Opposition Brief — Neistein v. Illinois Attorney Registration & Disciplinary Commission

Supreme Court, US,

FILED

APR 3 we

lOSEPH F. SPANIOL, JR

CLERK

q —_

No. 89-1406

IN THI

Supreme Court of the United States

OcTOBER TERM, 1989

BERNARD S. NEISTEIN,

Pe tif Oner,

ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION OF THE SUPREME COURT OF ILLINOIS,

Re sponde nt.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Illinois

RESPONDENT’sS BRIEF IN OPPOSITION

JAMES J. GROGAN

Counsel of Record

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorne Y for Re sponde pit

Il.

QUESTIONS PRESENTED

AN ILLINOIS ATTORNEY DISCIPLINARY

RULE PROHIBITING LOANS OR GIFTS TO A

JUDGE EXCEPT THOSE LOANS OR GIFTS

MADE AS CAMPAIGN CONTRIBUTIONS DOES

NOT VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE UNITED STATES

CONSTITUTION.

PETITIONER’ HAS FAILED TO INVOKE

FEDERAL JURISDICTION PURSUANT TO 28

USC §1257(a) AS TO HIS DUE PROCESS

CLAIM BECAUSE HE FAILED TO TIMELY

BRING HIS FEDERAL CLAIM TO THE

ATTENTION OF THE ILLINOIS SUPREME

COURT WITH FAIR PRECISION AND

BECAUSE HE FAILED TO PROMPTLY ASSERT

A CLAIM OF BIAS OR PREJUDICE IN THE

ILLINOIS SUPREME COURT.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... cc ccrcccsccveccvces 1

TABLE OF AUTHORITIES... cc ceccceveves iii-v

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED... cccccceccccvece vii-x1

INTRODUCTION... o-ccossuecvtiecessesenerenawes ee 1

STATEMENT OF THE CASE... ccccseeccces L=1i2

SUMMARY OF ARGUMENT... . 2 ececceveccveeves 12-14

ARGUMENT . cccncnsegessstnes Ste wen eee eee 14

Le An Illinois attorney disciplinary

rule prohibiting loans or gifts to a

judge except those loans or gifts

made as campaign contributions does

not violate the equal protection

clause of the United States

Constitution... ccssscassn uses eueeee 14

II. Petitioner has failed to invoke

federal jurisdiction pursuant to 28

USC §1257(a) as to his due process

claim because he failed to timely

bring his federal claim to the

attention of the Illinois Supreme

Court with fair precision and

because he failed to promptly assert

a claim of bias or prejudice in the

Illinois Supreme Court.......e-eeee- 20

CONCLUSION. ccccccsenesecseseesevesssese 27

11]

TABLE OF AUTHORITIES

Cases: Page

City of Rockford v. County

of Winnebago, 186 I11.App.3d 303,

Deere £1989)... wa wet wesc cces 25

Consolidated Turnpike Company v.

Norfolk and Ocean View Railway

Soret, £22406 U.o. 326 (1913)... c0 aa, 2

Duffield v. Charleston Area

Medical Center, Inc., 503 F.2d

Ey Sa Ye

E & E Hauling, Inc. v. Pollution

Control Board, 107 I1ll.2d 33, 481

I Ec tee cc ecccccees 25

eS Ge Ss ee ky 2 > 1

In re Corboy, et al., 124 I1ll.2d

29, S26 W.E.2d 694 (1988).......... 16, 1

In re Mitan, 75 I11.2d 118, 387

N.E.2d 278 (1979) cert.denied,

NE Ie re > 4

in Fe Hert, 63 Ilil.2da 20, 413

er CAPC Ul sesso ees seerecrscneess 16

In re Neistein, 132 I1l.2d 104,

eee Awe £aSOP) scone scesnsencesced to &

ases: Page

McGoldrick v. Campagnie

Generale, 309 U.S. 430 (1940).......... 20

New York ex rel. Bryant v

Ramer, 270 U.S. G3 CISZB) .ccckcananss 21

People v. Carlson, 79 I11.2d

7G8, 404 Hib.24 233 (1960) .ccccccvsvses 24

Street v. New York, 394 U.S.

Pe SAPs ss ae 08 8 6a OS ORS Seeks ee ee ne ee 21

Waste Management of Illinois

v. Pollution Control Board,

175 Ill.App.3d 1023, 530

ee ree ee ee ee 25

United States Constitution:

Vows QUNGEs GMONE. MIV, § Lecccrneass ~14

United States Statutes:

a Sa wee yet le. | | y eee 20

I1ll.Rev.Stat ch.

