Reply Brief — Mason v. Departmental Disciplinary Committee

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FILED —

No. 89-1752 JUN DS BS

JOSEPH F. SPANIOL, JR.

| CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

>_>

C. VERNON MASON,

Petitioner,

—_—_V.—

Departmental Disciplinary Committee, Appellate Division of

the Supreme Court of the State of New York, First Judicial

Department; Office of Chief Counsel,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITIONER’S REPLY TO RESPONDENTS’

BRIEF IN OPPOSITION TO PETITION

FOR ‘SRIT OF CERTIORARI

Stephanie Y. Moore

666 Broadway, 7th FI.

New York, New York 10012

(212) 614-6464

William M. Kunstler*

Ronald L. Kuby

13 Gay Street

New York, New York 10014

(212) 924-5661

* Counsel of Record

for Petitioner

“BEST AVAILABLE COPY

TABLE OF AUTHORITIES ° ° ° ° ii

PETITIONER'S REPLY IN SUPPORT

OF A WRIT OF CERTIORARI ° ° ° ee

ARGUMENT . ° ° ° ° ° ° 1

I. Preliminary Statement. . 1

II. Respondent DDC is Disabled

By Reason of Bias to

Investigate and/or Adjudicate

Allegations of Misconduct

Against Petitioner ; ‘ 7

CONCLUSION ° ° ° ° ° ° - 17

ii

TABLE OF A ORITIES

Cases

Gibson v. Berryhill,

411 U.S. 564 (1973) . ; ; ooo

Hortonville J.D.S. No. 1 v. Hortonville Ed.,

426 U.S. 482 (1976) . ; ; ‘ 8

Kugler v. Helfant,

421 U.S. 117 (1975) ° . a0, 22,

Mayberry v. Pennsylvania,

400 U.S. 455 (1971) . , ; , 8

Middlesex County Ethics Committee v. Garden

State Bar Association,

457 U.S. 423 (1982) (on es Be

In Re Murchinson,

349 U.S. 133 (1955) . ‘ ° o se ©

Olmstead v. United States,

277 U.S. 438 (1928) ‘ , ; 17

Tumey v. Ohio,

273 U.S. 510 (1927) - : P 8

United Church of the Medical Center vv.

Medical Center Comm'n,

689 F.2d 693 (7th Cir. 1982) . 10

Ward v. Village of Monroeville, Ohio,

409 U.S. 57 (1972) ° ° ° . 7

eee FR eg eee eee Cee te ete

iii

Withrow v. Larkin,

421 U.S. 35 (1975) .

Younger v. Harris,

401 U.S. 37 (1971) .

Statutes

22 NYCRR § 603.5

No. 89-1752

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

C. VERNON MASON,

Petitioner,

— ws —

DEPARTMENTAL DISCIPLINARY COMMITTEE,

APPELLATE DIVISION OF THE SUPREME COURT

OF THE STATE OF NEW YORK,

FIRST JUDICIAL DEPARTMENT;

OFFICE OF CHIEF COUNSEL,

Respondents.

On Wreét of Certiorari to the United States

Court of Appeals For the Second Circuit

PETITIONER'S REPLY IN SUPPORT

OF A WRIT OF CERTIORARI

This reply responds to several

contentions advanced by respondents.

ARGUMENT

I. Preliminary Statement

At several junctures in Respondents'

2

Brief in Opposition to Petition for a Writ

of cCertiorari ("Opposition"), respondents

deliberately misstate the facts and distort

petitioner's claims. First, petitioner's

Claim of bias is not limited to the alleged

isolated acts of three individuals.

Although the known overt acts of Attorney

General Abrams, Presiding Justice Murphy and

former Chief Counsel Gentile constitute the

foundation of petitioner's claim, they do

not constitute the sole basis for his claim.

Specifically, (1) the participation of all

Appellate Justices -- before whom all

interim motions in the underlying

disciplinary investigation are heard’ -- in

the exoneration of Justice Murphy on charges

‘Since the filing of petitioner's § 1983

lawsuit, the Appellate Division has denied

two interim motions by petitioner. The

first sought change of venue from the First

Department, M-5641 (App.Div. Nov. 20, 1990);

the second sought to open the proceedings to

the public. M-6623 (App.Div. Mar. 7, 1990).

that he improperly interfered in the

underlying investigation of petitioner; (2)

oe oe

the submission of a letter in support of

Justice Murphy to the Appellate Justices by

the current chairman of the Disciplinary

Committee, William E. Jackson, see A-73°; (3)

the reported statements by DDC staff and

committee members regarding the likelihood

of petitioner receiving a fair hearing’, see,

e.g., J.A.I-320; the intervention of the

*citations preceded by "A" refer to the

Appendix to the Petition; those preceded by

"J.A.", as in respondents' Opposition refer

to the three volume appendix of the Record

on Appeal filed in the Second Circuit; those

preceded by "S.A." refer to the Supplemental

Appendix to the Opposition.

