Petition for Writ of Certiorari — Leaf v. Supreme Court

_—

9 4 ” ] 6 5 4 io "7 T LE wa

ne

in tHE 36d’ APR 8 1993

SUPREME COURT OF THE UNIT: BGR PESHE ©:

OCTOBER TERM 1992

LINDA A. LEAF,

Petitioner,

vs.

SUPREME COURT OF THE STATE OF

WISCONSIN, BOARD OF ATTORNEYS

PROFESSIONAL RESPONSIBILITY,

GERALD STERNBERG, ROY KORTE,

CHARLES STIERMAN, BRIAN HENDERSON,

LYNNE LEVIHN, and UNKNOWN

INSURANCE COMPANIES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Charles L. Ollivier

Attorney for Petitioner

321 North Utica Street

Waukegan, IL 60085-4207

(708) 244-4280

l.

QUESTIONS PRESENTED FOR REVIEW

Can the state demand secret exam-

ination of confidential client

files, even under the auspices of

an attorney disciplinary investi-

gation?

Under Feldman, can an attorney

bring general constitutional

challenges to state bar disci-

plinary rules and regulations in

federal district court?

Can a state court adjudge a fed-

eral plaintiff’s constitutional

issues irrelevant, and determine

them to be meritless without

hearing, and then turn right

around and use preclusion as

a tool to block federal civil

rights litigation on those is-

sues?

PARTIES TO THE PROCEEDING BELOW

In addition to the captioned par-

ties, the parties included Andrew B.

Haynes as plaintiff in the District

Court.

TABLE OF CONTENTS

PAGE

Questions Presented i

Parties To The Proceeding Below 5 |

Table Of Contents . ii

Table Of Cases liv

Opinions Below V

Grounds For Jurisdiction Vv

Constitutional Provisions and Vv

Statutes Involved

Jurisdictional Statement vi

Statement Of The Case 1

Reasons For Granting The Writ

The Decision Below Is Incorrect 9

Public Policy Requires That 29

Certiorari Be Granted

Conclusion 47

ii

TABLE OF CASES

PAGE

Cases Cited:

Democratic Cent. Com. v . Wash. 27

Met. Area Tr. Comn.,

842 F.2d 402 (D.C. Cir 1988)

Edmonson v. Leesville Concrete 24

Co. Inc., 111 SCt 2077 (1991)

England v. La. State Bd. of 22

Med. Exam., 375 U.S. 411,

84 S.Ct. 461 (1964)

D.C. Court of Appeals v. Feldman, 4i,

et al., 460 U.S. 462, 103 S.ct. 24,

1303 (1983) 31

Gray v. Lacke, 27

885 F.2d 399 (7th Cir 1989)

Ivy Club v. Edwards, 19

885 F.2d 399 (3rd Cir 1991)

Ktsanes v. Underwood, 12

560 F.2d 590 (7th cir 1977)

Levine v. Supreme Court of Wis., 48

679 F Supp 1478 (WD Wis 1988)

McCarthy v. Madigan, 48

—US__, 112 S.Ct. 1081 (1992)

Middlesex County Ethics 46

Committee v. Garden State

Bar Association, 457 U.S.

423, 102 S.ct. 2515 (1982)

S43

Painewebber, Inc. v. Farnam, 27

870 F.2d 1286 (7th Cir 1989)

Rogen v. Supreme Court of VA., 48

990 F.Supp. 102 (ED VA 1989)

U.S. v. Napper, 28

887 Fed. 1528 (llth Cir. 1989)

Younger v. Harris, Secee

401 U.S. 37, 91 S.ct. 746 (1971) 39

OPINIONS BELOW

The United States District Court for

the Eastern District of Wisconsin filed

its Decision and Order dismissing for

lack of subject matter jurisdiction on

October 31, 199] (A-I). On November 14,

1991, Petitioners filed their Motion For

Reconsideration; on November 15, 1991,

the court denied that motion (A-4).

iv

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed

was entered by the United States Court of

Appeals for the Seventh Circuit on Novem-

ber 12, 1992, and is reported at 979 F2d

998 (7th Cir 1992). Petitioners’ timely

Petition for Rehearing with Suggestion

for Rehearing In Banc were denied January

8, 1993; the Petition For Writ Of Certio-

rari was filed within ninety days of that

date.

This Court’s jurisdiction is invoked

under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

None. All issues involve judicially

created exceptions to federal court ju-

risdiction.

JURISDICTIONAL STATEMENT

Jurisdiction of the District Court

is under 28 U.S.C. sections 1331, 1343,

2201, and 2202; 42 U.S.c. sections 1981,

1983, 1985, 1986, and 1988; and the Con-

stitution of the United States, more

particularly Article Four and the First,

Third, Fourth, Fifth, Ninth, Tenth, Thir-

teenth, and Fourteenth Amendments there-

SO.

vi

STATEMENT OF THE CASE

Petitioner, Linda A. Leaf (a white

female and lawyer), and Andrew B. Haynes

(a black male and Ph.D. consultant), the

plaintiffs below, have been business

associates and personal friends for eigh-

teen years. Leaf was admitted to the

Wisconsin and federal bar in 1975 and has

always been a sole practitioner. Over the

years Leaf openly and consistently adver-

tised for the need for legal reform, and

offered legal, social and business pro-

grams to pursue that goal. The programs

were entitled Law Related Services.