L20A., ARt.YV

Rule 7-110(a) (1987) (

: ks

) (amended 1988)...passim

Illinois Code of Professional

7-3

Responsibility Ec S £9 Os & heen a nen «+s i6

111L.Ann.Stat. ch. LIOA, Art.

committee comments

VIII, Rule 7-110

(Smith-Hurd 1980

I1ll.Rev.Stat. ch. 46, para.

9-1 to 9-27 987)

xT ar 7 A

ry ~ t

a¥ \ . » “2

T AT mre

he

A .i* mH AA eed

CTIDDUWT A-\TTD™ OF esrTTT TAIT TON COMAMOA

- - \ v - } { mee »

SUPREME SJURL VU ine VUNI1Bi SoLALEo

laalateheahe' mrmrernm, 1 c

Oc ORER EDM mencne|

Ww wi 4 4 , 4

TMlRMATAT \ ~ AarTmTeMmTA.y

Mt be Ak ¢ }

DL ININAAIN Oe iN & dda SYD

Pet iT 1OoOner

revs vs Vil iL,

a=

YVwe

AMMA TDAIIT VW HOA TOMDYDAMTAN

T ) ry oY ¢ C)

ALLIUBRNEY REGLOINRALILIUN

MNrTocrmrrnyrgry Mu AO\MAM TCO TON

lJ SCI PLINAK & CUPP OO LUN

~ TO erTrrrm ht ihihanbhe hen 1 oo lalate ela’ oe oi Pr? r1aA

» oo . r r { ) ‘a | ( >

4 A ddd OUPrPNA LIE (ASA SB 4 VU I ae SP SP & S| A 6 r

or. ~ s aA +

, y a | bal

re ‘ 4i\AN 44 6 .

i

sy Wem rTmnMTAnr rAYD remnrn AT honk = te alni mA TF

C) < ) » ( )} aj } iS i BD}

WIN reaadk & a we iVUIS WING J Ji Aw Sukh & & DAIS J

- ao rT TAHT — ARATITIT on! -T + Tr. wail en

» Ly } C PRE MI ( \e. ‘ }

a \ oes 7 \ s haw kh dd _ A s wv KX ada iv A

DOCSDANNDT?) mia — abs — ——. .T TF .

mr Of avila 4 > A dw d iv i 4 ‘

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

he Fourteenth Amendment to the United

States Constitution provides, in

pertinent part:

No State shall make or enforce

any law which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

\/ a4

+ + 25 Axis — « ,

property, without due process of

~ ~ . ~ . ~

law; nor deny to any person

+ + — ae. — " +} r

jaithin its jurisdil lon ie equal

j

T ‘ KIC 'T ~ no Tt? g

e De C iN Ls amen . \ 4 F S 4. ¢

r y a.

\ 3 . y = ~— ) : ae ¢ + b -

opie 4 he so a | y r Li S&S J | —

t i

——_— ~ ~ q + 2 T

Yr) , € cr

S&S & & & igis Loqae 4 r > I }

: nan > + +a, ot 1 ——

RESPONSLIDLIILYy, DI LQCS .

P i

A -~} | - + -

ad < =) nr c a a Y ‘

A Liawye sNaAL I ate) Jive 2 1 € |

J

his +h N + tr ») +r > lin-roD

al y ee ae Se | | Ol ALU LO aA 4A € ,

i 7

$Far } a mr a > ~ +

VLE A2WLGL r empioyee P< 2

-y nh “~ ~ an ae -+hr ry). +e ‘ot a

CE LOU & SACEDL LNnoSse ZLi vO Jf

> .

r rrh anh - =nbtlaled=" - > mom -

Loans Wilt © a } JE r a mempoer

~ + hic fami 17 1V receive alal= ha

Wi itiLw }t Aiad y i y > avo A A A

4

Ri} 5 ( bof fi f th ‘i } oh 4

Rule 65(C) (4) oO ch ode of

7? 5 an | 7 CANA aot Oo a an +h -

ww LA ”7 aw A a 4. i MmAAUWNL , e CCep — Waa — a

| » |

"Oar Matim , CANnt ibution to

4 AW yer i ay ake a Xv J eg | J\'AL aVi L

i

+ }, mAaAmMmMnaItnAn Fiinn ~ + - o = | ~~ o

e i! pa nN a \a A A i. a \ A! eB! 1a S

t

ny on ~ ry + + co

UL SUC OLTELCEe

ij ) <r ak — ye = ba > » A ond . r+ +

Tll.Rev. at. en A, At [I lle

-110(a amendeda 9282

Vill

The Illinois Disclosure of Campaign

Contributions and Expenditures Act

provides, in pertinent part:

§9-10. The treasurer of every

state political committee and the

treasurer of every political

committee shall file with the

Board, and the treasurer of every

local political committee shall

file with the county clerk,

reports of campaign contributions

and expenditures on forms to be

prescribed or approved by the

Board. The treasurer of every

political committee that acts as

both a state political committee

and a local political committee

shall file a copy of each report

with the county clerk.

I1l.Rev.Stat;: ch. 46, para. 9-10 (1987).

§9-17. All statements and

reports filed under this Article

with the Board or county clerk

shall be available for

examination and copying by the

public at all reasonable times.

Such person examining a statement

or report must first fill out a

form prepared by the Board

identifying the examiner by name,

occupation, address and telephone

number, and listing the date of

examination and reason for such

examination. The Board shall

supply such forms to the county

clerks annually and_ replenish

such forms upon request. The

Board or county clerk, as the

case may be, shall promptly

notify each political committee

required to file a statement or

report under this Article of each

instance of an examination of its

statement or report by sending it

a duplicate original of the

identification form filled out by

the person examining its report.

I1l.Rev.Stat. ch. 46, para. 9-17 (1987

~

Supreme Court Rule 65(C) (4) provides:

(4) Neither a judg nor a

member of his family residing in

his household should accept a

gift, bequest, favor, or loan

from anyone except as follows:

(a) a judge may accept a

gift incident to a public

testimonial to him; books

supplied by publishers on a

complimentary basis for official

use; or an invitation to the

judge and his spouse to attend a

bar-related function or activity

devoted to the improvement of the

law, the legal system, or the

administration of justice;

(b) a judge or member of

his family residing in his

household may accept ordinary

social hospitality; a gift,

bequest, favor or loan from a

relative; a wedding or engagement

girtt? loan from a lending

institution in its regular course

of business on the same terms

generally available to persons

who are not judges; ora

scholarship or fellowship awarded

on the same terms applied to

other applicants;

(Cc) a judge or a member of

his family residing in his

household may accept any other

gift, bequest, favor, or loan

only if the donor is not a party

or other person whose interests

have come or are likely to come

before him, including lawyers who

practice or have practiced before

the judge.

1.Rev.Stat. ch. 110A, AX « : i Rule

(C) (4) (1987).

Title 28, Section 1257(a) of the United

tates Code provides:

Final judgments or decrees

rendered by the highest court of

a State in which a decision could

be had, may be reviewed by the

Supreme Court by writ of

certiorari where the validity of

a treaty or statute of the United

States is drawn in question or

where the validity of a statute

of any State is drawn in question

on the ground of its being

repugnant to the Constitution,

treaties, or law of the United

States, or where any title,

right, privilege, or immunity is

specially set up or claimed under

the Constitution or the treaties

Xl

or statutes of, or any commission

held or authority exercised

under, the United States.

28 U.S.C. §1257(a) (1986).

a

INTRODUCTION

For the sake of brevity, Respondent

will not include sections in this brief

relating to the opinion below and

jurisdiction. Respondent will address in

Argument those portions of Petitioner's

brief which Respondent considers

inaccurate or-inadequate.

STATEMENT OF THE CASE

Petitioner Bernard S. Neistein was

licensed to practice law in Illinois, in

1937. After his admission, Petitioner

entered general sole practice in Chicago.

es fee ce In 1956, he established a

partnership with Irvin F. Richman.

(Adm. Ex. 4 at 39). They have practiced

law together since then.

During 1980, the firm which

Petitioner and Richman founded in 1956

had grown to include approximately

+)

f£i1F+oCEeENnN atrrnrneve (T|+ . 4 a Jac

ie ’ i y i= 6 oF . i wa.

i

brnaun -~e bhatt &€ i mn e > ,etain Dichman

known at tha time as Neistein, Richman,

TT 5 :) a7 aa + 6 \ aad

LJ jc 7,rYry > no oath a’ { a 2 ats!

nausil nger arma LVUII . > a © 4 oO} « 4 .

