Opposition Brief — Messing v. Simon

, Su Court, U.S.

No. 85-1286 ot y E D

| In The MAR 2 we

JOSEPH F. — JRe

CLER

Supreme Court of the United tates

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October Term, 1985

ROBERT H. MESSING,

Petitioner,

VS.

ALFRED SIMON,

Respondent.

On Petition for Certiorari to the New Jersey Supreme Court

BRIEF IN OPPOSITION FOR RESPONDENT

PATRICK F.X. FITZPATRICK

Attorney for Respondent

430 Broad Street

Bloomfield, New Jersey 07003

(201) 748-7400

THOMAS D. FLINN

Of Counsel and

On the Brief

3658

FAepstte. ime *NJ (201) 257-6850°NY (212) 840-9494¢PA (215) 563-5587

. MA (617) 542-1114eDC (202) 783-7288eUSA (800) 5 APPEAL

QUESTIONS PRESENTED

\

1. Whether the retroactive application of an attorney

disciplinary rule which effectively bars a libel suit by a grievant

against a witness to attorney disciplinary proceedings is an

appropriate issue for review by the United States Supreme Court

on certiorari.

2. Whether retroactive application of an attorney disciplinary

rule which effectively bars a libel suit by a grievant against a witness

in attorney disciplinary proceedings constitutes denial of due

process.

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TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved ....... 2

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TABLE OF CITATIONS

Cases Cited:

Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296,

We We Sek, SP MNBT ED vo ans 5.0n45 ta wecdeee keene 9, 10

In the Matter of Hearing on Immunity for Ethics

Complainants, 96 N.J. 669 (1984) ................. 8

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Contents

Page

Lands v. Basemen, 200 N.J. Super. 247 (App. Div. 1985)

eS Oe te Dae ok da 8 OWN ENS eS OS 10

Middlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct.

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Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct.

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Rodrigue v. Aetna Realty & Surety Company, 395 U.S. 352,

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Sperry v. Florida, 373 U.S. 379, 101 L. Ed. 2d 428, 83

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Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct.

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Statutes Cited:

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Rules Cited:

New Jersey Court Rules:

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Contents

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United States Constitution Cited:

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Other Authorities Cited:

Constitution of New Jersey, Art. 6, Sec. 2, Paragraph 3

Pressler, Rules Governing the Courts of the State of New

Jersey, with Comments and Annotations, Gann Law

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Pressler, Rules Governing the Courts of the State of New

Jersey, with Comments and Annotations, Gann Law

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No. 85-1286

In The

Supreme Court of the United States

October Term, 1985

ROBERT H. MESSING,

Petitioner,

VS.

ALFRED SIMON,

Respondent.

On Petition for Writ of Certiorari to the New Jersey

Supreme Court

BRIEF IN OPPOSITION FOR RESPONDENT

OPINIONS BELOW

The order of the New Jersey Supreme Court denying

petitioner leave to appeal is unreported. See Petitioner’s App.

A, p. la. No opinion was rendered by the New Jersey Supreme

Court. The opinion of the New Jersey Appellate Division is not

reported (Petitioner’s App. B, p. 2a).

JURISDICTION

Petitioner alleges jurisdiction under 28 U.S.C.A. § 1257(3).

The order of the New Jersey Supreme Court (Petitioner’s App.

A, p. la) denying petitioner’s application for leave to appeal was

entered on November 1, 1985.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Rules Governing the Courts of the State of New Jersey

R. 1:20-11 Miscellaneous procedures in

connection with disciplinary matters.

(B) Immunity for grievants, clients and witnesses.

Grievants in ethics matters, clients in fee arbitration

cases and witnesses in both ethics and fee matters

shall be absolutely immune from suit, whether legal

or equitable in nature, for all communications to

committees, fee committees, the director, the

board, or to appropriate staff and for testimony

given in ethics or fee arbitration procedings. This

immunity shall not extend to any publication or

distribution of information by a grievant, client

or witness that violates R.1:20-10.

Note: Adopted January 31, 1984 to be effective

February 15, 1984. Source—Paragraphs (c), (d)

and (e) formerly R. 1:20-5(b), (c) and (f). Pressler,

Rules Governing the Courts of the State of New

Jersey, With Comments and Annotations, Gann

Law Books, 1986 Edition.

