonfeasance.

Rebuttal to Reasons for

Rejection By the Fourth Circuit

Younger v. Harris

Applies to "Ongoing" Prosecutions Only

It was error to apply Younger v.

Harris, ibid. for as is explicitly re-

peated in Middlesex v. Garden State,

Younger v. Harris applies only where the

remedy sought is the prohibition of an on-

going prosecution.

In the present case there is not an

Ongoing prosecution.

It is true that a prohibitory injunc-

tion is sought but not of any "ongoing"

or "pending" prosecution whatever. The

injunction sought was to prohibit future

and mala fide baseless prosecutions only,

and only if they should ever begin.

There can be no question but that

"ongoing" is a necessity for the operation

of Younger. Middlesex v. Garden State

discusses Younger in great detail and

makes that statement total of five times:

At 2515, 2516, 2522, 2524 and 2525

of 102 S.Ct.

Strangely, the "ongoing" case the

District Judge referred to was Oxley. The

Oxley "grievance". But that was long

over. It was ended by the Soudry letter of

Rosalyn Soudry who was chairman of the

“grievance” inquiry panel. The letter is

at A 33 «

The District Judge seems either to

have missed “ongoing” and "pending" in Younger

and Middlesex, or he misunderstood as to Oxley

being closed.

"No Hope of Success"

Perhaps at this point it would be

appropriate to rebut a second misapprehen-

sion of the District Judge (since the

Fourth Circuit stated it was relying on that).

The District Judge stated, in effect,

that since the Petitioner had already been

suspended from the bar for his evil prac-

tices that it could not be said that the

Grievance Commission's prosecution of the

Oxley "grievance" was "without any hope of

success" (see A 29 ).

This however, is neither good physics,

nor good philosophy, nor good logic.

Students of the sciences know that a

coin which has been flipped and has come

up tails twice is not more likely than be-

fore to come up heads the third time.

Likewise each prosecution of the Petitioner

is a separate entity, its bona fides or

mala fides not to be judged by what went

before. Nor is a Grievance Commission

under any lihter duty to a felon or a

criminal than it is to a Sunday School

teacher. That is basic Jeffersonian

American law and the question of "no hope

of success" would come up only as measure

of whether < goa os injunction against

baseless charges was being violated.

In any event Younger does not, even

by the District Judge's language, prohibit

all prohibitory injunctions of prosecutions.

It at least permits prohibition of those

with "no hope of success".

Like the Oxley one against the Peti-

tioner.

Or at the very least, it was erroneous

for the District Judge to rule that because

of the Petitioner's past evil life there

is no such thing as a "no hope" prosecution

against him.

American Law does not recognize the

concept of "outlawry".

The Presumption of Sainthood

The First Amendment

Aspect and Damages

The Presumption of Sainthood which

may have existed generally for disciplinary

committees before Pulliam was decided, is

gone now.

It should be gone for damages, too,

when the First Amendment is invoked.

The District Judge, speaking before

the Pulliam decision, had noticed that the

case had a First Amendment connection, but

he overcame it. It presents a conflict

with another circuit.

In the decision, the lower Court

discussed immunity:

"The rationale of granting

immunity to attorney disciplinary

committees ... is basically ...

that they are the ‘arm of the courts'

ee (A a

The Opinion then, in three closely

; stated pages contains flattering refer-

ences to

"perform(ing) a function which

traditionally belongs to the

Seeseiary ...”

and that,

"judges have delegated ..."

There are other phrases in dicating the

praiseworthiness of being the object of

judges' affections.

Nevertheless, a strain is present

in the reasoning. One is constantly

aware of it as the Court seeks to avoid

having *o accept as true the allegations

of the complaint, as the law requires.

In the final analysis, the problem

is solved only by a Presumption of Sait-

hood, or a leap of faith; or by comparing

apples and oranges:

Surveying the circuits, as

to money damages, the District

Judge goes on to find (A )

that the Fifth, Sixth, Eighth,

Ninth, and Tenth Circuits grant

"Absolute immunity

-.--under 1983..."

However, none of these Circuit Court

involved a First Amendment question.

It must also be noted that farther

forward in the Opinion (A19,24) the District

Court points out that this case, on the

pleadings, does involve the First Amendment:

"There are First Amendment

overtones ... Kerpelman has alleged

--- that members of the Commission

were aware of an article he pub-

lished critical of the courts and

the organized bar, and that the

pursuit of the charge against

him was motivated by the bar's

desire to suppress such criti-

cism."

The District Court then says, however,

that only the Second Circuit has ever held

that there are

"some circumstances (notably,

those involving ... First

Amendment freedom of speech)

in which absolute immunity

should not be granted ..."

The the leaps of faith. Comparing

the apples cases with the orange cases

(that is, the non-First Amendment cases

with the one Free Speech case) he opts for

the "majority rule (as) more persuasive

under the circumstances."

What “circumstances"? There was only

one Free Speech Case. One would think that

that one was a majority! One must conclude

that it was the Presumption of Sainthood

which really carried the reasoning forward;

over apples, over oranges, over Thomas

Jefferson's blessed head, over the First

Amendment.

And yet, it is respectfully urged

even all of that may have become moot with

Pulliam; for if a prohibitory injunction,

counsel fees and costs judgments may be

passed against judges, should not greater

sanctions --damages and punitive damages

-~-be allowed agaisnt non-judges who have,

if the allegations of the complaint here

be true, broken faith with the trust which

their appointment to office placed upon

them? This Court always has a special

concern for the First Amendment. There is

a concern as well when Circuits disagree.

The Fourth Circuit adopted the Opinion

of the lower court in its own decision

(A 3 ), hence is in conflict with the

Second Circuit case on the question of

the availability of damages for the

chilling of First Amendment rights by

disciplinary committees.

