Petition for Writ of Certiorari — Dacey v. New York County Lawyers' Ass'n

Supreme Court brief1970

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Supreme Court of the Un

October Term, 1969 E

No.!..40 6

Norman F. Dacey & Norman F. Dacey, doing business as

Nationa, Estate Puannine Counci,

Petitioners,

against

New York County Lawyers’ Assocration,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ARTHUR STEPHEN PENN

Counsel for Petitioners

14 East 69th Street

New York, New York 10021

April 8, 1970

Ricuarp BE. Burns

PENN AND Bugns

Of Counsel

TABLE OF CONTENTS

: PAGE

The Opinions Below E Re Deen En ee ete 1

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

Statement of the Case oo... cccccccscescsseseeseseeeeseeeeseees 3

Preliminary Statement .......00..0.0.0.0.0cccccce cece 3

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Reasons for Granting the Writ of Certiorari ................ 7

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TABLE OF AUTHORITIES

Cases:

Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) ................ 14

King v. Smith, 392 U.S. 309 (1966) 0000.00. 12

Nesmith v. Alford, 318 F.2d 110 (Sth Cir. 1969) .......... 14

New York County Lawyers’ Association v. Dacey, et

al., 54 Mise. 2d 564, 282 N.Y.S. 2d 985, 28 A.D. 2d

161, 283 N.Y.S. 2d 984, rev’d 21 N.Y. 694, 287

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Pierson v. Ray, 386 U.S. 547 (1967)

Salvage Process Corp. v. Acme Tank Cleaning Process

Corp., 104 F.2d 105 (2d Cir. 1939), Cert. denied

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Constitution and Statutes:

U.S. Constitution, First Amendment ............................ passim

U.S. Constitution, Fourteenth Amendment ................ passim

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Be ey I I ens scsnsiesnenixnsaccaradnsnsnssccintrvnmnsiiios 6

42 U.S.C. §1983 (Civil Rights Act of 1871) ........ 3, 7, 8, 12, 14

Federal Rules of Civil Procedure, Rule 12(b) (6) ........ 11

Miscellaneous:

2A Moore’s Federal Practice, 12.08 (2d edition;

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Supreme Court of the United States

October Term, 1969

Norman F. Dacey & Norman F. Dacey, doing business as

Nationa, Estate Puannine Council,

Petitioners,

against

New York County Lawyers’ AssociaTION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Second Circuit entered in the above-entitled case

on December 8, 1969.

The Opinions Below

The opinion of the Court of Appeals for the Second

Circuit, reprinted in the Appendix annexed hereto, is not

yet reported.

TOIL POE ES

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POE ty Bin 4 OH SE ee ate ae aT ne

UDRP

The opinion of the District Court is reported at 290 F,

Supp. 835. The judgment, order and opinion of the Dis-

trict Court are reprinted at page 28a of the petitioner’s

Appendix in the Court of Appeals, nine copies of which are

submitted herewith pursuant to Rule 21(4) of this Court.*

» Jurisdiction

The judgment of the Court of Appeals (reprinted in

the Appendix annexed hereto) was entered on December 8,

1969. On March 9, 1970, by order of Mr. Justice Harlan,

the time within which to file a petition fur a writ of cer-

tiorari was extended to March 23, 1970. ‘Thereafter, by

order dated March 13, 1970, Mr. Justice Harlan granted a

further extension of the time within which to file a petition

for a writ of certiorari to April 9, 1970. Jurisdiction in

this Court is invoked under 28 U.S.C. Section 1254(1).

Question Presented

Is ‘‘probable cause’’ as an absolute defense available

against a claim for Civil Rights Act damages where a state

court has granted an illegal injunction pursuant to an un-

constitutional criminal contempt conviction?

Constitutional and Statutory Provisions Involved

United States Constitution, First Amendment:

‘‘Congress shall make no law * * * abridging the

freedom of speech or of the press * * *.’’

All record references in the form of page numbers are to the

Court of Appeals Appendix.

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United States Constitution, Fourteenth Amendment:

““* * * nor shall any State deprive any person of

life, liberty or property, without due process of law

** 99

42 U.S.C. Sec. 1983 (Civil Rights Act of 1871):

‘‘Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and Laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.”’

Statement of the Case

Preliminary Statement

The critical issue presented by this appeal is whether

a non-integrated bar association, acting under color of

state authority in an ‘‘unauthorized practice’’ proceeding

can interfere with the First Amendment right of free

speech of an accused and thereafter assert the defense of

probable cause in a damage action based upon the Civil

Rights Act of 1871?

In 1965, petitioner, Norman F. Dacey, who is not a

member of the bar of any state published a book entitled

How to Avoid Probate! which to date has had sales in

excess of 800,000 copies. The book attacks the probate

court system and the lawyers who support it. In January

1967, one and a half years after the initial publication of

the book, and after the sale of 700,000 copies, the New

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York County Lawyers’ Association, the respondent herein,

commenced a special proceeding to suppress the book and

Dacey’s public comments about its contents, and to punish

Dacey for criminal contempt of court solely upon the

ground that his authorship and publication of How to

Avoid Probate! constituted the unlawful practice of law.

Respondent proceeded summarily, without warning, by

service of a notice of motion upon Dacey in Connecticut

where he resides, ostensibly gaining jurisdiction by reason

“of the New York ‘‘long-arm’’ statute governing torts com

mitted within the state.

To accomplish its objective of suppressing the book and

thereby silence the criticism expressed in it and by Dacey

in his public appearances, respondent accused Dacey’s pub-

lisher and two of New York City’s largest booksellers of

the unauthorized practice of law, and joined them as par-

ties in the summary proceeding. The proceeding accom-

plished the suppression of the book and the silencing of

Dacey. The publisher refrained from further printing or

advertising and Dacey was denied access to the mass media.

The New York County Lawyers’ Association is one of

the largest local bar associations in the United States. Its

members are lawyers whose pecuniary interests demon-

strably lie in the suppression of Dacey’s book and his

popularization of the intervivos trust as a means of estate

planning. This action seeks to collect damages for the bar

association’s abuse of its apparent authority.

The District Court dismissed Dacey’s complaint upon

the ground that the bar association had immunity from

suit and that the bar association could avail itself of the

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defense of probable cause. The Second Circuit held that

the bar association should not have absolute immunity, and

that it could not claim immunity in this instance, but it

affirmed the judgment of the District Court upon the ground

that the defense of probable cause was available to the

respondent as a matter of law.

Dacey here asks that this Court grant review of the

judgment below, reverse and direct respondent to answer

his complaint and proceed to trial. Protection of the civil

right of free speech and punishment of its transgressers

requires no less.

The Facts

In January of 1967, respondent commenced a proceeding

under Section 750 B of the Judiciary Law of the State of

New York to punish petitioner for criminal contempt of

court and for an injunction on the ground that petitioner’s

authorship of the book How to Avoid Probate! constituted

the unlawful practice of law.

Respondent sought to enjoin Dacey from giving legal

advice to the public at large and from representing, advis-

ing and recommending to the public by any means, whether

written, oral or mechanical, in any medium that any writing,

including forms, whether prepared by Dacey or others, was

legally sufficient or suitable to create a legal relationship or

transfer of property. Respondent further sought to re-

strain Dacey from introducing, advising or recommending

to the public at large, the proper method of preparation,

execution, witnessing or filing of legal documents or the

selling of forms or other writings in such a manner as to

imply or cause the public to believe that a document was

sufficent to establish or abolish a legal relationship.

Respondent joined as parties in this proceeding, peti.

tioner Dacey’s publisher and two of New York City’s

largest book sellers. At the time respondent commenced

this proceeding, How to Avoid Probate! had been in general

distribution for eighteen months and had sold 700,000

copies. Dacey had appeared on scores of television and

radio programs and had distinguished himself as the lead.

ing exponent of probate reform.

