Opposition Brief — Schwenke v. Utah State Bar

Case Number 932089 13 W904 |

THE SUPREME COURT OF THE UNITED STATES.

October Term, 1993

A. Paul Schwenke,

Petitioner,

Vv.

Utah State Bar,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UTAH SUPREME COURT

Brief in Opposition

Wendell K. Smith

OFFICE OF ATTORNEY DISCIPLINE

Counsel of Record

645 South 200 East

Salt Lake City, Utah 84111

Telephone: (801) 531-9110

Facsimile: (801) 531-0660

BEST AVAILABLE COPY

Case Number 932089

THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

A. Paul Schwenke,

Petitioner,

Vv.

Utah State Bar,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UTAH SUPREME COURT

Brief in Opposition

Wendell K. Smith

OFFICE OF ATTORNEY DISCIPLINE

Counsel of Record

645 South 200 East

Salt Lake City, Utah 84111

Telephone: (801) 531-9110

Facsimile: (801) 531-0660

QUESTIONS PRESENTED FOR REVIEW

1. Should this Court examine, as a

reviewing court, the action of a State

Supreme Court in disbarring a member of

the Bar of that state for professional

misconduct?

2. Should this Court act as a court

of appeals to review evidence and factual

issues decided in state courts?

3. Was Petitioner afforded due

process in an attorney disciplinary action

when he was served with the Summons and

Complaint by certified mail to his law

office under the following circumstances:

(a). the Procedures of

Discipline of the Utah State Bar,

promulgated by the Utah Supreme

Court, provided for service by

certified mail;

(b). Petitioner’s whereabouts

were unknown to the Utah State Bar;

(c). prior arrangements had

been made with Petitioner’s associate

to forward to Petitioner all

correspondence sent to that office

from the Bar;

(d). Petitioner had asked this

same associate to watch for and

forward to him correspondence from

the Bar;

(e). the Summons and Complaint

were received at Petitioner’s law

office about six weeks before he left

the State; and

(f). Petitioner had “contacts”

with this office between the time the

Summons and Complaint were received

and the time he left the State?

4. Should Petitioner be granted a

Writ of Certiorari to consider an

ii

allegation of racial discrimination under

the following circumstances:

a. the allegation was not

raised by Petitioner at his

disciplinary hearing;

b. Petitioner raised it after

the hearing in a motion filed with

the Board of Bar Commissioners;

c. Petitioner withdrew the

allegation at a personal hearing

before the full Board of Bar

Commissioners; and

d. Petitioner did not raise

this issue on Appeal to the State

Supreme Court?

iii

TABLE OF AUTHORITIES

IT T

Banker’s Life & Casualty Co. v. Crenshaw,

486 U.S. V1, 76 (1966) wccccccccccesd

Reck vy. _Hashington, 369 U.S. 541

PRE vb dd ccvsecvenevesesdne wdecews 35

Clark v. Jeter, 486 U.S. 456, 459-460

PRED 40.00 00:0 éuvu eéuw ie 6UO ibeewe St

, 304 U.S. 175, 178

fi Pee iouenanse Pe a |

Konigsberg v. State Bar, 353 U.S. 252

tr pee ery 22

399 U.S. 306, 314 (1950)...........28

In re Ruffalo, 390 U.S. 544 (1986)...... 23

Ww

Mexico, 353 U.S. 232 (1957)........22

, 243 U.S. 46, 50

Papal heceese 8 Pele Ce ee 22

Theard v. United States, 354 U.S. 278

(1987). cccccee *enewenrneee @#eee#e#e#ee#ee#ee#e er

Ethics, 373 U.S. 96 (1963)......... 17

vi

Ciark ypseate of Washington, 366 F.2d 678

(9th Cir. B9GGE) occ. 7 > eeesccccoesce he

Gately v. Sutton, 310 F.2d 107 (10th Cir.

NTS oo UES R TE odo EeG beaveeus foun

UTAH SUPREME COURT DECISIONS

, 839 P.2d 822

4. Eo SA Rsppssep pending vaswil

, 740 P.2d 1269 (Utah

DNEEEU OE chance dsnvucdsedeos cclweck 27

, 865 P.2d 1350, (Utah

gpa sti eeprgreay Ep age 8

OTHER DECISIONS

, Third

Judicial District Court, In and For

Salt Lake County, Utah, Civil No. 88-

COSGR Eee P lo ctccccccsccse eeteoseuee 2

vii

JURISDICTION OF THIS COURT

This Court has taken the position

that it has no authority to re-examine or

reverse, as a reviewing court, the action

of a State Supreme Court disbarring a

member of the Bar of the courts of that

State for personal or professional

misconduct, Selling v. Radford, 243 U.S.

