# Opposition Brief — Smith v. Rolewick

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1712%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1219

## Text

No. 87-1826

yossPH

F, SPANIOl» R
In THE

Supreme Court of the Anited States

Octoser Term, 1987

DOUGLAS WAYNE SMITH,
Petitioner,

Vs.

JOHN C. OMALLEY, Administrator of the Dlinois
Attorney Registration and Disciplinary Commission,
Respondent.

On Petition For A Writ Of Certiorari To The United States
Supreme Court From The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

JEROME LARKIN
203 North Wabash Avenue
Suite 1900
Chicago, Illinois 60601
(312) 346-0690

Attorney for Respondent

Of Counsel:

Desoran M. Kennepy, Senior Counsel
for Administrator.

Sheila M. Tuma, Senior law student,
assisted in the preparation of this brief.

Photex — 444 North Wabash Avenue — Chicago 60611 — 321-0223

TABLE OF CONTENTS

‘ PAGE
TABLE. OF ALTHO Bes tc ese nrecnceees Si, iii
RULES OF THE SUPREME COURT OF
ILLINOIS AND ATTORNEY
REGISTRATION AND DISCIPLINARY
&o Fh BAN Gere ei) 4» bP ‘sky 2
pit) Sg Me MR Sr 8) A» Pe a a, S
ARGUMENT:
iL. BACKGFOUNG. .cceccccscccsescscece 4-6
2 Petitioner Has Failed To
Invoke Federal Jurisdiction
Pursuant To
Se ee. BIO ESs 6a sak vk os 7-11
III. Petitioner Has Raised
No Substantial Federal
a Ta veers ree 11-13
IV. Petitioner’s Rights Under
The Fourth Amendment To The
United States Constitution
Have Not Been Violated....... 13-17
eo «el <a ee a ee a 18

APPENDIX... cccccccccccccccccsccecccsccecs

Administrator’s Subpoena

co a a a Appendix 1
Letter To Counsel For

Petitioner Dated

Si BO anc ecsercccssesas Appendix 2
Letter To Petitioner

Dated April 27, 1988....... -Appendix 3

ii

TABLE OF AUTHORITIES

PAGE
Cobbledick v. Unites States,
309 U.S. 323 (4960)4iakiees eee 7
Consolidated Rending Co. v.
Vermon, 207 U.S. 541, 28 S.Ct.
178, 52 L.Ed. 327, (1908)........ 16
Cox Broadcasting Co. v. Cohn,
420 0.8. 469 (1978) i.i054058 8-10
Equitable Life Assurance
Society v. Brown, 187 U.S.
308 (2908) v1 00000505 11
Goldfarb v. Virginia State Bar,
433 0.8. 773 (19703:.4...20000 4, 12
People v. Keefe, 36 Ill.2d, 460
233 N.E. 2Q 144 (1967) .ccccccseccs 17
Mower v. Fletcher, 114 U.S.
127 (1885S) .ccccscsscccsesasssssesess 7

Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186 (1946)...13-15

In re Primus, 436 U.S. 412 (1978)..12

People v. Reynolds, 350 I11 11,
182 N.E. 754 (1932) ..ccccccces 16-17

Segurola v. United States,
275 U.S. 106 (1927) .cscccccsseses 7-8

ill

In re Teitelbaum, 13 I11l1.2d 586,

150 N.E.2d 873 (1958),

cert. denied, 358 U.S. 881,
rehearing denied,

ge ee ee! ee 4-5, 12

CONSTITUTIONAL AND STATUTORY
PROVISIONS
United States Constitution,
Amendment IV in passim

28 U.S.C §1257(3) (1970).... : ?

I11.Rev.Stat. ch.110A,
eh Coy)” Pee a ae ae 5

I1l.Ann.Stat. ch.110A,
§774, Art. 8, Cannon 1
OE BOG. ccccccccses we seesece 12

3 No. 87-1826

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

DOUGLAS WAYNE SMITH,
Petitioner.

Vs.