The judgment of Special Term of the Supreme Court,

New York County, entered on September 12, 1966, found

Dacey guilty of criminal contempt of court and enjoined him

from all of the aforementioned acts, fined him the sum of

$250.00 or thirty days in jail for non-payment of said fine.

The court also enjoined Dacey’s publisher and book sellers

from further sale of How to Avoid Probate! and found them

guilty of criminal contempt. New York County Lawyers’

Association v. Dacey et al., 54 Mise. 2d 564, 282 N.Y.S. 2d

985 (Sup. Ct., N.Y. Co. 1967).

The instant action was commenced under 42 U.S.C. See-

tions 1981, et seq., commonly known as the ‘‘Civil Rights

Act of 1871’’, seeking the remedy of injunction saortly

after the decision of Special Term of the New York State

Supreme Court. A motion for a temporary injunction was

argued on August 30, 1967 (4a). The temporary injunction

was denied by District Judge Edward C. McLean in a mem-

orandum opinion dated October 7, 1967 (12a) on the ground

that there was no clear showing that Dacey would prevail in

the New York State courts. Thereafter the injunction re-

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quested in the original complaint was rendered moot by the

decision of the Court of Appeals of the State of New York

on December 29, 1967, reversing the lower courts and dis-

missing the criminal contempt proceeding brought by the

respondent. New York County Lawyers Association v.

Dacey et al., 21 N.Y. 2d 694, 287 N.Y.S. 2d 422 (1967).

In reversing the Appellate Division and dismissing the

respondent’s petition, the Court of Appeals adopted as its

opinion, by a 6 to 1 majority, the dissenting opinion of

Justice Harold A. Stevens. New York County Lawyers’

Association v. Dacey et al., 28 A. D. 2d 161, 283 N.Y.S. 2d

984 (1st Dept. 1967).

On January 19, 1968, prior to respondent’s service of

a responsive pleading, Dacey served an amended complaint,

withdrawing his request for the injunction and demanding

compensatory and punitive damages under the Civil Rights

Act, as well as an injunction against respondent’s joinder

or consultation with other bar associations to suppress the

book (17a).

Reasons for Granting the Writ of Certiorari

Judge Kaufman, speaking for the Court below, in af-

firming the judgment of the District Court, ruled that the

“* * * granting of a final injunction, despite reversal on

appeal, is conclusive evidence of probable cause.’’ (Slip

op. p. 691). This traditional rule of tort law is given over-

reaching application when applied to the facts of Dacey’s

ease. If the traditional defense of probable cause is made

available in actions brought pursuant to the Civil Rights

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Act of 1871, after courts of appeal have reached the un-

equivocal determination that civil rights have been in-

fringed, the acts of falsely arresting officers and malicious

prosecutors will be judicially exonerated.

This Court recognized the problems of permitting the

determinations of lower state courts to shield usurping

public officials in Pierson v. Ray, 386 U.S. 547 (1967), and

in that case required arresting officials to stand trial in

Civil Rights Act cases, notwithstanding the findings of the

trial court in a prior state proceeding. There may be a

common-law justification in civil actions for permitting the

finding of a final injunction to be a defense to a claim for

damages against the party obtaining the injunction, how-

ever, criminal courts of inferior jurisdiction may well be-

come the tools for repression of civil rights if this rule is

applied to criminal injunctive proceedings. The issue

raised by this case presents the Court with an opportunity

to determine whether private complainants cloaked with

state authority, who have been stripped of the shield of ab-

solute immunity by the holding of the Second Circuit in

this case, may nevertheless enjoy that immunity in the

furtherance of their scheme to deprive a citizen of his con-

stitutional rights by reason of the acquiescence of one

judge of an inferior court.

Judge Kaufman speaking for the Court below stated

as follows:

‘“‘The objective and effect of instituting criminal

contempt proceedings for the unauthorized practice of

law against Dacey were to suppress a book.’’ (Slip

op. p. 687)

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‘‘Dacey’s book was therefore protected by the first

amendment’s guaranty of free speech and any attempt

to suppress it on the ground that it constituted the

unauthorized practice of law must be scruitinized with

extreme care.’’ (Slip op. p. 688) 4

If Pierson v. Ray, supra, is to have meaning when ap-

plied to criminal injunctive proceedings or to proceedings

under any other State statute involving summary action by

state officials to inhibit freedom of speech, publication, or

the public’s right to know, certiorari should be granted and £

the issue of availability of the defense of probable cause ;

in the Dacey case should be determined and not left to rest

upon the finding in a civil case.

Where the facts of a particular action concern consti-

tutionally protected rights, such as free speech, as in the

Dacey case, the traditional rule of probable cause in the

analogous situation of malicious prosecution should not be

applied.

The traditional rule applied in the court below, is neces-

sarily based upon the assumption that judges will not issue

final injunctions unreasonably, because judges, are gener-

ally reasonable, intelligent and impartial observers. The

facts of this case negate this assumption.

The New York County Lawyers’ Association proceeded

against Dacey on facts which up to then were entirely novel.

Never before had an individual been prosecuted for the un-

authorized practice of law because he authored a book con-

taining legal forms and commentary for use by the public

at large. Indeed, Justice Stevens, in his dissenting opinion

(which opinion was later adopted by the N. Y. Court of Ap-

Jaa

——

peals in reversing 6 to 1, the decision of the Appellate

Division of the Supreme Court) clearly distinguished the

ease of Dacey who, journalistically advised the public at

large and the case of an individual who handled legal mat-

ters for and advised individual clients face to face.

tiven the legal expertise, experience and knowledge of

the respondent, that respondent did not and could not have

reasonably believed that Dacey was guilty of the unauthor-

ized practice of law. No similar action had ever been

brought. Clearly then it could be said that it was not prob-

able that Dacey was guilty of unauthorized practice. Judge

Kaufman shed some light on the reason for the state court

proceeding:

“The objective and effect of instituting criminal

contempt proceedings for the unauthorized practice of

law against Dacey were to suppress a book. The grav-

amen of the Association’s complaint against Dacey was

not that he had given specifie advice to specific in-

dividuals concerning their particular legal problems.

Instead, the Association acted to prevent Dacey from

disseminating his views to the publie generally by

means of the publication and distribution of a book.

Moreover, the book at which the attack was directed

contained a critical discussion of an important public

institution—the probate court—and of the officials who

administer it and practice before it.’’ (Slip op. p. 687)

‘‘We merely note the inevitable presence of a possible

conflict of interest between the purposes served by the

Association and its concept of the public interest

whenever it exercises its statutory power to initiate

contempt proceedings under Section 750B and secure

an injunction against the sale and distribution of a

book critical of the profession.’’ (Slip op. p. 689)

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Moreover, the instant petition arises from respondents’

Rule 12(b) (6) motion. In deciding this motion, therefore,

the Court is required to assume the truth of the allegations

of the complaint.

2A Moore’s Federal Practice, 12.08, (2d edition;

1968)

The complaint states that respondent commenced criminal

contempt proceedings to silence and punish Dacey for his

outspoken attacks on the established legal fraternity. The

respondent proceeded then to subject Dacey’s activities to

judicial scrutiny by persons of the same background, train-

ing, temperament and profession. Given these unusual facts,

does not the instant petition dictate the reversal of the

doctrine of probable cause?

It is difficult for any man to serve as an ‘‘impartial’’

judge of one who has so pointedly criticized his own vested

interests. Certainly, in view of the decision of the New

York Court of Appeals, it is evident that at least several of

the judges called upon to review the litigation resulting

from the publication of How to Avoid Probate! had not

been disinterested in their consideration of the arguments

raised on behalf of Dacey. We are here faced with the

added factor of prejudgment even though it may have been

subconscious.