On either basis, but particularly

on the First Amendment basis, it is a

question which, it is respectfully sug-

gested, should be settled.

The Second Circuit case referred to is

Dacey v. New York County Lawyers’ Assn, 423

F2d 188, cert. den. 398 U.S. 929 (1969).

"The Petitioner Caused

The San Francisco Earthquake"

What if, for example, the defendants

in the future receive a complaint that the

San Francisco Earthquake was instituted by

the Petitioner.

Is he to be debarred from seeking

Civil Rights Action redress, including a

prohibitory injunction, because the Res-

pondents succeeded in the past in having

him suspended from practice?

Younger, certainly, does not go

that far. The District Judge said it did

and the Fourth Circuit adopted his reasoning.

It is certainly not inconceivable

to the Petitioner that he will be charged

with that someday soon. It is no different

in substantive support than the Oxley

charge.

Petitioner had in Oxley asked for a post-

Allegations of a Conspiracy

"“Conclusory" Language

The Fourth Circuit was under a mis-

apprehension, albeit due to the actual use

of the word "conspiracy" on a single

occasion in the original District Court

complaint. It is mere surplusage however.

No conspiracy is alleged. What is alleged

is conscious perfidy on the part of the

Maryland Attorney Grievance Commission's

Operating staff and (a)impermissable

non-knowledge of what that staff is doing,

On the part of commission members. (That

is, the "board" members} or, (b) knowledge

ponement based on his aileged belief that

he represented a non-party at a deposition.

He in fact did represent a party and could

hive sought the postponement anyway. He

was charged with committing a fraud on

the Court. See Statement of the Case.

of what is being done by the staff and no

steps taken to halt its unlawful activities;

or, (c)lack of knowledge of what one should

know about after accepting the responsibili-

ties of the position of "board" member.

Some of the allegations found in the

complaint as to both the "board" defendants

and the "operating staff" defendants, which

are non-conspiratorial allegations and in

specific, not "conclusory" language, are

the following:

In paragraph Four:

(The operating staff of) the

Maryland Attorney Grievance

Commission ... approved, directed

and condoned all of the acts (of

the operating staff) ... ,

Paragraph Five:

(The operating staff), with

the direct or implied consent

of the other defendants deter-

mined to illegally injure and

unconstitutionally harass the

Plaéiati¢fté ...

Paragraph Six:

(Thereafter the operating staff)

decided to pursue a false charge

against the plaintiff knowing it

to be false ...

Paragraph seven:

(The operating staff) with the

cooperation and assistance of the

(board members) did bring such a

false frivolous and baseless ...

charge ... knowing it was false,

baseless and invalid as a charge ..

Paragraph Ten:

(The operating staff and the

"board" defendants) acted out of

fraud and vicious malice, and

likewise outside of any lawful

authority they had.

Paragraph Eleven:

On May 8, 1981 (see C.) the

charges referred to were dropped,

dismissed, by a certain “Inquiry

Panel" ... This was to the great

surprise of every defendant, all

Defendants having been intoxi-

cated by their belief in the

limitless power of the (operating

staff and "board" defendants) to

instill fear, silence and compli-

ance in all attorneys.

Paragraph Fifteen:

Further, the (operating staff

and “board") defendants ... have

succeeded in terrorizing the

Plaintiff, so that he fears to

re-enter the profession of law

again since he would be in danger

Paragraph Seventeen:

The further method of illegal

activity which the (operating

staff and "board") defendants ...

exercised and continued to exer-

cise ...is an elaborate and secret

system of surpressing and failing

to process complaints against

members of the bar whom they

favor ... and they have used

that power to bring the invalid

charges which are the gravamen

of this complaint against this

Plaintiff ... and they have

succeeded in silencing him...

by driving him out of the prac-

tice of law; he is duly terrorized,

he does wish to go back to practice,

he can stay in practice only if

this suit succeeds."

The language quoted above is scarcely

nonspecific nor conclusory, either as to

conspiracy or as to actions. The Fourth

40 |

ee a TT

Circuit's finding that it is, is puzzling.

It may be noted that the District Court

did not base its decision on nonspecificity

or conclusoriness.

On the Constitutional

Protections Requirement

of Younger/Middlesex

Middlesex v. Garden State, supra,

interprets Younger, supra. A federal

court will abstain from interferring with

a "disciplinary" committee

"So long as the constitu-

tional claims of the respondents

can be determined in the state

proceedings and so long as

there is no showing of bad

faith, harassment, (etc.) ..."

102 S.Ct. at 2523 of Middlesex.

The Petitioner contends that the

Maryland Grievance Commission, after Pulliam

has lost any claim to judicial immunity.

But even if it has not, the Petitioner

believes that the Court would be impressed,

were certiorari granted and were the sub-

ject to be briefed, with the complete

failure of the Maryland procedure to meet

the tests of “constitutional claims can

be determined" and "no bad faith or harass-

ment". Partially Table A is already indi-

cative of bad faith and harassment; while

the procedure itself is so serpentine,

monolithically controlled, comples, time

consuming and expensive to any accused as

to fall short of Due Process; ero "consti-

tutional claims cannot be (with reasonable,

expeditious, Due Process) determined." This

is the procedure. References are to the

Rule number. The Rules are found at A

to A 49+57:

A. Complaint made. Followed

up or dismissed without standards (BV6a2).

B. Referred to a panel picked by a

privy of The Bar Counsel (BV6a4) (BV6c)

Extended proceedings such as 4

to 6 weeks. No rules of evidence.

No specific charges. Fishing

permitted. Refusal to testify

used against. No access to courts

on constitutional matters has been

available. (Reference: Practic’s

not stated in the Rules.) C. Charges

then forwarded to Review Baord,

which acts (by practice, not rule)

by one member reporting and other

members voting on the report. No

representation of accused. No

chance to be heard. (BV6d4(b)).