,

an | — rh 4 } |

ees hich had been a professiona

corporation since the early 1970's, was

. — + + = =~ + - } 7 Ya urh-e

composed of four main shareholders who

ib all-Te.| + ~ > ~~ mm “6 = ee

acted as senior partners. (Tr. 29, 110).

The firm's business has been

oncentrated in the area of real estate

;

| . -

commercial law and banking matters. The

~ ~11Ir OD an + +ho rnY ae 4

aVuL © oz lo Lk LaGaL.aige if

fy YY » + i i i a > +ho on =

{ yy

L-eCocvent Lk le ee ee ee be me gh: rlia tice y

4 1

T Tr, acIAann ry F¢ the Care , + (7 ¢ i hon wr ¢ Lk

s a» Vv —_ mt ad S & sae — 4 ae ee ~—/"7\ALR WY - J

a) \ , o- A A

~ — e Am Ca, ~

sunty. Adm.Ex. 4 at 40).

4

ae 1Q2 r + an Y he r t Y~ YY

1 1 , Sus lone? i 1 ee La

é ‘ 3 -+hHO ctr C T N¢é rer c

A ‘ pe be st b st

io. mV + (f+ ar + } T > L

4 , 4 ru 1 ’

’ - ,

4 2 * 4 pa ry "4 we t

r >» Y he r y > + -

+ - =

? ‘ . - 4 mW & .

ew

a6

D

ct

4 «

ct

oner received a protit o f

$325,000.00 or $345,000.00 from the sale

(Tr. 123).

Petitioner first met Judge Reginald

. Holzer, a judge of the Circuit Court

of Cook County, Illinois

,oOKkNn 8 Doti+ 3 x } - > ]

: c ) } Nn a r ~ - 7

LyvoOwU &s« rPCLLTIONeL: never pecame a social

+> nan en + wr _ im > | Ty . a

Bic LOCTIC Ol riolizcer. ‘es age J Sp ne never

ersona] lay AY peared before wal oer rn ANU

p iLiovuil ee A} } C A ) LUL mn ize! ail any

i cy “Ac (T+ : Dat ~ 31272 a

pending case. [ee ers Between 1978 and

19QoR9 memherc Cr) F Petitioner's law f rm

a ay i i 4 i i ds eo a 4 4 4 a ae

»_nr\rY pared 1c ors nic ) n+ A 2 ante alan hHnoFtfnro

b> b Pa A P| JA A 4A 4 A 4 » ” FP

Wanlvyvar ,_;, - bh e eon a , + r- fe ~ + Q@latat'a

4 a ae 4 - — a _ 4 A * 4 + — 4 .

or ,_mHe «us ,K 14 cCacpapcdc {Mnmmn) arin annd

Aaa y 4 4 z — A — » pf > ae 2 - aA 4 4

4 r

a on ey - w - i

AnSwer a pal . aAiaij-e

+ -+ho na aha 1 o*7¢ nr - lw ia + &

AL CNeE ena Ji izes % FS early Las LIO P

d

T esi ei nn moat in _. 1h Tilnrat & +},

Petitioner met Holzer ina hallway of the

1

Moaer+wtr - - nop cre Twrivgvar -~A 1A

LVvViG enter, Chicago. Holzer told

T ~ 5+ 4 = +h ~ yn Lian? A -- —halt= } + ae)

rectclicvcioner A ne wanted tO Speak Oo Him

7 5

na LIO)) qq "SAAN roa mmhHhan —‘b oa ie a ala -

>| A WUULU mw UUII Lelie 1140 = . < ey & Sy 4 eo er.

iil oe

(TEs B33} A week or two later, Holzer

telephoned Petitioner and invited him to

his chambers. (Tr. 33-34).

When Petitioner met with Holzer, the

judge related that he, Holzer, "[wjasn't

liquid at the time" and needed a

$10,000.00 loan. Petitioner told Holzer

that he would get back to him. (Tr. 34).

Petitioner discussed Holzer's request

with Richman. (Tr. 34, 112-113). Richman

told Petitioner that they could not loan

any money to the judge, but if the judge

qualified for a loan, he should go to the

Republic Bank of Chicago. (Tr. Lid}

Within the week, Petitioner informed the

judge of their decision. (Tr. 37-38).

Richman telephoned Marvin E.