JOHN C. O'MALLEY,
Administrator of the Illinois

Attorney Registration and
Disciplinary Commission,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES SUPREME COURT FROM
THE SUPREME COURT OF ILLINOIS
ILLINOIS SUPREME COURT NO. M.R. 4580
ADMINISTRATOR'S NO. 87 CH 303

RESPONDENT'S BRIEF IN OPPOSITION

RULES OF THE SUPREME COURT OF ILLINOIS AND
ATTORNEY REGISTRATION AND DISCIPLINARY
COMMISSION INVOLVED

SUPREME COURT RULE 752. Administrator

...-Subject to the supervision of the
Commission, the Administrator shall:

= Ss

(a) On his own motion, on the
recommendation of an Inquiry Board or at
the instance of an aggrieved party,
investigate conduct of attorneys which
tends to defeat the administration of
justice or to bring the courts or the
legal profession into disrepute...

SUPREME COURT RULE 754.
Compulsory Process

The Administrator, the Inquiry Board
and the Hearing Board are empowered to
take and transcribe the evidence of
respondents, petitioners and any other
attorney or person who may have knowledge
of the pertinent facts concerning any
matter which is the subject of an
investigation or hearing. Upon request
of the Administrator, the respondent, the
petitioner or the inquiry or hearing
boards, the clerk of the Court shall
issue subpoenas ad testificandum or
subpoenas duces tecum. The
Administrator, the respondent or the
inquiry or hearing boards may report to
the court the failure or refusal of a
respondent, petitioner, attorney or any
other person to attend and testify in
response to any subpoena or to produce
the items specified in the subpoena duces
tecum.

=f

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari
to the Supreme Court of Illinois should
be denied for the following reasons:

First, a denial of a motion to quash
subpoena is not a final judgment or
decree within the meaning of 28 U.S.C.
§1257(3) (1970). In addition, there has
been no final ruling in this proceeding
by the Supreme Court of Illinois.
Without such a ruling, there is no final
judgment from which this court may take
jurisdiction.

Second, the Petitioner has raised no
Significant federal question. The
disciplinary proceedings pending against
Petitioner only involve questions of
state law. Petitioner has asserted a

violation of the Fourth Amendment only to

delay the disciplinary proceedings.

po on

Third, the denial of the motion to
quash the subpoena by the Supreme Court
of Illinois is in accord with the
decisions of the United States Supreme
Court. Subpoenas issued by investigatory
bodies will be upheld as long as the
information sought is reasonable in
scope, relevant to the inquiry and
definite in nature. The subpoena duces
tecum at issue complies with the criteria
outlined by this Court. Thus, the
Supreme Court of Illinois properly denied

Petitioner’s motion to quash the subpoena

duces tecum.

ARGUMENT

I. BACKGROUND

The Supreme Court of Illinois has
inherent authority to regulate the

practice of law. Goldfarb v. Virginia

State Bar, 421 U.S. 773 (1975), In re

=

Teitelbaum, 13 I11.2d 586,

150 N.E.2d 873, cert. denied
358 U.S. 881, rehearing denied, 358 U.S.
923 (1958). Pursuant to that authority,
the court has delegated certain functions
to the Attorney Registration and
Disciplinary Commission to assist it in
regulating the practice. I11.Rev.Stat.
ch. 110A §751-754.

Petitioner, an [Illinois attorney,
represents numerous clients in
dissolution of marriage proceedings.
Since 1980, as a result of charges of
misconduct submitted by # Petitioner’s
clients, over 100 investigations have
been initiated. The charges’ of
misconduct relate generally to
allegations of mishandling funds advanced
to Petitioner by his clients, deceptive
advertising and neglect of client

matters. In furtherance of the

investigations, a subpoena duces tecum

~ =

was served upon Petitioner compelling the
production of certain material. A copy
of this subpoena is set forth in Appendix
One. The scope of the subpoena duces
tecum was limited twice due to
Petitioner’s concerns that compliance
with the subpoena would be too
burdensome. A copy of the letters dated
May 4, 1987 and April 27, 1988 limiting
the scope of the subpoena are set forth
in Appendix Two and Three respectively.
The Administrator’s investigation
into Petitioner’s alleged misconduct is
ongoing. Petitioner seeks only to halt
the orderly progress of the investigatory
proceedings through his petition. Review
by the Supreme Court at this time would
delay the investigation and frustrate the
effectiveness of the attorney

disciplinary system.