D. Forwarded to Court of Appeals.

Specificity of charges required

for the first time. (BV9a-c)

Constitutional requirements not

challengeable. (By practice, not

Rule.) E. Forwarded to a "Master",

not a judge (See Grievance v.

Collins 457 A2d 134, 295 Md. 532.

"Clearly erroneous" rule stated

characteristic of a "Master" though

performed by a "judge". The

character of the proceedings is

frequently obfuscated by terminology).

"Trial" held. No access to consti-

tutional challenge. Do rules of

evidence apply? Case law unclear.

F. "Exceptions" (not appeal) heard

by Court of Appeals (BV11b2).

Again, "clarly erroneous" rule mentioned.

Trial is protracted. See Grievance v.

Kerpelman 438 A2d 501. 45 trail days,

9 months.

This is no procedure. It is a

barbed wire entanglement in no-man's

land. Also believed demonstrable ina

brief is the proposition that the Court

of Appeals on "Exceptions" (Rule BV 11lb2 )

regularly chooses to omit to even discuss

important "exceptions" or to rule on them.

This Court might readily find, indeed,

that the Maryland “disciplinary™ Rules are

"“'flagrantly and patently'

unconstitutional." Younger

v. Barris 401 U.S. at 33.

Then the District Court should not

have abstained.

CONCLUSION

Pulliam Governs

The Fourth Circuit's consideration

of the matter without reference to Pulliam,

then, was erroneous. Its reliance on

Younger v. Harris and on a "conclusory

allegations" theory is not well founded.

Declining to discuss Pulliam, as the

Fourth Circuit did, does not make Pulliam

gO away. Abstention based On Younger,

if that was the Fourth Circuit's ground,

does not supravene Pulliam because Younger

"ongoing prosecutions".

applies only to

against

The prosecution of the "grievance"

the Petitioner was entirely finished long

before the suit below was filed. Equally,

Younger, as stated in Middlesex, cannot

frailty

apply if there is constitutional

Or harassment. Any jury, or the court

sitting as trier of fact, could find

that there was. It need not be reiterated

that in the ruling on the motion below

the allegations of the complaint were

required to be taken as true. Nothing

saves the case from being within the holding

in Pulliam nor the Fourth Circuit from

being in conflict with this Court.

Some General Considerations

What may be at stake in this case

may be the very viability of the bar as

a meaningful institution. This may appear

alrmist, but until the Maryland system

is acknowledged to be under some sort of

constitutional containment rather than

freed from it by an invalid application

of "judicial immunity", one should be

alarmed. Every flood starts with a shower

somewhere and in Maryland, the river is

rising. The Maryland Court of Appeals,

with its broad appointing power, con-

trols the Grievance Commission, its opera-

ting staff, its Inquiry Panels, its Review

Boards, the whole machiner. As could be

shown in a brief, it is believed, the

control is even more centralized than

that. The staff has the power to make

"investigations", and the unlimited power

to not pursue any particular investiga-

tion. If it chooses to make an “inves-

tigation", then with more frequency than

statistics would lead one to expect,

these are against two suspect classes

(Table A, A 36 )- Just as serious,

these are without realistic checks and

balances; the wishes of the appointing

authority will almost always prevail.

"Conformity" is therefore encouraged.

Vigorous, independent, and sometimes

unpopular, advocacy is discouraged.

An institution without checks and

balances is an institution which is ty-

rannical now, or will be tyrannical next

year.

The Grievance Commission of Mary-

land is tyrannical, in fact, now. It

will continue to be so unless it can be

sued for recompense against its tyranny.

Under the Civil Rights Act of 1963 Con-

gress intended this. Under Pulliam v.

Allen, this Court said just that: "Con-

gress intended ... 1983 to be an inde-

pendent protection for federal rights."

In In re Ronwin, 113 Ariz. 357, 555 P 2d

315 (1976) referred to in Ronwin v. Arizona

52 LW at 4543, it was reiterated that

practicing law is such a right.

The Fourth Circuit has become in

conflict with the safe protection of

that right by having placed itself in

conflict with Pulliam.

Respectfully submitted

LEONARD J. KERPELMAN

Attorney-At-Law

In Proper Person

2403 W. ROgers Avenue

Baltimore, Maryland 21209

(301)36€7-8855

EPILOGUE

The Unique Pursuit

of This Petitioner

The last available published report

of the Attorney Grievance Commission of

Maryland covers the period July 1982 -

June 1983. (Archive, Maryland Department

of Legislative Reference, Baltimore.)

It indicates 1052 "processed" com-

plaints. Of these, 772 were busily dis-

missed as being “without merit” by the

head of staff with the approval of one

appointed selectee of an “Inquiry Com-

mittee”. (Rule BV6a2 page A53 ) No

record of “dismissed” complaints is kept,

and we cannot tell who the recipients of

this kind treatment were. Again, we can

only fall back on Table A (A 36 ).-

In the period named; of the re-

maining 280 compalints not dismissed forth-

with 125 "cases" seem to have been re-

ferred to Inquiry Panels. That is 12%

of all complaints. The figures are hardly

a paragon of clarity, and one is forced

to guess at many meanings, (figures on

A 47 ) but thereafter 53 “cases” seem to

represent the suspension or ultimate

serious stage of seeking disbarment through

charges forwarded for a “trial”, which is

ad en tt

the full conclusion permitted. This is

This is but 5% of the cases, and perhaps

fewer of the number of attorneys.

Yet, in the eight years (so that

this is not some vagrant statistic, but

a matter of policy), since the inception

of its activity against the Petitioner,

the Grievance Commission has never once

ammarily dismissed a complaint against

him. Not even the Oxley complaint. 100%

have been forwarded along, and have each

time been directed obstinately toward

disbarment. Neither has the Commission

ever referred any case against the Peti-

tioner to fee arbitration as a mere fee

dispute, or handled any in the other

mollifying forms it has available. ("Coun-

selling", private warning, etc.). Six

have been sent to Inquiry Panels (100%)

including, of course, Oxley, and two new

cases recently, which Petitioner believes

are equally as frivolous in content.