Schatzman, the President and Chief

Executor Officer of Republic Bank and

asked Schatzman to send Holzer the

necessary paperwork for a $10,000.00

-

—)—

Remete (ees: 283). The bank sent the

necessary paperwork directly to Holzer.

(Tr. 253-254). Sometime thereafter, the

bank approved a $10,000.00 unsecured loan

for the judge. (Tr. 252, 255).

Holzer failed to make the interest

payments due on June 28, 1980. (Tr. 121).

Petitioner told Holzer that the judge had

not made a payment on the loan. Holzer

then told Petitioner to pay the principal

and the interest. eee 41-42).

Petitioner did not respond and returned

to his office where he met with Richman.

cae Ra) Petitioner and Richman

decided to pay the loan.

During 1980 and 1981, Petitioner and

Richman paid a total of $8,770.67 in

principal and interest on the Holzer

loan. (Adm.Ex. 7-20). Periodically,

Holzer would contact Petitioner and ask

the lawyer to come to his chambers. When

ae

Petitioner would arrive, Holzer would

hand him a white slip and ask Petitioner

to make a payment. (Tr. 47-8).

Petitioner and Richman would pool their

money and Richman would purchase a money

order. (Tr. 47-8, 130-1). Richman would

Sign Holzer's name on the money orders.

He would then mail the money order and

the white slip to the Bank. (Tr. 130).

Petitioner and Richman purchased a total

of fourteen money orders for the judge

between June, 1980 and June, 1981.

The last payment made on the Holzer

loan was June 23, 1981. (Adm.Ex. 20; IF.

L522}. Petitioner and Richman stopped

making payments because they claim Holzer

stopped asking them to make payments.

c

(Tr. 66). Holzer apparently made the

remaining payments himself until the loan

was paid off. (Adm.Ex. 4 at 54).

At no time were opposing counsel in

any action pending before Holzer ever

informed of the -payments to the judge.

(Tr. 145-6). At no time was Holzer's

recusal sought in firm cases’ pending

before him. (Adm.Ex. 5 at 46). At no

time did Petitioner ever receive from

Holzer repayment of any portion of the

monies paid toward the loan. (Adm.Ex. 5

at 50-52). At no time did Petitioner

ever bring Holzer's conduct to the

attention of the United States Attorney,

Cook County States Attorney, the Judicial

Inquiry Board or the Attorney

Registration and Disciplinary Commission.

(Tr. 36).

On May 5, 1985, an indictment was

filed in the United States District Court

for the Northern District of Illinois,

Eastern Division, in the matter entitled,

United States v. Reginald

OOOO ——eeEeEEEEEEEeEeEeeee

287 (N.D. Ill.). The indictment alleged

that Holzer engaged in a scheme to extort

personal financial advantages from

Petitioner. (Complaint and Answer,

Background at 3).

On February 18, 1986, Holzer was

found guilty and sentenced to prison.

(Complaint and Answer, Background at 4).

zer was found not guilty of extorting

Petitioner and Richman. United States

On September 10, 1986, the

Administrator of the Attorney

sgistration and Disciplinary Commission

iled a complaint against Petitioner

"TS

ursuant to Illinois Supreme Court Rule

~]

UI

; Petitioner was charged inter alia

and political officials in violation of

the Tllinois Code of Professional

Responsibility. On October 6, 1986,

Petitioner's answer was filed.

Subsequently, discovery ensued.

Hearing was conducted on May 27,

1987 and July 15, 1987. During the

course of hearing evidence was

introduced to support each of the counts.

On December 28, 1987, the report of

the Hearing Board was filed. The Hearing

Board found that Petitioner had violated

Disciplinary Rule 7-110(a) of the

Illinois Code of Professional

Responsibility, by making payments.) on

Judge Holzer's loan. (Hrg.Bd.Rpt. at 6).

The Hearing Board recommended that

Petitioner be suspended from the practice

of law for a period of 30 months.

(Hrg.Bd.Rpt. at 7).

On January 12, 1988, the

Administrator filed exceptions to the

Hearing Board report.

ais RD

On January 20, 1988, Petitioner

report. Subsequently, the issues were

briefed and argued before the Review

Board.

we 717 10

On May 1/7 19

ee)

X

; the report and

$

48)

)

3

j

D

y}

Au

jw

+

)

3

O

b+

ct

r

)

he Review Board was

~ ~ = a a -}, Fann aa _. + af no

COoOncuUurzr.eG W1iUCI Sire rinalings oO! Lacw ait

= 7 . ~ + ~~ + As - “r QA rl

lusior law the Hearing Board.