46, 50 (1917).

STATEMENT OF THE CASE

Petitioner was accused of violating

the Rules of Professional Conduct of the

Utah State Bar by misappropriating

approximately $100,000.00 from his client

which came into his possession in the

course of settling her personal injury

case.

The disciplinary Complaint filed by

the Utah State Bar against Petitioner

incorporated by reference a Stipulation

signed by him in the Third Judicial

1

District Court of Salt Lake County, Utah,

in the case of Serr v. Schwenke and Bruce

Udall, Civil No. 88-01441. In that civil

case, Petitioner confessed to a judgment

of fraud not dischargeable in bankruptcy,

in the amount of $100,000.00, less credits

for payments to the client. (R. 100-109)

When the Complaint was issued in the

Bar disciplinary action, Petitioner’s

whereabouts were not known to the Bar.

The Procedures of Discipline then in

effect provided for service of process in

attorney disciplinary actions by certified

mail to his last known address as shown on

the official roster of attorneys of the

Bar. (Petition at 20)

An investigation by the Office of Bar

Counsel determined that the most likely

way Petitioner would actually receive the

pleadings, would be to send them to the

office where he had recently practiced

2

law. Petitioner’s office associate would

not provide the Bar with Petitioner’s

forwarding address but agreed to forward

to him all documents sent to that address

by the Bar. (R. 171-178)

In reliance upon the representations

of Petitioner’s associate, the Summons and

Complaint were served upon Petitioner by

mailing them by certified mail on December

4, 1990, to his law office at 165 South

West Temple, Suite 300, Salt Lake City, UT

84111. (Petition Appendix Av-1-17) The

documents were received on December 5,

1990. (R. 109) Unknown to the Bar,

Petitioner was still in Salt Lake City and

had contacts with his office until he left

the State of Utah on or about January 15,

1991. (R. 124-126)

The Disciplinary Hearing Panel, the

Board of Bar Commissioners and the Utah

Supreme Court found that service by

3

certified mail to the last address where

Petitioner recently practiced law,

constituted valid service of process under

the Procedures of Discipline of the Utah

State Bar based upon the facts and

circumstances of this case. (R. 182-195)

(R. 142-143)

Default was subsequently entered and

on December 6, 1991, a Notice of Hearing

setting the Sanctions Hearing for March 2,

1992, was sent to Petitioner by certified

mail addressed to a residence in Las

Vegas, Nevada. This action was taken

based upon information and belief of the

Office of Bar Counsel that Petitioner was

residing at the Las Vegas address. (R.

079-080) A copy of the Notice of Hearing

was also mailed to Petitioner by certified

mail to a post office box in Murray, Utah,

his last known address as shown by the

official roster of attorneys of the Bar.

4

Petitioner testified at a Sanctions

Hearing on March 2, 1992, that he was in

Salt Lake City on or about February 6,

1992. He claims that on this date he

learned from his former law associate that

something was pending against him at the

Bar and a hearing was to be held sometime

in March, 1992. However, notice of the

Sanctions Hearing had not been sent to

Petitioner’s former associate.

(Transcript of Sanctions Hearing, TSH. 16-

19) (Petition Appendix Av-4-32 through Av-

4-38)

Petitioner did not contact the Bar,

but instead returned to Las Vegas and

collected his mail whereby he learned of

the pending disciplinary proceedings.

Petitioner subsequently appeared at the

Sanctions Hearing at the correct time and

on the correct date and at the correct

location. The date, time and location of

5

the hearing could only have been obtained

from the mail he collected in Las Vegas.

Petitioner never claimed to have received

the notice sent to his post office box in

Utah. (TSH. 16-19) (Petition Appendix Av-

4-32 through Av-4-38)

The Hearing Panel found he had been

properly served with the Summons and

Formal Complaint and that Default had bee:

properly entered. (TSH. 21-28) Neverthe-

less, at the Sanctions Hearing witnesses

were called and testified to the substanc

of the charges. The witnesses were cross

examined by Petitioner. Petitioner

testified under oath in his own defense.

Documents substantiating Petitioner’s

offenses were also admitted into evidence

including the Stipulation he signed in th

State District Court admitting to the

charges. (TSH. 42-135) (Bar Ex. 3; TSH.