3Ironically, while declaring that the

underlying disciplinary investigation of

petitioner commenced "as a result of a flood

of newspaper articles, television news

reports and radio broadcasts about the

controversy surrounding the Grand Jury

investigation," Opposition at 6, respondents

characterize petitioner's charges as

"entirely speculative" based upon his

reference to similar, if not more reputable,

media sources. See Opposition at 20 n.15.

a

a

Court of Appeals, and (5) the actions of the

staff of the disciplinary committee and the

Office of the Chief Counsel thus far in

these proceedings’, among others, are all

factors undergirding petitioner's claim

that, at minimum, an unconstitutional risk

of bias exists on this record.

Second, respondents understandably

mischaracterize the content of former Chief

Counsel Gentile's letter to the Attorney

General during the pendency of the Brawley

grand jury as "requesting the production of

relevant materials and documents for

possible action following the conclusion of

‘For example, notwithstanding that 22

NYCRR § 603.5 clearly confers upon both "an

attorney under .. . investigation," and/or

one "who is a party to {formal }

proceedings," the right to examine witnesses

under oath, the Deputy Counsel to the DDC

has repeatedly advised counsel to Petitioner

that his Office recognizes no such right

during the investigatory stages and will

oppose the issuance of any subpoenas.

at

PLA BEN he AOS Det A Ny Oe. at elt oe Be

ote Ye

eee eee ee eee

5

the Grand Jury's investigation." Opposition

at 6. The letter, however, clearly requests

immediate receipt of "evidentiary materials

presently available," and, at the conclusion

of the investigation "all other relevant

material." A-43, 44 (emphasis added). The

distinction is significant for two reasons:

(1) state law prohibits the disclosure of

grand jury materials absent application to

the court, and (2) there are two know

instances of violations of that law by the

Attorney General's office in connection with

the Brawley investigation, one prior to

Gentile's request and one after.’

*after the Attorney General was

appointed as special prosecutor to the

Brawley grand jury, an employee in his

office was arrested and charged with

stealing the transcripts of the first grand

jury convened to consider Ms. Brawley's

charges. J.A.II-330. In September 1988,

prior to the release of the official Grand

Jury report, grand jury materials were

leaked to the New York Times, which

published a summary of the findings based

6

Finally, citing no independent sources,

respondents flatly mislead this Court in

stating that Petitioner publicized his

disciplinary complaint against the Attorney

General. Opposition at 8n.6. The fact that

petitioner filed a complaint against the

Attorney General, as was acknowledged by the

Second Circuit during oral argument, became

part of the public record, not via a press

conference, but, instead by virtue of

Petitioner's Article 78 proceeding seeking

judicial relief. See J.A.1I.-242 & n.1.

Respondents persist in this blatant

misstatement in an effort to discredit

petitioner and the substance of his due

upon the illegally obtained information.

Although an investigation was allegedly

conducted, the culprit was never identified

and charges were never preferred. See

J.A.III-89, 90; J.A. I.-391-93.

Dear Pm eis ite “gs

7

process claim.° As is further demonstrated

below, however, there exist an impermissible

risk of bias on this’ record barring

application of Younger abstention.

II. Respondent DDC is Disabled By Reason

of Bias to Investigate and/or

Adjudicate Allegations of Misconduct

Against Petitioner

Elemental concepts of due _ process

dictate that "Petitioner is entitled to a

neutral and detached [tribunal] in the first

instance." Ward v. Village of Monroeville,

Ohio, 409 U.S. 57 (1972).”’ Moreover, the

consistent teachings of this Court have

°Additional distortions appear

throughout respondents' opposition. See,

e.g., Opposition at 7 (omissions of fact

regarding Ms. Moore's prior representation

of petitioner); id. at 14 n.10 (fabrication

of claim never made by petitioner).

Petitioner has referenced those that bear

more heavily on his claims.

"See also In Re Murchinson, 349 U.S.

133, 136 (1955) ("a fair trial in a fair

tribunal is a basic requirement of due

process").

8

further reaffirmed that "our system of law

has always endeavored to prevent even the

probability of unfairness." In _Re

Murchinson, 349 U.S. 133, 136 (1955).° To

®See, e.g., Hortonville J.D.S. No. 1 v.