- = ~ AT ~ + + +

~ . ~~ YY) 1s

é l ra 14 recomme 2el Esta

y + ~ ~Ke ~ > ae 4 i

+ + y ) >

A A + i S OracitLice

+ ~ . . mar + -

= > «©

+ A 4 ~ 4 + Hat rnr

A 4 pe Liat

-~ A + 7

I t t ¢ é D ee a

> > a an ry +

c A» ‘ \ >

trat excepted t

é ; y >

pe 4

1]

recommendation of the Review Board.

Petitioner excepted to both the findings

and recommendation of the Review Board.

On Octonper 3, i988, tne Ceurt

allowed the Administrator's petition for

leave to file exceptions and the

Petitioner's exceptions.

On October a3, 1989, after

considering briefs and oral arguments,

the Supreme Court of Illinois issued an

order suspending both Petitioner and his

partner from the practice of law for a

period of 30 months.

T 20 5 .

On November 17, 1989, Petitioner

filed a Petition for Rehearing ith the

Supt e Court of Illinois.

~ r Cc

( ~ ‘ar ™ b - a >, -~hHho Cc = ae ™

Le i S € € , ») i L ie — La reme

Glatt + + T 7 _ = en t+hea noririnn

7 kA L oa —/ 2 AN aha L - ‘ eat itWJiie

‘e

ad ~ >» } 4 i a > , —~

€ € 4 ’ 4 , | 4 4 er

=

Supreme Court of Illinois so as to permit

Petitioner time to seek review in the

Supreme Court of the United States.

On December 19, 1989, the Supreme

Court of Illinois issued an order staying

the mandate.

On March 2, 1990, Petitioner filed

his Petition for Writ of Certiorari to

the Illinois Supreme Court with the Clerk

of the United States Supreme Court.

On March 2, 1990, Petitioner served

Respondent with copies of his Petition

for Writ of Certiorari filed with the

Supreme Court of the United States.

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari

to the Supreme Court of Illinois should

be denied for the following reasons:

—13—

First, Disciplinary Rule 7-110(a)

does not violate the equal protection

clause of the United States Constitution.

The policy objective of Rule 7-110(a) is

to preserve an independent and impartial

judiciary. Rule 7-110(a) reasonably

prohibits non-campaign loans or gifts to

a judge, because they are not regulated

or disclosed. Rule 7-110(a) allows

campaign loans or gifts to a judge,

because they are regulated and disclosed.

Thus, Rule 7-110(a) bears a rational

relationship to the objective of

preserving an impartial judiciary.

Second, as to his due process clain,

Petitioner has failed to invoke the

jurisdiction of this Court pursuant to 28

U.8.C.. § i2ss7(a}. Petitioner failed to

timely and adequately present his due

process claim to the Supreme Court of

Illinois. Further, Petitioner failed to

raise his claim of bias or prejudice in

the original proceeding. Thus,

Petitionér NaS waived his right to raise

the issue of recusal.

ARGUMENT

I. AN ILLINOIS ATTORNEY DISCIPLINARY

RULE PROHIBITING LOANS OR GIFTS TO A

JUDGE EXCEPT THOSE LOANS OR GIFTS

MADE AS CAMPAIGN CONTRIBUTIONS DOES

NOT VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE UNITED STATES

CONSTITUTION.

The Equal Protection Clause of the

United States Constitution guarantees

that similar people will be treated

equally by the laws. U.S. CONST. amend.

ELV, Gis In order to have any law

reviewed under the equal protection

clause, one must be able to show that the

regulation unlawfully classifies a person

in some way.

Petitioner fails to establish either

that Rule 7-110(a) classifies persons in

=e)

terms of their ability to exercise a

fundamental right or establishes a

suspect classification based upon race,

national origin, alienage, illegitimacy

or gender. Thus, Rule 7-110(a) is proper

if it bears any rational relationship to

the end sought to be achieved by the

State of Illinois.

The States have a compelling

interest in the practice of professions

Within their boundaries. Goldfarb v.

Varese. State Bar, 421 U.S. 773, 792

(1975). The interest of the States in

regulating lawyers is especially great

because lawyers are essential to the

primary governmental function of

administering justice, and have

historically been "officers of the

sourts.™ Sosmrere, €23 U.S. 773, T32

(1975).