jalan
II. PETITIONER HAS FAILED TO INVOKE
FEDERAL JURISDICTION PURSUANT
TO 28 U.S.C. $1257 (3)

This Court has jurisdiction to
review state court action only after the
highest court of the state has rendered a
final judgment or decree. as | -U.8.C.
§1257. A judgment is not final unless a
writ of error terminates the litigation
between the parties on the merits of the
case. Following a final judgment nothing
remains to be done but the entry of the
judgment by the inferior court. See,
Mower v. Fletcher, 114 U.S. 127 (1885).

An order denying a motion to quash a

Subpoena duces tecum is not a final

appealable decision. See, e.q.
Cobbledick v. United States, 309 U.S. 332

(1940). A litigant will not be allowed
to appeal a ruling where the result of
the review would only be to halt the

orderly progress of a cause. See, e.g.,

a

Segqurola v. United States, 275 U.S. 106,

112 (1927).

While this court has recognized
certain exceptions to the final judgment
rule, this matter does not fall within

those exceptions. In Cox Broadcasting

v. Cohn, 420 U.S. 469 (1975), this Court

recognized four categories of cases in
which federal jurisdiction exists even
though there is no final judgment under
Title 28 or the United States Code,
subsection 1257.

The first category includes those
matters in which there are further
proceedings pending in the state court,
but the federal issue is conclusive and
the outcome of the proceeding is
preordained. Because such a case is for
all practical purposes concluded, the
judgment of the state court related to

the federal issue is deemed final. Id.

=

at 479. This exception does not apply to
the present case. The Administrator has
not had a sufficient opportunity to
review the information sought in the
subpoena duces tecum. Until the material
is made available to the Commission, it
cannot be conclusively determined whether
there has been professional misconduct by
the Petitioner. Since the information
and documents have not been subject to
inspection, production of the materials
will not preordain the outcome of the
proceeding.

The second category of cases are
those in which the federal issue requires
a decision regardless of the outcome of
anticipated state court proceedings.
That is, nothing could occur in the state
court proceeding which would foreclose a
decision on the federal issue. Id., at
480. This exception does not apply to

the present case. In the event that the

=
investigations related to Petitioner are
dismissed the alleged constitutional
issue would not need to be addressed.

The third category of cases are
those from which later review of the
federal issue will not be available
because of mootness or res judicata. Id,
at 481. This exception does not apply to
the present case. The Petitioner may
properly raise and preserve
constitutional claims at any time during
disciplinary proceedings.

In the final category are cases in
which a decision on the federal issue
would preclude further litigation in the
underlying cause of action rather than
merely controlling the nature, character
and admissibility of evidence in the
state court proceeding. Id., at 482-483.
This exception does not apply to the

present case. Whether or not the

|
information sought in the subpoena duces
tecum is produced, the Administrator is
not precluded from investigating or
prosecuting Petitioner for various acts

of alleged professional misconduct.

III. PETITIONER HAS RAISED NO
SUBSTANTIAL FEDERAL QUESTION
Mere allegations that a federal
question exists will not confer federal
jurisdiction. Rather, there must be a
real substantive federal question on
which the case turns in order to invoke

the jurisdiction of this Court. See,

Equitable Life Assurance Society v.

Brown, 187 U.S. 308, 311 (1902). A
petition for Writ of Certiorari must be
dismissed if it appears that the federal
question is so devoid of merit as to be
frivolous, or has been foreclosed by a
decision of this court. Id.