(1985 Docket of the Commission.)

On the other hand, for the twenty-

eight years of his legal practice before

1978, during theperiod when regulation of

the bar was in the hands of a cross-section

of the bar itself by peer review, the

Petitioner has not a single blemish on his

ethical record. Something is amiss. Some-

thing even more serious, perhaps, within

the state “disciplinary” system than is

explained even by Table A. Something

which is complex, which does not lend it-

self to the conciseness of a Petitioner,

but which it is believed could be further

;

}

- ee a

delineated in a brief. It would also

appear, it is respectfully suggest, that

there may exist, in the quiet and secret

slaughters of "disciplinary" prosecutions

--and non-prosecutions --in the Maryland

system, a greater danger to the desreahle

ideals of the profession than has been

generally suspected. It is a danger which

Congress intended to guard against, by pro-

viding a means "to reach unconstitutional

action by all state actors" (Pulliam at

4530) but which in this case, it is urged,

the Fourth Circuit quite erroneously pre-

vented any inquiry into.

Pespectfully submitted,

LEONARD J. KERPELMAN

APPENDIX

TABLE OF CONTENTS

OF APPFNDIX

Per Curiam Opimion, Fourth Circuit

Judgment of Court Denying

Rehearing (Fourth Circuit)

"Order" (Judgment of Lower

Court

"Merorandum” (Opinion of Lower

Court)

Briefing Letter from Fourth

Circuit Court of Appeals

Letter, Chairman Inquiry

Panel to Defendant

Firshman Dismissing

"Grievance"

Unprintable Expletive

Table A

Letters, Petitioner to Judge

Raine and Defendant Land

Complaint Extract

Annual Report Fxtract

Attorney Grievance

Commission

Maryland Rules, on

Grievance Commission

A31

A33

B35

A38

A40

A47

A49

Maryland Rules, Clients'

Security Fund

Oxley (Son) Wife's

Letter to Petitioner

Statute of I George I

Laws of Maryland

Ch. 305 of 1977

Wests' Maryland Digest

Pocket Part Extract

Ase

A60

A61

A62

AE4

UNPUBLISHED

IN THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

No. 84-1737

LEONARD J. KERPELMAN,

Appellant,

vs.

MARVIN LAND, ET. AL.,

Appellees.

Appeal from the United States District

Court for theDistrict of Maryland,

at Baltimore, Joseph H. Young,

District Judge. (C/A Y-83-3307)

Submitted: November 30, 1984

Decided: January 24, 1985

Before ERVIN and CHAPMAN, Circuit Judges,

and BUTZNEF, Senior Circuit Judge.

PER CURIAM:

Leonard Kerpelman appeals the district

court's dismissal of his 42 U.S.C. § 1983

action against certain present and former

members and employees of the Maryland Attorney

Grievance Commission and a former judge.

Kerpelman, a Maryland attorney suspended for

reasons not relevant to this appeal, alleged

that the defendants conspired to deprive him

of his first, fifth, and fourteenth amend-

ment rights by pursuing a disciplinary charge

that was eventually dismissed by an inquiry

panel of the Commission. He sought damages

and a permanent injunction prohibiting the

defendants from pursuing any further "frivo-

lous, fraudulent or insubstantial" complaints.

The district court held that each de-

fendéent subject to this appeal had either

judicial or quasi-judicial immunity from

The other defendants, those named in

Kerpelman's group five, are not parties to

this appeal.

A2-

damages. The court also held that the prin-

ciples set forth in Younger v. Harris, 401

U.S. 37 (1971), rendered Kerpelman's request

for injunctive relief inappropriate.

We affirm on the basis of the district

court's opinion, noting additionally that

Kerpelman's conclusory allegations of a con-

spiracy are insufficient to maintain his

claim. See White v. Boyle, 538 ?.24@ idr?

(4th Cir. 1976); sigler v. LeVan, 485 F.

Supp. 185 196 (D. Md. 1980). We also deny

Kerpelman's motion for an injunction pen-

dente lite.

AFFIRMED.

(Letter)

(4th Circuit Court of Appeals)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1737

Leonard J. Kerpelman,

Appellant,

versus

Marvin Land, et al,

Appellees.

Appeal from the United States District

Court for the District of Maryland,

at Baltimore. Joseph H. Young,

District Judge.

Upon consideration of the appellant's

pro se petition for rehearing,

IT IS ORDERED that the petition for

rehearing is denied.

Entered at the direction of Judge

Ervin for a panel consisting of Judge Ervin,

Judge Chapman and Judge Butzner.

For the Court,

CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LEONARD J. KERPELMAN ®

vs. * CIVIL NO.Y-83-3307

GROUP 1 DEFENDANT, e

MARVIN LAND, et al. e

ORDER

In accordance with the attached Memoran-

dum, it is this 17th day of Argril, 1984,

by the United States District Court for the

District of Maryland, ORDERED:

A That the motions to dismiss filed

by the "Group 1 Defendants" and the Groups

Two, Three and Four" defendants BE, and the

same ARE, hereby GRANT#D;

2. That judgment BE, and the same

IS, hereby GRANTED in favor of all defen-

dants except Mr. Gail Oxley, Joann E. Oxley,

and Mrs. Gail R. Oxley;

3. That the plaintiff show cause, if

any he may have, on or before the 17th day

of May, 1984, why his cause of action filed

against Mr. Gail Oxley, Joann E. Oxley, and

Mrs. Gail Oxley should not be dismissed for

failure to take affirmative steps to obtain

service of process; and

4 That copies of this Memorandum and

Order be sent to all parties.