In 1986 four grievances against Leaf

were filed with the Wisconsin Board of

Attorneys Professional Responsibility

(hereafter: BAPR) which included many

allegations of improper acts by Haynes.

Leaf and Haynes responded to all of

BAPR’s questions. The case sat dormant

until 1989 when Leaf received a BAPR

letter demanding that she produce nine

years of client records of clients other

than the four complaining witnesses; nine

years of business records: nine years of

personal tax returns; nine years of busi-

ness tax returns; and nine years of

Haynes’ records (to be produced by Leaf;

A-75). An attorney, defendant Stierman,

the chairperson of the local BAPR inves-

tigating committee, had appointed himself

as the investigator on Leaf’s case and

directed the issuance of this demand

which was signed by other BAPR personnel.

A few years earlier this Same attorney

had been Opposing counsel on a major case

of Leaf’s which was concluded successful-

ly on behalf of Leaf’s client (A-92).

Some of the alleged misconduct violations

against Leaf pertained to activity in

that case.

Although the disciplinary rules

grant an accused attorney an absolute

right to request that a different inves-

tigator be appointed once an attorney is

given notice as to who is the investiga-

tor, and the rules require that notice

must be given, Leaf was never informed

that Stierman appointed himself the in-

vestigator (A-92).

Leaf and Haynes filed suit in feder-

al district court on March 14, 1989. In

Count I of the complaint Leaf challenged

the constitutionality of Wisconsin SCR

21.14 and 22.24 (gag rule) which make it

a misconduct violation for an attorney to

make public, including informing her

clients, about any BAPR activity prior to

the filing of a formal disciplinary com-

plaint.

The factual allegations of the Count

I gag rule count related to a grievance

made by an Opposing counsel in a 1988

estate case. By letter to the Wisconsin

Supreme Court Leaf sought permission to

communicate with her clients regarding

the actions of the Opposing counsel. She

was denied permission (A-35, 37, 69). No

disciplinary charges were filed against

Leaf regarding this estate case grievance

and the investigation was closed at the

time Leaf filed her federal suit. Due to

this gag rule the affected clients stil]

do not know of the secret state inquiry

into their case. In Count I Leaf sought a

declaratory judgment that the gag rule

was unconstitutional.

In Count II Leaf and Haynes sought

damages and an injunction for violations

of their civil] rights, based on racial

and sex discrimination, by the arbitrary

and capricious interference with Leaf’s

law practice and Haynes’ business activi-

ties, inter alia. Count III was between

Leaf and Haynes and all of the defen-

dants, adding Henderson and Levihn, both

lawyers, for a racially motivated con-

Spiracy to violate Leaf’s and Haynes ’

Civil rights. Henderson and Levihn were

alleged to have filed a spurious multi-

million dollar state lawsuit against Leaf

and Haynes for the sole purpose of embar-

rassing and humiliating them (A-51). The

Suit contained scandalous allegations of

sexual assault and false imprisonment

against Leaf and Haynes. It was dismissed

for lack of prosecution before this fed-

eral suit was filed; no summons had been

served (A-90).

The district court on April 28,

1989, abstained the entire lawsuit under

Younger. However, the court did recognize

that not all of Leaf’s and Haynes’ claims

were cognizable in the state proceeding

(A-II). In response to the court’s inqui-

ry, the state, representing all defen-

dants except Henderson and Levihn prom-

ised the court that Leaf would be able to

raise her constitutional Claims in the

course of the BAPR proceedings.

Formal disciplinary charges were

issued against Leaf by BAPR in October,

1989. During the discovery and trial

process whenever Leaf attempted to raise

her constitutional claims against the

disciplinary rules and process and her

Civil rights-claims against BAPR offi-

Clals she was told that those issues were

irrelevant. She was never allowed to

discover or present evidence on those

claims.

The Wisconsin Supreme Court adopted

all of the referee’s findings of fact and

recommendations, and Suspended Leaf for

Six months from the practice of law. The

Wisconsin court affirmed, without expla-

nation, that Leaf’s constitutional claims

had no merit and are unsubstantiated. The

findings included that Leaf was guilty of

non-cooperation with a BAPR investiga-

tion, a misconduct violation, because

she refused to provide the records de-

manded in the 1989 letter.

Leaf and Haynes then returned to

federal district court in November, 1991.

A proposed Amended Complaint (A-55) in-

cluded all of the original claims and

added new ones. The new claims were: 1. a

constitutional challenge seeking declara-

tory and injunctive relief to the disci-

plinary rules under which the 1989 letter

demand was issued as being an unreason-

able search and seizure (as to Leaf’s

clients, business associates, and her-

self) and a violation of both the attor-

ney/client privilege and the right of

Leaf’s clients against self-incrimina-

tion; 2. a constitutional challenge seek-

ing declaratory and injunctive relief to

the stated Wisconsin policy that the

attorney disciplinary rules and proce-

dures are not bound by federal constitu-

tional rights except for the attorney’s

right against self-incrimination: 3. a

constitutional challenge seeking declara-

tory and injunctive relief to the BAPR

nebulous “pattern of practice" policy; 4.

a claim seeking declaratory and injunc-

tive relief and damages for the violation

of the constitutional and Civil rights of

Leaf and Haynes prior to and concurrent

with Leaf’s disciplinary hearing; 5. a

claim seeking declaratory and injunctive

relief and damages for a racially moti-

vated conspiracy to violate the constitu-

tional and civil rights of Leaf and

Haynes; and, 6. a claim for damages for

8

failure to prevent the constitutional

violations and the conspiracy to commit

said violations.