Hortonville Ed., 426 U.S. 482 (1976) (school

board hearing) Withrow v. Larkin, 421 U.S.

35 (1975) (physician revocation hearing) ;

Mayberry v. Pennsylvania, 400 U.S. 455

(1971) (criminal contempt hearing); Tumey v.

Ohio, 273 U.S. 510 (1927) (criminal

conviction for possession of intoxicating

liquor).

Although none of these cases involved

determinations regarding the propriety of

federal intervention, they are instructive

on the issue of what constitutes an

unconstitutional risk of bias. While Tumey

and Mayberry found pecuniary and personal

factors warranting disqualification, this

Court found no such disqualifying interests

in Hortonville and Withrow. The holdings in

the latter two cases rest upon a related

proposition, viz., mere familiarity with the

contested issues, legitimately acquired,

does not, in itself, constitute a due

process violation. The operative words of

the Withrow/Hortonville decisions are

underscored. The factual allegations on

this record, however, are far more akin to

the exception noted in Withrow:

Clearly, if the initial view of

the facts based on the evidence

Se Clk Te 5 Mie a ed rt

ee a ee epee

aah, Wri Ri ls AT TO ce

this end, this Court has held that even

where proof of actual bias is lacking, a

tribunal may nonetheless be constitutionally

disabled to investigate or adjudicate claims

where "in the natural course of events,

there is an indication of possible

temptation to an average man. . . to try

the case with bias." Gibson v. Berryhill,

411 U.S. 564, S71 (1973). Accordingly, a

tribunal must be disqualified where there

exists a personal or institutional interest

in the outcome of the dispute, id., or where

other factors preventing fair and impartial

adjudication are present. Younger v.

derived from non-adversarial

processes as a practical or legal

matter foreclosed fair and

effective consideration at a

subsequent adversary hearing

leading to ultimate decision, a

substantial due process question

would be raised.

421 U.S. at 58.

10

Harris, 401 U.S. 37, 49 (1971).

Respondents do little to more than

refer to the determination of the Second

Circuit in response to petitioner's claims

10

of bias. See Opposition at 16. Similarly,

"Cf. Middlesex County Ethics Comm. v.

Garden State Bar Assn, 457 U.S. 423, 433

(1982) (holding abstention doctrine

inapplicable where adequate opportunity to

raise constitutional claims in state

proceedings is lacking); Kugle . Helfant,

421 U.S. 117 (1975) (acknowledging

disqualifying factor where contested claims

have been prejudged).

Respondents maintain that Petitioner

faces no irreparable harm because of the

infancy of these proceedings. Submission of

his claims to an biased tribunal is itself

irreparable injury. United Church of the

Medical Center v. Medical Center Comm'm, 689

F.2d 693, 701 (7th Cir. 1982). In addition,

the sanction of suspension from the practice

of law may be imposed during’ the

investigatory stages. See Court Rules for

the Supreme Court, Appellate Division, First

Department § 603.4(e)(1). Pursuant to

similar rules in the Second Department,

Alton H. Maddox, Esq., was indefinitely

suspended, without a hearing, by order dated

May 21, 1990 in connection with Attorney

General's complaint. See Matter of Alton H.

Maddox, N.Y.L.J., May 22, 1990, at 6, col.

3 (App.Div.2d Dep't).

11

the Affidavit of Chief Counsel Lieberman

merely recites the procedural rules that

allegedly govern lawyer disciplinary

proceedings for the First Department. In

that regard, respondents suggestion that

Justice Murphy's interference "to pressure

(Mr. Gentile] to move the matter more

quickly" was’ harmless, overlooks the

authority of the Chief Counsel, pursuant to

22 NYCRR § 605.6(d)(2) to discontinue an

investigation "where it appears that there

is no basis for proceeding further. ""'

Accordingly, Justice Murphy's interference

was substantial and his subsequent

“Petitioner has appeared before the

Committee on several occasions to entertain

questions concerning matters clearly

protected by the attorney-client privilege.

Moreover, intrusive, harassing inquiries

into the foundation for’ petitioner's

criticisms protected by the First Amendment

have been made. The respondents

"investigation" of such baseless claims is

intended to harass petitioner and infringe

upon his First Amendment liberties.

12

exoneration in a "star chamber" proceeding

by all of the remaining Justices of the

Appellate Division, as well as, on

information and belief, committee and staff

witnesses cannot survive the strictures of

due process.

Kugier v. Helfant, 421 U.S. 117 (1975),

upon which respondents principally rely is

plainly distinguishable from the case at

bar. First, in Kugler the petitioner failed

to meet the first requirement under Younger,

viz., that the litigant first "set up and

rely upon his defense in the state courts."