= ee

State courts also have the inherent

authority to regulate the admission to

the practice of law and the discipline of

attorneys who have been admitted to

practice before it. Goldfarb, 421 U.S.

773, 789 (i975). The supervision of

attorney conduct is one of the most

crucial functions of the Supreme Court of

Illinois. See In re Neff, 83 I11.2d 20,

25, 413 N.E.2d 1282, 1284 (1980).

The policy objective of Rule

7-110(a) is to preserve an independent

and impartial judiciary. In re Corboy,

et al., 124 I11.2d 29, 37-38, 528 N.E.2d

694, 697 (1988); See Illinois Code of

Professional Responsibility EC 7-34

(1970). It is a prophylactic rule

designed not only to forestall lawyers

from seeking to exercise improper

influence over the judiciary, but also to

eliminate even the appearance of improper

=. oe

influence. In re cCorboy, et al., 124

I11.2d 29, 38, 528 N.E.2a 694, 697

(1988).

Non-campaign loans or gifts, such as

those made by Petitioner, are prohibited

because they are not regulated and are

not disclosed to the public nor to other

attorneys. In re Neistein, 132 I11l.2d

104, 112-113, 547 N.E.2d 198, 202 (1989).

Such loans or gifts create an appearance

of impropriety and denigrate the

integrity of the legal system in the eyes

of the public. Further, the clandestine

nature of non-campaign loans or debts

facilitates the opportunity for attorneys

to seek to influence members of the

judiciary.

ontiiin

In contrast, the Supreme Court of

Illinois determined it was reasonable to

provide an exception concerning gifts and

loans made to a designated judicial

campaign § fund. See, I11]1.Rev.Stat. ch.

L1OA, Art. VIit, Rule 7-110(a)

(1980) (amended 1988). Loans or gifts

to candidates or their committees must be

reported pursuant to the Disclosure of

Campaign Contributions and Expenditures

Act. I11.Rev.Stat. ch. 46, para. 9-1 to

9-27 (1987). As the Illinois Supreme

1/

The drafters of Rule 7-110(a)

recognized that lawyers should not be

second-class citizens, and constitutional

problems might be raised by a regulation

restricting lawyer contributions to

political campaigns. I11.Ann.Stat. ch.

110A, Art. VIII, Rule 7-110, committee

comments (Smith-Hurd 1980).

—19—

Court noted, campaign loans or gifts are

publicly disclosed, thereby preserving

the policy objective of Rule 7-110(a) of

Maintaining an impartial judiciary. In

re Neistein, 132 I1l1.2d 104, 112-113, 547

N.E.2d 198, 202 (1989).

The Supreme Court of Illinois seeks

to maintain an independent and impartial

judiciary. Disciplinary Rule 7-110(a) is

rationally related to that objective.

Thus, Petitioner fails to establish that

Disciplinary Rule 7-110(a) violates the

equal protection clause of the United

States Constitution.

SS

II. PETITIONER HAS FAILED TO INVOKE

FEDERAL JURISDICTION PURSUANT TO 28

USC §1257(a) AS TO HIS DUE PROCESS

CLAIM BECAUSE HE FAILED TO TIMELY

BRING HIS FEDERAL CLAIM TO THE

ATTENTION OF THE ILLINOIS SUPREME

COURT WITH FAIR PRECISION AND

BECAUSE HE FAILED TO PROMPTLY ASSERT

A CLAIM OF BIAS OR PREJUDICE IN THE

ILLINOIS SUPREME COURT.

Petitioner is required to

demonstrate that this Court has

jurisdiction to review the judgment of

the Supreme Court of Illinois.

Petitioner has failed to do so.

This Court cannot consider a federal

claim unless a Petitioner either raised

the issue in the state court or the state

court considered and resolved the federal

claim. McGoldrick Vv. Compaqnie

Generale, 309 U.S. 430, 434 (1940). When

the highest state court has failed to

pass upon a federal question, it will be

assumed that the omission was due to want

of proper presentation in the state

courts, unless the aggrieved party in

oe

this Court can affirmatively show the

contrary. Street v. New York, 394 U.S.

576, 582 (1969). A Petitioner must show

that the federal claim was brought to the

attention of the state court with fair

precision and in due time. New York ex

rel. Bryant v. Zimmerman, 278 U.S. 63,

67 (1928).