Under all of the above circumstances, therefore, it is

not so certain that a bar association or a judge, even if

consciously well meaning, will be impartial in deciding

whether to commence or in judging once commenced, an

unauthorized practice proceeding such as that which we eall

upon this court to consider. At the very least, impartiality

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is not so certain that the usual rules should be given effect

in this proceeding. In view of the crucial First Amend-

ment question, ihe facts of this case militate against appli-

eability of traditional legal rules.

Traditional legal rules have been overlooked by courts

when presented with basic constitutional issues. This Court

in Pierson v. Ray, 386 U.S. 547 (1967), reversed the Court

of Appeals for the Fifth Circuit, which had held that plain-

tiff civil rights demonstrators could not recover from police

officers if it were found that they engaged in a demonstra-

tion expecting to be illegally arrested. The Court in

Pierson, held the traditional defense of consent not to be a

defense in that particular Section 1983 action. We must

surmise from that holding that the Court believed that the

transcendent constitutional issues involved dictated that

the traditional tort rule be overlooked. In that case, the

overriding constitutional principles were equal the pro-

tection rights of demonstrators. In the case at bar, the

overriding constitutional issue is the first amendment rights

of free speech of the petitioner.

In King v. Smith, 392 U.S. 309 (1968) this Court refused

to apply the traditional rule of exhaustion of state remedies

to a case brought under Section 1983, where the constitu-

tional challenge was sufficiently substantial as to require

the convening of a three judge court.

The authority cited by the Second Circuit in its finding

that probable cause was a defense to this action is not ap-

plicable because the Court relied on a case which dealt with

the effect of a final injunction granted as the result of a

civil proceeding. See Salvage Process Corp. v. Acme Tank

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ala ae a

Cleaning Process Corp., 104 Fed. 2d 105 (2d Cir. 1929),

Cert. Denied 309 U.S. 599 (1939).

There is a distinction between standards necessary for

application of the traditional rules of probable cause in

criminal proceedings as opposed to civil proceedings. Ac-

tually, the standard of probable cause is higher in a civil

case than in a criminal case giving rise to a malicious prose-

cution action. A malicious prosecution action may lie

against the prosecutor who brings his action for predomin-

antly personal ends and by contrived means. The dismissal

of the prosecutor’s complaint may well take place as soon

as the allegations of the complaint are aired at a prelimin-

ary hearing. <A final injunction in a civil proceeding is only

granted after an extensive hearing involving all of the pro-

cedures for evidence gathering. Dacey was convicted in a

summary proceeding after the Court heard argument of

counsel. No factual hearing was ever held although Dacey

demanded one from the outset. If the standard of proof

required for a granting of a final injunction is compared to

that required for a malicious prosecution action, we find a

justification for protecting the validity of a final judgment

of injunction in a civil case, and not nearly so much reason

in the malicious prosecution case arising out of an aborted

criminal charge. In essence, the protections afforded the

defendant in a civil injunction proceeding are greater than

those afforded Dacey in the New York criminal contempt

proceeding; witness—the facts before the lower court in

the Dacey matter and the inequitable result of applying a

traditional probable cause defense to Dacey’s claim for re-

lief under the Civil Rights Act.

Rather than relying upon the Salvage Process rule,

which the petitioner believes to have been incorrectly ap-

plied in the Court below, it is urged that this Court consider

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the cases of Nesmith v. Alford, 318 Fed.2d, 110 (5th Cir,

1969) and Cohen v. Norris, 300 Fed. 2d 24 (9th Cir. 1962)

in which both Courts held that there is no requirement that

traditional tort rules apply in Section 1983 cases, but only

that such traditional rules may apply, depending upon the

facts involved. Petitioner urges that this Court, in view of

the facts involved in this appeal, consent to review the issue

of whether traditional tort rules should apply in cases

brought under the Civil Rights Act for violation of one’s

constitutionally protected rights.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ARTHUR STEPHEN PENN

Counsel for Petitioners

14 East 69th Street

New York, New York 10021

April 8, 1970

Ricuarp E. Burns

PENN AND Burns

Of Counsel

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APPENDIX

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

de.

Nos. 109-10—September Term, 1969.

(Argued October 7, 1969 Decided December 8, 1969.)

Docket Nos. 33024-25

NorMAN F. Dacey and Norman F-. Dacey, doing business as

NationaL Estate PLannine Councin,

Appellants,

—_—V.—

New York County Lawyers’ ASSOCIATION,

Appellee.

Before:

WatTERMAN, Moore and KaurMan,

Circuit Judges.

ae.

Appeal from an order of the United States District

Court for the Southern District of New York, Inzer B.

Wyatt, Judge, dismissing appellant’s complaint for failure

te.

appellants.

679

to state a claim upon which relief can be granted. Affirmed.

ArtTHUR STEPHEN Penn, New York, N. Y., for

SEER ara de erie 4

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RSet eee

ARTHUR J. GoLtpBeRG, New York, N. Y. (Arthur

L. Liman and Paul, Weiss, Goldberg, Rif.

kind, Wharton & Garrison, New York, N. Y,,

on the brief), for appellee.

Kaurman, Circuit Judge:

The orderly functioning of our judicial system and the

protection of our citizens require that legal advice should

be offered only by those who possess the requisite quali-

fications and authorization for the practice of law. At the

same time, one of the most fundamental principles of our

system of government prohibits any restraint on a citizen’s

right to disseminate his views on important public issues.

In this case, we are called upon to resolve a conflict between

these two important interests. Judge Wyatt’s principal

ground for dismissing the complaint was that the doctrine

of immunity was an absolute bar to this litigation. We

must therefore determine whether a bar association has

immunity in a civil action arising out of its attempt to

restrict the distribution of a book in the exercise of its

statutory power to initiate prosecutions for the unauthor-

ized practice of law.’

I. Facts

Plaintiff Norman Dacey, who is not an attorney, pub-

lished a book bearing the title How To Avoid Probate! The

1 We find somewhat mystifying the statement of our brother Moore

that in this case there is “no issue of ‘restraint on a citizen’s right to

disseminate his views on important public issues.’” Our brother Moore

concedes that the issue before us is whether “upon the facts alleged in

the amended complaint” the Association is immune from suit by Dacey.

One of the facts alleged in the amended complaint is that the Asso-

ciation’s institution of proceedings against Dacey restrained him from

expressing his views on an important public issue.

680

nM, ener ce Otte Ae Oat Db ee St i a oS a to A

———

pook was highly successful. It enjoyed a long run on the

pest-seller list and a sale of more than 750,000 copies. How

To Avoid Probate! begins with a five-page criticism of the

probate court system and of the lawyers who maintain and

tolerate its continued existence. The criticism consists

mostly of quotations from academics or the popular press

and of anecdotes concerning individuals whose experiences

with the probate system have been particularly unsatis-

factory. Dacey sets forth illustrations of conflicts of in-

terest on the part of probate judges and probate attorneys,

of exorbitant fees charged by special guardians and court-

appointed appraisers.

Having made his case that “probate” should be avoided,

Dacey goes on to suggest that it is possible, indeed, easy

to do so. In a few pages, he characterizes the revocable

inter vivos trust ws “a legal wonder drug,” “a magic key

to probate exemption.” The remainder of the book’s 360

pages consists largely of forms for trusts and wills, all of

which are provided in duplicate, and accompanying in-

structions for their use.* The implicit suggestion is that

through the use of these forms an individual may preserve

almost all of his property from what Dacey views as the

ravages of the probate system.

In January 1967, acting under authority conferred upon

it by §750B of New York Judiciary Law,’ the defendant

2 The only textual matter in the final 345 pages of the book other than

explanations of the forms and instructions for their use is a three-page

epilogue, in which Dacey restates his indictment of lawyers and the

legal system.

