Opposition Brief — Mason v. Departmental Disciplinary Committee

No. 89-1752

IN THE

Supreme Court of the United

October Term, 1989

C VERNON MASON

Petitioner

DEPARTMENTAL DISCIPLINARY COMMITTEE.

APPELLATE DIVISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK, FIRST JUDICIAI

DEPARTMENT; OFFICE OF CHIEF COUNSEL,

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

STROOCK & STROOCK &

Attorneys f

yeven Hanover

New York, Nev

(212)

JAMES G. GREILSHEIMER

Counsel ot Record

ALAN M. KLINGER

JOSEPH J. GIAMBOI

Of Counsel

June 11, 1990

BEST AVAILABLE COPY

i

QUESTION PRESENTED FOR REVIEW

Whether the affirmance by the Second Circuit of the district

court’s dismissal of petitioner’s complaint pursuant to the ab-

stention principles set forth in Younger v. Harris, 401 U.S. 37

(1971) and Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423 (1982), was correct when the investigation of

petitioner by the Disciplinary Committee’s staff, preceding any

charges which might be brought against him, is only in its infancy;

when petitioner will have an adequate opportunity in any state

disciplinary proceedings and state judicial proceedings there-

from to raise constitutional or other challenges to such proceed-

ings; and when petitioner failed to allege facts sufficient to

establish bad faith, harassment or other extraordinary circum-

stances by the Disciplinary Committee to warrant the exercise of

federal jurisdiction?

TABLE OF CONTENTS

Question Presented for Review........................

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ii. The Committee’s Investigation .................

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ESTABLISHED SUPREME COURT PRECEDENT

COMPELS ABSTENTION IN THE INSTANT

MATTER AND DENIAL OF THE WRIT OF

ONS bid vte6ecddsccecscesviseececees

A. The Principles of Abstention As Set Forth in

.

Younger and Applied in Middlesex Govern the

ced epalvcecsereeenscsncen

Petitioner's Claims Fail to Establish the Bad

Faith of the Committee in Commencing This

Action, Harassment or Extraordinary

Circumstances Warranting the Exercise of

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1. Bad Faith, Harassment and Extraordinary

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15

17

18

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TABLE OF AUTHORITIES

PAGE

Cases:

Anonymous Vv. Ass'n of the Bar, 515 F.2d 427 (2d Cir.),

cert. denied, 423 U.S. 863 (1975) ............0000e ee. 12, 13

Anonymous Attorneys v. Bar Ass'n, 41 N.Y .2d 506,

i ceeheens 14

Bishop v. State Bar, 736 F.2d 292 (Sth Cir. 1984) ......... 20

Collins v. County of Kendall, 807 F.2d 95 (7th Cir.

1986), cert. denied, 483 U.S. 1005 (1987) .............. 17

Davis v. Lansing, 851 F.2d 72 (2d Cir. 1988) ......... 12, 15, 17

Dombrowski v. Pfister, 380 U.S. 479 (1965) ....... 14, 17-18, 21

Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.},

cert. denied, 409 U.S. 889 (1972) .............. 13, 17, 21, 24

Garden State Bar Ass’n v. Middlesex County

Ethics Comm., 643 F.2d 119, reh’g denied, 651

IS 12

Hensler v. District Four Grievance Comm., 790

Fe ED vnvbaddscnbdenceencscccveses 17

Huffman v. Pursue, Ltd., 420 U.S. 592, reh’g denied,

ie EY Succ ccvceswecseeshssscoese ss 14, 15, 21

Juidice v. Vail, 430 U.S. 327 (1977) ............. 0.0 e eee 12

Kugler v. Helfant, 421 U.S. 117, reh’g denied, 421

Os ne ea seieaes passim

Lewellen v. Raff, 851 F.2d 1108 (8th Cir. 1988),

cert. denied, __ U.S. __ , 109 S. Ct. 1171 (1989) ....... 16

Maddox v. Mollen, No. CV-89-4181

(E.D.N.Y. Mar. 28, 1990) (1990 WESTLAW 39869) .... 5

Matter of Alton H. Maddox, N.Y.LJ., May 22, 1990,

at 6, col. 1 (Ape. Div. 20 Dept) .......cccecccccccess 5

) r

5

PAGE

Cases: (cont.)

Matter of Capoccia, 59 N.Y.2d 549, 453 N.E. 2d 497

| SED Kcwoie saewWaee st nnecekenessbdecuewunes wadues 13

Middlesex County Ethics Comm. v. Garden State

Bar Ass'n, 457 U.S. 423 (1GGD) ow wc ccccccccccse 2, 11, 13, 24

Mildner v. Gulotta, 405 F. Supp. 182 (E.D.N.Y. 1975),

Ee Shae SED ou 0 6 kok beaded bi eesduccecees 13

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1986) ........... 14

Smith v. Hightower, 693 F.2d 359 (Sth Cir. 1982) ........ 16, 20

Trainor v. Hernandez, 431 U.S. 434 (1977).............. 12, 14

Turce v. Monroe County Bar Ass'n, 554 F.2d 515

(2d Cir.), cert. denied, 434 U.S. 834 (1977)............. 13

Wichert v. Walter, 606 F. Supp. 1516 (D.N.J. 1985) ...... 21, 22

Wilson v. Thompson, 593 F.2d 1375 (5th Cir.),

SO GE, FU Ne FP Rs occ cccccnccsnvcccens 16

Younger v. Harms, 401 U.S. 37

GEE Gs hae oir sdk cwehtdbercksvacernueesewesarr en) passim

Zimmerman v. Grievance Comm., 726 F.2d 85

(2d Cir.), cert. denied, 467 U.S. 1227 (1984) ........... 13

Statutes

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PAGE

Reports

Report of the Grand Jury of the Supreme Court of the

State of New York, County of Duchess, Oct. 6, 1988 ... 5

Books

Practicing Law Institute, Legal Ethics: Everything a Lawyer

Needs to Know and Should Not Be Afraid to Ask

4 re et re eee 6

Newspapers

N.Y.LJ., Jan. 31, 1989, at 24, col. 2

OF, E Rden POM: Ely HD OE NE ccosesesceGeeevacevess 10

No. 89-1752

IN THE

| Supreme Court of the United States

; October Term, 1989

C. VERNON MASON,

Petitioner,

-against-

DEPARTMENTAL DISCIPLINARY COMMITTEE,

APPELLATE DIVISION OF THE SUPREME COURT OF THE

STATE OF NEW YORK, FIRST JUDICIAL DEPARTMENT;

OFFICE OF CHIEF COUNSEL,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondents, the Departmental Disciplinary Committee of

the Appellate Division of the Supreme Court of the State of New

York, First Judicial Department, and the Office of Chief Counsel,

(“Respondents”), respectfully urge that this Court deny the peti-

tion for a writ of certiorari seeking review of the judgment of the

United States Court of Appeals for the Second Circuit (the “Sec-

ond Circuit”).' Petitioner, C. Vernon Mason, has failed to estab-

lish any basis upon which the writ should be granted in that the

' The Second Circuit’s opinion and judgment are reprinted in the Appendix to

the Petition of C. Vernon Mason (the “Petition”), at pages A-1-21. Parentheti-

cal citations preceded by “A” refer to the Appendix to the Petition; those pre-

ceded by “J.A.” refer the first, second and third volumes of the Record on Ap-

peal filed in the Second Circuit.

2

Second Circuit’s decision is fully consonant with the prior deci-

sions of this Court in Younger v. Harmis, 401 U.S. 37 (1971); Kugler

v. Helfant, 421 U.S. 117, reh’g denied, 421 U.S. 1017 (1975); and

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

U.S. 423 (1982).

The proceeding that Mr. Mason seeks to enjoin remains only

in the most preliminary stage of investigation and no determina-

tion has been made by the Committee to seek a disciplinary sanc-

tion against Mr. Mason. The procedures established for the

conduct of the investigation, the Committee’s initial step in the

disciplinary process, and for the hearing that would follow in the

event formal charges are preferred against Mr. Mason, have been

so designed by the State of New York as to protect the substantial

interests of all the parties to the litigation.

Pursuant to these procedures, the Committee will have an

opportunity to ascertain whether Mr. Mason has violated the

standards of professional responsibility which the courts of the

State of New York and the people of the State of New York expect

its attorneys to maintain. Similarly, Mr. Mason will have an op-

portunity to explain or to contest any allegations pertaining to his

conduct and will have a full and fair opportunity to litigate any

perceived infringement of his constitutional rights.