This Court has long recognized the

-_ =
authority of the state to regulate its

professions. Goldfarb v. Virginia State

Bar, 421 U.S. 773, W732 23750 Lawyers
have historically been considered
officers of the court, subject to the
Court’s inherent authority. See, e.g. In

re Primis, 436 U.S. 412, 422 (1978); In

re Teitelbaum, 13 I1l1.2d 586, 150 N.E.2d

873, cert. deniea@, 339 U.s. 881,
rehearing denied, 358 U.S. 923 (1958).

The investigations related to
Petitioner are limited to determining
whether he violated the Illinois Code of
Professional Responsibility governing the
conduct of attorneys. Ill. Ann. Stat.
ch 110A, §774, Art. 8, Cannon 1 et seq.
(Smith-Hurd 1985). As such, the only
question involved is that of state law.
No federal statute or provision is ripe
for review.

While Petitioner attempts to invoke

federal jurisdiction by claiming a

= ae
violation of the Fourth Amendment his
claim is specious and has been raised
merely to delay the disciplinary
proceedings. Petitioner has not raised
any genuine federal question, as indeed

none exists.

IV. PETITIONER’S RIGHTS UNDER
THE FOURTH AMENDMENT TO THE
UNITED STATES CONSTITUTION
HAVE NOT BEEN VIOLATED

Assuming arguendo that federal

jurisdiction does exist, it is clear that
Petitioner’s Fourth Amendment rights have
not been violated. The Fourth
Amendment’s protection against unlawful
search and seizure is satisfied when a
subpoena is issued by a body which has
authority to investigate for a lawfully

recognized purpose. Oklahoma Press

Publishing Co. v. Walling, 327 U.S. 186,

(1946). The documents sought must be

definite and relevant to the inquiry.

= a

Id., at 208-209. The disclecsure of
materials sought may not be unreasonable.
716., ea 209. Reasonableness, however,
cannot be reduced to a formula. What is
relevant or excessive in breadth is
variable in relation to the nature,
purposes and scope of the inquiry. Id.

Contrary to Petitioner’s argument
that production of the material is so
burdensome as to be violative of his
Fourth Amendment right, Petitioner is
only required to produce records for the
years 1985 and 1986 related to the
following: ledgers, diaries and
appointment books related to Petitioner’s
office docketing system; documents
related to advertisements or
solicitations placed -or disseminated by
Petitioner; documents, files and records
related to two-day divorces in which
Petitioner accepted responsibility; and

financial records related to Petitioner’s

a
acceptance and handling of funds advanced
by his clients. - See Appendix Two and
Three. The Supreme Court of Illinois
correctly considered and rejected the
same arguments Petitioner raises here and
ordered Petitioner to produce the
documents for inspection and copying.

When the criteria set forth in

Oklahoma Press is applied to the present

matter, it is clear that petitioner’s
rights have not been violated. The
documents sought by the subpoena are
relevant and relate specifically to the
various charges of misconduct. The
materials. to be produced are not
excessive but are necessary to determine
whether Petitioner’s practice was
consistent with the representations made
in his advertisements; whether
Petitioner’s handling of funds advanced
by his clients was proper; and whether

Petitioner was adequately serving the

-_ =
needs of his clients.

Similarily, in Consolidated

Rending Co. v. Vermont, 207 U.S. 541, 28

S. ct. 178, 52 L.Ed. 327, (1908), the
Plaintiff argued, in pertinent part, that
production of the material called for in
the subpoena duces tecum would be
burdensome and beyond the authority
conferred upon the governmental body
seeking production. However, the Court
held that there was no reason why all
books, papers and correspondence which
relate to the subject of inquiry and
which were described with reasonable
detail should not be produced by the
Plaintiff.

Petitioner’s reliance on People v.

Reynolds, 350 Ill 11, 182 N.E. 754,

(1932) is misplaced. In Reynolds, the

court held the subpoena duces tecum
lacked the required particularity in

description of the books, records and

= =
writings demanded. Unlike Reynolds, the
subpoena duces tecum at issue specifies
and limits the production to books,
correspondence and records which are
necessary to conduct a proper
investigation.