38-39)

The Hearing Panel entered Findings of

Fact, Conclusions of Law, and

Recommendations wherein they found that

Petitioner had violated the Rules of

Professional Conduct as charged

misappropriating money belonging to his

client. The Panel recommended his

disbarment and restitution of $97,250.00.

(R. 182-195)

Petitioner filed objections to these

Findings with the Board of Bar

Commissioners wherein he alleged he had

not been properly served with the Summons

and Formal Complaint and that the decision

of the Panel was based on racial

prejudice. (R. 200-211)

Petitioner was granted a personal

hearing before the Board of Bar

Commissioners. During that hearing, he

dropped his allegation of racial

discrimination as verified by the

9

Affidavit of the President of the Utah

State Bar. (R. 124-126) This issue was

never presented to or decided by the Utah

Supreme Court. See Petitioner’s Brief

pages 4-6. (Petition Appendix Av-19-2 and

Av-24-1-5 through Av-24-1-10)

After a number of motions were filed

and resolved, the Board of Bar

Commissioners approved the Findings,

Conclusions and Recommendations of the

Hearing Panel on September 3, 1992. In

his appeal to the Utah Supreme Court

Petitioner raised the issue of service of

process and the Statute of Limitations.

The relief sought by Petitioner was denied

and he was disbarred. In re Schwenke, 865

P.2d 1350 (Utah 1993).

ARGUMENT SUMMARY

This Court has consistently declined

to examine, as a reviewing court, the

action of a State Supreme Court in

ae pe

disbarring a member of the Bar of that

State for professional misconduct or to

act as a court of appeals to review

evidence and factual issues decided in

state courts.

This Court has also consistently

declined to review claims that constitu-

tional rights have been violated when

those claims have not been raised and

passed upon by the State Supreme Court.

Petitioner was afforded due process

in an attorney disciplinary action when he

was served with the Summons and Complaint

by certified mail to his last known

address in accordance with the criteria

established by this Court.

ARGUMENT

Rule 15 of the Rules of the Supreme

Court of the United States affords a

Respondent the Opportunity to list

9

misstatements of fact in the Petition.

Petitioner has misstated facts too

numerous to discuss due to the limitations

on the length of this Brief. The Court is

directed to the Statement of the Case in

this Brief. Following are some of the

more material misstatements of fact in the

Petition for Writ of Certiorari.

1. In the Statement of the Case,

Page 5 of the Petition, Petitioner alleges

the Hearing Panel did not conduct a

hearing to establish the merits of the

Formal Complaint. The Hearing Panel in

fact held a hearing on the merits of the

Formal Complaint as verified by the

transcript of the hearing. (Petition

Appendix, Volume Two)

2. In the Statement of the Case,

Page 6 of the Petition, Petitioner alleges

he raised "the" disparate treatment issue

before the Hearing Panel on March 2, 1992.

10

During the hearing Petitioner argued he

was entitled to the same sanction as

another attorney in his office who shared

in some of the money taken from

Petitioner’s client. However, he did not

raise the issue of racial discrimination.

(TSH pp. 145-146) (Petition Appendix Av-4-

267 to 271) Petitioner did not raise the

issue of racial discrimination in his

appeal to the Utah Supreme Court.

(Appellant’s Brief Pages 4-6) (Petition

Appendix Av-24-1-5 to Av-24-1-10)

3. In the Statement of the Case,

Pages 9-10 of the Petition, Petitioner

alleges as part of his due process

argument that there were no facts in the

record to support the finding of the Utah

Supreme Court that he received notice of

the Sanctions Hearing from documents

mailed to him by the Bar to his Las Vegas

address. Petitioner falsely implies he

11

learned of the date and time of the March

2, 1992, Sanctions Hearing from his former

associate, Jamis Johnson. Petitioner then

cites a portion of the transcript of the

Sanctions Hearing. However, he omits

those portions that refute his allegation

and which support the findings of the Utah

Supreme Court that this information came

from the notice mailed to him by the Bar

at an address in Las Vegas.

Petitioner testified at the Sanctions

Hearing that on February 6, 1992, Mr.

Johnson told him “there was something

pending” against him at the Bar "sometime

in March." (Petition Appendix Av-4-35-

36). Subsequently, Petitioner returned to

Las Vegas where he "collected a lot of the

mails" sent to the Las Vegas address.