3 Section 750B provides:

In addition to the power to punish for a criminal contempt as set

forth in subdivision A, the supreme court has power under this section

to punish for a criminal contempt any person who unlawfully prac-

tices or assumes to practice law; and a proceeding under this sub-

division may be instituted on the court’s own motion or on the motion

‘

681 :

BRERA PRIEST

ame

New York County Lawyers’ Association instituted a pro-

ceeding to have Dacey, his publisher, and two booksellers

adjudged in criminal contempt for the unauthorized prac.

tice of law and to have the sale and distribution of How

To Avoid Probate! enjoined.‘ After a hearing, a Special

Term of the New York Supreme Court refused to hold the

publisher and booksellers in contempt but did adjudge

Dacey in contempt and enjoin the sale and distribution of

his book. New York County Lawyers’ Ass'n v. Dacey, 54

Mise.2d 564, 282 N.Y.S.2d 985 (Sup. Ct. 1967). Two months

after the decision of the New York Supreme Court, Dacey

brought this action under the Civil Rights Act of 1871, 42

U.S.C. $1983, alleging that the commencement by the As-

sociation of criminal contempt proceedings for the un-

authorized practice of law deprived him of his first amend-

ment right to free speech, and requested that the Associa-

tion be enjoined from further prosecution of the state court

proceeding. Judge McLean denied Dacey’s motion for a

preliminary injunction, finding neither irreparable injury

nor a strong probability that Dacey would prevail at trial.

of any other officer charged with the duty of investigating or prose-

euting unlawful practice of law, or by any bar association incorpo-

rated under the laws of this state.

4 The initiation of criminal coutempt proceedings under §750B was not

the only weapon available to the Association. Alternatively, it could

have requested that Dacsy be prosecuted for the unauthorized practice

of law, a misdemeanor under New York Judiciary Law §485. Finally,

under New York Judiciary Law §476(a), it could have filed a com-

plaint with the attorney general, requesting that he commence a civil

action against Dacey. Had the atiorney general failed to take action

on this request or declined to institute proceedings, the Association

could then have applied to the New York Supreme Court for permission

to maintain the action itself. Thus, in both of these alternative pro-

ceedings, some public official, cither the court or the state attorney

general, must approve the Association’s decision that prosecution for

unauthorized practice is warranted before proceedings may be instituted.

682

ms FR FEI AIICL DMMD SCO DpDY

Meanwhile Dacey had been pursuing his state court ap-

peals from the decision of the New York Supreme Court.

He was unsuccessful in the Appellate Division, which in

October 1967 upheld the Supreme Court in a four-to-one

decision, Justice Stevens dissenting. New York County

Lawyers’ Ass’n v. Dacey, 25 A.D.2d 161, 283 N.Y.S.2d 984

(1967). Two months later, however, the New York Court

of Appeals reversed, one justice dissenting, on the reason-

ing of Justice Stevens’ dissenting opinion in the Appellate

Division. New York County Lawyers’ Ass’n v. Dacey, 21

N.Y.2d 694, 287 N.Y.S.2d 422 (1967). In concluding that :

the sale and distribution of How T'o0 Avoid Probate! did i

not constitute the unauthorized practice of iaw, Justice

Stevens had emphasized that the book was sold to the ;

public at large and that no relationship of personal trust

and confidence arose between Dacey and the purchasers of ‘

his book. é

Fortified by his victory in the New York Court of Ap- é

peals, Dacey pressed forward vigorously in his federal f

court action. In an amended complaint he abandoned his i

now unnecessary request for a permanent injunction and 3

‘

substituted a demand for $1,500,000 in compensatory dam-

ages and $4,500,000 in punitive damages. He also sought to

restrain the Association from cooperating with any other 8

organization in an attempt to prevent the distribution of

his book on the Association’s asserted ground that it con-

stituted the unauthorized practice of law. On October 9, t

1968, however, Judge Wyatt granted the Association’s mo-

tion, pursuant to Rule 12(b)(6) of the Federal Rules of ‘

Civil Procedure, to dismiss Dacey’s amended complaint for t

failure to state a claim on which relief could be granted.

Judge Wyatt concluded that immunity from suit shielded

the Association from Dacey’s claim for damages. He rea-

683

soned that because the Association was performing a prose-

cutorial function conferred upon it by statute in initiating

the contempt proceedings for unauthorized practice against

Dacey, it should occupy the same immune status accorded

by law to a government prosecutor. Moreover, the district

judge held that the Association could avail itself of the

defense of “probable cause” and that the grant of a final

injunction by the New York Supreme Court and affirmance

by the Appellate Division, despite the ultimate reversal

by the Court of Appeals, established probable cause for the

Association’s actions as a matter of law.

It should be emphasized at this juncture that we are

uot here concerned with the merits of this action. As this

is an appeal from an order granting a motion to dismiss a

complaint for failure to state a claim upon which relief

can be granted, we are concerned only with the factual

allegations of the complaint, and these we must accept as

true. Murray v. City of Milford, 380 F.2d 468 (2d Cir.

1967); see Walker Process Equipment, Inc. y. Food Ma-

chinery & Chemical Corp., 382 U.S. 172 (1965); 2A J. W.

Moore, Federal Practice 12.08, at 2266-67 & n. 3 (2d Ed.

1968). Accordingly, although the Association apparently

never attempted to enforce its injunction against Dacey

during the pendency of his appeals, we must assume the

validity of Dacey’s allegations that the mere existence of

the injunction had prevented reprinting, distribution and

sale of his book and inhibited the expression of the views

he was espousing.

II. Immunity

At common law, judges could not be held liable in a civil

action for acts they performed in the exercise of their

judicial functions. Bradley v. Fisher, 80 U.S. (13 Wall.)

684

335 (1871). The only exception to this strongly rooted rule

of judicial immunity arose when a judge took action in

eases over which his court clearly lacked subject-matter

jurisdiction. Otherwise, it mattered little that his decision

was egregiously wrong or that his motives were black. In

Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd per curiam,

275 U.S. 503 (1927), we extended the doctrine of immunity

to shield a Special Assistant to the Attorney General of

the United States from an action for malicious prosecution.

Goff, the Special Assistant, was alleged to have secured

appointment as a prosecutor in order to further his mali-

cious design to indict and punish the plaintiff. The absolute

immunity we granted to public prosecutors in that case

was based on what we believed to be sound considerations

of public policy. “[PJersons occupying such important

positions and so closely identified with the judicial depart-

ments of the government,” Judge Rogers reasoned, “should

speak and act fearlessly in the discharge of their important

official functions.” “They should be no more liable,” he con-

tinued, “to private suits for what they say and do in the

discharge of their duties than are the judges and jurors, to

say nothing of the witnesses who testify in a ease.” 12 F.2d

at 406.

