Opposition Brief — Kerpelman v. Land

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JUN 24 °°

No, 84-1822

NDER L. STEVAS

CLERK

In THE

Supreme Court of the United States

OctToBerR TERM, 1984

LEONARD J. KERPELMAN,

Petitioner,

Vv.

MARVIN LAND, er At.,

Respondents.

On PETITION FOR Writ OF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE FourtTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STEPHEN H. Sacus,

Attorney General of Maryland,

*Diana G. Morz,

Perer E. Kertu,

Assistant Attorneys General,

The Munsey Bldg.. 2nd Floor,

Seven North Calvert Street,

Baltimore, Maryland 21202,

(301) 576-6300,

Attorneys for Respondents.

“Counsel of Record

= BEST AVAILABLE COPY

COUNTERSTATEMENT OF QUESTION

PRESENTED FOR REVIEW

Did the District Court and Circuit Court

properly hold that Respondents are entitled

to judicial and quasi-judicial immunity from

Petitioner's claim for damages, and that

Petitioner failed to state a valid claim for

injunctive relief, thereby warranting dismis-

sal of Petitioner's 42 U.S.C. §1983 action?

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION

PRESENTED FOR REVIEW......--2eeeel

TABLE OF AUTHORITIES......cecceeeeelil

COUNTERSTATEMENT OF THE CASE........-1l

REASONS FOR DENYING THE WRIT.......++4

- The Trial and Appellate

Courts Fully Considered

and Correctly Decided the

Question Presented..........4

a. The Question Presented Is

Particularly Fact-Specific

and Not Important Enough

to Warrant Review...........8

3% The Second and Third

Questions Raised in the

Petition Are Not Properly

Before the Court...cccccceesd

COMPTON: 6 és 600 6 06400 606000664 1 4

ii

TABLE OF AUTHORITIES

Cases

Butz v. Economou,

Cae Wes Bre CASIO crcvecsccccceess 5

City of Los Angeles v. Lyons,

461 0.8. 95 (19B3).cccccccscccces 6

Middlesex Ethics Comm. v. Garden

State Bar Ass'n., 457 U.S.

Dae Cemeelseceecces ee 6

Pulliam v. Allen, U.S. P

oe. ae ee! ere 7

Stump v. Sparkman,

435 U.S. 349 (1978) ..ccccccccccee 5

Younger v. Harris, 401 U.S.

37 (1971) see e eee eee oeeeer eee eee sos

Statutory Provisions

42 U.S.C. §$19SS. cccccccccccccs .-passim

Rules

Maryland Rules BVS and BV6..........

& & |

No. 84-1822

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

LEONARD J. KERPELMAN

Petitioner

Vv.

MARVIN LAND, et al.

Respondents

On Fetition for Writ of Certiorari

To the United States Court of

Appeals for the Fourth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

COUNTERSTATEMENT OF THE CASE

Petitioner Leonard J. Kerpelman (herein-

after "Kerpelman"), an attorney currently

serving a disciplinary suspension from the

practice of law in the State of Maryland,

filed a 42 U.S.C. §1983 civil action against

five “groups” of defendants in U.S. District

Court for the District of Maryland on October

14, 1983.

In his complaint, Kerpelman contended

that defendants conspired to file and pursue

"a false and entirely frivolous charge of

professional misconduct" against him. Prior

to Kerpelman's suit, the misconduct charge at

issue had been unanimously dismissed by an

Inquiry Panel of the Attorney Grievance

Commission of Maryland at a preliminary stage

without a hearing, and no sanction was sought

Or imposed. See Maryland Rules BVS and BV6,

reproduced in Pet. App. at 50-55, outlining

procedures before the Attorney Grievance

Commission. Nevertheless, in his §1983

complaint Kerpelman demanded damages and an

injunction against possible future action

which the Attorney Grievance Commission might

take against him.

Defendant Marvin Land, a former Circuit .

Court Judge for Baltimore County, Maryland

and a Respondent before this Court, moved to

dismiss Kerpelman's §1983 complaint on the

basis of judicial immunity. The other Re-

spondents before this Court - the present Bar

Counsel of the Attorney Grievance Commission

of Maryland, former Assistant Bar Counsel,

and present or former members and employees

of the Attorney Grievance Commission - moved

to dismiss Kerpelman's §1983 complaint for a

variety of reasons, including quasi-judicial

immunity.

In a lengthy Memorandum opinion filed on

April 17, 1984, the Honorable Joseph H. Young

of the District Court dismissed Kerpelman's

Claims for damages on grounds of judicial and

quéesi-judicial immunity. The District Court

also dismissed Kerpelman's claim for injunc-

tive relief for failure to state a claim upon

which relief may be granted. Pet. App. at

A8-A30. In an unpublished Opinion dated

January 24, 1985, the Court of Appeals for

the Fourth Circuit affirmed on the basis of

the District Court's opinion, noting addi-

tionally that Kerpelman's conclusory allega-

tions of a conspiracy were insufficient to

maintain his claim. Pet. App. Al1-A3. By

Order dated February 20, 1985, the Court of

Appeals denied Kerpelman's petition for

rehearing en banc. Pet. App. A4-AS.