R. 1:20-10 Confidentiality.

(A) All proceedings conducted and records made

pursuant to R.1:20 (discipline of members of the

bar) shall be confidential and shail not be disclosed

to or attended by anyone except as authorized by

these rules or as provided by the Supreme

Court ....

(Adopted January 31, 1984 to be effective February

15, 1984.) Pressler, Rules Governing the Courts

of the State of New Jersey, With Comments and

Annotations, Gann Law Books, 1986 Edition.

R. 1:20-5 Resignation; miscellaneous proceedings

in connection with disciplinary matters.

(d) Confidentiality. All proceeding (sic) conducted

and records made pursuant to R. 1:20 shall be

confidential and shall not be disclosed to or

attended by anyone except as authorized by these

ewe

(Adopted February 23, 1978, to be effective April

1, 1978); (d) Amended February 28, 1979 to be

effective immediately, Pressler, Ru/es Governing

the Courts of the State of New Jersey, With

Comments and Annotations, Gann Law Books,

1984 Edition.

Constitution of New Jersey 1947, Article 6, Section 2,

Paragraph 3.

Supreme Court, Rules; Admission to practice of

law; discipline of persons admitted.

The Supreme Court shall make rules governing the

admission of all Courts in the State and, subject

to the law, the practice and procedure in all such

Courts. The Supreme Court shall have jurisdiction

over the admission to the practice of law and the

discipline of persons admitted.

STATEMENT

Sometime prior to November of 1977, Robert Messing

instituted an action for divorce against his wife, Norma Messing

in the Superior Court of New Jersey, Bergen County, Docket

No. M-11400-76. During the course of that matrimonial litigation,

the question of equitable distribution of property was hotly

contested by both parties. In an attempt to resolve the issue and

to give the court guidance, Honorable John J. Cariddi, J.S.C.

signed an order on November 15, 1977 appointing Alfred Simon,

C.P.A to investigate and render to the court a report of the assets

of the litigants.

The issue of equitable distribution of property was tried before

the Honorable Conrad Krafte, J.S.C., Joel Albert, Esq.,

representing Mr. Messing and Susan Littman, Esq., representing

Mrs. Messing. In addition to preparing his report, Alfred Simon,

C.P.A. testified for approximately 12 days before Judge Krafte.

A written decision was rendered by Judge Krafte following

a lengthy trial. Although the court’s ruling was appealed, the

parties settled their differences prior to the matter being heard

by the Appellate Division of the New jersey Superior Court.

In October 1982, the petitioner, Robert Messing, instituted

Suit against the respondent, Alfred Simon, charging him with acts

of alleged malpractice and seeking both compensatory and punitive

damages. That action is pending in the Superior Court of New

Jersey, Law Division, Bergen County, Docket No. L-11808-82.

On or about August of 1982, Robert Messing filed an ethics

complaint against his wife’s attorney, Susan Littman, Esq. The

complaint was assigned to Frank Cuccio, Esq., a member of the

District Ethics Committee for Bergen County, for investigation.

Mr. Cuccio undertook his investigation and in the course of doing

sO, made an inquiry of the respondent, Alfred Simon, as to his

knowledge of Ms. Littman’s professional conduct.

On or about May 11, 1983, Mr. Cuccio submitted to the

secretary of the District Ethics Committee his written findings

recommending a dismissal of the complaint against Ms. Littman.

In his written report, Mr. Cuccio referred to and paraphrased

the various conversations he had with persons he spoke with during

the course of his investigation, including conversations he had

with the respondent, Mr. Simon. A copy of the written report

was served on Mr. Messing as a complainant, as is required by

the New Jersey Court Rules. R. 1:20-3(f).

On January 17, 1984, petitioner filed a second suit against

respondent Alfred Simon alleging that he was slandered by Mr.

Simon and again sought compensatory and punitive damages.

On January 31, 1984, the New Jersey Supreme Court adopted

R. 1:20-11, to be effective February 15, 1984, which provides that

‘*witnesses in both ethics and fee matters shall be absolutely

immune from suit, whether legal or equitable in nature, for all

communications to committees, fee committees, the director, the

board or to appropriate staff and for testimony in ethics or fee

arbitration proceedings.’