Mr. Mason does not allege facts sufficient to warrant this

Court’s departure from the general policy of deferring to state

courts the discipline of their respective attorneys. Stripped of its

conclusory allegations, Mr. Mason’s claim appears to be that:

(1) because the Committee alerted New York State

Attorney General Robert Abrams to the fact that it had

opened an investigation file concerning Mr. Mason and

asked to receive relevant evidence against Mr. Mason

(in a letter marked “Personal and Confidential”);

(2) because Attorney General Abrams publicly announced

that he was charging Mr. Mason with conduct violative

ite oe ie

3

of the Code of Professional Responsibility and then

publicly disseminated the letter that he was sending to

the Committee enumerating the allegations; and

(3) because Justice Francis T. Murphy, in his capacity as

Presiding Justice of the Appellate Division, and as such,

the Justice empowered to oversee the Committee and

the attorney disciplinary process generally, pressed the

Committee’s then Chief Counsel, Michael Gentile, to

move the Mason matter;

he cannot receive a fair and impartial hearing on as yet unbrought

charges in the courts of the State of New York, thus violating Mr.

Mason’s constitutional right to due process.

As shown, Mr. Mason bases this belief on the alleged acts of

three individuals—Attorney General Abrams, Justice Murphy

and Mr. Gentile—only one of whom, Justice Murphy, may have a

role to play in the disciplinary process (and even that possibility is

remote). Considering that there is no charge that any of the 36

members of the Committee, the current Chief Counsel or any of

the attorneys employed by the Chief Counsel, or, for that matter,

that 12 of the 13 Justices of the Appellate Division available to sit

on the panel of five to consider such charges (assuming any are

brought and referred to the Court), committed any improper acts,

Mr. Mason’s complaint, on its face, fails to state a claim of bad

faith, harassment, or extraordinary circumstances sufficient to

warrant the exercise of federal jurisdiction in this case. See

Kugler, 421 U.S. 117. Denial of the writ, therefore, is appropriate.

STATEMENT OF THE CASE

Solely for purposes of their motion to dismiss and their op-

position to Mr. Mason’s motion for a preliminary injunction, re-

spondents accepted the facts as set forth in the complaint as true.

They are restated here without hyperbole for the convenience of

the Court and to demonstrate, by placing them in proper perspec-

tive, the lack of any factual or other basis for the relief which Mr.

4

Mason seeks. Additionally, to place these matters in context, the

rules and procedures governing the Committee’s investigation

and prosecution of disciplinary actions against First Department

lawyers are also fully described in the affidavit of its present Chief

Counsel, Hal R. Lieberman, previously submitted to the district

court and appended hereto in the Supplementary Appendix

(“S.A.”).

i. The Brawley Case

In the autumn of 1987 Tawana Brawley was discovered out-

side an apartment complex in Wappingers Falls, New York lying

inside a garbage bag. At that time, she claimed that she had been

abducted and sexually assaulted by several white men, one of

whom displayed a policeman’s badge. (J.A.I-3.)

Soon thereafter, Mr. Mason and Alton H. Maddox, Jr., Esq.,

became legal advisers to Ms. Brawley. At their prompting, Gov-

ernor Mario Cuomo agreed to appoint a special prosecutor to in-

vestigate Ms. Brawley’s claims of abduction and rape. Governor

Cuomo appointed the Attorney General of the State of New York

to fill that position. (J.A.I-4.)

Assuming this role, Attorney General Abrams empaneled a

Grand Jury in February 1988 to investigate the incident and

sought the cooperation of Ms. Brawley and her mother in the in-

vestigation. (J.A.I-4, see also 72-74.) For approximately eight

months, until the Grand Jury issued its report in October 1988,

Attorney General Abrams sought, and Ms. Brawley’s legal advis-

ers fought, Ms. Brawley’s and her mother’s participation in the

investigation of the alleged crimes. Various charges were hurled

by Ms. Brawley’s advisers regarding the Attorney General’s moti-

vations for seeking the Brawleys’ assistance, but, in the end, de-

spite a subpoena from the Grand Jury to Ms. Brawley’s mother

seeking her appearance, neither Ms. Brawley nor her mother tes-

tified before the Grand Jury.

On October 6, 1988, the Grand Jury released the report of its

investigation into the matter. (J.A.I-4-5.) The Grand Jury con-

5

cluded that public charges made by Ms. Brawley’s legal advisers

and others acting on her behalf, including the charges that certain

named individuals had participated in the attack on Ms. Brawley,

were without basis in fact.?

With the report of the Grand Jury in hand, Attorney General

Abrams announced publicly that he would ask the disciplinary

committees with jurisdiction over Messrs Maddox? and Mason

to consider bringing disciplinary proceedings against them. Ina

letter dated October 6, 1988, Attorney General Abrams set forth

his charges against Messrs. Maddox and Mason and alleged that

they had breached four Disciplinary Rules of the Code of Profes-

sional Responsibility. (J.A.I-4-5.) Attorney General Abrams al-

leged that the two attorneys knowingly made false statements in

the course of representing Ms. Brawley and her mother, coun-

seled Ms. Brawley’s mother to disobey a subpoena to appear be-

fore a grand jury, and assisted her to evade arrest. (J.A.I- 168-77.)

ii. The Committee’s Investigation

Attorney General Abrams’s October 6, 1988 letter to the

Committee became part of an existing file on Mr. Mason in this

matter. The Committee had opened the file in June 1988 when,

2 See Report of the Grand Jury of the Supreme Court State of New York, County

of Dutchess, Oct. 6, 1988, at 168-69, included at (J.A_II-96-269.)

? Mr. Maddox is not subject to the jurisdiction of the Committee, although he did

apparently seek to change the venue of his disciplinary hearing to this Commit-

tee. Mr. Maddox apparently sought this change because he believed that the

Gnevance Committee under whose jurisdiction he is, was guilty of racial dis-

crimination, bias and hostility towards him. See Matter of Alton H. Maddox,

N.Y.LJ., May 22, 1990, at 6, col. 3 (App. Div. 2d Dep’t.)

Mr. Maddox also had commenced an action in the Eastern District of New

York to enjoin the Gnevance Committee (for the Second and Eleventh Judicial

Districts) from pursuing its inquiry into his actions with respect to the Tawana

Brawiey matter. Mr. Maddox, in that action, advanced the claim that he could

not receive a fair hearing due to the actions of Attorney General Abrams,

which, he claimed, had the effect of biasing the state judicial system against

him. That action, too, was dismissed by the district court (Glasser, J.) and sanc-

tions were imposed pursuant to Fed.R. Civ. P. 11. See Maddax v. Mollen, No.

CV-89-4181 (E.D.N.Y. Mar. 28, 1990) (1990 WESTLAW 39869.)

6

pursuant to 22 NYCRR § 605.6(bX2), it had commenced a sua

sponte investigation of Mr. Mason’s conduct during the Brawley

investigation. (J.A.I-51.) The Committee’s investigation was be-

gun as a result of a flood of newspaper articles, television news

reports and radio broadcasts about the controversy surrounding

the Grand Jury investigation. (Jd.) Mereever, during this time,

the Committee was inundated with telephone calls requesting an

investigation of Mr. Mason’s conduct. In particular, on June 20,

1988, five members of the Assembly of the State of New York had

requested that the Committee commence an investigation of Mr.

Mason’s conduct because they believed that he and Ms. Brawley’s

other advisers had acted improperly throughout the investiga-

tion. (J.A.I-43-44.)

On June 28, 1988, as part of its normal investigatory proce-

dures, the Committee’s then Chief Counsel sent Attorney Gen-

eral Abrams a letter notifying him that it had commenced an

investigation of Mr. Mason and requesting the production of rele-

vant materials and documents for possible action following the

conclusion of the Grand Jury’s investigation. (J.A.I-44.) In this

context, Attorney General Abrams’s October 6, 1988 letter served

to inform the Committee of the termination of the Grand Jury’s

investigation as well as to register a complaint of professional

misconduct against Mr. Mason. Because the letter set forth in

detail much of Mr. Mason’s purportedly “questionable” behavior

(as contrasted with the more general letter previously sent by the

Assemblymen), the Committee utilized Attorney General

Abrams'’s letter to serve as the vehicle for conveying to Mr. Mason

the conduct about which it was concerned. (J.A.I-45.) The letter

did not constitute the filing of formal charges by the Committee

against Mr. Mason in the sense of institution of a formal proceed-

ing. Rather, as was recognized by the Second Circuit (A-14), it

* This is a customary practice of the Committee when the complainant's letter is

clear and specifies those actions which cause the Committee concern. See

J.A.II-46-47; Practicing Law Institute, Legal Ethics: Everything a Lawyer Needs to

Know and Should Not be Afraid to Ask, 191 (1988).