/s/ Joseph Young

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

LEONARD J. KERPELMAN *

vs. * CIVIL NO. Y-83-3307

GROUP 1 DEFENDANT, *

MARVIN LAND, et al.

MEMORANDUM

The plaintiff, an attorney and former

member of the Maryland Bar who has been sus-

pended from practice for three years, has

filed this 42 U.S.C. - 1983 action pro se

against present and former members of the

Maryland Attorney Grievance Commission,

several employees and former employees of

the commission, a former judge and the indi-

viduals who were involved in a complaint

lodged against him. Currently before the

Court are motions to dismiss filed by the

Defendants.

The complaint basically sets forth a

claim of malicious prosecution. The Plain-

tiff maintains that the defendants insti-

gated, prosecuted or sanctioned an investiga-

tion and inquiry into a patently meritless

disciplinary charge against him. According

to the complaint, the underlying allegation

centered on statements made by the plaintiff

that he represented two individuals whom he

did not, in fact, represent. As exhibited

by the attachments to the complaint, that

charge was rejected as meritless by a unani-

mous decision of the"inquiry panel" appointed

to conduct a hearing on the charge. The

Plaintiff notes in his complaint that he has

been suspended for charges "not related to

this cause of action."

Before discussing the motions to dis-

miss, the Court should dispose of two pre-

liminary matters. First, the plaintiff has

requested appointment of counsel. The Fourth

Circuit has instructed the Court to appoint

counsel only in exceptional cases, Cook v.

Bounds, 518 F.2d 779, 780 (4th Cir. 1974),

and in this case the Court does not find

such exceptional circumstances. Although

the plaintiff is an attorney, (suspended

from practice), his pleadings and affidavits

will be construed under the less strict

standards generally accorded pro se litigants

who are not attorneys. Haines v. Kerner,

404 U.S. 519, 520 (1972).

The plaintiff also has requested a

hearing on the motions to dismiss. However,

after reviewing the submissions of the par-

ties, the Court has concluded that a hearing

un-

is/necessary, since the allegations of the

plaintiff in his complaint make clear that

he could prove no set of facts entitling him

to relief.

Al0

The plainitff, in his complaint, has

separated the defendants into five different

groups. Defendants listed in the first four

groups are entitled to judicial or quasi-

judicial immunity from damages, and injunc-

tive relief would be inappropriate. One

member of the fifth group of defendants,has

requested dismissal because the plaintiff

has failed to serve her within 60 days of

filing this action. A Show Cause Order will

be signed with regard to her and her co-de-

fendants. Each group of defendants will be

discussed in turn.

-DEFENDANT MARVIN LAND

According to the complaint, Marvin

Land was a judge of the Circuit Court of

Baltimore County, who resigned from the

bench to take a job with a RBRaltimore City

law firm. The plaintiff claims that Land,

acting “entirely outside the bounds of any

All

duty or the duties of any elected office he

then held, andentirely and solely out of

vicious malice, jealousy and/or rage," in-

stituted the charge against him. The attach-

ments to the complaint indicate that the

charge on which the plaintiff bases his claim

originated with a motion for a protective

order filed by the plaintiff on behalf of the

mother and brother of a client, in response

to deposition notices from those individuals.

The attachments to the complaint show that

the investigation by the Maryland Attorney

Grievance Commission was "into whether...

you (the plaintiff) made a false representation

to Marvin Land when you indicated that you re-

presented Mrs. Oxley's mother and brother-in-

law (sic, should read 'Mr. Oxley's mother and

brother') when in fact you knew that you did

not represent them."

Al2

The scope of judicial immunity under

g§ 1983 was explored thoroughly by the United

States Supreme Court in Stump v. Sparkman,

435 U.S. 349 (1978). In Stump, the victim

of an involuntary sterilization filed an

action against her mother, who had instituted

the petition which resulted in her sterili-

zation, against her mother's attorney, against

the surgeon and other medical personnel, and

against the judge who signed the order allowing |

the sterilization to proceed. The court noted

that judicial immunity was held to apply to

§ 1983 actions in Pierson v. Ray, 386 U.S.

547 (1967), and cited with favor the earlier

explanation of the scope of judicial immunity

in Bradley v. Fisher, 13 Wall. 335, 351 (1872):

-.- judges of courts of superior

or general jurisdiction are not

liable to civil actions for their

judicial acts, even when such acts

are in excess of their jurisdiction,

and are alleged to have been done

maliciously or corruptly. 435

U.S. at 356.

The Stump court noted that:

A judge will not deprived of

immunity because the action he

took was in error, was done

maliciously, Or was in excess

of her authority; rather, he

will be subject to liability

only where he has acted in

the “clear absence of all

jurisdiction.” Stump at 356-

le oe

Thus, the Court must answer two questions

in determing whether former Judge Land is

immune from actions for damages under ¢ 1983:

first, whether the actions he is accused of

having taken are "judicial acts," and second,

whether or not those actions “fall clearly

outside his jurisdiction" as a judge.

Harper v. Merckle, 638 F.2d 848, 858 (5th

Cir. 1981). The Fifth Circuit listed four

factors which a court should apply in deter-

mining whether or not a judge's actions

were "judicial acts," particularly in the

context of contempt proceedings. These

factors include whether:

Al4

1) the precise act complained

of... is a normal judicial

function;

2) the events involved occurred

in the judge's chambers;

3) the controversy centered

around a case then pending

before the judge; and

4) the confrontation arose

directly and immediately

out of a visit to the

judge in his official

capacity.

Applying those facts to the acts which the

plaintiff complained of -- that of filing

or encouraging a disciplinary charge against

the plaintiff -- it is clear that such an

act, while not a frequent judicial act, is

part of the judicial function of monitoring

the behavior of attorneys before the court.