Petitioner’s reliance on People v.
Keefe, 36 I11.2d 460, 223 N.E.2d 144
(1967) is also misplaced. In Keefe, the
court held the subpoena failed to give a
time period and contained language which
was susceptible to numerous
interpretations. The subpoena in the
present case, however, covers a specific
time period and does not contain any

language that can be misconstrued.

ontitine

CONCLUSION

For the reasons set forth above,
Respondents respectfully submit the
Petition for Writ of Certiorari be

denied.

Respectfully submitted,

rome Larkin

—jla—

APPENDIX ONE

No. 86-CI-6276

ATTORNEY DISCIPLINARY SYSTEM
OF THE
SUPREME COURT OF ILLINOIS

In the Matter of Douglas Smith

SUBPOENA

STATE OF ILLINOIS
SUPREME COURT-SS.

THE PEOPLE OF THE STATE OF ILLINOIS
Administrator’s No. 86-CI-6276

TO Douglas Smith
3407 North Pulaski
Chicago, IL

GREETING:

WE COMMAND YOU, that all business and excuses
being laid aside, you and each of you attend before the
Administrator of the Attorney Disciplinary System on
January 5, 1987 at 4:00 o’clock P.M. at 203 N. Wabash—
Suite 1900 in the City of Chicago, County of Cook, to tes-
tify and give evidence and the truth to speak in a certain
investigation now being conducted by said Administrator
relating to Attorney Douglas Smith.

—— Pg

And that you also diligently and carefully search for,
examine and inquire after and bring with you and pro-
duce at the time and place aforesaid

See Attached

together with all copies, drafts and vouchers relating to
the said documents, and all other documents, letters and
paper writings whatsoever, that can or may afford any
information or evidence in said investigation. And this you
shall in no wise omit under penalty of the law.

Witness, JULEANN HORNYAK,
Clerk of our said Court, and the
Seal thereof at Springfield, Illinois,
this 5th day of December, 1986

/s/ JULEANN HORNYAK, Clerk.

SUBPOENA ATTACHMENT

1. Any and all ledgers, diaries, appointment books and
records related to your office docketing system for
the period 1981 to present, including but not limited
to, any and all records which identify matters in which
you accepted responsibility for the period 1981 to
present;

2. Any and all documents related to advertisements or
solicitations placed or disseminated by you for the
period 1981 to present, including but not limited to,
copies of these advertisements and documents reflect-
ing your being billed for these advertisements and
your related payments;

3. Any and all notes, memoranda, documents, records,
correspondence and files related to divorces in which

—fQ—

you accepted responsibility and completed within two
days, for the period 1981 to present, including but not
limited to, divorces in which you accepted responsibil-
ity and completed for $80.00 for the period 1981 to
present; and

4. Any and all ledgers, documents, records and tax re-
turns related to your acceptance and holding of funds
which represent legal fees and costs advanced for the
period 1981 to present, including but not limited to
the account number, account title and name of bank
in which you maintained any and all client trust ac-
counts for the period 1981 to present.

PROOF OF SERVICE

Paul Morelli, states under oath that he served this sub-
poena and letter personally by delivering a copy of this
subpoena and letter to Douglas W. Smith on December
19, 1986 at 3407 North Pulaski Road, Chicago, Illinois at
or before 6:30 p.m.

/s/ PAUL MORELLI

[Notarization omitted in printing.]

—

—4a—

APPENDIX TWO

(Letterhead Of)

ATTORNEY REGISTRATION AND
DISCIPLINARY COMMISSION
of the
SUPREME COURT OF ILLINOIS

Arthur M. Scheller, Jr.
Attorney at Law

300 Meacham Avenue
Park Ridge, Illinois 60068

Chicago

May 4, 1987

Re: Douglas Wayne Smith
at the charge of
the Administrator
No. 86-C1-6276

Dear Mr. Scheller:

I have reviewed the above-captioned matter, including
the substance of our conversation on April 28, 1987.