7

was no more than an instrument which the Committee used to

further its investigation pursuant to 22 NYCRR § 605.6.5 The

Committee requested that Mr. Mason respond to its inquiry

within the standard 20 days (by November 4, 1988). (J.A.1-45.)

On November 2, 1988, the Committee received a letter from

Napoleon B. Williams, Jr., Esq. and Stephanie Y. Moore, Esq. re-

questing, on behalf of Mr. Mason, a 90 day extension of time to

answer the concerns raised in Attorney General Abrams’s letter.

In large part because their letter was equivocal as to their author-

ity to represent Mr. Mason (see J.A.I-155), the Committee the next

day denied the request and, in its letter so informing Mr. Williams

and Ms. Moore, sought to clarify whether they in fact were author-

ized to represent Mr. Mason. (J.A.I-46.) Mr. Williams, on No-

vember 4, 1988, purportedly on Mr. Mason’s behalf, submitted a

response. (J.A.I-99.)

Within ten days, there commenced an exchange of corre-

spondence, initially between the Committee and Mr. Mason, and

eventually involving new counsel, William M. Kunstler, Esq. and

Ronald L. Kuby, Esq., and Ms. Moore. (J.A.I-107.) In sum, Mr.

Mason’s new counsel attempted to withdraw the response sub-

mitted by Mr. Williams and to obtain an extension of time to sub-

mit a new response. The Committee sought to determine who

represented Mr. Mason during this period, to advise him that Ms.

Moore, having never been admitted to practice in New York,

could not act as counsel to him, and declined to allow him to with-

draw the November 4, 1988 response, at least absent adequate ex-

planation. Mr. Mason’s new counsel advised the Committee that

they had counseled Mr. Mason not to answer any inquiries re-

garding Mr. Williams’s representation.

On December 8, 1988, the Committee reiterated to Mr. Ma-

son that it would not allow him to withdraw his response of No-

* In the event that the Committee formally charges Mr. Mason with misconduct,

it will prepare and serve a formal Notice and Statement of Charges and Attor-

ney General Abrams'’s letter will no longer be legally relevant. See 22 NYCRR

§ 605.12.

8

vember 4, 1988, but that it would give him until January 9, 1989 to

submit a supplemental response. (J.A.I-7.) Mr. Mason rejected

the Committee’s offer and also insisted that Ms. Moore should be

allowed to act as counsel in the matter. On December 20, 1988, he

commenced a proceeding in the Appellate Division pursuant to

Article 78 of the New York Civil Practice Law and Rules (“Article

78 proceeding”) against the Committee for a judgment directing

the Committee to grant him an extension of time to respond to

Attorney General Abrams’s letter of complaint and to recognize

Ms. Moore as one of his attorneys.* (J.A.I-7-8.) The Committee

responded by cross-moving for dismissal of the entire action.

On January 5, 1989, Mr. Mason commenced a second Article

78 proceeding in the Appellate Division against the Committee

(J.A.I-10-11), apparently as a result of the reports of the requested

resignation of the Committee’s then Chief Counsel, Michael A.

Gentile. (J.A.I-10.) By this action, Mr. Mason sought an order

directing the Committee to cease the investigation into Mr.

Mason’s activities, charging that the investigation was biased and

violative of his right to due process, and directing the Committee

to disclose any and all information regarding communications

between Mr. Gentile and Attorney General Abrams concerning

the investigation into Mr. Mason’s activities. (J.A.I-10-11.)

The parties agreed to consolidate these actions and the Com-

mittee subsequently responded to the second action by cross-

moving to dismiss it, as well as the first, on both procedural and

substantive grounds. (J.A.I-320-22.)

* The very next day, Mr. Mason submitted a complaint to the Committee against

Attorney General Abrams regarding the latter’s publication of the allegations

against him. Oddly enough, Mr. Mason publicized the filing of the complaint.

(J.A.I1-46.) After a full investigation, the Committee, in June 1989, determined

that there was no basis for taking action. (J.A_III-155.)

Mr. Mason’s complaint, Attorney General Abrams’s answer, Mr. Mason’s re-

sponse and the Committee’s determination were submitted under seal to Judge

Sprizzo and the Second Circuit prior to these courts’ determinations in the mat-

ter.

9

On February 22, 1989, the Appellate Division rendered deci-

sions in both Article 78 proceedings. In the first, the court essen-

tially granted the entire relief Mr. Mason had sought. The court

allowed him 60 days to submit a response to the complaint filed

by Attorney General Abrams and, while declining to then ap-

prove Ms. Moore’s status as counsel, indicated that Ms. Moore

would be permitted to represent Mr. Mason upon submission of a

proper application for pro hac vice admission. (J.A.I-453.) In the

second, it rendered a decision dismissing Mr. Mason’s petition

(and charges of conspiracy and due process violations) without

opinion. (J.A.I-455.)” The Committee then renewed its efforts to

continue its investigation. As the time drew near for Mr. Mason

to respond to the allegations and to appear for a deposition be-

fore the Committee, he instituted this action. (J.A.I-48.) The par-

ties stipulated before the district court that Mr. Mason’s response

and appearance would be deferred pending the district court's

determination. As also stipulated, the investigation, to the lim-

ited extent possible, continued.

iii. The Gentile Matter

As referenced above, at the request of Justice Murphy, Mr.

Gentile resigned his position on January 23, 1989, effective March

1, 1989. (J.A.I-409.) Initially, the media reported that the request

for the resignation was due to Mr. Gentile’s alleged mishandling

of another investigation and disciplinary proceeding. (J.A.I-10.)

However, subsequent reports in the press indicated that there

were additional reasons for the requested resignation. By the end

of January 1989, there was speculation in the press that Mr. Gen-

tile’s resignation was requested because of inadequate perform-

ance in connection with various investigations, including that of

Mr. Mason. (J.A.I-11.)

” Approximately one month later, on March 23, 1989, Mr. Mason sought leave

from the New York Court of Appeals to appeal the Appellate Division's deter-

minations. (J.A.1-426-450.) On May 4, 1989, Mr. Mason's motion for leave to

appeal was denied. (J.A.I-18-19.) Mr. Mason, to the Committee’s knowledge,

did not seek certiorari.

10

In an effort to quell the rising tide of speculation, Justice

Murphy released a report on January 23, 1989 explaining why he

had requested Mr. Gentile’s resignation. As is evident from that

report, Justice Murphy was concerned that the Committee was

not being properly administered, that a backlog of cases was

growing, and that the increasing backlog of cases was causing

many cases to slip through without thorough investigations oc-

curring. (N.Y.LJ., Jan 31, 1989, at 24, col. 2.)

Mr. Gentile countercharged that this was not the case. He

conclusorily alleged that Justice Murphy had attempted to inter-

fere with the investigation of Mr. Mason so as to deprive Mr. Ma-

son of the same due process rights afforded any other lawyer

under investigation. (J.A.I-13.) On January 23, 1989, Mr. Gentile

filed a complaint with the New York State Commission on Judi-

cial Conduct against Justice Murphy and the Chief Clerk of the

Court. (J.A.I-13-14.)

On February 16, 1989, Chief Judge Wachtler of the New

York Court of Appeals directed the Appellate Division, First De-

partment to “make inquiry with respect to the entire situation and

promptly do whatever is necessary to maintain the dignity, re-

spect and integrity” of the Court and its Committee. (N.Y.LJ.,

Feb. 16, 1989, at 1, col. 3; see J.A.1-473.) The Appellate Division

thereupon commenced an inquiry into the matter. All of the 12

associate justices of the Appellate Division participated in the

questioning of the various witnesses called to testify during the

inquiry. Among those called as witnesses were Justice Murphy,

Mr. Gentile, the Chief Clerk of the Court, who had resigned dur-

ing the investigation, and Mr. Gentile’s former assistant who had

also resigned. (J.A.I-17.)

On April! 28, 1989, the Appellate Division issued the report

of its internal investigation. But for a lone dissenter, who objected

to the manner of Mr. Gentile’s resignation, all of the other Appel-

late Division Justices found that Justice Murphy had acted prop-

erly and that he had not improperly participated in the

11

investigation, prosecution or disposition of any disciplinary mat-

ter. (J.A.1-18.) Chief Judge Wachtler, on behalf of the Court of

Appeals, accepted the report and sent a letter expressing the

Court of Appeals’s satisfaction with the Appellate Division’s re-

port. (See J.A.I-18 and J.A.II-276-277.)