Section 1 of the Civil Rights Act of 1871, 42 U.S.C. $1983,

which creates liability for the deprivation of rights under

color of law and upon which Dacey bases his action, did

not abolish the settled principle of judicial immunity. The

Supreme Court has clearly instructed that, in the absence

of a specific congressional rejection of the doctrine, the

immunity of judges for acts within the judicial role must

be considered to have survived the enactment of the Civil

Rights Act. Pierson v. Ray, 386 U.S. 547 (1967). More

recently, this court again gave its approval to the exten-

685

——

ee ary ey OR Te ee

Te PRR NED SITE Pe EO NRT:

— EFT e eR Oe ah ay HPT

ON,

ee eae

sion of the immunity granted to judges, to encompass prose.

eutors. Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967). A

public prosecutor thus possesses the same immunity in an

action which seeks to hold him personally liable for official

acts under $1983 as he does to a similar action for mali-

cious prosecution.°

III. The Prosecutorial Role of the Association

We are of the view that when the Association instituted

its proceedings against Dacey, its role was analogous to

that of a public prosecutor.’ But this is not the end of our

inquiry. Chief Judge Learned Hand concluded that the

decision to grant immunity to public prosecutors arose

from “a balance between the evils inevitable in either alter-

native.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949),

cert. denied, 339 U.S. 949 (1950). To decide whether im-

munity should be extended to a private association per-

forming a prosecutorial function we must strike a similar

balance between the interests involved. In analyzing these

interests, we discern facets to this case which cause us to

pause and question the wisdom of allowing the Association

5 Many judges have expressed doubts over the wisdom of extending

immunity to shield prosecutors from civil liability under $1983. Two

members of this court’s panel which decided Fanale vy, Sheehy, supra,

believed that if they were writing on a clean slate “there would be

some situations . . . in which even ‘official’ acts of a prosecuting officer

should not be protected by absolute immunity from civil liability.”

385 F.2d at 569 (Waterman and Feinberg, JJ., concurring). There was

a similar division of opinion in the Third Circuit's «n banc decision to

extend immunity to prosecutors. Bauers v. Heisel, 361 F.2d 581, 592-94

(3d Cir. 1966) (Hastie, J., concurring; Biggs and Freedman, JJ., dis-

senting), cert. denied, 386 U.S. 1021 (1967).

6 That the prosecutorial role of the Association is not general but

limited to the enforcement of New York’s prohibition of the unauthor-

ized practice of law does not affect our decision; the Special Assistant

to the Attorney General whom we cloaked with immunity in Faselli v.

Goff, supra, was empowered to conduct only a single investigation.

686

to find sanctuary in the doctr ne of immunity on the facts

alleged in the complaint.

The objective and effect of instituting criminal contempt

proceedings for the unauthorized practice of law against

Dacey were to suppress a book.’ The gravamen of the As-

sociation’s complaint against Dacey was not that he had

given specific advice to specific individuals concerning their

particular legal problems. Instead, the Association acted

to prevent Dacey from disseminating his views to the pub-

lie generally by means of the publication and distribution

of a book. Moreover, the book at which the attack was

directed contained a critical discussion of an important

publie institution—the probate court—and of the officials

who administer it and practice before it.

The first amendment embodies “a profound national com-

mitment to the principle that debate on public issues [such

as the performance of the probate court system] should

he uninhibited, robust, and wide-open.” New York Times

Co. v. Sullivan, 376 U.S. 254 (1964). The value of Dacey’s

views is not lessened because they were presented princi-

pally in the form of quotations and anecdotes. Judging

from the wide circulation which the book received, this -

format was extremely effective. Nor does it matter that

the opinions expressed were contained in a book comprised

largely of legal forms. The argument Dacey sought to

Although only one of the five paragraphs of the injunction referred

specificnlly to the sale and distribution of “writings,” the Association

never presented any evidence of acts performed by Dacey within the

jurisdiction of the state of New York other than the sale and distribu-

tion of Huw To Avoid Probate! which might support a pros°cution

for unauthorized practice, We therefore accept the manner in which

Justice Stevens framed the issue: “the question may be briefly and

baldly expressed: Does the writing, publication, advertising, sale and

distribution of ‘How to Avoid Probate!’ constitute the unauthorized

practices of law within the meaning of Section 750(B)?” 283 N.Y.S.2d

at 997.

687

ESTES ROAR ESEMINAR RTOS HO ROTATE NA

(De SURO»

TRS x Taran

Sonny

10a

press upon the public—the v:rtue of which we do not pass

upon—was that the infirmities of the probate system re-

quired every thoughtful person to avoid the administration

of his estate by the probate court. Given this viewpoint,

the forms which comprised the bulk of How To Avoid Pro-

bate! buttressed Dacey’s argument that the goal he advo-

cated was not only desirable but feasible. Dacey’s book was

therefore protected by the first amendment’s guarantee of

free speech and any attempt to suppress it on the ground

that it constituted the unauthorized practice of law must be

scrutinized with extreme care. This is not to say, however,

that the inhibiting effect of the Association’s action on pro-

tected speech is dispositive of the issue before us. An over-

zealous public prosecutor may create an unjustified re-

straint on expression by bringing a completely unwarranted

prosecution for obscenity and still be immune from dam-

ages in a civil action. Thus, although the restriction on

freedom of expression induced by the Association’s attempt

to prevent the distribution of Dacey’s book to the public

does not completely resolve the question in this case, it is

an important factor to be weighed in the balance.’ And, it

8 As we have stated, at common law a judge retained his immunity

even if his decision was clearly incorrect; he lost his immunity only

if he decided a case over which his court clearly lacked subject matter

jurisdiction. Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). This

distinction between a mere excess of jurisdiction and a clear absence

of jurisdiction has been applied to prosecutors as well as judges.

Bauers ¥. Heiscl, 361 F.2d 581 (3d Cir. 1966) (en banc), cert. denied,

386 U.S. 1021 (1967).

It would thus be possible to deny the Association immunity on the

ground that it clearly lucked jurisdiction to impede the diss »mination

of ideas to the public generally. However, in our view, the distinction

between a lack of jurisdiction and un exe>ssive use of jurisdictional

power is artificial and overly conceptual. Whether the Association may

successfully claim immunity in this ease should depend not on the

formal characterization of its actions, or the “pigeonhole” into which

they fall, but rather on the relative weight of the interests which its

actions furthered and those which it frustrated.

688

lla

provides a context within wh'vh the actions of the Associa-

tion must be viewed.°

Dacey urges that the intended result of the Association’s

action was to eliminate an actual or potential competitor

of its members. In initiating unauthorized practice pro-

ceedings, he argues, the members of the Association were

directly serving their own pecuniary interest in a manner

in which a publie prosecutor who begins a case or a judge

who decides it is not. We need not pass judgment on the

merits of these contentions. We merely note the inevitable

presence of a possible conflict of interest between the pur-

poses served by the Association and its conception of the

public interest whenever it exercises its statutory power to

initiate contempt proceedings under §750B and secures an

injunction against the sale and distribution of a book criti-

eal of the profession.

Finally, we note that at the summary hearing held before

the New York Supreme Court in April 1967, only argument

of counsel was heard; there was no inquiry into the facts,

nor was any evidence presented that Dacey’s book had

misled anyone.”®

9 It is upon this ground that we distinguish the decision of the Court

of Appeals for the Ninth Cireuit in Clark v. Washington, 366 F.2d 678

(9th Cir. 1966). In Clark a bar association was granted immunity in

an action brought under the Civil Rights Act by an attorney whom the

association had succeeded in disbarring. Clark was disbarred for two

violations of the Canons of Professional Ethics; he made no allegation

that the disbarment proceeding had restrained him from expressing his

views on public issues.

10 As we have noted above, see note 4, instead of commencing summary

contempt proceedings, the Association could have requested the Attorney

General to begin a civil action against Dacey under §476(a) of the

New York Judiciary Law. Both parties make much of a statutory

immunity applicable to unauthorized practice proceedings brought under

§476(a). Section 476(b) of the New York Judiciary Law provides

that « bar association shall not be liable for certain damages sustained

as a result of maintaining « civil auction under §476(a). Dacey con

689 :

12a

For all of these reasons, ..c conclude that it would be

unwise to grant the Association immunity in this case. We

do not suggest, however, that immunity would be unavail-

able to the Association in a case in which it had sought to

enjoin an unauthorized practitioner from proffering to spe-

cific individuals legal advice relating to their specific prob-

lems or had instituted proceedings to disbar an attorney."

tends that the absence of a similar provision in §750B suggests that

the Association has no immunity to a claim for damages arising out of

its initiation of summary contempt proceedings under that section.