(Petition Appendix Av-4-37) Since he had

not learned the date, time and location of

the hearing from Mr. Johnson, and since

12

Petitioner, in fact, appeared at the

hearing on the proper date and at the

correct time, he could only have obtained

this information from the notice mailed to

Las Vegas. Petitioner never mentioned

collecting his mail from his Utah mail

box. The record of trial shows that

notice of the Sanctions Hearing was never

sent to Petitioner’s former associate.

(TSH. 17-19)

4. On Pages 25 through 42 of the

Petition, Petitioner makes allegations of

criminal fraud on the part of the Office

of Bar Counsel including allegations of

tampering with the court record and

submitting false affidavits. Bar Counsel

denies Petitioner’s false and defamatory

allegations.

The Affidavit of Bar Counsel, Stephen

A. Trost, referenced in the Petition is

true and accurate. It was referenced in

13

Appellee’s Brief filed with the Utah

Supreme Court, attached thereto as

Appendix C, and served on Petitioner on or

about July 22, 1993. Petitioner did not

challenge this Affidavit in his appeal to

the Utah Supreme Court. If it was

inadvertently omitted from prior

documents, in which it was also

referenced, Petitioner did not bring this

to the attention of the Office of Bar

Counsel, or raise the issue on appeal.

If there are any irregularities in

the court record, the Bar Counsel asserts

that they occurred in the handling of the

record by the court clerk or at the hands

of Petitioner who had exclusive control of

the record in preparing his appeal.

5. On Pages 58-59 of his Petition,

Petitioner claims there was nothing in the

Appellate record to support the finding of

the Utah Supreme Court that he had

14

withdrawn his allegations of racial

discrimination. The President of the Utah

State Bar, who was present and presided at

the hearing before the Board of Bar

Commissioners, signed an Affidavit

verifying that Petitioner appeared and

withdrew his allegations of racial

discrimination. This Affidavit is part of

the record of the proceedings before the

Board of Bar Commissioners and was

properly considered by the Utah Supreme

Court. (R. 124-126)

Petitioner did not challenge the

Affidavit of the President of the Utah

State Bar in his appeal. (Appellate Brief

4-6) (Petition Appendix Av-24-1-5 to Av-

24-1-10)

6. On Pages 44-47 of his Petition,

Petitioner alleges that the Order

Affirming Findings of Fact Conclusions of

Law and Recommendation of Discipline dated

15

September 3, 1992, applied only to the

Default entered against him on July 31,

1992, and that the Default entered in

March, 1991, was not properly before the

Utah Supreme Court. This is not correct.

The Order of September 3, 1992,

incorporates, adopts and affirms the

Findings, Conclusions and Recommendations

of the Hearing Panel entered March 2,

1992, and reduced to writing on April 20,

1992. The Hearing Panel found Petitioner

had been properly served with the Summons

and Complaint on or about December 5,

1990, and Default properly entered in

March, 1991. (Av-5-1 to Av-5-22) (R.142-

143) (Appendix Y, Respondent’s Brief)

Petitioner’s Miss ements 0 aw

1. On Page 16 of the Petition,

Petitioner cites the cases of Gately v.

Sutton, 310 F.2d 107 (10th Cir. 1962) and

Clark v. State of Washington, 366 F.2d 678

16

(9th Cir. 1966) as authority for the

proposition that a Writ of Certiorari to

the United States Supreme Court is

available to an attorney seeking review of

a disbarment from state courts. This is

incorrect. Both of these cases state that

federal courts do not have jurisdiction to

review state disciplinary actions. These

decisions stand only for the proposition

that an attorney disbarred or suspended

from the practice of law in state courts

may ask this Court that he or she not be

disbarred from federal courts within the

state.

2. On Page 17 of the Petition,

Petitioner cites the cases of Schware v.

Board of Examiners, 353 U.S. 232 (1957)

and Wilner v. Committee on Character and

Ethics, 373 U.S. 96 (1963), for the

proposition he has the right to have this

Court review this attorney discipline case

17

on Fourteenth Amendment grounds. These

are cases of attorneys seeking admission

to practice law, they do not pertain to

attorney discipline. This court has

consistently refused to review state

attorney discipline cases on the grounds

alleged by Petitioner.