ARGUMENT

ESTABLISHED SUPREME COURT PRECEDENT

COMPELS ABSTENTION IN THE INSTANT MATTER

AND DENIAL OF THE WRIT OF CERTIORARI

Petitioner has failed to establish any basis for this Court to

grant his petition for a writ of certiorari. The only basis upon

which he appears to claim that this Court should grant the writ is

that the Second Circuit “decided a federal question in a way in

conflict with applicable decisions of this Court.” Sup. Ct. R. 17.1.

In fact, the Second Circuit’s decision is entirely consistent with

this Court’s prior decisions in Younger v. Harris, 401 U.S. 37

(1971), Kugler v. Helfant, 421 U.S. 117 (1975), and Middlesex

County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423

(1982).

A. The Principles Of Abstention As Set Forth In Younger

And Applied In Middlesex Govern The Instant Matter

In Middlesex County Ethics Committee v. Garden State Bar

Ass'n, Lennox Hinds, a New Jersey attorney who was serving as

executive director of the National Conference of Black Lawyers,

participated in a news conference at the outset of the trial of

Joanne Chesimard for the murder of a policeman. During the

course of the conference, Hinds made statements critical of the

* Petitioner mistakenly asserts that this Court’s jurisdiction is based on 28 U.S.C.

§1257, which is concerned with appeals from state courts. The basis of this

Court’s jurisdiction is 28 U.S.C. §1254.

12

trial and the trial judge, at one point labeling the trial as a “trav-

esty” and a “legalized lynching.” Jd. at 428.

The attorney’s behavior was brought to the attention of the

ethics committee and an investigation was commenced. At the

conclusion of its investigation, the ethics committee determined

that there was probable cause to believe that the attorney had vio-

lated certain Disciplinary Rules of the Code of Professional Re-

sponsibility and thus served the attorney with formal charges.

Instead of responding to the charges, the attorney filed suit in fed-

eral court in New Jersey. That court dismissed the case based on

Younger. The Third Circuit Court of Appeals reversed, reasoning

that the disciplinary proceeding would not provide the attorney

with an opportunity to fully litigate his constitutional claims.

Garden State Bar Ass'n v. Middlesex County Ethics Comm. 643

F.2d 119, reh’g denied, 651 F.2d 154 (3d Cir. 1981). This Court

reversed.

This Court declared that the policies underlying Younger are

fully applicable to disciplinary proceedings when the answers to

the following questions are in the affirmative:

[F]irst, do state bar disciplinary hearings within the constitu-

tionally prescribed jurisdiction of the State Supreme Court

constitute an ongoing state judicial proceeding; second, do

the proceedings implicate important state interests; and

third, is there an adequate opportunity in the state proceed-

ings to raise constitutional challenges.

457 U.S. at 433. Here, the answers are all in the affirmative, thus

the decisions of the courts below are entirely consonant with the

precedent of this Court. See Trainor v. Hernandez, 431 U.S. 434,

447 (1977).9

* See also Juidice v. Vail, 430 U.S. 327 (1977); Kugler v. Helfant, 421 U.S. 117 (1975);

Davis v. Lansing, 851 F.2d 72 (2d Cir. 1988); Anonymous v. Ass'n of the Bar, 515

F.2d 427 (2d Cir.), cert. denied, 423 U.S. 863 (1975) (all cases affirming dismissal

upon application of Younger).

13

As to the first of these questions, petitioner now concedes

that the conduct of disciplinary proceedings in New York clearly

constitutes judicial proceedings. See Petition at 29 n.13; see also

Zimmerman v. Grievance Comm. 726 F.2d 85, 8 (2d Cir.), cert.

denied, 467 U.S. 1227 (1984); Erdmann v. Stevens, 458 F.2d 1205,

1208-09 (2d Cir.), cert. denied, 409 U.S. 889 (1972); Mildner v.

Gulotta, 405 \°. Supp. 182, 191 (E.D.N.Y. 1975), aff'd, 425 U.S. 901

(1976). As to the second question, petitioner also concedes that

the exercise of this authority is in the pursuit of an extremely im-

portant interest to the State of New York, the maintenance of the

professional conduct of the attorneys it licenses. See Petition at

29 n.13. As this Court noted in Middlesex, states have traditionally

exercised extensive control over the professional conduct of their

attorneys in an effort to protect the judicial system and the public

from unethical conduct by attorneys. Sze 457 U.S. at 435.

It is in response to the third question that petitioner joins is-

sue, contending that he will not have an opportunity to raise his

claims that various persons acted improperly in the state pro-

ceedings. This, however, confuses the issue at bar. For the issue

is not whether the focus of the inquiry should be on the wrongful

conduct of other parties, see Petition at 27; rather the issue is

whether the petitioner, in confronting allegations made against

him, is offered the opportunity in the state proceedings to raise

any constitutional defenses. Here, Mr. Mason is free to raise in

the state disciplinary proceedings any perceived violations of his

constitutional rights, Federal or State, whether with respect to the

disciplinary rules on their face or in their application to him. New

York courts have clearly established that Mr. Mason may raise

constitutional issues before the Committee in answering any for-

mal charges brought against him, before a hearing panel of Com-

mittee members, before the Appellate Division, before the New

York Court of Appeals and, possibly, before this Court. See

Turco v. Monroe County Bar Ass’n, 554 F.2d 515, 519 (2d Cir.), cert.

denied, 434 U.S. 834 (1977); Anonymous, 515 F.2d at 432;

Erdmann, 458 F.2d at 1211; Matter of Capoccia, 59 N.Y.2d 549,

14

553, 453 N.E. 2d 497, 498 (1983); Anonymous Attorneys v. Bar

Ass'n, 41 N.Y.2d 506, 509-12, 362 N.E.2d 592, 594-97 (1977).

Thus, the policies underlying Younger are fully applicable in

the instant matter. In Younger, this Court emphasized the basic

doctrine of equity jurisprudence “that courts of equity should not

act... when the moving party has an adequate remedy at law and

will not suffer irreparable injury if denied equitable relief.” 401

U.S. at 43-44. Accord Huffman v. Pursue, Ltd., 420 U.S. 592,

600-01, reh’g denied, 421 U.S. 971 (1975). This policy is reinforced

“by an even more vital consideration, the notion of ‘comity’, that

is, a proper respect for state functions ....” Younger, 401 U.S. at

44. As the Court stated in Dombrowski v. Pfister, 380 U.S. 479, 485

(1965), it is generally to be presumed that state courts and prose-

cutors will observe constitutional limitations.'°

Beyond its confidence that the state courts will abide by the

Constitution, this Court has encouraged abstention as part of a

“scrupulous regard [for] the rightful independence of state gov-

ernments.” Trainor v. Hernandez, 431 U.S. 434, 441 (1977) (quot-

ing Beal v. Missouri Pacific R. Co., 312 U.S. 45, 50 (1941)). Thus,

this Court clearly teaches that the relief sought here should not be

granted

except under extraordinary circumstances, when the danger

of irreparable loss is both great and immediate. . . . The ac-

cused should first set up and rely upon his defense in the

state courts, even though this involves a challenge of the va-

lidity of some statute, unless it plainly appears that this

course would not afford adequate protection.

‘© Mr. Mason claimed below that one of the irreparable harms that he would suf-

fer if the district court’s dismissal of this case is affirmed is that he would be

required to litigate his Constitutional claims in state court. (J.A.II-24.) As is

apparent from Dombrowski and successive Opinions of this Court, such a claim

does not suffice to warrant the exercise of federal jurisdiction. The Court has

repeatedly expressed confidence that state courts will exercise their authority

consistent with the supremacy clause. See, e.g, Pennzoil Co. v. Texaco, Inc., 481

US. 1, 15 (1987).

15

Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240,

243-44 (1926); see also Huffman, 420 U.S. at 601; Davis, 851 F.2d at

76. .