The underlying event occurred in the judge's

chambers, centered around a case then pending

before the judge, and arose directly and im-

meadiately out of business, not social, inter-

actions between the plaintiff and the judge.

As to the question of jurisdiction, the

Maryland courts have held tenaciously to their

authority and their responsibility to regulate

members of the legal profession.

In light of the intimate

relationship between the

learning and character of

attorneys, the perceptions of

the public, and the performance

by the courts of their con-

stitutionally assigned functions,

we are confident that, as a

general matter, the proper

repositiry for the authority,

responsibility and obligation

to regulate the profession,

in our scheme of constitutionally

divided realms of power, is

and must ultimately be the

judiciary of the state.

Attorney General v. Waldron,

289 Md. 683, 697-98 (1981).

The plaintiff argues that defendant Land's

claim of judicial immunity is equivalent to

a claim of

judicial civil immunity interposed

if he had run over a citizen who

had the green light ina

crosswalk while Land was on the

way to the courthouse. OF «se

a citizen stands below Land's

window at the courthouse and

yells "Justice Sucks Here:"

Land opens the window and throws

a heavy paperweight at the

citizen, fracturing his skull.

(Document 6 at page 3).

Although the similarities between plaintiff's

examples and the allegations against defendant

Land may be apparent, throwing an ashtray

or disobeying a traffic signal is not a

"judicial act" subject to the immunity es-

tablished in § 1983 cases.

This Court finds that defendant Land's

initiation of the complaint against the

plaintiff was a judicial act and was within

the jurisdiction of the court, and is,

therefore, not actionable under the doctrine of

judicial immunity.

PRESENT AND FORMER MEMBERS AND EMPLOYEES. OF

COMMISSION

With the exception of the Oxleys, who

are alleged to have provided the "false" in-

formation on which the "phony" charge was

based, the remaining defendants are ail

Al7

present or former employees or members of the

Attorney Grievance Commission of Marylane.

Having determined that Judge Iand is immune

from suits for damages under # 1983, the

Court must determine whether the acts of

the Commission and its agents are entitled to

"quasi-judicial" absolute immunity as the

arm of the judiciary, charged with regulating

attorney conduct in Maryland.

A survey of the relevant case law

shows that the courts of appeals of the

District of Columbia Circuit and the Fifth,

Sixth, Seventh, Eight, Ninth and Tenth Cir-

cuits have all determined that the members

and/or agents of analogous commissions are

absolutely immune from suits for damaces

under § 1983 or other federal laws. Only

One circuit --the Secon ‘Circuit --has held

in a somewhat dated opinion that there are

some circumstances (notably, those involving

Als

restrictions on First Amendment freedom of

speech) in which absolute immunity should

not be granted to attorney grievance com-

missions. Although the Fourth Circuit has

not ruled on this issue, an ‘although the

plaintiff here has claimed interference

with freedom of expression, this Court finds

the majority rule more persuasive under these

circumstances, and holds that the Maryland

Attorney Grievance Commission and its lawful

agents are absolutely immune from suits

for money damages for acts committed in the

course of their duties.

The rationale of granting absolute

immunity to attorney disciplinary committees

is basically that they are the "arm of the

cours," Simons v. Bellinger, 643 F.2d 774,

780 (D.C. Cir. 1980), or that they are "an

integral part of the judicial process," Clark

Al9

v. State of Washington, 366 F.2d 678, 681

(9th Cir. 1966). See also Slavin v. Curry,

574 F.2d 1256, 1266 (5th Cir. 1978). MThey

have been compared with public prosecutors, who

receive absolute immunity for their quasi-

judicial functions such as determining whether

to proceed with a criminal prosecution but

only qualified immunity for police-like or

investigative functios. Kissell v. Breskow,

579 F.2d 425, 430 (7th Cir. 1978). Those

courts which have examined the issue have

held that the attorney disciplinary commissions

and their agents are entitled to absolute

immunity becasue their activities are more

like the discretionary functions of prose-

cutors than the ministerial, investigative

functions of police departments. See, €.g.,

Kissell, 579 F.2d at 430; Simmons, 643 F.2d

at 780. Having reviewed the decisions, the

A20

Tenth Circuit stated:

oe. we... agree with the

courts which have held that

bar officials charged with

the duties of investigating,

drawing up, and presenting

cases involving attorney

disciplinary enjoy absolute

immunity from damage claims

for such functions. Clulow

v. State of Okla, 700 F.2d 1291,

1298 (10th Cir. 1983). Accord,

Ginger v. Circuit Court for

County of Wayne, 372 F.2d 621,

625, cert. denied, 387 U.S. 935

(6th Cir. 1967), Rhodes v. Meyers,

379 U.S. 915 (8th Cir. 1964).

The case decided by the District of Columbia

Circuit is closely analogous to the one

brought by Kerpelman. There, as here, the

plaintiffs- allege that the defendants --

members of the disciplinary committee in-

volved -- “maliciously harassed” them.

The court held that the defendants were

absolutely immune because their work re-

sembled that of a prosecutor, as well as

A21

that of a judge.

Having genuinely focused upon

particular defendants and a

particular wrong, the Committee

is entitled to absolute immunity

when it makes inquires necessarily

antecedent to its determination

regarding prosecution ... .

The Committee members' work is

functionally comparable to the

work of judges in a second respect.

They serve as an arm of the court

and perform a function which

traditionally belongs to the

judiciary. 643 P.20 at FEO. «<>»

As mentioned, only one court has held that an

attorney disciplinary committee does not enjoy

absolute immunity from suits for money

damages. In Dacey v. New York County Lawyers'

Assn., 423 F.2d 188, cert. denied, 398 U.S.

929 (2d Cir. 1969), the court held that,

where First Amendment interests were impli-

cated, those serving on a disciplinary committee

are netitled to only qualified --or "good-

faith" --immunity for their acts.