2. On Pages 20-25 of the Petition,

Petitioner erroneously alleges that Rule

XI({b) of the Procedures of Discipline of

the Utah State Bar requires personal

service of the Summons and Complaint. The

Rule plainly states that service may be

made personally or by registered or

certified mail. (Petition at 20)

In a prior disciplinary proceeding

involving this Petitioner, the Utah

Supreme Court said that actual notice, not

personal service, of pending disciplinary

proceedings is essential in proceedings

involving suspension or disbarment.

18

(Petition at 21) The Utah Supreme Court

in the instant case found that Petitioner

did have actual notice based upon the

facts of the case. Petitioner is asking

this Court to overrule this finding of

fact, a request that does not fall within

the function of this Court.

2. On Pages 22-23 of the Petition,

Petitioner incorrectly alleges that Rule

4(g) of the Utah Rules of Civil Procedure

applied to the service of the Summons and

Complaint in this attorney disciplinary

proceeding. Rule XI(b) of the Procedures

of Discipline, not the Rules of Civil

Procedure, governed service of process in

attorney discipline matters. (Petition at

20)

3. On Pages 40-41 of the Petition,

Petitioner construes the decision of the

Utah Supreme Court as holding that service

of the Summons and Complaint upon him by

19

certified mail to the last address where

he practiced law was somehow service upon

his "agent." This was never an issue in

his case and the Utah Supreme Court never

found that service was obtained through an

agent.

REASONS FOR DENYING THE PETITION

I

It is not the function of this Court

to review evidence and factual issues

decided in state courts.

Throughout his Petition, Petitioner

takes issue with the Findings Fact of the

Hearing Panel and the Board of Bar

Commissioners regarding the service of the

Summons and Complaint and various

documents associated with this disciplin-

ary action. He also takes issue with the

Utah Supreme Court for adopting those

Findings of Fact.

20

Additionally, he argues for the first

time facts that were not advanced before

the Hearing Panel, Board of Bar

Commissioners, or the Utah Supreme Court.

For example, on Pages 34-36 the Petition

he refers to alleged facts surrounding his

departure from the State of Utah and an

alleged Affidavit of Mr. Johnson, that

were never presented to the Hearing Panel,

the Board of Bar Commissioners or the Utah

Supreme Court.

In the case of General Talking

Pictures Corp. v. Western Electric Co.,

304 U.S. 175, 178 (1938), this Court held

that a Writ of Certiorari would not be

granted merely to review evidence or the

inferences that can be drawn therefrom.

II

It is not the function of this Court

to examine, the action of a State Supreme

21

Court in disbarring a member of the Bar of

that state for professional misconduct.

While the Court has granted review of

attorney admission cases, where

constitutional issues were raised, it has

consistently deferred matters of attorney

discipline to State courts. Konigsberg v.

State Bar, 353 U.S. 252 (1957); Schware v.

Board of Bar Examiners of New Mexico, 353

U.S. 232 (1957).

This court held in the case of

Selling v. Radford, 243 U.S. 46, 50 (1917)

that it had no authority to re-examine or

reverse, as a reviewing court, the action

of the Supreme Court of Michigan in

disbarring a member of the Bar of the

courts of that State for personal or

professional misconduct.

In the case of Theard v.

States, 354 U.S. 278 (1957), this Court

considered an attorney disbarment case

22

wherein the State of Louisiana had

disbarred an attorney in 1954 for a

forgery in 1935 at a time when he was in a

state of mental irresponsibility so

pronounced that for several years he was

in an insane asylum. Thereafter, the

lawyer practiced six years preceding the

disbarment action with no charges of

misconduct. This Court declined to disbar

Mr. Theard from practicing before federal

courts but did not disturb the State of

Louisiana disbarment in accordance with

the holding in the case of Selling v.

Radford, supra.

In the case of In re Ruffalo, 390

U.S. 544 (1986), an attorney was disbarred

by the State of Ohio. This Court found

that the attorney was not put on notice

that his conduct was a disbarment offense

which deprived him of procedural due

process. Accordingly, the Court permitted

23

him to continue to practice before the

federal courts but denied his Petition for

Writ of Certiorari to consider the merits

of his State disbarment.

iit

Petitioner was afforded due process

in the service of the Summons and

Complaint.

Petitioner fled the State of Utah,

secreted himself from the Utah State Bar,

and now cries foul when he was not

personally served with the Summons and

Complaint in this disciplinary action.

Petitioner cites Rule 4 of the Utah

Rules of Civil Procedure in support of his

allegation that he was not properly served

with the Summons and Complaint.