B. Petitioner’s Claims Fail To Establish The Bad Faith

Of The Committee In Commencing This Action,

Harassment Or _ Extraordinary Circumstances

Warranting The Exercise Of Federal Jurisdiction

There is no dispute that Younger permits federal interven-

tion where there is a showing of bad faith or harassment by state

officials responsible for the prosecution, where the state law to be

applied is flagrantly and patently violative of express constitu-

tional provisions, or where there exists extraordinary circum-

stances which create irreparable harm to Mr. Mason. See 401

U.S. at 54; see also Kugler, 421 U.S. at 124..' The dispute in the

instant matter is whether petitioner adequately pleaded facts—

not innuendo and conclusions—that show that the Committee

was proceeding against him in bad faith. The courts below cor-

rectly ruled in the negative.

First, as a preliminary matter (and as the only new matter

raised in the Petition), Mr. Mason argues that the courts below

utilized too stringent a standard in rejecting his request for a pre-

liminary injunction. Mr. Mason contends that “(his) overwhelm-

ing objective evidence of misconduct and bias” should have

shifted the burden to the Committee to rebut the inference of

prejudice. See Petition at 41. The problem for petitioner, how-

"' Petitioner does not allege that the state law to be applied is unconstitutional.

16

ever is that he totally fails to show facts of bias.'2 In the instant

matter, the Second Circuit concluded upon a review of the entire

record that a showing of bias was lacking. It declared:

In sum, Mason has alleged no circumstances that show that

the Committee or the state courts are proceeding against

him in bad faith or harassing him, nor has he alleged any

other valid grounds for an exception to Younger abstention.

The District Court was entirely correct in its conclusion that

Mason’s complaint did not require an evidentiary hearing

and that the complaint should be dismissed.

(A-19-20) (emphasis supplied.)"?

Shorn of the complaint’s conclusory allegations, petitioner’s

claim, as best it can be parsed, is that the acts or statements of

'2 Petitioner’s reliance on Lewelien v. Raff, 851 F.2d 1108 (8th Cir. 1988), cert. de-

nied, U.S.___,109 S. Ct. 1171 (1989); Smith v. Hightower, 693 F.2d 359 (Sth

Cir. 1982); and Wilson v. Thompson, 593 F.2d 1375 (Sth Cir.), reh’g denied, 597

F.2d 772 (1979), thus is to no avail. In these cases, the courts, in considering

whether a preliminary injunction should issue, first required the movant to

show that an impermissible purpose motivated the prosecution sought to be en-

joined. See Lewellen, 851 F.2d at 1110; Smith, 693 F.2d at 367; Wilson, 593 F.2d at

1382-3. Here, Mr. Mason has made no such showing; all that he offers are un-

supported—and insupportable—inferences of misconduct and speculative

conclusions that he claims prove the case. However, Smith v. Hightower, 693

F.2d 359, itself, cautions against confusing “rumor and gossip” with facts (693

F.2d at 374), and the use of “pyramidal inferences” (id. at 370), stating: “[w]e are

concerned that district courts not allow the bad faith or retaliatory prosecution

exception to the Younger doctrine to swallow the rule of that case.” Jd. at 375.

'? Moreover, even under the traditional injunction analysis, Mr. Mason’s applica-

tion for such relief below must fail. The first requirement—that appellant be

faced with imminent and irreparabi< injury —simply is not present here. As ex-

plained in the Lieberman Affidavit, the Committee’s investigation of Mr. Ma-

son is in its infancy. (S.A.-8) There have been no charges brought against Mr.

Mason and, depending upon the results of the Committee’s investigation, there

may never be any. (S.A.-8) Moreover, as set out at length in the Lieberman

Affidavit, Mr. Mason will have an opportunity at each and every stage of the

disciplinary process — before the Chief Counsel's office, before the Committee,

and before the Courts—to raise defenses, Constitutional or otherwise, to any

charges that may be filed against him. (S.A.-7-9) Thus, we cannot help but con-

clude, this action is but a ruse to prevent Mr. Mason’s conduct from ever being

investigated by an appropriate disciplinary body.

17

former Chief Counsel Gentile, Attorney General Abrams and

Justice Murphy manifested such bad faith that Mr. Mason now

will not be able to obtain a fair and impartial hearing on his disci-

plinary matter. Even assuming the good faith of Mr. Mason’s

claim, that standing alone is insufficient to warrant the exercise of

federal jurisdiction. See Kugler, 421 U.S. at 126-27; Erdmann, 458

F.2d 1205. Thus, the sufficiency of Mr. Mason’s complaint must

be measured by the specific allegations contained therein and

whether those allegations, if true, constitute bad faith, harass-

ment or extraordinary circumstances.

1. Bad Faith, Harassment and_ Extraordinary

Circumstances

Petitioner has the burden of showing that one or all of the

exceptions apply. It is a heavy burden: “The bad faith exception is

narrow and is to be granted parsimoniously.” Hensler v. District

Four Grievance Comm., 790 F.2d 390, 392 (Sth Cir. 1986). The

complaint alleging bad faith, harassment or extraordinary cir-

cumstances must be examined closely for specific facts to support

these exceptions and thus the establishment of irreparable harm.

In Collins v. County of Kendall, 807 F.2d 95 (7th Cir. 1986), cert.

denied, 483 U.S. 1005 (1987), the court declared:

‘The Younger rule, as applied in Hicks (v. Miranda, 422 U.S.

332, 95 S.Ct. 2281, 45 L.Ed. 2d 223 (1975)), requires more

than a mere allegation and more than a ‘conclusory’ finding

to bring a case within the harassment exception.’

Id. at 98, (quoting Grandco Corp. v. Rochford, 536 F.2d 197, 203

(7th Cir. 1976).)

In Kugler, this Court stated that bad faith in this context

“generally means that a prosecution has been brought without a

reasonable expectation of obtaining a valid conviction.” 421 U.S.

at 126, n.6; see also Dombrowski, 380 U.S. at 482; Davis, 851 F.2d at

77. The plaintiff must allege “far more than an ‘injury incidental

18

to every criminal proceeding brought lawfully and in good faith.

... ” Dombrowski, 380 U.S. at 489, 487-89.

2. Petitioner’s Claims

Petitioner’s allegations fall far short of the above standards.

He does not claim that the Committee’s investigation of Attorney

General Abrams’s complaint is part of a long-standing campaign

by the Committee to deprive him of his rights. Rather, Mr. Ma-

son now conclusorily alleges a series of acts—

(1) the Attorney General of the State of New York publicly

released a ten-page complaint against Mr. Mason charging

him with professional misconduct in a highly poiitical, ra-

cially sensitive case and called upon the state’s Disciplinary

Committee to impose disciplinary sanctions;

(2) the Presiding Justice of the Appellate Division of New

York, in reaction to the Attorney General’s publication,

sought to pressure the presumably independent Chief Coun-

sel of the Disciplinary Committee to lodge formal charges

immediately against Mr. Mason;

(3) the Chief Counsel of the Disciplinary Committee was

subsequently ousted by the Presiding Justice, in part, be-

cause of the Presiding Justice’s disapproval of his handling

of the underiying disciplinary investigation of Mr. Mason;

(4) the former Chief Counsel filed a formal complaint

against the Presiding Justice with the State Commission on

Judicial Conduct alleging, inter alia, that the Presiding Jus-

tice improperly interfered with the underlying disciplinary

investigation of Mr. Mason;

(5) the Court of Appeals for the State of New York ordered

the Appellate Division to investigate the charges:

(6) the independent investigations by the State Commission

on Judicial Conduct and the Appellate Division were con-

ducted in secret without providing Mr. Mason or his counsel

19

an opportunity to confront the evidence or examine the wit-

nesses to determine whether his rights had been violated;

and

(7) the Court of Appeals accepted and endorsed the conclu-

sion of the Appellate Division’s self-examination that no un-

ethical conduct had occurred without reviewing the

underlying evidence on which the conclusion is based;

Petition at 30-32 —acts which, viewed in context, as presented

supra, at 5-11 and discussed below, in no way exhibit bad faith.

Unlike any of the cases cited by petitioner, in the instant mat-

ter, the “undisputed evidence” of bias cited by petitioner does not

refer to any actions taken by the Committee, the current Chief

Counsel or to anyone who is charged with determining whether

any charges should be brought against him. Mr. Mason can point

only to the actions of three individuals, Justice Murphy, Mr. Gen-

tile and Mr. Abrams, and to the determinations of the Court of

Appeals and the Appellate Division that their acts did not pre-

vent an investigation of his conduct. Mr. Gentile is no longer

counsel to the Committee. Attorney General Abrams is not on

the Committee and has no connection with the operations or ad-

ministration of the Comnmittee. Justice Murphy is not involved in

the investigation and may never be involved in the matter.