This contention rests on a misreading of §476(b). That section allows

the plaintiff in a civil action brought under §476(a) to secure a tem.

porary restraining order, x form of relief unavailable under §750B,

and releases him from the usual requirement of posting a bond before

a restraining order may be issued and from liability for damages sus-

tained by reason of the issuance of a restraining order which is later

determined to have been unwarranted. Since a bar association cannot

secure a temporary restraining order in contempt proceedings initiated

pursuant to §750B, there is no reason why that section should contain a

specific immunity provision comparable to that set forth in §476(b).

On the other hand, contrary to the contentions of the Association, a

bar association’s immunity from claims for damages resulting from

a@ temporary restraining order secured under §§476(a)-(b) does not

require that it be granted a similar immunity from damages which flow

from the sanctions imposed under §750B. Since a bar association may

not corimence an action under §476(a) without the approval of the

attorney general or the New York Supreme Court, it is less likely that

unwarranted prosecutions for unauthorized practice will be initiated

under that section than under §750B.

ll Our brother Moore suggests that the majority has based its decision

on irrelevant considerations. As we understand his concurrence, the

charge of “irrelevancy” is not direct-d at the entire discussion of the

immunity issue, but at our analysis of Dacey’s first amendment rights

and the possible conflict of interest inherent in the Association’s prose-

cutorial role. Our decision represents a refusal to extend the doctrine

of immunity to encompass the situation before us on this appeal, and

the discussion concerns those factors which distinguish this case from

others in which the doctrine has been applied. Nor do we understand

how our statement that the result we reach today may not obtain in

different factual contexts ean be construxd as an “advisory opinion.”

It is the antithesis of an advisory opinion; we are specifically disclaim.

ing any attempt to decide controversies not presently before us.

690

l3a

Our decision on this appe:.!, however, does not rest on

our disposition of the issue of immunity.

IV. Probable Cause

Just as the public’s interest in having access to Dacey’s

criticism of the courts of probate prevents us from grant-

ing absolute immunity to the Association in this case, an

equally strong public interest in preventing the unauthor-

ized practice of law requires that the defense of “probable

cause” to initiate a prosecution under $750B be available

to the Association. We believe that failure to afford the

Association this defense might well preclude vigorous en-

forcement of the laws prohibiting unauthorized practice.

In such event, the Association would be compelled to pro-

ceed with excessive timidity and restrict its prosecutions

only to those cases in which the violation was clear beyond

all doubt.

Accordingly, we agree with the conclusion of the district

court that, as a matter of law, the Association had probable

cause to initiate unauthorized practice proceedings against

Dacey. The Association's request for a permanent injune-

tion was granted by the New York Supreme Court and

affirmed by the Appellate Division before Dacey ultimately

prevailed in the Court of Appeals. The law is clear in this

cirevit that the “granting of a final injunction, despite re-

versal on appeal, is conclusive evidence of probable

cause.” '* Salvage Process Corp. v. Acme Tank Cleaning

12 Dacey urges that the grant of a final injunction should not be con-

sidered to be conclusive evidenee of probable cause and consequently

demands a hearing on the issue of probuble cause. He bases his argu-

ments on the Supreme Court’s decision in Pierson v. Ray, 386 U.S. 547

(1967), that a conviction at trial did not automatically establish that

a peace officer had probable cause to make the arrest which led to the

conviction.

(continucd on following page)

691

PER ES a ee ILE NASON REE PN UST ha CT

> et

or)

a 4

l4a

Process Corp., 104 F.2d 105 (2d Cir.), cert. denied, 308 U.S,

599 (1939). The judgment of the district court is therefore

affirmed."*

do.

Waterman, Circuit Judge (concurring) :

I concur in affirming the dismissal of the complaint. I

agree with my brother Kaufman and with the court below,

Dacey v. New York County Lawyers’ Association, 290 F.

Supp. 835, 842 (1968) that the Association, as a matter of

law, had probable cause to initiate unauthorized practice

proceedings, and therefore that the dismissal of the action

which is based upon the Civil Rights Act of 1871, 42 U.S.C.

§1983, was proper. In his concurring opinion my brother

Moore also accepts this ground as a dispositive one.

I agree with Judge Kaufman that due respect for the

First Amendment cautions us that it would be unwise to

affirm the judgment below upon the added ground relied

upon by the district court and by Judge Moore that in the

circumstances here the Association is clothed with the im-

munity from suit enjoved by New York State public pros-

ecutors. It is clear that the objective of the Association

in instituting its special proceedings in the New York courts

against Dacey, a non-lawyer, was to suppress his book

Since this case involved no ex parte restraint on Dacey’s liberty, we

find the analogy to malicious prosecution far more compelling than

any analogy to false arrest. As we stated, in an action for malicious

prosecution, the granting of a final injunction conclusively establishes

the defense of probable cause. Salvage Process Corp. vy. Acme Tank

Cleaning Process Corp., supra.

13 In addition to damages, Dacey sought to enjoin the Association from

cooperating with any other bar association in an attempt to restrict

the distribution of his book. Given the absence of any showing that

the Association was contemplating any such action, Judge Wyatt’s dis-

missal of this claim was entirely proper.

692

BLEED THROUGH POOR COPY

15a

“How to Avoid Probate!” and to prevent the views ex-

pressed therein from being available to the general public.

I am unable to reconcile a desire to have “book burning”

judicially approved because a non-lawyer’s hook contains

derogatory remarks about our profession with the power to

prosecute for unauthorized practice of the profession.

Indeed, I heartily approve of this grant of power to the

Association for it is necessary to repose it in those learned

in the law if our profession is to preserve its great ideals

through membership therein of none other than those indi-

viduals qualified by learning and training to render per-

sonalized legal professional service. Non-lawyers should

not be permitted to render that service.

Moorr, Circuit Judge (eoneurring in the result) :

Although I concur in the aflirmance of the judgment dis-

missing the complaint, my reasons for so doing are quite

different from those expressed in the majority opinion.

Initially I find here no issue of “restraint on a citizen’s

right to disseminate his views on important public is-

sues * * * .” Upon this appeal the only issue before us is:

does the amended complaint on its face state a cause of

action? Nor is there any issue as to whether Dacey’s acts

constitute the unlawful practice of law. That issue has been

laid at rest by the New York Court of Appeals. No judge

is being sued—hence, judicial immunity is not involved.

The issues of free speech and the suppression of a book

or of Dacey’s “views to the public generally by the means

of the publication and distribution of a book” are not be-

fore us. The only question stated more extensively is: is the

Association upon the facts alleged in the amended com-

plaint immune from actionable suit by Dacev for having

proceeded (ultimately unsuccessfully) against him for the

unauthorized practice of law?

693

i Re a ER or aT aa A MPEE SS AR ip an Ry ot Sate

Fl a op ae

Se ait

LACE ye Ee Ee Ue ee ee

No answer has been interposed. No “defense” of im-

munity has been pleaded. Therefore the failure to state a

claim must be found in the nature of the suit itself—in

effect, the disclosure of facts from which a built-in im-

munity may be derived. The decisions leave no doubt that

such immunity may be presented upon the motion to dis-

miss.'

16a

Looking at the amended complaint itself, despite Dacey’s

allegations that the Association's proceedings “were under-

taken by defendant solely for the purpose of preventing

the plaintiff from criticizing and speaking out in opposition

to the practices of certain lawyers, judges and courts whose

management of decedents’ estates was improper” and to

prevent the sale of his book, the amended complaint ade-

quately discloses that the Association sought to and did for

a period of time enjoin Dacey from the unauthorized prac-

tice of law. The motives, the purposes, the conspiracy and

the malice allegedly may all be assumed. In fact it is into

these very motives and purposes that Dacey would seek

to probe upon a trial. And it is for this very reason that

the courts so uniformly have erected a barrier for the public

good against such a happening.