On October 31, 1991, without motion

or hearing the district court dismissed

the entire lawsuit reasoning that all of

the claims were inextricably intertwined

with the Wisconsin court’s decision (A-

1). Leaf and Haynes appealed to the Sev-

enth Circuit, which affirmed the dismiss-

al of all of Leaf’s claims but reversed

the dismissal of Haynes’ claims (A-7).

Leaf and Haynes petitioned the Sev-

enth Circuit for rehearing with sugges-

tion for rehearing in banc. The Seventh

Circuit denied the petition (A-29).

REASONS FOR GRANTING THE WRIT

The Decision Below Is Incorrect

As a result of groundless presump-

9

tions, the courts below improperly com-

mingled Leaf’s civil rights and constitu-

tional claims into a unidentified group-

ing. The factual allegations for the

Count I gag rule claim involved a disci-

plinary investigation of Leaf in which no

charges, and hence no disciplinary trial,

were ever brought. It was a closed inci-

dent at the time of the initial filing of

the federal lawsuit.

Leaf’s Henderson and Levihn claim

pertains to Henderson’s filing of a state

lawsuit against Leaf which was ultimately

dismissed for lack of prosecution.

Since, since Henderson and Levihn,

like Haynes, were not parties in the

state disciplinary trial against Leaf,

they were not involved in the state ac-

tion and the claims involving them could

not be raised. The panel below erred in

Claiming that the gag rule count and the

10

Henderson and Levinn count were inextri-

cably intertwined.

The district court correctly ini-

tially found issues in plaintiffs’ origi-

nal suit that were not cognizable in the

state disciplinary action. But when Leaf

returned to the district court, it re-

fused - without explanation - to address

those issues in denying federal jurisdic-

tion to plaintiffs. The district court

held no hearing or inquiry to determine

which federal claims and constitutional

issues were determined by the state court

or could have been raised in the state

action. Indeed, despite their burden of

proof, the federal defendants brought no

motion and presented no evidence. The

district court just presumed plaintiffs

out of court. The fundamental unfairness

of this decision is highlighted by its

application to plaintiff Haynes.

ll

In the gag rule count, Count I, Leaf

was barred by BAPR and the Wisconsin

Supreme Court from advising her clients

in a then pending estate case of a disci-

plinary complaint made Dy the opposing

counsel in the case. Her Clients are

Still unaware of the secret state conduct

affecting their rights and interests

because Leaf is still under the gag rule.

Leaf sought permission from the

Wisconsin Supreme Court, via letter, to

inform her clients of the actions of

Opposing counsel in the making of a com-

plaint against her in their case. The

Wisconsin court refused. Leaf’s gag rule

count challenges the constitutionality of

this disciplinary rule. The facts are

almost identical to the facts in Ktsanes

v- Underwood, 560 F.2d 790 (7ta Cir

1977), just substitute bar "disciplinary"

rule for bar "admission" rule, where the

12

federal plaintiff had sought waiver of a

bar admission rule; the Seventh Circuit

ruled the constitutional challenge could

be brought in federal court.

Although the state in its brief

filed in the court below falsely argued

that Leaf’s gag rule challenge was raised

in her disciplinary proceedings, Leaf’s

motion for sanctions clearly spells out

the procedural and historical distinction

between Leaf’s gag rule count from Leaf’s

other counts (A-132). The state never

filed a response to the sanctions motion.

The panel’s decision summarily denied

Leaf’s sanctions motion without any find-

ings or explanation.

Abstention does not accomplish what

it is designed to (a state ruling may

clarify or resolve the constitutional

issues) if the federal plaintiff cannot

even raise federal constitutional chal-

13

lenges in the state proceeding. It merely

delays the inevitable federal action

following the state proceeding and post-

pones the possible vindication of the

federal plaintiff’s constitutional

rights.

The decision below was incorrect in

its factual finding by presuming that

Leaf’s claims were decided by the Wiscon-

Sin court. As demonstrated by the record,

Leaf’s constitutional claims were deemed

irrelevant and she was prevented from

discovering and presenting evidence on

them.

Initially, in order to trigger ab-

stention, the state promised the district

court that Leaf could raise her constitu-

tional claims in any state disciplinary

proceedings. However, when Leaf tried to

raise those Claims, she was rebuffed, as

demonstrated by the record (from tran-

14

p 14, ln 17:

Mr. Roethe: "The only objection that

is valid to your duty to cooperate is

that this information might tend to in-

criminate me under the fifth amendment."

p 16, ln 14:

Mr. Roethe: "..+Haberman specifi-

cally found there is no constitutional

right not to testify or to produce re-

cords."

p 27, In 1:

Referee Regez: "Well, we’re not

going into constitutional questions."