A22

eat

The district court's entry of judgment for

the defendants in the Dacey _ case was af-

firmed, however, because the Second Circuit

determined that probable cause existed to

prosecute the complaint against the plain-

We are of the view that when the

(New York County Lawyers') Asso-

ciation instituted its proceedings

against Dacey, its role was

analogous to that of a public

prosecutor. But this is not

the end of our inquiry. Chief

Judge Learned Hand concluded that

the decision to grant immunity

to public prosecutors arose from

"a balance between the evils

inevitable in either alternative."

- « »« In analyzing those

interest, we discern facets

to this case which cause us to

pause and question the wisdom

of allowing the Association to

find sanctuary in the doctrine

of immunity on the facts alleged

in the complaint.

The objective and effect of

instituting criminal contempt

proceedings for the unauthorized

practice of law against Dacey

was to suppress a book . .

423 F.24 at 192.

and therefore, the Association was

A2 3

entitled to "good-faith" immunity from

money damages.

As stated earlier, Kerpelman has

alleged that there were First Amendment

overtones to the prosecution of the com-

plaint against him. He maintains that

members of the Attorney Grievance Commission were

aware of an article he published critical

of the courts and the organized bar, and

that the pursuit of the charges against him

was motivated by the bar's desire to sup-

press such criticism. However, such an

allegation does not remove the immunity

from the members and employees of an attorney

disciplinary committee. In Maryland, as in

other states, judges have delegated the

functions of investigating and prosecuting

complaints of misconduct against attorneys

to the Maryland Attorney Grievance Committee,

Kerpelman v. Bricker, 23 Md. App. 628, 630

A24

(1973), and in pursuing those complaints,

the individuals on the committee and its

agents are acting as judicial agents. Just

as judges are granted absolute immunity for

money damages for judicial acts within their

jurisdiction -- regardless of First Amend-

ment overtones -- so must their agents.

INJUNCTIVE RELIEF

The remaining question with regard to

all defendants except those listed in "Group

Five" is whether the plaintiff has stated

a cause of action with regard to the declara-

tory and injunctive relief he seeks. Basi-

cally, the plaintiff claims that the "false"

and "ridiculous" charge lodged against him

and then dismissed by the inquiry panel was

an indication of a pattern of harassment

against him which will continue if he "re-

enters the profession of law." There is no

Claim of any pending disciplinary action

against him. He also maintains that this

campaign of harassment has been pursued

against him “to suppress free speech, dis-

sent, and just criticism."

The plaintiff also claims that the

defendants should be enjoined because they have

deprived him of his "Fourteenth Amendment

right to practice" without due process of

law. His claims with regard to disciplinary

proceedings resulting in sanctions are not

appropriately before this Court. The courts

have held that a § 1983 action will not lie

for successful disbarment proceedings, since

the appropriate avenue for appeal is by writ

of certiorari to the United States Supreme

Court. Coogan v. Cincinnati Bar Ass'n.,

431 F.2d 1209, 1211 (6th Cir. 1970).

However, dismissing the plaintiff's

A26

allegations with regard to the due process

claim does not require dismissal of this

entire suit. The claim with regard to the

"harassment" campaign remains.

The Supreme Court recently noted the

cloase similarity between criminal prosecu-

tions and disciplinary actions against at-

torneys, Middlesex Ethics Comm. v. Garden

State Bar Ass'n., 457 U.S. 423, 432-33 (1982),

and held that the principles espoused in

Younger v. Harris, 401 U.S. 37 (1971), with

regard to federal court injunctions against

state criminal prosecutions will be applicable

to federal courts' handling of injunctions

against state disciplinary proceedings. Al-

though Younger and its progeny express a

general rule disallowing federal court inter-

ference with state prosecutions, an express

exemption was made by the Court in Younger

for situations where a pattern of prosecu-

tions for harassment purposes was alleged.

See401 U.S. at 48, citing with favor Dom-

browski v. Pfister, 380 U.S. 479 (1965). As noted, t

the plaintiff here has made such an allegation.

To demonstrate a pattern of malicious

prosecutions capable of invoking the federal

court's injunctive powers, a plaintiff must

be able to show that prosecutors have en-

gaged in such a stream of activity without

"any expectation of securing valid convictions.’

Dombrowski, 380 U.S. at 482, cited in Younger,

401 U.S. at 48. The circumstances, on the

face of the complaint, indicate otherwise.

Here, the plaintiff was, in fact, suspended

from practice for a period of three years

for two separate complaints (the final re-

sults are reported at Attorney Griev. Comm'n

v. Kerpelman, 288 Md. 341, 383 (1980), cert.

A28

denied, 450 U.S. 970, and at Attorney Griev.

Comm'n v. Kerpelman, 292 Md. 228, 245 (1981)).

As a result, the campaign of harassment al-

leged by Kerpelman can hardly be said to

have been engaged in without hope of success-

ful prosecution, and his allegations must be

dismissed.

FAILURE TO SERVE

One of the "Group Five" defendants, Gail

R. Oxley, on March 27, 1984, moved the Court

to dismiss the cause of action filed against

her because she has not been served with

process. A review of the file indicates that

the plaintiff requested the clerk to withhold

service, presumably because of the cost, but

that he has not served any of the Group Five

defendants, including Mr. Gail Oxley, his wife,

Joann E. Oxley, or the movant, Mrs. Gail R.

Oxley.

A29

Although the Court has serious dobts

that the Oxleys' alleged activities could be

constywued to have been “under color of state

law" to state a § 1983 claim, the defendant's

motion for dismissal cannot be granted at

this time. Rule 33(B) of the Rules of the

United States District Court for the District

of Maryland requires the Court to grant the

plaintiff a period of time to show cause why

it should not dismiss the action against

those defendants who have not been served

within 60 days of filing the complaint.