Whence is derived this immunity claim by the Associa-

tion? The Legislature has seen fit to grant the right to

institute a proceeding against unlawful practice to court,

other officer or any bar association. The means whereby

such an association may proceed are pointed out by the

court below, i.e., (1) by criminal prosecution; (2) by a civil

action under Judicial Law {476-a; and (3) by summary

proceedings under §750B. Where as here the relevant

1 Bauers v. Heiscl, 361 F.2d 581 (3d Cir. 1966) (see footnote 7 of

Bauers, page 586, for citations of 47 causes relevant to the immunity

question) ; Byrne v. Kysrr, 347 F.2d 734 (7th Cir. 1965).

694

17a |

facts are undisputed, namely, the proceedings themselves, |

the §750B approach was warranted. Dacey argues that :

(476-a should have been used so that the Attorney General :

could have decided whether in his opinion the complaint

was well founded and whether a proceeding should be com-

menced; and that only by this procedure could immunity

under §476-b be achieved. However, the immanity section

was added to §476 merely to eliminate the potential liabil-

ity against which a bond was required in the event that a

temporary restraining order was desired. As the Attorney

General at the time (1958) stated in his memorandum to

the Legislature, “in prosecuting such [unauthorized prac-

tice] actions bar associations are therefore performing the

same public functions as the Attorney General or any other

public law enforcement official. * * * It is only just and

proper that when a bar association functions as a law en-

forcement agency, under statutory authority, it should

enjoy the same immunity from liability for costs and dam-

ages as that extended elsewhere in the law to public officials

performing the same duties.” (New York State Leg. Annual

1958, p. 11.) Since the Legislature has equated bar asso-

ciations with courts and prosecuting officers, the law ap-

plicable to them should be equally applicable to the Asso-

ciation here.

The Association in previous proceedings has been recog-

nized in its prosecutorial role. Jn re Bercu, 873 A.D. 524,

78 N.Y.S.2d 209 (1st Dept. 1948), aff'd 299 N.Y. 728; In

re Roel, 3 N.Y.S.2d 224, 165 N.Y.S.2d 31 (1957), app.

dism. 355 U.S. 604 (1958). Dacey’s fear of the Association ;

acting as a vigilante committee cannot be reconciled with

the vigilante concept which normally embraces the thought

of apprehension, trial and execution of judgment, all by the

vigilantes. In marked contrast, Dacey has been afforded

PERI TT EEP OR TRAN RE NO a a asec

Ne Barton

SI remy 1s

695

ek eee |

18a

every step of due process in the courts. The cases, there-

fore, involving police officers have no bearing as preceden-

tial value on the decision here.’

What Dacey desires is “his day in court to test the mo-

tives of the defendant-appellee [the Association] in using

the procedure it chose, on such a novel issue before a hos.

tile court.”* (Dacey brief p. 13.) But this “day” (if he

wishes to test the motives of the committee or the members

of the largest local bar association in the United States,

the “day” could become weeks or months) in court is exactly

what the courts have decided is not in the public interest.

A few sentences from decisions, in which the courts have

had to cope with arguments similar to those now advanced

by Dacey, will suffice as a guide to the correct result here.

The recognition of a common law immunity for judges from

tort actions was made by the United States Supreme Court

in Bradley vy. Fisher, 80 U.S. 335 (1871). Justice Field’s

opinion justifies the privilege in terms of freedom from

“vexatious litigation” and “apprehension of personal liabil-

2 In Monroe v. Pape, 365 U.S. 167 (1961), the Supreme Court reversed

the dismissal of an action against state police officers. A cause of

action was found to be stated under §1 of the 1871 Civil Rights Act,

42 U.S.C. §1983. In Pierson v. Ray, 386 U.S. 547 (1967), the immunity

of state police officers was considered. The eommon law had never

granted an absolute immunity to police officers, but did allow the

defense of good faith and probable cause. Since the same considera-

tions present in common law actions were present in §1983 actions,

the Court held that the defense was available to police officers sued

under §1983. 386 U.S. at 555, 557.

3 Presumably Dacey refers to the five judges (Special Term and four

Appellate Division) who ruled against him because he stated “. . . it

is not unlikely that many of the judges who held against Dacecy in the

lower courts of New York, were themselves members of the New York

County Lawyers Association.” (Dacey brief p. 13.) Yet Dacey and

his attorney did not suggest disqualification or even hostility on the

part of Judge Wyatt, who advised them of his membership in the

Association.

696

_—

19a

ity” that would hamper jud;,es in the discharge of their

judicial functions. The immunity was described as being

“not for the protection or benefit of a malicious or cor-

rupt judge, but for the benefit of the public, whose

interest it is that the judges should be at liberty to

exercise their functions with independence and without

fear of consequences.” 80 U.S. (13 Wall.) at 350, quot-

ing from Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868).

In Spalding v. Vilas, 161 U.S. 483 (1896), the Court granted

a similar absolute privilege to the Postmaster General in

a defamation action.

The Second Circuit has long recognized the need to extend

the immunity granted to judicial officers to public pros-

ecutors.' In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926),

aff'd per curiam 275 U.S. 503 (1927), a Special Assistant to

the Attorney General, who had been appointed to prosecute

the plaintiff, was alleged to have prosecuted an indictment

maliciously and without probable cause. This Court held

that:

;

“[A] special assistant to the Attorney General of the iM

United States, in the performance of his duties imposed 4

upon him by law, is immune from a civil action for

malicious prosecution based on an indictment and §

prosecution, although it results in a verdict of not 4

guilty rendered by a jury. The immunity is absolute, 4

and is grounded on principles of public policy. The ;

publie interest requires that persons occupying such ;

i The most relevant and recent case in this area is the decision by

this Court in Fanale v. Shechy, 385 F.2d 866 (1967), in which it was

stated:

“If, then, as we hold, the complaint’s allegations as to [a county

district attorney] are confined to official action, he, too, is entitled

to immunity.” 385 F.2d at 868.

697

Pprmessta meacto a ME NIRA TH RET S

important positions and .o closely identified with the

judicial departments of the government should speak

and act freely and fearlessly in the discharge of their

important official functions. They should be no more

liable to private suits for what they say and do in the

discharge of their duties than are the judges and

jurors to say nothing of the witnesses who testify in

a case.” 12 F.2d at 406.

In the front rank of cases establishing an immunity from

common law actions for malicious prosecution is Gregoire

v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied 339 U.S,

949 (1950). In dismissing this suit against two successive

Attorneys-General of the United States, two successive

Directors of the Enemy Alien Control Unit of the Depart.

ment of Justice, and the District Director of Immigration

at Ellis Island, Chief Judge Learned Hand stated:

*... to submit all officials, the innocent as well as the

guilty, to the burden of a trial and to the inevitable

danger of its outcome, would dampen the ardor of all

but the most resolute, or the most irresponsible, in the

unflinching «lischarge of their duties.” 177 F.2d at 581.

The justification given for immunity involved a balancing

of the evils that were inevitable in either alternative. This

balancing revealed that it was:

“better to leave unredressed the wrongs done by dis-

honest officers than to subject those who try to do their

duty to the constant dread of retaliation.” 177 F.2d at

581.

Where a court-appointed commission of two doctors is

authorized by statute, immunity has been extends! to them

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even though the plaintiff in his suit had alleged that by the

defendants’ intentional actions he had been illegally com-

mitted and that, therefore, he was entitled to damages

under the civil rights laws. The Seventh Circuit said:

“Drs. Fein and Imbiorski as members of the court-

appointed statutory commission share the court’s

judicial immunity, and in the performance of their

quasi-judicial functions are not subject to suit under

the sections of the statute here involved.” Byrne v.