Transcript of May 11, 1990, hearing,

p 3, ln 10:

Mr. Roethe: "...Number two, the

Board of Attorneys Professional Responsi-

bility is not on trial here. Bad faith,

BAPR’s policies and procedures; and

BAPR’s investigation is not the issue

here...

---Andrew Haynes is not a party to

these proceedings. His interests are not

involved..."

Transcript of July 18, 1990, hear-

ing, p 52, ln 17:

Referee Regez: "...In other words,

I’m not going to permit this hearing to

develop and degenerate into putting the

Board on trial...

This form (sic) is not for the pur-

pose of trying the Board of Attorneys

Professional Responsibility.”

Leaf’s Interrogatories to BAPR:

Question #30: "Please state al]

procedural safeguards to insure document

requests by Board district investiga-

tions:

15

develop and degenerate into putting the

Board on trial...

This form (sic) is not for the pur-

pose of trying the Board of Attorneys

Professional Responsibility."

Leaf’s Interrogatories to BAPR:

Question #30: "Please state all

procedural safeguards to insure document

requests by Board district investiga-

tions:

a. are for relevant documents only.

b. do not violate the constitutional

rights of respondent attorneys and their

clients; and

Cc. are not otherwise abusive or

ultra vires."

BAPR answer: "Objected to on the

grounds that the information sought in

the question is not relevant nor likely

to lead to relevant information."

(BAPR objected to nineteen of Leaf’s

interrogatory questions regarding BAPR’s

conduct in the same fashion. All objec-

tions were sustained by Referee Regez.)

Trial Denial

Trial transcript, vol 3a, p 453, ln

233

Mr. Roethe: "The Board’s investiga-

tion and the Board’s reports have all

been ruled irrelevant and immaterial in

this proceeding by Your Honor in discov-

ery proceedings, and they are immaterial.

We’re not going to put the Board on trial

here, Your Honor, and that’s your own

words and that’s the law.”

Referee Regez: "That’s CAGE oes"

Trial transcript, vol 3a, p 455, ln

16

17:

Referee Regez: "I think that’s imma-

terial...Because I have ruled that the

Board was not going to be put on trial in

this case..."

Trial transcript, vol 3a, p 469, ln

33

Ms. Leaf: "The offer of proof is,

Your Honor, that the Board has in its

possession stolen documents..."

ln 19:

Referee Regez: "Sustained. I don’t

think it’s material."

Trial transcript, vol 3a, p 511, ln

233

Mr. Roethe: "Same objection. What

the Board’s policies is are is irrelevant

and immaterial."

Referee Regez: "Sustained."

Trial transcript, vol 3a, o S32, in

13:

Ms. Leaf: "Does the Board have a

procedure to identify potential conflicts

of interest between an investigator and a

respondent attorney?"

Mr. Roethe: "Objected to, irrelevant

and immaterial."

Referee Regez: "Sustained."

Trial transcript, vol 4, p 855, ln

6:

(When questioning Diane DeMerchant)

Mr. Ollivier: "...to attack the credibil-

ity of this witness to show that these

were not her ideas and words, but rather

these were manipulated and made by Paul

Dallas."

Mr. Roethe: "It’s all objected to as

17

irrelevant and immaterial."

Referee Regez: "Sustained."

is Trial transcript, vol 4, p 856, ln

~F

Mr. Roethe: "That’s ridiculous, and

it’s irrelevant and immaterial what the

Board new (sic) or believed."

Referee Regez: "Sustained."

Trial transcript, vol 6, p 199, ln

6:

Mr. Roethe: "I’m going to object to

constitutional issues. They do not create

a defense under the rules of professional

responsibility other than. the Fifth

Amendment. "

Trial transcript, vol 6, p 247, ln

12:

Mr. Roethe: "The Board has nothing

to do with this. The Board is not on

trial here. This is irrelevant and imma-

terial."

Referee Regez: "Sustained."

BAPR counsel’s (Roethe) trial brief,

p 10:

"The only constitutional protection

which an attorney has in a misconduct

investigation, proceeding, or prosecution

is the privilege against self-

incrimination."

The above examples certainly do not

cover all of the circumstances in which

Leaf was prevented from effectively,

adequately, and meaningfully raising her

18

constitutional claims.

Although the state made broad claims

to the panel below that Leaf raised her

constitutional claims in the disciplinary

proceedings, the state presented no evi-

dence by citations to the record to con-

tradict the fact that Leaf’s constitu-

tional and civil rights claims were

blocked in that they were ruled irrele-

vant. As proof that her claims were con-

sidered, the state merely quoted from the

Wisconsin court’s decision that Leaf’s

constitutional claims had no merit. Ivy

Club _v. Edwards, 943 F.2d 270, 275 (3rd

Cir 1991). The parties can not be bound

by disputed issues determined irrelevant

by the state court (see: Ivy Club, at

284).

In their Amended Complaint Leaf also

charged that she was denied her constitu-

tional right to access to the courts

19

because of the above scenario. This con-

stitutional claim of deprivation of the

right to access to court, having become

ripe only after her treatment in the

state court, was obviously not litigated

in the state action.