The conduct of the Attorney General cited by petitioner was

completely independent of any acts of the Committee.'* Mr. Gen-

tile’s and Justice Murphy’s exchange of allegations, with respect

to the Mason matter, amounts to no more than Mr. Gentile claim-

ing that Justice Murphy was trying to pressure him to move the

‘4 Petitioner totally mischaracterizes the evidence presented when he character-

izes the Committee as the “catspaw” of the Attorney General. The uncon-

troverted evidence below shows that the investigation intc Mr. Mason’s behav-

ior was initiated because of numerous complaints from many parties, including

a letter complaint by five members of the New York State Legislature. (Petition

at 55-56.) Moreover, as the Second Circuit points out, the Committee has

adopted nothing of what the Attorney General has said, except to ask for a re-

sponse to his allegations. (A-14.)

20

matter more quickly than Mr. Gentile believed appropriate. Even

if these allegations are true, the lack of progress in the investiga-

tion as of the commencement of this action, reveals that it did not

result in actual prejudice to Mr. Mason and there is now a new

chief counsel. (See S.A.-1, 9.)

The Second Circuit succinctly responded to this entire argu-

ment when it stated:

Nor is bias shown by the allegations concerning the resigna-

tion of Gentile, the role of Justice Murphy in such resigna-

tion, or any state inquiry into such matters. It is wholly

speculative for Mason to conclude that the members of the

Committee or its current staff have prejudged him, or are

incapable of impartially deciding whether to initiate formal

proceedings, and, in that event of conducting them fairly.

Finally, no sufficient claim of bias is shown by the fact that

the Committee has rejected Mason’s claim of bias, nor by the

state court’s refusal to halt the Committee’s efforts to ascer-

tain whether grounds exist for formal charges. Obviously

state forums do not disable themselves from investigating

and adjudicating matters simply by disagreeing with accusa-

tions made against them.

(A-14-5) (emphasis supplied.)'5

The cases relied upon by petitioner, finding “bad faith,” are

inapposite to the present situation. In Bishop v. State Bar, 736

F.2d 292 (Sth Cir. 1984), cited at pages 52-55 of the Petition, the

plaintiff attorney alleged that the Texas State Bar had prosecuted

‘6 Petitioner, like the plaintiff in Smith v. Hightower, discussed supra, at 16, n. 12, is

fond of relying upon rumor to try to carry his burden. For example, petitioner

sets forth as fact a press report that an unnamed source had questioned the

vigor of the Appellate Division’s review of Justice Murphy's and Mr. Gentile’s

conduct. (See Complaint, ¢ 45 at A-78.) Whether it be regarding the court’s

inquiry or the Attorney General’s motives in filing the complaint against

Messrs. Mason and Maddox, petitioner's charges are entirely speculative as is

well illusttated by the constant refrain preceding his allegations stating “Pub-

lished accounts reported . . . ;” “Published accounts further indicated .. . ;” and

references to as “... described by an unnamed source... .” See Petition at

20-21.

21

him in bad faith in successive disciplinary proceedings for almost

eight years. He further alleged that the prosecutions themselves

suffered from many due process violations. The court, finding the

case analogous to Dombrowsk, apparently also believed that the

proceedings were instituted to deter constitutionally protected

conduct.

The facts here are very different. There are no allegations

that the Committee has engaged in a pattern of patently improper

proceedings against Mr. Mason. Nor has Mr. Mason pleaded

facts which reflect an effort on the part of the Committee to

“chill” Mr. Mason’s exercise of his rights. See Huffman, 420 U.S.

at 601-02; Younger, 401 U.S. at 47; Erdmann, 458 F.2d at 1211. Mr.

Mason simply complains about the manner in which the Commit-

tee has thus far conducted its investigation into his conduct re-

lated to his representation of the Brawleys. While there may be

“costs, anxieties and inconvenience” during this investigation, not

only are they those that normally occur when such grave matters

are involved, but, as Mr. Mason himself has conceded, he is obli-

gated, as a member of the bar, to cooperate in the investigation.

(See J.A.II-16.)

Moreover, Mr. Mason, continues to practice and has been

afforded an opportunity to respond to the charges made against

him. Further, the Committee and the courts stand ready to con-

sider Mr. Mason’s constitutional concerns. Finally, far from ex-

pressing hostility to Mr. Mason, the Appellate Division already

has ruled against the Committee in the state proceeding regard-

ing Mr. Mason’s right to withdraw the response submitted by Mr.

Williams and to have additional time to submit another.

Wichert v. Walter, 606 F. Supp. 1516 (D.N.J. 1985), cited at

pages 25 and 27 of the Petition, also does not advance Mr.

Mason’s charge of bias against the Committee. There, a school

teacher sought to enjoin a tenure revocation proceeding com-

menced against him. The teacher claimed that he was the subject

of a disciplinary proceeding because he had participated in a po-

22

litical rally in opposition to the political party which controlled

the school board. The teacher’s unrebutted affidavit set forth a

pattern of political actions taken against members of his political

group. Furthermore, the record failed to indicate a legitimate ba-

sis for the charges against the teacher, prompting the court to find

them “patently meritless.” Jd. at 1522.

Again, that situation is plainly distinguishable from the case

at bar. The allegations made by Attorney General Abrams (and

others) are quite specific and detailed, referencing not only spe-

cific behavior and language but also particular rules which were

purportedly violated. Thus, it certainly cannot be said that the

charges are patently meritless or that they were brought with “‘no

genuine expectation’ of their eventual success, but only to dis-

courage the exercise of the appellant’s protected rights.” Jd. at

1521. Moreover, there are no allegations that Attorney General

Abrams, or, for that matter, the Committee or the state judiciary,

has been engaged in a pattern of conduct to deprive civil rights

activists like Mr. Mason of their constitutional rights.

Kugler v. Helfant, 421 U.S. 117 (1975), practically ignored by

petitioner, is far more relevant to the disposition of the instant

matter. There, this Court considered a claim analogous to Mr.

Mason’s that the plaintiff, a municipal court judge, could not ob-

tain a fair hearing in a criminal matter because the state prosecu-

tors and the Court had conspired to deprive him of his rights.

In Kugler, the state judge had been called to testify before a

grand jury investigating his activities while he was on the bench.

During his testimony, he invoked his Fifth Amendment rights

against self-incrimination. He subsequently was recalled to tes-

tify before the grand jury. The day before this was to occur he was

called to meet with the Chief Justice as well as the other Justices

of the New Jersey Supreme Court. There followed a meeting in

which it was suggested that it was inappropriate for a sitting judge

to invoke his Fifth Amendment privileges before a grand jury and

that a disciplinary investigation might be in order. The next day

23

the judge testified before the grand jury and did not exercise his

Fifth Amendment rights. Shortly thereafter, the grand jury is-

sued a state indictment against the judge for obstruction of jus-

tice and false swearing.

In his federal complaint seeking relief under 42 U.S.C.

§ 1983, the judge alleged that he had been coerced into giving his

testimony by a concerted effort of the assistant attorney general

and the members of the Supreme Court of New Jersey. Due to

this improper activity, he alleged, it would be impossible for him

to receive a fair hearing on his federal constitutional claims in the

New Jersey courts, particularly if convicted, when the very same

Supreme Court that he contended acted to deprive him of his

rights would be called upon to review the matter. See id. at 122.

He claimed that these facts established bad faith and created the

extraordinary circumstances which allowed the exercise of federal

jurisdiction under Younger.

This Court rejected these arguments, ones far more substan-

tial than those at bar. While recognizing that the New Jersey Su-

preme Court (and particularly the Chief Justice) exercised

considerable administrative authority over the entire judicial sys-

tem in New Jersey, the Court stated that the objectivity of the en-

tire New Jersey court system could not be impugned because of

the pleaded actions. First, the Court pointed out, an affected

judge could recuse himself. Second, absent recusal, the plaintiff

could seek to have the judge disqualified. Jd. at 127. Finally, the

Court noted that several members of the State Supreme Court

who had met with the plaintiff were no longer on the bench, thus

mitigating any taint that may have arisen.

Here, too, the Committee’s former Chief Counsel, who alleg-

edly had conspired against Mr. Mason, no longer is in office; in-

stead, a new Chief Counsel—one who has not been accused by

plaintiff of any wrongdoing—is in charge of the investigation.

Further, if a proceeding is brought against Mr. Mason and is re-

ferred to the Appellate Division, Mr. Mason would have the right

24

to seek the recusal of any justice that he believed lacked partiality.