Petitioner sought to subpoena Frank Cuccio, Esq., as a

witness in the trial of the professional malpractice action against

respondent. It is presumed that the petitioner sought to elicit from

Mr. Cuccio the substance of his conversations with Mr. Simon

in the course of his duties as a member of the District Ethics

Committee.

By order dated June 5, 1985, Honorable James T. Murphy,

J.S.C., granted respondent’s motion to quash the subpoena served

upon Mr. Cuccio (Petitioner’s App. E, p. 21a).

Petitioner sought leave to file interlocutory appeal from the

Appellate Division of the New Jersey Superior Court. The

Appellate Division issued a final order affirming Judge Murphy’s

order quashing the subpoena (Petitioner’s App. B, p. 2a).

Petitioner filed a petition for certification with the New Jersey

Supreme Court, which denied petitioner’s application for leave

to appeal (Petitioner’s App. A, p. la).

REASONS FOR DENYING THE WRIT

Petitioner correctly points out that the order of Judge Murphy

quashing the subpoena of Mr. Cuccio, served in the course of

the professional malpractice action, acts as a termination of the

slander action. Petitioner cannot prove the alleged slander without

the testimony of Mr. Cuccio.

Petitioner asserts that certiorari should be granted pursuant

to Rule 17(c) of the Supreme Court Rules,

When a State Court or Federal Court of Appeals

has decided an important question of Federal Law

which has not been, but should be settled by this

Court, or has decided a Federal question in a way

in conflict with applicable decisions of this Court.

It is respectfully submitted, however, that the within matter

presents no issue of federal law. Rather, this is a simple slander

action, which is totally within the domain of the states. Even when

the tort of slander is committed by an officer of the state, the

offense does not rise to federal or constitutional levels. Paul v.

Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).

Petitioner’s argument that retroactive application of the rule of

the New Jersey Supreme Court which denied him his cause of

action for slander violates his due process rights, is not well taken. '

Further, this Court has steadfastly refused to become

entangled in the regulation of attorneys admitted to any bar but

its own. Petitioner, therefore, seeks review by this Court in another

area of law traditionally reserved to the states besides tort law;

i.e., regulation and discipline of attorneys.

This Court has frequently held that the state has a legitimate

and substantial interest in the regulation of the legal profession

and the practice of law. Sperry v. Florida, 373 U.S. 379, 101

L. Ed. 2d 428, 83 S. Ct. 1322 (1963). A constitutional challenge

of the disciplinary rules enacted by the New Jersey Supreme Court,

this Court applied the Younger [Younger v. Harris, 401 U.S. 37,

27 L. Ed. 2d 669, 91 S. Ct. 746 (1971)] doctrine of abstention

in the absence of a showing of bad faith, harassment, or that

1. Respondent does not concede that R. 1:20-11(b) terminated petitioner’s

cause of action for siander. Rather, respondent has maintained consistently in

the state courts that petitioner’s cause of action never existed. Petitioner has

argued that he had a perfectly viable cause of action for slander upon filing

his complaint, but was denied his remedy when the New Jersey Supreme Court

enacted R. 1:20-11(b). However, other New Jersey court rules, particularly,

former R. 1:20-5(d) provided statements made by respondent to Frank Cuccio,

Esq., were confidential in nature. Further, state common law provided that

statements made during the course of an attorney disciplinary proceeding are

absolutely privileged, and could not form the basis of a slander action. Friedland

v. Podhoretz, 174 N.J. Super. 73 (Law Div. 1980).

the state rules were ‘‘flagrantly and patently’’ unconstitutional

because of the importance of state interest inpending state

disciplinary proceedings. Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423, 73 L. Ed. 2d 116,

102 S. Ct. 2515 (1982).

The New Jersey Supreme Court enacted Rule 1:20-11(b) in

furtherance of its compelling interest and maintaining the integrity

of the practicing bar, and its attorney disciplinary process. Jn

the Matter of the Hearing on Immunity for Ethics Complainants,

96 N.J. 669, 679 (1984). These are matters historically, and most

properly left to the judicial department of the states. Sperry v.

Florida, supra.