Because the state actors (who are

the federal defendants) are members and

agents of the state judiciary, it is

unlikely that an impartial examination of

the plaintiff’s federal claims were made

in state court of state constitutional

misconduct. This is especially true if

the claims of the federal plaintiff in-

volve a state conspiracy by the federal

defendants (members and agents of the

state judiciary) to deprive the federal

plaintiffs of their constitutional right

to a federal trial.

Although the panel below did not

expressly rule that federal district

20

court jurisdiction should not be exer-

cised in cases involving bar disciplinary

rules, that is the result of its deci-

sion. Since bar disciplinary matters will

by their very nature touch on some state

judicial action, under the panel’s analy-

Sis in this case, any constitutional

claims to state bar disciplinary rules

are likely to invoke either inextricably

intertwined or res judicata/collateral

estoppel, and thus prevent federal juris-

diction. This in effect would nullify

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 13603

(1983). Feldman holds that whether the

state bar action was a judicial proceed-

ing or not, general constitutional chal-

lenges to bar admission rules can be

brought into federal district court.

Therefore, it is inappropriate to apply a

different standard to bar disciplinary

21

rules.

Even if it is argued that litigants

can preserve their federai court juris-

diction by not raising their constitu-

tional claims in the state proceeding

(though inextricably intertwined may

still operate as a bar), Leaf chose to

litigate her federal claims in federal

court and was involuntarily thrown into

state court because of abstention. Eng-

land _v. Louisiana State Bd. of Medical

Examiners, 375 U.S. 411, 84 Sct 461,

(1964) requires her to at least bring

those claims to the attention of the

state court, which she did. It was the

state court actors which deemed those

claims irrelevant in the state proceed-

ing. To allow the state actors, who are

the federal defendants, to reap the bene-

fit of blocking Leaf’s claims in the

state court to bar the claims from a

22

federal forum is a gross injustice and

sets a dangerous precedent: in any civil

rights litigation where the federal de-

fendants are connected with the state

judiciary, by simply ruling that the

federal plaintiff’s claims are irrelevant

in a state action, the claims are defeat-

ed without ever getting to the merits in

either the state and federal actions. In

essence, state actors would be immune

from federal civil rights liability.

If the panel’s interpretation of

Feldman is allowed to stand, all attor-

neys subject to disciplinary actions will

be denied, as a matter of law, the right

of access to the federal courts. Further,

because of the gag rule, citizens have no

knowledge of secret state violations of

their federal rights and, therefore, they

are also denied access to the federal

court. Leaf’s duty to protect her clients

23

constitutional rights allows her standing

on their behalf.

Edmonson v. Leesville Concrete Co., Inc.,

— U.S. __, 111 SCt 2077, 2078 (1991).

Because the panel’s intrepretation

of Feldman blocks Leaf’s constitutional

Challenges to the gag rule and disciplin-

ary investigation rules, Wisconsin now

has a judicially mandated state right to

order attorneys not to advise their cli-

ents of secret state inspections of their

clients’ confidential files.

To interpret this civil rights

complaint as an appellate review of the

state decision would result in the anoma-

ly of no legal procedure to bring consti-

tutional challenges to the attention of

the federal courts, making states the

predominant arbitrator of federal consti-

tutional rights. Under the panel’s inter-

pretation of Feldman, to approach the

24

federal district court is seeking a re-

view of the state court decision. There-

fore, as a matter of law, the determina-

tion of attorney’s constitutional rights

will be confined to the very entity ac-

cused of the unconstitutional acts.

Leaf’s second, third and fourth

counts of the Amended Complaint contain

general constitutional challenges’ to

Wisconsin attorney disciplinary rules and

procedures. Among those challenged is the

rule that subjects an attorney to disci-

pline if the attorney does not "fully"

cooperate with a BAPR investigation. Leaf

asserts that the rule is unconstitutional

because there is no provision for legiti-

mate exceptions or hearing on objections,

such as demands for wholesale production

of nine years of client records. It per-

mits unsupervised and secret government

intrusion into an attorney’s client re-

25

cords in violation of attorney/client

privilege, the client’s right against

self-incrimination, unconstitutional

search and seizure, etc. The disciplinary

process provides no mechanism to object

to any unconstitutional or even criminal

acts without first incurring an automatic

violation.

Simply by bringing any disciplinary

Claim against an attorney, the state may

have secret access to the personal and

confidential files of any citizen who has

hired an attorney. By the panel’s ruling,

an attorney can not object, inform the

client or seek access to the federal

courts to protect federal constitutional

rights of his clients’ or himself.

How can the state court’s superfi-

Cial holding that the federal plaintiffs’

Claims are without merit and "unsubstan-

tiated" be a meaningful decision on the

26

merits, if those same issues were deemed

irrelevant at the trial level? The state

court decision does not specify which

constitutional claims have no merit or

why. Paine Webber, Inc v. Farnam, 870 F2d

1286 1291 (7th Cir 1991). The Seventh

Circuit should not irrebuttably presume

that they are the same constitutional

claims plaintiffs bring into federal

court, especially when the state, charged

with establishing the elements for pre-

clusion (Democratic Cent. Com. v. Wash.