Kyser, 347 F.2d 734, 736 (1965), cert. denied 383 U.S.

913 (1966).

The entire purpose of immunity would be defeated if an

allegedly aggrieved plaintiff by charges of malice and self-

interest by a bar association could subject its members, or

a committee thereof, to a trial in an endeavor to probe into

such motives. In Gregoire the Court stated:

“(I]t can be argued that official powers, since they exist

only for the public good, never cover occasions where

the public good is not their aim, and hence that to

exercise a power dishonestly is necessarily to overstep

its bounds. A moment’s reflection shows, however,

that that cannot be the meaning of the limitation with-

out defeating the whole doctrine. What is meant by

saying that the officer must be acting within his power

cannot be more than that the occasion must be such as

would have justified the act, if he had been using his

power for any of the purposes on whose account it

was vested in him.” 177 F.2d at 581.

Even though these common law immunities are called

“absolute,” there have always been limitations placed upon

them. Common formulations of that limitation have in-

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cluded the requirement that “the official’s act must have

been within the scope of his powers,” Gregoire, supra, and

that “a distinction must be here observed between excess of

jurisdiction and the clear absence of all jurisdiction over

the subject matter,” Bradley, supra, 80 U.S. (13 Wall.) at

351. Thus, any limitation must be understood in terms of

the scope of the official’s duties, and not in terms of either

any malice which might have motivated the official or any

lack of probable cause which might have justified the

action. But here there is no question that the action of the

Association was within the scope of the powers bestowed by

§750B of the Judiciary Law. Mr. Justice Frankfurter

answered Dacey’s present argument, seeking to obtain a

trial, in Tenney v. Brandhove, 341 U.S. 367 (1951) wherein

he said:

“The claim of an unworthy purpose does not destroy the

privilege. Legislators are immune from deterrents to

the uninhibited discharge of their legislative duty, not

for their private indulgence but for the publie good.

* * * The privilege would be of little value if they

could be subjected to the cost and inconvenience and

distractions of a trial upon a conclusion of the pleader,

or to the hazard of a judgment against them based upon

a jury’s speculation as to motives” (377).

In the Tenney case, a committee of the legislature had

acted but here statutory authority has been expressly

bestowed upon bur associations. Thus the admonition in

Tenney is applicable, namely:

“The courts should not go beyond the narrow confines of

determining that a committee's inquiry may be fairly

deemed within its provinces” (378).

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Nor can any legal distinction be derived from the

difference between action by an integrated bar and the

statutorily authorized Association. Therefore the grant

of immunity against a suit by a disbarred attorney is most

relevant here.’ As to such a suit under civil rights laws,

the Ninth Circuit said:

“As an arm of the Washington Supreme Court in con-

nection with disciplinary proceedings, the Bar Asso-

ciation is an ‘integral part of the judicial process’ and

is therefore entitled to the same immunity which is

afforded to prosecuting attorneys in that state.”

Clark vy. State of Washington, 366 F.2d 678, 681 (9th

Cir. 1966).

Thus, in my opinion, the decisions support the syllogism

that (1) the judiciary is immune from liability for damage

claims brought under §1983, (2) public prosecutors are

quasi-judicial officials, (3) the Association is performing

the same role as a public prosecutor here, therefore, (4)

the Association is immune in this case upon the facts as

pleaded.

The District Court, therefore, correctly granted absolute

immunity because “the Association when it acts under

Judiciary Law §750B is a part of the judicial process.” 290

F. Supp. 841-42 (S.D.N.Y. 1968). This conclusion is uni-

5 The majority would distinguish the decision in Clark v. Washington,

366 F.2d 678 (9th Cir. 1966) by relying upon the absence of the

“allegation that the disbarment proceeding had restrained [the dis-

barred attorney] from expressing his view on public issues.” It should

be noted that the allegations of a deprivation of constitutional rights

under the Fourth, Eighth and Fourteenth Amendments did not prevent

the Ninth Circuit from finding absolute immunity for the Bar Asso-

ciation.

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formly supported by the decisions of the New York courts

and the United States Supreme Court.

In view of the nature of the narrow issue before us, I

must take issue with that portion of the majority’s opinion

entitled “III. The Prosecutorial Role of the Association,”

first, because it does not reflect the existing pertinent law

and, second, because in my opinion it is entirely irrelevant

to the only question before us. The law as to immunity as

thus far written does not depend upon a finding by an

appellate court that it would be “unwise to grant the

Association immunity in this case” or because its concept

of the public’s interest “prevents [it] from granting

absolute immunity to the Association in this case.” Such

a hypothetical situation is not before us. Nor should we

give advisory opinions as to such future situations as may

arise with respect to the giving of wnauthorized advice to

“specific individuals.” Furthermore, the hypothesis that

“an overzealous public prosecutor may create an unjustified

restraint on expression by bringing a completely unwar-

ranted prosecution for obscenity and still be immune from

damages in a civil action” is no justification for lessening

the immunity privilege. I find no relationship between the

public policy involved in granting to the Association the

power to protect against the unauthorized practice of the

law and any inhibition of free speech.* And I do not accept

6 The majority say that “The objective and effect of instituting crimi-

nal contempt proceedings for the unauthorized practice of law against

Dacey were to suppress a book” and that “the Association acted to

prevent Dacey from disseminating his views to the public generally by

means of the publication and distribution of a book.” By these assump-

tions, the majority would create “free speech” issues. The injunction

against the sale of his book, although ultimately reversed by the New

York Court of Appeals, was a consequence of the state trial court’s

finding that it constituted the unauthorized practice of law. Therefore,

it would seem fallacious to construe the mere institution of such a pro-

ceeding as an act to suppress criticism of existing probate practices.

702

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“the inevitable presence of a possible conflict of interest

between the purposes served by the Association and its

conception of the public interest whenever it exercises its

statutory power to initiate contempt proceedings under

§750B.” Nor are wrongfulness or malice determining

factors because allegedly wrongful acts were present in

the analogous complaints dismissed for failure to state a

claim. Thus I would hold that the Association upon the

facts pleaded in the amended complaint is entitled to

absolute immunity from Dacey’s suit.

Since, however, the law in this Circuit is that the “grant-

ing of a final injunction, despite reversal on appeal, is con-

elusive evidence of probable cause,” Salvage Process Corp.

vy. Acme Tank Cleaning Process Corp., 104 F.2d 105, cert.

denied 308 U.S. 599 (1939), and since this fact appears in

the amended complaint, I accept this ground for dismissal

of the amended complaint despite my belief that there is

inconsistency in denominating “probable cause” a “defense”

on a motion to dismiss for failure to state a claim.

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Judgment Below

UNITED STATES COURT OF APPEALS

For THE SEconpD CIRCUIT

Ata Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the eighth day of

December one thousand nine hundred and sixty-nine.

Present:

Hon. Sterry R. WaTERMAN,

Hon. Leonarp P. Moore,

Hon. Irving R. KaurMan,

Circuit Judges.

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Norman F. Dacey and Norman F. Dacey doing business as

: 5

Nationa Estate PLANNING COUNCIL,

Plaintiffs-A ppellants,

New York County Lawyers’ AssociaTIon,

Defendant-A ppellee.

(and another case)

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Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transeript of rec-

ord from the United States District Court for the Southern

District of New York, and was argued by counsel.

On Consiperation Wuereor, it is now hereby ordered,

adjudged, and deereed that the order of said District Court

be and it hereby is affirmed with costs to be taxed against

the appellants.

A. Dante Fusaro

Clerk

_.______. IY aa DRT) tine -< co Nga at apeNE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.