Petitioner, however argues that retroactive application of the

rule which acts to deny him his cause of action for the tort of

slanaer, constitutes a denial of due process. This Court has

addressed the issue of a federal claim for the tort of slander in

the context of a § 1983 proceeding (42 U.S.C. § 1983). In the

case of Paul v. Davis, 424 U.S. 693, supra, the Court held that

where defendants, police officers, had allegedly committed a

Slander against the plaintiff in that action by publishing the

plaintiff’s photograph-on a flyer entitied ‘‘City of Louisville,

Jefferson County Police Department’s Active Shoplifters,’’ did

not constitute an actionable violation of § 1983 or the Fourteenth

Amendment. In order to recover, the plaintiffs in that case would

have had to prove that defendants had deprived him of a right

secured by the Constitution of the United States.

While not uniform in their treatment of the subject,

we think that the weight of our decisions establishes

no constitutional doctrine converting every

defamation by a public official into a deprivation

of liberty within the meaning of the Due Process

Clause of the Fifth or Fourteenth Amendment.

Paul v. Davis, supra at 702. Further,

Respondent in this case cannot assert denial of any

right vouchsafed to him by the State and thereby

protected under the Fourteenth Amendment. That

being the case, Petitioner’s defamatory

publications, |:owever seriously they may have

harmed respondent’s reputation, did not deprive

him of any ‘“‘liberty’’ or ‘‘property’’ interests

protected by the Due Process Clause.

Id. at 712.

It is clear, therefore, that the right to be free from defamatory

or libelous statements, while an important one recognized under

state law, is not a constitutional right. It follows, therefore, that

a state law or rule restricting or eliminating the right to recover

for slander in certain circumstances, cannot constitute a violation

of federally guaranteed rights.

Finally, petitioner relies upon the case of Chevron Oil Co.

v. Huson, 404 U.S. 97, 30 L. Ed. 2¢ 296, 92 S. Ct. 349 (1971)

for the proposition that that case protects him against retroactive

application of the rule. The Chevron Oil Company case dealt with

the question of whether or not the rule of the Supreme Court

stated in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352,

23 L. Ed. 2d 360, 89 S. Ct. 1835 (1969) that the Louisiana one

year statute of limitations for personal injury actions applied to

actions under the Outer Continental Shelf Lands Act, rather than

the Admiralty Doctrine of Laches, which had previously been

applied in actions under the Lands Act. The plaintiff in Chevron

Oil Company had suffered his injury four years prior to, and

filed his action for damages in the Federal District Court one

year prior to this Court’s decision in the Rodrique case. The Court

10

refused to apply the state’s one year statute of limitations

retroactively, holding,

both a devotion to the underlying purpose of the

Lands Act’s absorption of State Law and a

weighing of the equities requires non-retroactive

application of the state’s Statute of Limitations

here.

Chevron Oil Co. v. Huson, at 109. Constitutional principles were

in no way considered or affected.

The equities of the within matter have already been considered

at the state court level. As has already been illustrated, tort law

and the attorney disciplinary process are state court functions.

The courts of New Jersey have held that retroactive application

of its rule is appropriate because the Supreme Court’s interest

in protecting the attorney disciplinary process far outweighs the

interests of the single private litigant in maintaining his action

for a defamation. In the case of Lands v. Baseman, 200 N.J.

Super. 247 (App. Div. 1985) the Appellate Division of the New

Jersey Superior Court, in a published opinion, faced the identical

issue, and applied Rule 1:20-11(b) retroactively. In specifically

finding that retroactive application of the rule is not

constitutionally offensive, the court stated,

The public interest identified by the Supreme Court

in the Rule and in (Jn the Matter of the Hearing

on Immunity for) Ethics Complainants (96 N.J.

669 [1984]) substantially outweighs in importance

the private right which is impaired. (Citation

omitted.) And the consequences of retroactive

application of the Rule to bar plaintiff’s claims

are neither harsh nor oppressive. (Citation

omitted.)

1]

Id. at 249, 250.

It is respectfully submitted, therefore, that the within matter

does not involve an important question of federal law which should

be decided by this Court. Certiorari should, therefore, be denied.

CONCLUSION

For the reasons hereinabove set forth, the petition for writ

of certiorari should be denied.

Respectfully submitted,

PATRICK F.X. FITZPATRICK

Attorney for Respondent

THOMAS D. FLINN

Of Counsel and

On the Brief