Thus, under Kugler, the instant complaint was appropriately dis-

missed. Accord Erdman, 458 F.2d at 1207, 1210-12 (plaintiff law-

yer had called state judges “whores” and “madams”; Second

Circuit dismissed federal action brought under the civil rights

statutes to enjoin state disciplinary proceeding, finding plaintiff's

“conclusory charges” of inability to obtain a fair hearing in state

court system insufficient under Younger to withstand abstention).

C. There Was No Need For An Evidentiary Hearing

Finally, Mr. Mason contends that the court below erred in at

least not holding an evidentiary hearing. However, as Judge

Sprizzo and the Second Circuit recognized, the Committee,

tnough only for purposes of the motion for a preliminary injunc-

tion, assumed that the material factual allegations in the verified

complaint were correct. Thus, there were no material issues of

fact in dispute to warrant an evidentiary hearing, though, as

would be expected, the parties differed as to the reasonable con-

clusions to be drawn from petitioner’s statement of the facts. Ac-

cordingly, an evidentiary hearing was properly regarded as

unnecessary by the courts below.

CONCLUSION

The proceedings against Mr. Mason are still at the inves-

tigatory stage. The Committee has not brought formal charges

against petitioner. A denial of certiorari, therefore, will not termi-

nate the matter: the Committee will continue its investigation and

if no charges are warranted, the matter will be concluded; if

charges are brought, a disciplinary proceeding with full due proc-

ess protections will follow.

Furthermore, petitioner’s complaint does not allege a suffi-

cient basis either to establish bad faith or harassment by the

Committee or to impugn the integrity of the entire State judicial

system. Thus, the Second Circuit correctly affirmed the decision

of the district court which determined that the complaint failed to

meet the stringent standards established by this Court in Younger

25

and Middlesex, and the petition for a writ of certiorari should be

denied.

Respectfully submitted,

STROOCK & STROOCK & LAVAN

Attorneys for Respondents

Seven Hanover Square

New York, New York 10004

| (212) 806-5400

JAMES G. GREILSHEIMER

Counsel of Record

ALAN M. KLINGER

JOSEPH J. GIAMBOI

Of Counsel

June 11, 1990

SUPPLEMENTAL APPENDIX

S.A.-1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

S

Plaintiff

C. VERNON MASON,

-against-

DEPARTMENTAL DISCIPLINARY

COMMITTEE, APPELLATE DIVISION

OF THE SUPREME COURT OF THE

. 89 Civ. 3598 (JES)

AFFIDAVIT

STATE OF NEW YORK, FIRST

JUDICIAL DEPARTMENT;

Office of Chief Counsel,

evar

STATE OF NEW YORK )

COUNTY OF NEW YORK ) -

HAL R. LIEBERMAN, being duly sworn, deposes and says:

1. I am Chief Counsel to the Departmental Disciplinary

Committee for the First Judicial Department (the “Committee”),

having been appointed to said position effective May 15, 1989.

On January 9, 1989, I became Acting Chief Counsel upon the res-

ignation of the former Chief Counsel, Michael A. Gentile. I

joined the Office of Chief Counsel to the Committee in June, 1987

as Principal Attorney. Prior to my appointment by the Coramit-

tee, I have held various public interest legal positions for the past

twenty years, including service as a staff attorney, managing at-

torney and project director for three legal services agencies, as as-

————— ~~

S.A.-2

sociate appellate counsel in the criminal appeals bureau of the

Legal Aid Society of New York, and, between 1983 —1987, as a sen-

ior litigation attorney with the Office of the Bar Counsel for the

Supreme Judicial Court of the Commonwealth of Massachusetts,

the equivalent of the Committee in the First Department. I cur-

rently hold the title of Adjunct Professor of Law at Brooklyn Law

School and New York Law Schooi where I teach “Professional

Responsibility.”

2. I offer this affidavit not to contest the many conclusory

charges made in plaintiffs papers (though I believe them to be

insupportable), but to explain the workings of the attorney disci-

plinary process in the First Department. Once the proceedings

and practices of the Committee are properly understood, it is my

belief that the Court, in considering the facts pleaded by plaintiff,

will see that plaintiff has failed even to approach the showing re-

quired of him to fall within any of the limited exceptions to the

Younger/Middlesex mandate of abstention.

3. Under § 90(2) of the New York Judiciary Law, the Appel-

late Division of each judicial department in New York is given the

exclusive power to hear and resolve charges of attorney miscon-

duct pertaining to attorneys practicing within the department.

The Appellate Division, First Department, appoints a Commit-

tee which is charged with the duty and empowered to investigate

and prosecute matters involving alleged misconduct by attorneys

and to impose non-public discipline as appropriate. The Com-

mittee is made up of 36 persons, each of whom is appointed by

the First Department for a term of three years and two-thirds of

whom are attorneys. Appointments to the Committee are made

by the Court based upon lists of nominees furnished by various

bar associations and other sources.

4. The Appellate Division, First Department, in consulta-

tion with the Committee, appoints a Chief Counsel to the Com-

mittee. (See 22 NYCRR § 603.4). The First Department also has

promulgated the Rules and Procedures of the Committee

TS Gf SM ee ee re

S.A.-3

(Part 605 of 22 NYCRR) which rules govern the conduct of disci-

plinary proceedings (the “DDC Rules”). In reviewing below the

procedures prescribed therein and the attendant practices of the

Committee, the Court will be able to see that the rights of C. Ver-

non Mason, Esq. have not been abridged in the limited develop-

ments to date and would in the future be adequately protected

through this process.

5. Pursuant to the DDC Rules, the Office of Chief Counsel is

empowered to undertake an investigation of ali matters involving

alleged misconduct of attorneys within the First Department.

(See 22 NYCRR § 605.6). Investigations of professional miscon-

duct may be commenced upon receipt of a specific complaint by

the Committee or the Court, or may be commenced sua sponte by

the Committee or the Court. (See 22 NYCRR § 603.4c)). In this

case, by virtue of the numerous media reports and inquiries re-

garding the conduct of Mr. Mason in connection with the Tawana

Brawley matter, the Committee, in June of 1988, sua sponte

opened a file for investigation. I first became involved in the Ma-

son investigation and reviewed the file when I became Acting

Chief Counsel in January, 1989.

6. Once a file has been opened, the Chief Counsel, pursuant

to section 605.6(c), is authorized to make “such investigation of

each Complaint as may be appropriate.” It is standard practice,

as part of an investigation, to contact other prosecutorial agen-

cies, state and/or federal, to elicit information about the subject

of the misconduct charges, assuming, of course, that the particu-

lar agency would be likely to have information relevant to our in-

vestigation that is not under seal. The transmittal of the June 28,

1988 letter from Mr. Gentile, former Chief Counsel to the Com-

mittee, to Attorney General Robert Abrams, about which plain-

tiff makes much ado, was well within the norm of routine practice.

7. That the June 28, 1988 letter was designated “PER-

SONAL AND CONFIDENTIAL,” as to which plaintiff insinu-

ates some form of conspiratorial motive (see Complaint, 4 21, at

S.A.-4

9), again is a standard procedure. I note that counsel for plaintiff

themselves, in communicating with the Committee, have adopted

the same convention. (See, e.g., Plaintiffs Appendix (“A”), at

000092, 000143).

8. Where the attorney in question is involved in parailel pro-

ceedings, particular!y of a criminal nature, it is also common for

this Office to defer an investigation until the completion of those

proceedings, and our rules provide for such deferral as a matter

of discretion in appropriate circumstances. (See 22 NYCRR

§ 605.9(b\1)). Here, then, it was by no means out of the ordinary

for Mr. Gentile to indicate in the same letter to Attorney General

Abrams that this Office would “await outcome of the grand jury’s

inquiry before proceeding further.”

9. According to media reports, with the conclusion of the

Brawley grand jury’s inquiry, and in fact at a press conference dis-

closing the grand jury’s findings, Attorney General Abrams an-

nounced that in connection with those findings he was forwarding

allegations of professional misconduct against Mr. Mason (and

Alton H. Maddox, Jr., Esq.) to the appropriate disciplinary bod-

ies. At the same conference he also distributed copies of a letter

setting forth in detail the nature of his allegations. This ten-page

letter, dated October 6, 1988, was, after review by our staff, for-

warded to Mr. Mason on October 14, 1988 for response within the

20-day period provided by section 605.6 of the DDC Rules.

