Memorandum — In re Corey

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MAY 8 1974

MICESE! RODEK, JR OLE

IN THE

Supreme Court of the United States

OctToBER TERM, 1973

No. 73-1450

In THE MaTTerR OF RatpH FE. Corey, Petitioner

Sane aettpad et AON ERS Te SDL

PETITIONER'S REPLY MEMORANDUM

—

GERALD D. STERN t

1775 K Street, N.W., Suite 700

Washington, D.C. 20006

Attorney for Petitioner Corey

Of Counsel:

Siney S. RospEITCHER

Dante, P. Levitt

PauL, WEIss, RIFKIND,

Warton & GARRISON

ecw BAe chi ng A th ees

LTE FP PEPOIRER

and 3

Heten B. Ryan ‘

1136 Union Mall :

Honolulu, Hawaii 96813 &

Pusss or Brzonw S. ADAMS PRINTING, Inc., WasHINGTON, D. C.

eS.

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No. 73-1450

In THE MATTER OF RatpH E. Corey, Petitioner

PETITIONER'S REPLY MEMORANDUM

Respondent’s brief in opposition underscores the

importance of review by this Court of the decision of

the Supreme Court of Hawaii suspending petitioner

from the practice of law.

1. Petitioner contends that the Sixth Amend-

ment’s Confrontation Clause was violated when he was

disciplined without opportunity to confront his accus-

ers before the same tribunal which was to decide his

fitness to practice law. In answer, we are told that

he had adequate opportunity to cross-examine at least

some of his accusers in a prior civil suit where the

stakes were entirely different, and that in the later

disciplinary proceeding he had an opportunity to sub-

mit an ‘‘offer of proof.’’? Neither answer suffices.

—— ay

2

First, it is well established in recent decisions by thi

Court—decisions pointedly neither discussed nor cite

by respondent—that an opportunity to cross-examin

in a prior proceeding satisfies the requirements of th

Confrontation Clause only when the previously exam

ined witness is unavailable at the second proceedin

through no fault of the State." The Attorney Genera

does not, and cannot, contend that in this case the wit

nesses—Brown, Young and Campbell (who did no

testify in the prior proceeding )—were ‘‘unavailable,’

Under such decisions as Califormia v. Green, 399 US

149 (1970), Barber v. Page, 390 U.S. 719 (1968) an

Mancusi v. Stubbs, 408 U.S. 204 (1972), the failur

of the State to produce petitioner’s accusers for exam

ination in the same tribunal that was considering hi

disbarment or suspension from practice deprived hin

of his rights under the Confrontation Clause of th

Sixth Amendment.

That petitioner had an opportunity in the discipli

nary proceeding to make an ‘“‘offer of proof’’ does no

cure the court’s failure to allow him to subject hi

accusers to the harsh light of cross-examination i

that same proceeding. As our petition for certiorar

noted (at page 14), as the record indicates, and a

respondent is unable to deny, petitioner was afforde

1 As former Solicitor General Griswold summarized the cases i

1971 the Confrontation Clause permits admission of ‘‘prior r

corded testimony when the witness is dead or when he is current!

present and subject to cross-examination.’’ Griswold, ‘‘The

Process Revolution and Confrontation,’’ 119 U.Pa.L.Rev. 711, 7!

(1971). In so doing, he accurately anticipated this Court’s d

cision in Mancusi v. Stubbs, 408 U.S. 204, 216 (1972), that a findi

of unavailability of the accuser whose prior recorded testimony

sought to be used is a ‘‘requirement of the confrontation clause

3

the opportunity only to make a written offer of proof.

When he, in writing, inquired of the court below

whether he would be permitted to examine live wit-

nesses, he was advised, in writing, that he would not,

that “no testimony will be adduced.’ (Record 517,

523). All the process ever afforded petitioner was the

right to file legal memoranda, plus thirty minutes of

oral argument. Neither the Due Process Clause nor

the Confrontation Clause permits an attorney to be

disciplined in such a manner, particularly where, as

here, the case turned upon the veracity of a witness’

oral testimony.? See Goldberg v. Kelly, 397 U.S. 254,

266-70 (1970). That is the teaching of Willner v. Com-

mittee on Character & Fitness, 373 U.S. 96 (1963),

and the long line of cases under the Confrontation

Clause discussed in the petition but ignored by respond-

ent. The fact is that respondent has from the outset

misconceived the meaning of confrontation; it does

not understand that the Clause entitles an accused to

test the recollection and veracity of his accuser in the

presence of his judges ‘‘in order that they may look at

him, and judge by his demeanor upon the stand and

the manner in which he gives his testimony whether he

is worthy of belief.”’ Mattox v. United States, 156 U.S.