Met. Area Tr. Comm., 842 F2d 402, 409 (DC

Cir 1988) and Gray v. Lacke, 885 F2d 399,

406 (7th Cir 1989); interpreting Wiscon-

Sin law), presents no evidence that the

constitutional issues claimed to have no

merit are the same as those brought into

federal court. Therefore, federal subject

matter jurisdiction, which unquestionably

existed when federal suit was first

27

filed, has not been destroyed.

Whether the federal suit fails be-

cause of preclusion or because it is

characterized as a quest for a review of

the state decision, the result is the

same - loss of access to a federal forum

for the purposes of fact finding and

relief. And, when there was no fact find-

ing in the state action because the fed-

eral issues were deemed irrelevant, the

result is no forum at all. To accord the

full bar of res judicata, collateral

estoppel and inextricably intertwined

without explanation or discussion, as the

lower court has done, is to have the

federal court place its imprimatur on

this conspiracy. Because Leaf was denied

any opportunity to litigate her constitu-

tional issues in state court, none of the

issues can be inextricably intertwined.

U.S. v. Napper, 887 F2d 1528, 1534 (llth

28

Cir 1989).

Public Policy Requires That Certiorari

Be Granted

Although it was brought to their

attention, the opinion of the panel below

does not even mention the fact that

Leaf’s federal claims were ruled irrele-

vant in the state disciplinary action.

The integrity of the judicial process

requires that relevant and crucial facts

can not be ignored in the decision mak-

ing. The substance of due process is

betrayed when a court issues a decision

that may look rational and groundéd on

legal principles, but does not relate to

the facts of the case before it; facts

that were either ignored or deliberately

blocked from presentation. The public is

fooled because while the "reasoned" deci-

Sion is published, the factual record is

not.

The quality and honesty of judicial

decisions also affects the general pub-

lic. If judges can ignore the pertinent

facts put before them, what is the foun-

dation for due process and the rule of

law? The message needs to be sent that

courts can not neglect relevant facts to

an issue in order to find against a liti-

gant they may not like.

It is precisely because a state

court has such a strong interest in up-

holding the validity of its own bar dis-

Cciplinary rules and procedures and white-

washing the conduct of its own agents

that an independent forum in the federal

district court should be preserved. But

the broader problem reflected in this

decision is whether state courts can

absolutely close the federal courthouse

doors to any litigant by pretending to

rule “on the merits" of an issue when

30

tional issues. Federal defendants can

thereby deprive federal plaintiffs of

federal district court jurisdiction by

merely claiming to "rule" on the issue in

a state proceeding.

The result and the precedent set by

the Seventh Circuit decision in this case

does not reflect good law or practical

living. Because of the decision’s errone-

ous application of Feldman, the precedent

is set that an attorney will never be

able

to challenge the constitutionality of a

state bar disciplinary rule in federal

district court on the merits.

The unique circumstance of lawyers,

because they are supervised and disci-

plined by state courts (unlike any other

profession), is that any attorney disci-

plinary matters must involve a state

court, usually the highest court of the

31

because they are Supervised and disci-

plined by state courts (unlike any other

profession), is that any attorney disci

plinary matters must involve a state

court, usually the highest court of the

state. Therefore, abstention under Youn-

ger_v. Harris, 401 U.S. 37, 91 Sct 746

(1971) and inextricably intertwined will

usually be claimed to apply to restrict

federal court jurisdiction. If the Feld-

man rule that federal district courts do

have subject matter jurisdiction of gen-

eral constitutional challenges is diluted

or erroneously applied, such as in this

case, the result is that there will be

virtually no right to federal subject

matter jurisdiction.

In practice, the results of the

precedent set by the Seventh Circuit’s

decision is this case could lead to na-

tional judicial disarray as parties jock-

ary rule depends more on parochial whim

than law or merit. Following this prece-

dent, it is difficult to imagine any

circumstance in which a federal district

court would have subject matter jurisdic-

tion of a challenge to an attorney disci-

plinary rule unless the parochial agenda

willed it.

A further unique hardship on lawyers

is that since disciplinary rules are

promulgated by state courts, it leaves

the determination of the constitutional-

ity of a particular disciplinary rule or

practice in the hands of the very body

that created it. The normal checks and

balances intended by the separation of

powers between the branches of government

does not exist in attorney disciplinary

matters.

At first blush the complaints of a

suspended attorney about the disciplinary

33

powers between the branches of government

does not exist in attorney disciplinary

matters.

At first blush the complaints of a

suspended attorney about the disciplinary

rules may seem unimportant and insignifi-

cant. After all, must not the attorney

have engaged in some unethical behavior?

And, isn’t the code of professional con-

duct and rules enforcing it there to

protect the public? So what if attorneys

are second class citizens, as long as the

public is protected and the legal profes-

Sion is held to a high ethical standard?