Please be advised that the return date for the subpoena
decus tecum served on Douglas Wayne Smith on December
19, 1986 has been continued to May 20, 1987 at 1:00 p.m.
Therefore, Mr. Smith is expected to comply with the sub-
poena on May 20, 1987 at 1:00 p.m. In the event that Mr.
Smith does not comply with the subpoena on May 20,
1987, we will report his non-compliance to the Illinois
Supreme Court pursuant to Rule 754.

sow pam

At this time, in light of your objection to the subpoena
duces tecum, we are narrowing the scope of the subpoena
to the years 1985 and 1986. Therefore, in order to comply
with the subpoena duces tecum, Mr. Smith must appear
on May 20, 1987 to give testimony and to produce the
following items:

1.

Any and all ledgers, diaries, appointment books and
records related to Mr. Smith’s office docketing sys-
tem for the years 1985 and 1986, including but not
limited to, any and all records which identify matters
in which Mr. Smith accepted responsibility for the
years 1985 and 1986;

Any and all documents related to advertisements or
solicitations placed or disseminated by Mr. Smith for
the years 1985 and 1986, including but not limited
to, copies of these advertisements and documents
reflecting Mr. Smith’s being billed for these adver-
tisements and Mr. Smith’s related payments;

Any and all notes, memoranda, documents, records,
correspondence and files related to divorces in which
Mr. Smith accepted responsibility and completed with-
in two days, for the years 1985 and 1986, including
but not limited to, divorces in which Mr. Smith ac-
cepted responsibility and completed for $80.00 for
the years 1985 and 1986; and

Any and all ledgers, documents, records and tax re-
turns related to Mr. Smith’s acceptance and holding
of funds which represent legal fees and costs ad-
vanced for the years 1985 and 1986, including but
not limited to the account number, account title and
name of bank in which Mr. Smith maintained any
and all client trust accounts for the years 1985 and
1986.

——fie—

The subpoena duces tecum requires Mr. Smith’s produc-
tion of tax returns for the years 1985 and 1986 in order
to determine how Mr. Smith characterizes funds he has
received from others and disbursements made.

Thank you for your cooperation.

Very truly yours,

/s/ SUSAN D. SHIVERS
Counsel

a

APPENDIX THREE

(Letterhead Of)

ATTORNEY REGISTRATION AND
DISCIPLINARY COMMISSION
of the
SUPREME COURT OF ILLINOIS

Mr. Douglas W. Smith
Attorney at Law

3407 North Pulaski Road
Chicago, IL 60641

Chicago
April 27, 1988

Re: In re Douglas Smith
Supreme Court No. M.R. 4580

Administrator’s Nos. 87 CH 303
86-CI-6276

Dear Mr. Smith:

On April 12, 1988, you appeared at this office pursuant
to the subpoena duces tecum. During the proceedings on
that date, we discussed the matters related to the above-
captioned proceedings. As I advised you, the Administra-
tor will consider the subpoena duces tecum served upon
you in connection with Investigation no. 86-CI-6276 com-
plied with if the following records are produced within
21 days:

a. any and all notes, memoranda, documents, records,
correspondence and files related to two-day divorces

—8a—

in which you accepted responsibility from 1985 to
present;

b. any and all records related to your acceptance and
holding of funds which represent legal fees and costs
advanced for the years 1985 and 1986, including but
not limited to receipt journals, check ledgers, tax
returns and documents identifying the account num-
ber, account title and name of the financial institu-
tion in which you maintained client trust accounts
for the years 1985 and 1986; and

c. any and all documents related to advertisements or
solicitations placed or disseminated by you for the
years 1985 and 1986, including but not limited to
copies of the advertisements and documents reflect-
ing billing for these advertisements and the related

payments.

If you have any questions please contact me immediate-
ly. Thank you for your cooperation.

Very truly yours,

/s/) DEBORAH M.-KENNEDY
Senior Counsel

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1712%3A2. Public record. Not legal advice.