237, 242-243 (1895). Accordingly, respondent success-

2 An offer of proof would have added nothing to the record. Pe-

titioner’s written submissions had already made clear the nature

of his defense—that he was not guilty of fraud, that his role was

not as described by Brown or Young, and that Brown did not tell

the truth when he testified that he had relied upon the amount

of the contract rather than upon an independent appraisal of the

property. The issue was who to believe—petitioner, on the one

hand, or Brown, and to a lesser extent, Young and Campbell? The

conflict could only be resolved on the basis of cross-examination

and observation of demeanor.

amg

4

fully urged the court below to act upon the record ¢

the prior law suit without fresh opportunity to see an

hear live witnesses. Petitioner’s judges did not x

or hear either Brown, or Young or Campbell. Unde

an erroneous interpretation of the Confrontatio

Clause—more accurately, in a misguided belief that dj

barment proceedings are not ‘‘adversarial’’—the

accepted their prior recorded testimony and, perhap

their ex parte submissions, dispensing with live test

mony. That was error, of constitutional dimension,

2. Petitioner also contends that contrary to In k

Ruffalo, 390 U.S. 544 (1968), the Hawaii Supren

Court charged him with misconduct under one sta

dard, then suspended him from practice under anoth

not previously cited. Respondent tacitly concedes tl

accuracy of this contention, but argues that petition

did have timely notice of the ‘‘transaction’’ involved-

that is, the alleged fraud in connection with the vah

of the construction contract. But the same could |

said about Ruffalo. John Ruffalo knew the facts upc

which the court was focusing, but he was not apprise

from the outset of the precise legal standard by whic

his conduct would ultimately be measured. There, :

here, a mid-stream switch in legal theory amounted to

denial of due process.

3. Petitioner contends, finally, that he was deni

his right to trial by a fair tribunal when the Hawa

Supreme Court condemned him publicly in reviewir

a prior civil proceeding, repeatedly received surrept

tious ex parte communications attacking petitioner, at

then proceeded to ignore its own rules and “try” t

case itself. Respondent defends on the tenuously rel

vant ground that a judge need not disqualify himse

5

pecause of derogatory information he has become

aware of in the course of another judicial proceeding.

That is no answer here. Petitioner’s contention that

the tribunal in this case was tainted by ex parte attacks

is not denied. And there is no adequate explanation

why the court reached out to ‘‘try”’ this disciplinary

proceeding, something it had never done before, rather

than confine itself to its usual appellate function.

* * +

We are assured, in the last sentence of respondent’s

brief, that it is ‘‘unlikely’’ that the Hawaii Supreme

Court will do any of these things to another attorney.

That is little consolation to petitioner. Moreover, it is

tantamount to an admission that what happened here

never should have happened. Yet respondent concedes

that under Hawaii law, the Supreme Court remains

free to ignore its amended rules and do to another what

it did to petitioner. And respondent’s brief demon-

strates that no-one can rely on the Attorney General

properly to interpret the Confrontation Clause with

respect to disciplinary proceedings.

Petitioner had no trial below. His defense was

restricted, by order of the court, to written submissions

and thirty minutes of oral argument. Because the pro-

ceeding was commenced, contrary to Hawaii practice,

in the state Supreme Court, petitioner has had no

opportunity for appellate review. Mr. Justice Bren-

nan has recently reminded us that this Court values

the right of litigants to obtain at least one level of

appellate review, that this concern motivates the Court

to hear argument in cases where there would otherwise

be no appellate review. In ‘“‘The National Court of

Appeals: Another Dissent,’’ 40 U.Chi. L.Rev. 473,

6

474 (1973), the Justice wrote in connection with this

Court’s policy of setting oral argument in cases under

the Expediting Act:

‘“‘we are regularly constrained to grant reviev,

not so much because the question presented js

especially important or because the District Court

may well have erred, but rather because we are

reluctant to deprive the losing litigant of any

opportunity for appellate review of the trial

court’s decision.”’

In the present case, this constraint is reinforced by the

circumstance that petitioner not only has had no appl.

late review, but no trial either. Moreover, the ques.

tions raised by his petition are ‘‘especially import-

ant.’’* And the Court below did err.

3 Although the Attorney General now suggests that the issues are

unimportant and do not warrant review by this Court, he took

quite another tack when petitioner sought a federal court injunc.

tion against commencement of this original proceeding in the Sn-

preme Court of Hawaii. In his brief in the U. S. Court of Ap.

peals for the Ninth Circuit, dated February 5, 1973, the Attorney

General contended that ‘‘even in the unlikely event that improper

standards are applied by the Hawaii Supreme Court, Appellant

could seek review by the Supreme Court of the United States by

petition for writ of certiorari. The appropriateness of this route

was discussed in Erdmann [v. Stevens, 458 F.2d 1205, 1211 (24

Cir. 1972)]:

‘Undoubtedly because of general recognition of the aé-

visability of permitting state courts first to act with respect

to the delicate relationship between themselves and their off-

cers, the traditional manner of obtaining adjudication of

federal constitutional questions arising out of such disciplinary

proceedings has been by way of the state appellate court route

to the Supreme Court rather than by direct federal interver-

tion at the initial stages.’ ’’

Answering Brief, p. 8, Corey v. Richardson, No. 72-3033 (9th Cir.

1978).

———

7

A writ of certiorari should be granted if the Due

Process and Confrontation Clauses are to have any

meaning in lawyers’ disciplinary proceedings.

Respectfully submitted,

GERALD D. STERN

1775 K Street, N.W., Suite 700

Washington, D.C. 20006

Attorney for Petitioner Corey

Of Counsel:

Smwney S. RospEITCHER

DanieEL P. LEvittT

Pau, WEIss, RIFKIND,

Wuarton & GARRISON

and

Heten B. Ryan

1136 Union Mall

Honolulu, Hawaii 96813

May 8, 1974