Petitioner is fully aware that this Rule

did not then apply to attorney

disciplinary proceedings. The Utah

Supreme Court promulgated the Procedures

24

7 |

of Discipline of the Utah State Bar which

set forth the procedure to be followed in

attorney discipline matters. (Petition at

20) Petitioner’s disciplinary action was

governed by those procedures.

Rule XI(b) of the Procedures of

Discipline of the Utah State Bar, then in

effect, provided that service could be

made personally upon a respondent, or by

registered or certified mail, to the last

known address as shown by the official

roster of attorneys of the Bar.

It is undisputed that Petitioner was

not personally served because his

whereabouts were unknown to the Bar. As

set forth above in the Statement of the

Case, Petitioner had been practicing law

in Salt Lake City, Utah. The Office of

Bar Counsel was acting upon information

and belief that Petitioner had stopped

practicing law and had left the State

25

without providing the Bar with his current

address.

In reliance upon that information,

the Office of Bar Counsel conducted an

investigation to determine how Petitioner

might be served with the Summons and

Complaint in the pending disciplinary

action. It was determined that it was

unlikely Petitioner would receive the

pleadings if they were mailed to his local

post office box address. Accordingly, Bar

Counsel met with Petitioner’s former

associate at the location where Petitioner

had been practicing law to determine

whether Petitioner would receive the

pleadings if mailed to that location. Bar

Counsel was informed by Petitioner’s

associate that he would forward to

Petitioner all correspondence addressed to

Petitioner that was received at the law

office. (R. 171-178)

26

a o

Accordingly, a copy of the Summons

and Complaint were sent by certified mail

to Petitioner’s law office on December 4,

1990. The pleadings were received at that

office on December 5, 1990. (R. 100-109)

(R.002-011)

Unknown to the Bar, Petitioner had

not yet departed the State. He remained

in Utah until on or about mid-January,

1991, during which time he had "contacts"

with the office to which the pleadings

were mailed. (R. 124-126)

The Utah Supreme Court found

Petitioner was properly served with the

Summons and Complaint. This decision is

consistent with other decisions of the

Utah Supreme Court regarding service by

mail, Carlson v. Bos, 740 P.2d 1269 (Utah

1987); Anderson, dba Image Limousine v.

Public Service Commission of Utah, 839

P.2d 822 (Utah 1992).

27

This Court held in Mullane, v.

Central Hanover Bank & Trust Co., 399 U.S.

306, 314 (1950), that due process is

satisfied without personal service

provided notice is reasonably calculated,

under all the circumstances, to apprise

interested parties of the pendency of the

action.

In deciding this issue, the Court

noted that the interest of the State must

be balanced against the individual

interest protected by the Fourteenth

Amendment. The Court declined to specify

any formula to achieve the balance between

these interests but noted that the

constitutional requirements are satisfied

if the notice is reasonably calculated to

apprise the interested parties of the

action with due regard for the

practicalities and peculiarities of the

case.

28

The action taken by the Utah State

Bar in contacting Petitioner’s associate,

and making arrangements to have documents

mailed to that office forwarded to

Petitioner, was reasonable in light of the

fact that the Bar did not know the

whereabouts of Petitioner and could not

have effected personal service of process.

This action by the Bar was calculated

to notify Petitioner of the initiation of

Bar disciplinary proceedings. The means

employed by the Bar verify that the Bar

was desirous of actually informing

Petitioner of the initiation of the action

and were reasonably adopted for this

purpose.

The fact that the Bar did not merely

send a copy of the pleadings by certified

mail to Petitioner’s post office box, but

instead, made arrangements to have the

Summons and Complaint forwarded to

29

Petitioner, constituted action that was

reasonably certain under the circum-

stances, to inform Petitioner of the

filing of the Complaint.

These facts satisfy the criteria of

Mullane v. Central Hanover Bank & Trust

Co., supra, and constitute valid service

of process even if Petitioner had not, in

fact, received the pleadings. However,

the facts show that the Summons and

Complaint were received at Petitioner’s

law office on December 5, 1990, and that

he had “contacts” with the office until

about mid-January, 1991. This, together

with the fact that Petitioner’s associate

had been asked by the Bar and by

Petitioner to be on the lookout for

correspondence from the Bar addressed to

Petitioner, establishes by clear and

convincing evidence that Petitioner had

30

actual notice of the disciplinary

Proceedings. (TSH. 5-6)

IV

Petitioner did not raise the issue of

racial discrimination in his Appeal to the

Utah Supreme Court.