Petitioner failed to timely bring

his due process claim to the attention of

the Illinois Supreme Court, with any

degree of precision. On February 2,

1989, he filed a brief and appendix in

the Supreme ‘Court of Illinois.

Petitioner raised no due process claim in

that brief.

= =

On April 7, 1989, Petitioner filed a

reply brief and an appendix, in the

Supreme Court of Illinois. There,

Petitioner again failed to adequately

present his due process issue to the

Supreme Court of Illinois. @

2/

In a footnote found on page eighteen

of his twenty-four page reply brief,

Petitioner asserted as follows:

Depending upon what justices

participate in the decision of this case,

there may also be due process issues

under the U.S. Constitution, Art. XIVI1,

Sec. 1, and Illinois Constitution,. Art.

1, Sec. 2. Due Process requires a fair,

impartial, and unbiased tribunal.

Goldberg v. Kelly, 397 U.S. 254, 25

L.Ed.2d 287, 90 S.Ct. 1011 (1970); In re

Murchinson, 349 U.S. 133, 75 S.Ct. 623

(1955); Collura v. Board of Police

Commissioners, 113 Ill.2d 361, 498 N.E.2d

1148, 1151 (1986). (Pet. Reply Br. at 18

n.9).

The language employed by Petitioner does

not constitute an adequate articulation

of a federal issue.

—23-—

Petitioner first articulated a

federal due process claim with any degree

of specification in his petition for

rehearing after the judgment of the

Supreme Court of Illinois. (Pet.Br. 13).

Raising a federal question for the

first time in a petition for rehearing

addressed to the highest state court is,

however, generally insufficient to invoke

federal jurisdiction unless the court

actually entertains the petition and

expressly decides the question.

Consolidated Turnpike Company v. Norfolk

and Ocean View Railway Company, 228 U.S.

326, 334 (1913). As the Illinois Supreme

Court denied the petition in the instant

case without entertaining the federal

question, the general rule precludes

review by this Court. To constitute a

reviewable judgment under such

circumstances, the order denying the

—24—

petition for rehearing must be more than

a cursory recitation that the petition

has been fully or maturely considered and

is accordingly denied. Consolidated

Turnpike, 228 U.S. 326, 333-334 (1913).

Further, Petitioner clearly does not

fit within any exception to this general

rule. Thus, Petitioner has failed to

invoke the jurisdiction of this Court.

In the alternative, Petitioner

waived his right to raise the issue of

recusal. The discipline of attorneys is

in the nature of an original proceeding.

In re Mitan, 75 I1l1.2d 118, 123-124, 387

N.E.2d 278, 280 (1979) cert.denied, 444

U.S. 916 (1979). Under Illinois law, a

failure to object at the original

proceeding generally constitutes a waiver

of the right to raise the issue on

appeal. People _v. Carlson, 79 I1l.2d

564, 576-577, 404 N.E.2d 233, 239 (1980).

—~25—

One must promptly assert a claim of

bias or partiality of a judge in order to

warrant disqualification. E & E Hauling,

Inc. v. Pollution Control Board., 107

Ill.2d 33, 38, 481 N.E.2d 664, 666 (1985)

(quoting Duffield v. Charleston Area

Medical Center, Inc., 503 F.2d 512, 515

(4th Cir. 1974). It would not be proper

to allow a party to withhold a claim of

bias until he first seeks a ruling ina

matter and then permit him to assert it

after he receives an unfavorable ruling.

City of Rockford v. County of Winnebago,

186 Ill.App.3d 303, 313, 542 N.E.2a 423,

431 (1989) (citing Waste Management of

Illinois v. Pollution Control Board, 175

Ill.App.3d 1023, 1039-1040, 530 N.E.2a

682, 695 (1988).

Petitioner did not request recusal

nor raise the issue of bias or

impartiality until his petition for

—26—

rehearing. Petitioner was aware of the

alleged disqualifying circumstances

before he first sought a ruling in the

Illinois Supreme Court. Thus, Petitioner

cannot here claim a lack of due process

based on an alleged biased or impartial

judiciary.

—?7—

CONCLUSION

For the reasons set forth above,

Respondent respectfully submits the

Petition for Writ of Certiorari be

denied.

Respectfully submitted,

am

_

an

- =

en. vs ae ie ro °

“rat a aati v4

rs

—_

James J. Grogan

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Respondent

Dana Cook Baer, J.D., DePaul University

College of Law, assisted in the

preparation of this brief.

bernard1/dmk