REASONS FOR DENYING THE WRIT

1. The Trial and Appellate Courts Fully

Considered and Correctly Decided the

Question Presented.

After thorough analysis, the District

Court correctly determined that Respondent

Land's initiation of the grievance complaint

against Kerpelman was a judicial act subject

to judicial immunity from claims for dama-

ges. Stump v. Sparkman, 435 U.S. 349 (1978).

The District Court also properly found

that the remaining Respondents before this

Court, all of whom are present or former

members or employees of the Attorney Grie-

vance Commission of Maryland, are entitled to

quasi-judicial absolute immunity from claims

for damages as the arm of the judiciary

charged with regulating attorney conduct in

Maryland. Pet. App. Al17-A25. See Butz v.

Economou, 438 U.S. 478 (1978). The District

Court's decision on this point was in part

based upon several Court of Appeals decisions

granting absolute immunity to attorney dis-

Ciplinary commissions and their agents who

investigate and prosecute complaints of mis-

conduct of attorneys. On appeal, the Fourth

Circuit concurred with the District Court's

conclusion and reasoning.

The trial and appellate courts also pro-

perly, held that Kerpelman's complaint failed

to state a valid claim for injunctive relief,

because his conclusory allegations’ were

insufficient. Pet. App. A3, Al10O. Indeed,

dismissal of Kerpelman's injunction claim was

entirely proper, since he cannot show a real

and immediate threat of future injury by

Respondents, a necessary prerequisite to

stating a claim for injunctive relief. City

of Los Angeles v. Lyons, 461 U.S. 95, 103

S.Ct. 1660, 1668 at n. 8 (1983).

The lower courts also correctly noted

that Kerpelman's prayer for injunctive relief

with regard to possible future investigations

of him by the Attorney Grievance Commission

wo.ld interfere with the principles of fede-

ral-state comity set forth in Younger vy.

Harris, 401 U.S. 37 (1971), and Middlesex

Ethics Comm. v. Garden State Bar Ass'n., 457

U.S. 423 (1982). Accordingly, Kerpelman's

claim for injunctive relief was properly

dismissed.

In his Petition for Writ of Certiorari,

as he did in briefing before the Fourth Cir-

cuit, Kerpelman suggests that dismissal of

his request for injunctive relief somehow

contradicts the decision in Pulliam vy.

Allen, U.S. , 104 §.Ct. 1970

(1984). In Pulliam, this Court held that the

doctrine of judicial immunity does not bar a

§1983 action seeking injunctive relief and

attorneys' fees.

Had the District Court in this case

dismissed Kerpelman's request for injunctive

relief on immunity grounds, Pulliam might

compel ae remand. However, this did not

occur. Ratner, Kerpelman's claim for injunc-

tion and attorneys' fees was dismissed for

failure to state a claim upon which relief

could be granted. Accordingly, Pulliam has

no application to this case, and Kerpelman's

reliance upon Pulliam is wholly misplaced.

2. The Question Presented Is Particularly

Fact-Specific and Not Important Enough to

Warrant Review.

Kerpelman's continual dispute with the

Attorney Grievance Commission of Maryland is

admittedly "unique." Pet. at 49. The Dis-

trict Court's ruling, as affirmed by the

Court of Appeals, is fact-specific and neces-

Sarily rooted to the peculiar allegations set

forth by Kerpelman in his complaint. More-

over, Kerpelman's unusual complaint does not

present a substantial federal question worthy

of this Court's review, because the charge of

misconduct at issue was dismissed by an

Inquiry Panel of the Attorney Grievance Com-

mission prior to Kerpelman's lawsuit and

without a hearing or imposition of any pen-

alty. Under these circumstances, this Court

should decline further review of the matter.

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| 3. The Second and Third Questions Raised in

) the Petition Are Not Properly Before the

Court.

In his Petition, Kerpelman apparently

seeks this Court's consideration of questions

dealing with "repression of Free Speech" and

alleged selective prosecution of certain

groups by the Attorney Grievance Commis-

sion. Pet. at IV. Because these questions

were not presented to the lower courts for

consideration, review of these issues by the

Court would be inappropriate.

CONCLUSION

Respondents respectfully urge the Court

to decline to review this case by the issu-

ance of a Writ of Certiorari. The question

raised by the Petition was correctly decided

at both the trial and appellate levels, and

is not an issue worthy of further considera-

tion by this Court. The additional questions

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iid

presented by the Petitioner are not properly

before the Court.

Respectfully submitted,

STEPHEN H. SACHS

Attorney General of Maryland

*DIANA G. MOTZ

PETER E. KEITH

Assistant Attorneys General

The Munsey Bldg., 2nd Floor

Seven N. Calvert Street

Baltimore, Md. 21202

(301) 576-6300

Attorneys for Respondents

*counsel of Record

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