But all of that rests on the pre-

sumptions: that the particular attorney

lis guilty of some wrongdoing; that the

disciplinary process is void of politics

Or prejudices; that a disciplinary rule

is for the benefit of the public and

promotes the quality of the profession as

34

opposed to protecting the legal institu-

tional turf, private interests, and sta-

tus quo; that disciplinary rules and

procedures are constitutionally valid;

and, that the same judicial body which

promulgates a rule can fairly evaluate

that rule’s constitutionality and the

conduct of its own agents. For example,

one ‘can legitimately ask: Does the chal-

lenged gag rule operate for the benefit

of the public or to protect lawyers? How

does the gag rule’s forbidding an attor-

ney who is being investigated from tell-

ing anyone, even his own clients, protect

the public? How can the public make an

informed judgment as to the effectiveness

and fairness of the attorney disciplinary

process when the vast majority of disci-

plinary matters are conducted in secret?

Many American citizens would be

stripped of the protection of the Bill of

35

Rights by state and federal judicial

rules forbidding an attorney from notify-

ing his clients of the secret state exam-

ination of their records.

From 1979 to 1992 there was an aver-

age of 1,111 complaints per year of ethi-

cal violations by lawyers made to the

Wisconsin Board of Attorneys Professional]

Responsibility. These complaints to BAPR

resulted in an average of 30.92 formal

actions per year (2.78%). Because of the

gag rule, all of the complaints that were

dismissed were done in secret; 97.22% of

them. The public has little information

on the claimed ethical] violations. More

importantly, the public has no idea of

why the allegations were dismissed in

97.22% of the grievances filed against

attorneys. Furthermore, formal action

(2.78%) does not necessarily mean public

exposure. There is a form of discipline

36

a enaiinemeeee —-——-

called a “private reprimand" which is

just that - private.

Granted, the interest of the states

in regulating lawyers is especially great

Since lawyers are essential to the dis-

tribution of justice, and are officers of

the courts. But the panel’s precedent now

gives the states absolute control of

lawyers and their and their clients’

access to federal district court. It

ignores the reality of the federal inter-

est at stake in the quality of the bar.

Often admission to or discipline from a

State bar precipitates parallel action

from the federal bar. Therefore, the

quality and degree of politicalization

of a state bar membership seeps into the

federal bar, locale by locale.

Making attorneys second class citi-

zens does not promote ethics and morality

within the legal profession. Indeed, it

37

has the opposite effect. It enables those

who are politically well connected and

malicious to ruin attorneys who are crit-

ical of the legal status quo and demand

legal reform.

At the risk of offending the quite

understandable "esprit de corps" of the

judiciary, one of the motives of BAPR is

to keep reform minded attorneys in line

by the abuse of institutional preroga-

tives and ungrounded irrebuttable pre-

sumptions of the correctness of the acts

of its agents.

Deprived of federal subject matter

jurisdiction, the local politicalization

of bar rules and their enforcement pro-

ceed virtually unchecked. While what may

happen to individual attorneys may seem

of little public consequences, but for

this Court’s ruling, attorneys would not

be allowed to advertise because such

38

creation of the independent counsel and

special prosecutor), the state judicia-

ries can not also impartially judge the

conduct of its own agents or the consti-

tutionality of its own rules and regula-

tions. To hold that an attorney has only

the option to apply to this Court by

petition for certiorari for review of the

state decision, statistically denies him

a right to a fair trial on any constitu-

tional issues, and denies this Court of

district inquiry, investigation and de-

termination.

Even if attorneys are second class

citizens, certain fundamental constitu-

tional rights should not be taken away.

An attorney should not be absolutely

precluded by doctrines of inextricably

intertwined, res judicata, collateral

estoppel, or Younger from any federal

district court jurisdiction regarding bar

39

An attorney should not be absolutely

precluded by doctrines of inextricably

intertwined, res judicata, collateral

estoppel, or Younger from any federal

district court jurisdiction regarding bar

matters. After all, these doctrines are

not constitutional principles. One’s

constitutional right to a fair forum

(whether state or federal) on claims of

constitutional and civil rights viola-

tions should not take a back seat to

court created doctrines which are de-

Signed to promote full faith and credit

and judicial economy.

It appears that the district court

and the circuit panel have been so preju-

diced by the antagonistic portrayal of

Leaf and Haynes by the Wisconsin court to

presume her out of federal court. The

panel’s decision comes close to command-

ing a finding that Haynes’ claims are

40

frivolous (even though he has had no

Opportunity to prove them and the court

had no record from the state or district

court), simply because they find them

difficult to believe (A-10). Here the

Wisconsin court has painted legal reform-

ers as criminals, under argumentum ad

hominum (when you can not disprove the

idea, attack the man), which have improp-

erly affected the district court’s and

the circuit panel’s perceptions of Leaf

and Haynes. Without being given the op-

portunity to disprove the falsehoods, the

presumptions should not be allowed.

For example, the circuit panel’s

statement in its decision, adopting the

Wisconsin court’s findings: "Leaf also

represented to four clients that Haynes

was her legal assistant, her assistant or

her legal associate - though there was no

employer-employee relationship between

41

Leaf and Haynes" (Decision, p 2; A-8).

This is misleading. Leaf has never re-

ferred to Haynes as her "legal associ-

ate". More importantly, the Wisconsin

rules of professional conduct do not

require a legal assistant to be an em-

ployee. Official comments to the rule

regarding responsibilities to nonlawyer

assistants state: "Such assistants,

whether employees or independent contrac-

tors, act for the lawyer in rendition of

the lawyer’s professional services."