Accordingly, a Show Cause Order will be signed

with regard to the "Group Five" defendants.

/s/ Joseph Young

United States District Juda

A30

(Letter)

August 28, 1984

Re : 84-1737, Leonard J. Kerpelman

vs. Marvin Land, et al

Dear Counsel and Mr. Kerpelman:

The Court is in receipt of the parties'

informal briefs in this case. After reviewing

the record, it has been determined that addi-

tional briefing would be of assistance in re-

solving this appeal.

I have been directed to request that the

parties file briefs on the following issues:

d (1) Whether members of Attorney Grie-

vance Commission of Maryland are

absolutely immune from suits for

j money damages.

(2) Whether in light of Pullian v. Allen,

, U.S. » 520.8. LW.

4525 (May 14, 1984), appellant's

request for injunctive relief and

costs was properly denied.

Ce a ee

7 Appellant shall serve and file his brief on or

before September 24, 1984, and appellees’ brief

shall be served and filed within 30 days of

service of appellant's brief. Each party may

file their own appendix, along with their brief

containing such materials as they deem necessary

to a full understanding of the matters being

A31

presented.

Sincerely yours,

JOHN M. GREACEN

Scott A. Richie

Counsel for Clerk's

Office

A32

May 8, 1981 Suite 1504

201 North Charles

Street

Baltimore, MD.21201

Melvin Hirshman, Esquire

Bar Counsel

Attorney Grievance Commission (cont.)

of Maryland

District Court Building

Taylor Avenue and Rowe Boulevard

Annapolis, Maryalnd 21401

Re: Leonard J. Kerpelman

BC Docket No: 80-39-4

Dear Mr. Hirshman:

With reference to the above-captioned

matter, it is the unanimous decision of the

inquiry Panel appointed to review this matter,

that this complaint should be dismissed without

a hearing pursuant to Rule BV6d4(a). The

panel, after a complete review of the file,

found no violations of any of the Rules in

the Code of Professional Responsibility.

It was further determined that there

was no conscious and/or willful desire ex-

hibited on the part of the Respondent to make

any misrepresentations to the Court in this

matter. The Panel found that that the Respond-

dent was justified in thinking that he was voing

to represent Ms. JoAnne Oxley's in-laws. Ms.

Oxley's letter of July 23, 1980 is an admis-

sion on her part that Mr. Kerpelman was led to

believe that he was going to present her mother-

in-law. Her letter states in part, “At the

beginning of our conversation with Mr. Kerpelman,

A33

I indicated to him in general sort of way that

if anything came up that involved my mother in

law that it should be included in our bill."

It was further found by the Panel that

Mr. Kerpelman had a legitimate conflict in his

shedule on that date that the depositions in

question were scheduled. Subsequent to the

filing of the Motion for Protective Order,

opposing counsel did agree that the deposition

would be postponed.

Very truly yours,

Roslyn Soudry

Chairman, Inquiry Panel

RS/amk

Melvin Hirshman, Esquire

May 8, 19.1

Page Two

EDWARD SMITH, JR.

222 St. Paul Street

Suite 3600

Baltimore, Maryland 21202

RONALD S. WADE

36 S. Paca Street

Apt. 611

Baltimore, Maryland 21201

A34

(Holographically at bottom of second page):

Aug. 19:

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Ed Smith “It was a piece of (expletive)

“Unanimously dismissed."

That was when I called Roslyn Soudry

asked for a copy which Hirshman had already

refused.

A35

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A37-:

July 26, 1979

John E. Raine, III, Esquire

405 W. Pennsylvania Avenue

Towson, Maryland 21204

RE: OXLEY V. OXLEY

Equity 92369

Dear Mr. Raine:

In regard to the Notices to Take

Deposition of Mr. Carl Oxley and Mrs. Gail

R. Oxley which you have arranged for August

6, 1979, unfortunately on August 6, 1979, I

have a previously scheduled merits hearing

inthe Circuit Court for Carroll County, in

the case of Barnett v. Barnett.

I am therefore unable to attend the

depositions above and ask that you contact

my Office to arrange a mutually agreeable

date for the taking of these depositions.

Thank you.

Very truly yours,

Leonard J. Kerpelman

LJK/bg

ce: Clerk of theCourt

MR. CLERK: Please file copy of this

letter in Court file.

A38

August 9, 1979

Hon. Marvin J. Land

Circuit Court forBaltimore County

Courthouse

Towson, Maryland 21204

RE: OXLEY V. OXLEY

Equity 92369

Dear Judge Land:

This is in reply to your letter of

August 2nd.

Some time ago, my client Mr. Gail

Oxley, and his present wife Joanne indicated

to me that in the event that a deposition should

be proffered to be taken of Mr. Oxley's

parents, that they had arranged with Mr. Oxley's

parents that I would represent them at that

deposition.

Therefore, when I received notice of this

deposition, I made several calls attempting

to confirm this with Mrs. Oxley, but we

were unsuccessful in making contact. I

called her approximately four times, she

called me approximately two times and we

missed each other.

I have no reason to assume, since this

is a close family, that the plans for my

representing Mr. & Mrs. Oxley's parents

at the deposition had at all been changed and

therefore filed a Motion for Protective Order

Since I had a schedule conflict on that day.

A39

When I finally did reach Mrs. Oxley,

to my considerable surprise, she equivocated

about whether she wanted me to represent

her or not, and I therefore promptly called

Mr. Raine, and told him that I was not

representing Mrs. Oxley and that there

should therefore be no problem about his

taking her deposition or that of Mr. Earl

Oxley.

If vou have any other questions I will

be glad to answer them for you.

Very truly yours,

Leonard J. Kerpelman

LJK/ba

ce: John A. Raine, Eaquire

Gregory J. Olsen, Esquire

A39 &

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.