401 U.S. at 45. Second, the conditional

nature of Mr. Mason's right under the rules

and procedures of the DDC to exercise a

formal challenge to the Committee or any of

its members on the basis of bias places his

claims squarely within the Younger/Middlesex

abstention exception. In Kugler, New Jersey

13

law imposed upon individual judges,

including the trial judges (before one of

whom Helfant would appear), mandatory

disqualification where any reason would

actually preclude a fair judgment or would

appear to do so. 421 U.S. at 127-28.

Conversely, here the burden of seeking

disqualification of a suspected biased

Committee member rests squarely upon the

shoulders of the accused. Moreover, the

right to seek disqualification, by

respondents own admission, does not attach

until the proceedings have progressed to the

formal proceeding stage and a hearing panel

has been selected. There is no procedure,

no expressed policy, for disqualification,

compelled or voluntary, during the

investigatory stages. Moreover, following

objections by the accused attorney, "unless

[the challenged] . . . member voluntarily

14

withdraws from the proceedings," the hearing

panel shall make a ruling on the objection

"and such determination by the hearing panel

shall be final." 22 NYCRR § 605.13(d).

Thus, in the absence of objections by the

accused attorney or staff counsel, there

exist no independent obligation which

mandates sua sponte recusals where injustice

or the appearance thereof is likely. Far

from the procedures available in Kugler,

these procedural "safeguards" are clearly

inadequate to redress the constitutional

violations petitioner alleges."

% Kugler is further distinguishable.

Although Helfant insinuated bias at the

trial level, his chief claim of bias was

aimed at the appellate level of the New

Jersey Supreme Court. Here, however,

petitioner charge of bias lies, in the first

instance, with the initial finders of fact -

- defendant Disciplinary Committee.

Moreover, Justice Murphy remains on the

bench with all of the administrative and

statutory powers and responsibilities of the

presiding justice, including the authority

under Judiciary Law § 44(10) to receive and

15

Kugler is further distinguishable in

that Judge Helfant sought to enjoin

proceedings based upon the alleged improper

contin by his colleagues. Here, petitioner

sought an injunction based upon the

allegedly improper conduct of adversaries.

Moreover, the judge was fully aware of the

challenged actions of his colleagues;

indeed, they presented their views directly

to him. Finally, the testimony that gave

rise to the indictments against the judge,

was presented to an independent grand jury.

Once exposed, the propriety of

clandestine acts have been resolved in non-

adversarial, secret proceedings. The actors

are those who would now contend that they

have no disabling interest in adhering to

decisions already made. Such a contention

act upon complaints referred by the State

Commission on Judicial Conduct.

16

is untenable. The courts below have

essentially ignored the facts and permitted

official misconduct to hide behind a cloak

of secrecy.” Neither Younger nor its

progeny dictate such a result that the

Constitution forbids.

Long ago, Justice Brandeis, in a now

oft-cited passage, observed the necessary

prerequisites for the legitimate exercise of

the governmental function:

Decency, security and _ liberty

alike demand that government offi-

cials shall be subjected to the

same rules of conduct that are

commands to the citizen. In a

government of laws, existence of

the government will be imperiled

“contrary to respondents' suggestion,

any legitimate allegations of professional

misconduct against petitioner will not be

insulated from review by the rightful

assumption of federal jurisdiction. Success

on the merits of petitioner's First

Department bias claim would merely remove

the investigation and adjudication of the

underlying disciplinary proceeding, and

petitioner's defenses thereto, from within

its jurisdiction.

/

|

17

if it fails to observe the law

scrupulously. Our government is

the potent, the omnipresent

teacher. For good or ill, it

teaches the whole people by its

example. .. . If the government

becomes a law unto itself; it

invites anarchy.

Olmstead v. United States, 277 U.S. 438, 485

(1928) (Brandeis, J., dissenting). The

various state proceedings in the aftermath

of the grand jury investigation into the

disappearance of Tawana Brawley -- indeed,

that investigation itself -- have left the

public lacking confidence in the integrity

of the state judicial process. A full and

objective investigation by this Court can

only enhance the public interest by assuring

that petitioner's due process rights are

protected and that the right to political

speech in New York State is restored.

CONCLUSION

For the reasons stated herein and on

the record of these proceedings, this Court

18

should grant the Petition for a Writ of

Certiorari.

Respectfully submitted,

Stephanie Y. Moore

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6464

*William M. Kunstler

Ronald L. Kuby

13 Gay Street

New York, New York 10014

(212) 924-5661

* Counsel of Record

for Petitioner

Dated: June 18, 1990