(emphasis added) But by reporting this

portion of the Wisconsin court’s decision

as an example of Leaf’s alleged miscon-

duct, the Seventh Circuit has set the

precedent that it is a professional ethi-

cal violation for a lawyer to use a para-

legal who is not an employee of that

lawyer.

The Wisconsin court’s decision has

42

Leaf’s clients. Since Haynes was not a

party to the attorney disciplinary pro-

ceedings and Leaf was not present when

any of Haynes’ alleged misconduct took

place, it is an affront to due process to

make a factual finding incriminating

someone while at the same time handcuff-

ing the person trying to defend himself.

When allegation after allegation is han-

dled in this manner, it becomes extremely

difficult to unravel, especially when you

are limited to legal issues on appeal and

are deprived of any fact finding forum

whatsoever. A limited presentation of the

errors in the Wisconsin court’s decision

and the Seventh Circuit’s adopted find-

ings is contained in (A-146).

The dilemma is this. If Leaf is

restricted to applying for certiorari to

this Court from the Wisconsin court, she

is deprived of a fair fact finding forum.

43

ings is contained in (A-146).

The dilemma is this. If Leaf is

restricted to applying for certiorari to

this Court from the Wisconsin court, she

is deprived of a fair fact finding forum.

This Court does not hold de novo fact

finding hearings. If Leaf goes into fed-

eral court to try to prove how and why

the conspirators generated the falsehoods

(something she was prevented from doing

in the state action) she is thrown out

for seeking a review of the Wisconsin

court’s decision. Indeed, this is the

very quandary in which the state conspir-

ators intended to Place Leaf (and

Haynes). What greater damage to the repu-

tation of a Wisconsin lawyer then to have

falsehoods of ethical violations adopted

as factual findings by the Wisconsin

court? Leaf is in the undesirable posi-

tion of having to persuade the lower

44

court and now this Court of the correct-

ness of her legal position while not

being able to rebut the factual findings.

The precedent set by the panel’s decision

puts every lawyer, and citizen, in the

same dilemma; depending on whim is not

good law.

With the tremendous increase in the

criminal caseload facing the federal

judiciary in recent years, it is under-

standable that the mistreatment of one

attorney, depicted as evil and unethical,

creates little Sympathy. Good law is not

the only victim of this precedent. Unfor-

tunately, the integrity of the judiciary

also falls victim. The time available to

do justice continues to. shrink even

though many wrongs sought to be redressed

through civil action can be just as dam-

aging to the public as some of the worse

criminal acts.

45

Before exercising abstention, the

court must first consider whether the

federal plaintiff will have an adequate

opportunity to raise its constitutional

Challenges in the state proceeding.

Middelsex County Ethics Committee vy.

Garden State Bar Association, 457 U.S.

423, 102 SCt 2515 (1982). Middelsex holds

that there should be no abstention when

there is a showing of bad faith, malice,

Or harassment on the part of the state

court. What stronger showing of bad faith

then when the state, in order to trigger

abstention, tells the federal court that

the federal plaintiff can raise his con-

stitutional issues in the state action,

but when the federal plaintiff attempts

to assert his constitutional claims in

the state action, he is told that they

are irrelevant.

46

CONCLUSION

The determination of Leaf’s federal

constitutional and civil rights claims

are made by presumption without basis in

fact. The District Court and Circuit

Court both presume that the unsupported

and unexplained one-sentence statement of

the Wisconsin Supreme Court parroting the

referee as to no merit resulted from full

hearing when, as_ shown by BAPR’s own

transcripts, Leaf was not allowed to

raise any constitutional matters; the

irrebuttable presumption that the attor-

ney disciplinary action considered/acted

on a federal claim is clear error and

requires reversal to prevent the setting

of improper constitutional precedent for

all courts. Having denied the federal

plaintiff the opportunity to litigate her

constitutional claims in state court

47

where Leaf was forced to be, the state

Supreme court should not be allowed to

litigate by fiat of unexplained no-merit

ruling on unspecified constitutional

rights.

Federal courts are vested with a

"virtually unflagging obligation" to

exercise the jurisdiction given them

(McCarthy v. Madigani, US 112

ne /

sCt 1081, 1087 (1992). Judicially created

exception to federal jurisdiction are

just that, limited exceptions designed to

accomplish a limited purpose. District

courts have a duty to specifically "win-

now out" claims under such exceptions

from those ripe for federal jurisdiction

(Rogen v. Supreme Court of Virginia, 590

FSupp 102, 108 (ED Va, 1984). This deter-

mination is a question of federal law

(Levine _v. Supreme Court of Wisconsin,

679 FSupp 1478, 1485 (WD Wis 1988)). Any

48

exceptions to federal jurisdiction must

not be imposed absent evidence and hear-

ing proving the need for exception; ex-

ception by presumption violates constitu-

tional rights of due process and access

to the federal courts for federal issues.

For the reasons set forth above,

petitioner Linda A. Leaf, prays that a

Writ of Certiorari be granted.

April 8, 1993 Respectfully submitted,

R LINDA A. LEAF

a fy 4

Pry |

By: (Lahti tl bx

Charles L. Ollivier

Attorney for Petitioner

321 North Utica Street

Waukegan, IL 60085-4207

(708) 244-4280

49