Likewise, the following issues were

either not raised on appeal or not

considered and passed on by the Utah

Supreme Court:

a. the issue regarding the

applicability of Rule 4(g) of the Utah

Rules of Civil Procedure to this attorney

disciplinary case; (Petition at 23)

b. allegations of misconduct by the

Utah State Bar; (Petition 25-40)

Cc. allegations regarding the

Affidavit of Bar Counsel Stephen A. Trost;

(Petition 25-40)

31

d. the content of the alleged

Affidavit of Jamis Johnson; (Petition 25-

40)

e. whether Mr. Johnson was

Petitioner’s agent for service of process;

(Petition 40-41)

f. whether the Notice of the

Sanctions Hearing was constitutionally

defective due to its content; (Petition at

43)

g. whether subsequent personal

service of the Summons and Complaint on

Respondent on July 7, 1992, was improper;

(Petition 48-50)

h. whether his right to due process

was violated when no record was made of

the meeting of the Board of Bar

Commissioners even though Petitioner did

not request that the meeting be recorded;

(Petition 51-52)

32

i

Sn ne ee ee

i. the allegation that Rule 4-504 of

the Utah Code of Judicial Administration

was not followed; (Petition 53-56) and

j- allegations of record tampering.

(Petition 56-58)

This court will not consider issues

not passed on by state courts.

Petitioner first raised the issue of

racial discrimination in his Motion for

Reconsideration filed with the Board of

Bar Commissioners. This was after the

Hearing Panel of the Ethics and Discipline

Committee had found his misconduct

warranted disbarment.

Petitioner was granted a personal

hearing before the Board of Bar

Commissioners at their monthly meeting

during which he withdrew his allegation of

racial discrimination. This is verified

by the President of the Board, who is also

33

the President of the Bar, in his

Affidavit. (R.124-126)

Ultimately, the Board of Bar

Commissioners approved the Findings,

Conclusions and the Recommendation of the

Hearing Panel that Petitioner be

disbarred. (R. 142-143)

In his Appeal to the Utah Supreme

Court, Petitioner presented four issues,

none of which were allegations of racial

discrimination. This is evidenced by the

Appeal Brief filed by Petitioner.

In Banker’s Life & Casualty Co. v.

Crenshaw, 486 U.S. 71, 76 (1988), this

Court would not consider, by way of a Writ

of Certiorari, an appellant’s claims that

his due process rights had been violated

34

when those claims had not been raised and

Passed upon by the state court.

In Clark v. Jeter, 486 U.S. 456, 459-

460 (1988), this Court refused to

consider, by way of a Writ of Certiorari,

a petitioner’s contention that a state

Statute was invalid since the question was

not adequately presented to the state

court. This Court said, "It is the

practice, when reviewing decisions by

State courts, not to decide federal claims

that were not pressed or passed upon

below." 486 U.S. at 459.

These decisions followed a long line

Of similar decisions such as Beck v.

Washington, 369 U.S. 541 (1962), where the

Court refused to consider Petitioner’s

contention that he was denied equal

protection of the law in a criminal case.

The Court would not consider the issue

35

because it was not raised and passed upon

by the State Court.

The Court found in Beck that the

constitutional issue raised by the

Petitioner was not properly before the

Court because it was not argued in

Petitioner’s Brief to the State Supreme

Court. While the Petitioner, in that

case, had mentioned the issue in one

sentence of his Brief, his failure to

argue it to the State Supreme Court

constituted a waiver or abandonment of the

issue. Consequently, this Court held that

the issue having not been raised with the

State Supreme Court could not be enter-

tained by the United States Supreme Court.

On Page 554 of the Beck opinion, the

Court noted that time and time again the

Court had stated that the 14th Amendment

does not assure uniformity of decisions or

immunity from judicial error. Otherwise,

36

every alleged misapplication of state law

would constitute a federal constitutional

question.

v

( None of the grounds advanced by

Petitioner satisfy the requirements of

Rule 10 of the Rules of the Supreme Court

for granting a Writ of Certiorari.

CONCLUSION

For the above-stated reasons,

Respondent respectfully requests that this

Court deny the Petition for Writ of

Certiorari.

DATED this /?7 day of July, 1994.

OFFICE OF DISCIPLINARY COUNSEL

OF THE UTAH STATE BAR

By:

ndell K. Smith

’ Assistant Disciplinary

Counsel

3135

37