10. Plaintiff charges that Attorney General Abrams’s publi-

cation of his allegations was wrongful and that the Committee

acted improperly in utilizing the October 6, 1988 letter of com-

plaint as the vehicle to notify Mr. Mason of the allegations

brought against him and as to which he should respond. (See

Complaint, 94 12, 13, 20, 53-54, 57, 62, 64 and 66).

11. First, with respect to whether the Attorney General

acted improperly in publicly announcing and disseminating alle-

gations against Mr. Mason, that issue has no bearing on whether

there has been or will be any Committee or judicial bias or unfair-

S.A.-5

ness. Attorney General Abrams is not a member of the Commit-

tee, he has no connection with the operations or administration of

this Office, and he is not a Justice of the Appellate Division. Mr.

Mason has, in fact, filed a cross complaint with the Committee

against the Attorney General, which complaint alleges that the

latter’s conduct was violative of the Disciplinary Rules of the

Code of Professional Responsibility. But whatever the outcome

of our investigation of Mr. Mason’s complaint against Attorney

General Abrams, the propriety of the\Attorney General’s conduct

simply is irrelevant to the question whether Mr. Mason may ob-

tain fair treatment or an impartial hearing before the Committee

or the Appellate Division if formal charges are preferred against

Mr. Mason. (It is noteworthy that despite Mr. Mason’s protest of

the Attorney General’s actions in publicizing his complaint

against Mr. Mason, Mr. Mason himself, in January, 1989, publicly

announced that he had filed a complaint with the Committee re-

garding the impropriety of the Attorney General’s actions.)

12. Second, the Committee acted in accordance with stan-

dard procedure in forwarding Attorney General Abrams’s letter

to Mr. Mason for his review and response. Section 605.6 of the

DDC Rules allows the Office of Chief Counsel to formulate and

transmit to the respondent attorney its own list of allegations or to

forward allegations prepared by members of the public (former

clients, other attorneys, judges). Our staff, in fact, is permitted to

assist people who have difficulty in drafting their grievances.

(Id.). Here, Attorney General Abrams’s formulation was detailed

as to the incidents in question and specific as to the Disciplinary

Rules that such conduct assertedly violated. The Committee had

previously received a much more general recitation of alleged

wrongful conduct from a group of State legislators (see A

000236-37). Upon review, it was apparently determined that the

Attorney General’s more thorough account of alleged wrongful

S.A.-6

conduct made an appropriate vehicle for consideration and re-

sponse by Mr. Mason."¢

13. As indicated below, plaintiff was allowed to withdraw his

first response to the complaint forwarded to him and has as yet

not filed a new one. (As the time for his response and deposition

before the Committee drew near, Mr. Mason instituted the pre-

sent action. The Committee has stipulated with plaintiffs coun-

sel that, pending this Court’s determination of the instant motion,

plaintiff's response and appearance would be deferred.) Conse-

quently, the Committee is still in its investigatory phase regarding

the allegations brought against Mr. Mason and no determination

has been made whether or not to file formal charges against him.

14. If, upon completion of the investigation of Mr. Mason

(assuming that such investigation is not enjoined), the Office of

Chief Counsel believes that a cautionary warning or some level of

discipline is appropriate—letter of admonition or formal

charges —that recommendation would be made to the Committee

Chairperson and that person or a Committee member designated

by him (the “Reviewing Member”) would review the recommen-

dation. (See 22 NYCRR § 605.6(e)&(f)). The Reviewing Member

has the right to modify the recommendation, if appropriate, and

any dispute that might result between the Reviewing Member and

the Chief Counsel regarding such a modification, if not resolved,

is referred to the Committee Chairperson for disposition. (See

22 NYCRR § 605.7). If the decision reached after initial review is

'* That plaintiff continues to make the claim that the Committee’s initial denial of

an extension of the standard 20-day period to respond to the Attorney Gener-

al’s allegations (see 22 NYCRR §605.6(dX2)) is indicative of bad faith or harass-

ment (see Complaint 14 14-18) is surprising. First, plaintiff neglects to inform

the Court that the denial was prompted, in large part, by the equivocal nature of

the applicants’ (not Mr. Mason’s) authority to make the request. (See A

000129). Second, plaintiff was ipso facto granted additional time to respond by

the Committee's affording him until January 9, 1989 to file supplemental mate-

rial to the response purportedly filed on his behalf on the November 4, 1988 due

date. Finally, the Appellate Division, First Department, granted Mr. Mason’s

first Article 78 petition allowing him to withdraw his first response and granting

additional time to submit another.

S.A.-7

to file formal charges, then the Office of Chief Counsel must, be-

fore charges can be filed, take the further step of obtaining written

approval of an attorney member of the Committee’s Policy Com-

mittee, a procedure which became effective on or about March |,

1989. (The Policy Committee is comprised of seven Committee

members, plus the Committee Chair, of whom five are attorneys).

15. If formal proceedings are approved at this level, then

proceedings are commenced by the service of a Notice and State-

ment of Charges in a format prescribed by section 605.12 of the

DDC Rules. Pursuant to that provision, the respondent attorney

has the opportunity to answer the statement of charges and, in so

doing, may raise any matters by way of defense or in mitigation

thereof, or any constitutional objections to them. Following any

pre-hearing stipulation, one of four Hearing Panels composed of

Committees members (five lawyers, two iay members, though not

to include the Reviewing Member or t.1e complainant if a member

of the Committee) is designated by the Chairperson to conduct

the proceeding. The respondent attorney has the opportunity to

raise objections to the participation of any designated panel

member. (See 22 NYCRR §§ 605.12 & .13).

16. During the formal hearing, each party has the opportu-

nity to make opening and closing statements, subpoena witnesses,

and to present and object to evidence. A record is made of the

entire proceeding. (See 22 NYCRR § 605.13).

17. Once the record is complete, the Hearing Panel decides

whether the charges have been sustained. If sustained, the Hear-

ing Panel recommends an appropriate sanction, the possibilities

of which are: (i) private reprimand, (ii) referral to the Court, with

a recommendation as to censure, suspension or disbarment, if

deemed appropriate, and (iii) reprimand with referral to the

Court, with a recommendation as to censure, suspension or dis-

barment, if deemed appropriate. The Hearing Panel thereupon

S.A.-8

advises the parties of the determination. (See 22 NYCRR

§ 605.14(a)).

18. If a Hearing Panel refers a matter to the Court, this Of-

fice delivers to the respondent attorney proposed Findings of

Fact and Conclusions of Law. The respondent attorney may sub-

mit counter proposed Findings and Conclusions. Conflicts be-

tween the two are resolved, in the first instance, by a designated

member of the Hearing Panel. The Hearing Panel also may issue

an Opinion. Once all this material is prepared, tre papers are

circulated to the entire Hearing Panel for final determination and

issuance of a Hearing Panel Report. Briefs from the parties may

be requested and reviewed in connection with the issuance of the

Report, which, once finalized, is filed with this Office and served

upon the respondent attorney. (See 22 NYCRR § 605.14(c)-(f)).

19. Whenever a Hearing Panel determines that a respondent

attorney should be publicly disciplined, and a referral made, the

Hearing Panel Report, the transcript and the documentary evi-

dence are forwarded to the Appellate Division, First Department.

(See 22 NYCRR § 605.15(e)). A regular panel of the First Depart-

ment (five Justices) receives and reviews the entire record of the

proceeding, as well as any petitions, cross-petitions and papers

submitted in support thereof filed with it. Constitutional argu-

ments may, of course, be addressed to the First Department and,

upon compliance with section 5601 of the Civil Practice Law and

Rules, to the Court of Appeals. Failing satisfaction there, a peti-

tion for certiorari may be filed to the United States Supreme

Court.

20. Thus, as may be gleaned from the above, the proceedings

against Mr. Mason are only in their infancy and may never move

beyond the investigative stage. Moreover, Mr. Mason will have

every opportunity to raise in the several levels of the state pro-

ceedings (should the matter proceed) the First Amendment and

Civil Rights issues set forth in his federal complaint. Further-

more, because no determination whether to formally charge Mr.

S.A.-9

Mason has been made—we are but in the initial investigatory

stage—any pressure that Mr. Gentile perceived to move this mat-

ter along certainly will not have prejudiced me or my Office’s pre-

sent handling of the investigation.

21. Accordingly, it is respectfully submitted that plaintiff's

motion for a preliminary injunction be denied and the instant

complaint be dismissed.

/s/ Hal R. Lieberman

HAL R. LIEBERMAN

Sworn to before me this

20th day of June, 1989

/s/

Notary Public