Petition for Writ of Certiorari — Robb v. Mississippi Bar

Supreme Court, v.s.

FILED

961072 pici18 1996

No. vi rity OU}

MiE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

R. CHARLES Ross, PETITIONER,

V.

Tue Mississipp! BAR, RESPONDENT.

ON PETITION FOR Writ OF CERTIORAR! TO THE

SUPREME Court OF MIssIssIPP!

PETITION FOR WRIT OF CERTIORARI

R. Charles Robb,

Pro Se

Post Office Box 10793

#5 Twelve Oaks Circle

Jackson, Mississippi

39209-0793

(601) 922-1111

December 18. 1996

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

R. CHARLES Ross, PETITIONER,

V.

Tue Mississipp! BAR, RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME CourT OF MISSISSIPPI

PETITION FOR WRIT OF CERTIORARI

R. Charles Robb,

Pro Se

Post Office Box 10793

#5 Twelve Oaks Circle

Jackson, Mississippi

39209-0793

(601) 922-1111

December 18, 1996

QUESTIONS PRESENTED

1. In attorney disciplinary matters, may a state court of last resort

exercise its "exclusive and inherent" jurisdiction to supersede the juris-

dictional predicate required by its disciplinary rules for bar appeals in

order to obtain subject matter jurisdiction of such appeals?

The bar did not allege nor are there minutes of the bar com-

missioners that reflect that the board found the hearing tribu-

nal's findings and decision to have been outside certain

standards and that its general counsel should perfect an appeal.

R. Discip. Miss. Bar, Proc. R.9(1). The attorney raised the

jurisdiction question before the court in his motion for rehear-

ing. The Mississippi Supreme Court has departed from the re-

quirements of establishing subject matter jurisdiction when the

question is raised and abandoned the bright line drawn by the

Fifth Circuit Court of Appeals requiring courts to comply with

their own rules.

2. Does the Due Process Clause require a higher level of constitution-

al scrutiny when a state court of last resort enhances attorney discipline

after reviewing the appeal de novo by way of a self-assertion to not be

bound to its standards of review of lower court decisions or of adminis-

trative decisions?

TABLE OF CONTENTS

Page(s)

IOUT, nosso ce cc esc seen cccsvcnecs I

SR a l

eee ces ch gk aksancdvebeteautcess 2

CONSTITUTIONAL PROVISIONS AND

STATE DiscipLinary RULES ...................... 2-3

STATEMENTOP THE CASE....... 2... cece eee 3-7

REASONS FOR GRANTING THE WRIT .................... 7-19

I. By exercising jurisdiction outside its disciplinary

procedural rules, the Mississippi Supreme Court departed

from accepted procedural due process standards an-

nounced in decisions of this Court and of the Fifth Cir-

cuit. A decision by this Honorable Court to correct the

administration of the law by one state court of last resort

safeguards for all attorneys and bar associations, as well

as other administrative agencies, a definitive standard of

jurisdiction in disciplinary matters.

SSS 7-13

II. De novo review without standards has an in-

herent potential for judicial vindictiveness in all civil,

criminal and administrative matters subject to such re-

view. A definitive standard for pr ‘ection against poten-

tial retaliatory motivation can only be provided by this

court.

APPENDIX (separate)

PRooF CF SERVICE (separate)

Table of Authorities

Page(s)

Cases

United States Supreme Court

Blackledge v. Perry,

er ee ee ee oe ets Ree 10, 14, 17

Ex parte Bradley,

7 Wall. (74 U.S) 364 (1868)................. 20

Chaffin v. Stynchcombe,

Ee ee Or ties hick £5548 eee 10, 14, 17

City of Gainesville v. Brown-Crummer In v. Co.,

27 U.S. 54, certiorari denied 280 U.S. 569 (1928) 8

Colten v. Commonwealth of Kentucky,

ee Ge an eee 10, 14, 17

Mansfield, Coldwater & Lake Michigan Railway

vs Swan, 111 U.S. 379 (1884). .............. 8

Matson Nav. Co. v. U.S..,

Bee se ED oo noe aes ce on es 8

Ex Parte McCardle,

7 Wall. (74 U.S) 506 (1868 Miss.)............ 20

North Carolina v. Pearce,

BOs We. SUE MUPWOE i ah os ov eek veneee 10, 13, 14

Tr ee Peng ee fail 15, 16, 17, 19

In re Ruffalo,

Pe ee, Pe GID x geek ac nck oe be eb eee ee 10, 13

Ex parte Wall,

See Be CUNO os ok ae aa ee cna@er ees 19

Willner v. Committee on Character and Fitness,

Pee Oe ROR 53's 025 be a eee 8

United States District Court

Matter of Abrams,

521 F.2d 1094 (CA3),

cert. denied, 423 U.S. 1038 (1975). ............ 11

Charlton v. Federal Trade Commission,

SOF F260 90s AAG. ISTO): oo ake vite ewes li

In The Matter of Thalheim,

Bk we ek we OD rr 7, 11-12,

ET Eee at we 13, 19, 12

United States v. Cheers,

oe Ne) ee errr 18

United States v. Scott,

Te we & Oe} Le |: ) Sr er 18

United States v. Stoneberger,

Re Be 2) ene 12

Mississippi Supreme Court

City of Natchez v. Craig,

ce Cg |, Err 9

Culpepper v. Mississippi State Bar,

588 So.2d 413 (Miss. 1991), dissent............ 20

Eidt v. City of Natchez,

M2) Be Be cee Cee. BPG) 6 osc sce ccins 18

Green v. Creighton,

10 Smedes & M (18 Miss.) 159,

I, RED > vv tne ect Ko thew k ees 8

Hunt v. Hunt,

629 So.2d 548 on rehearing (Miss. 1993)....... 8

May v. V.F.W. Post #2539,

577 So. 2d 372 (Miss. 1991)...........0.0005. g

Michael v. Michael,

650 So. 2d 469 (Miss. 1995).................. 8

Miles v. State,

344 So.2d 133 (Miss. 1977)............... ae

The Mississippi Bar v. Attorney G,

630 So.2d 344 (Miss. 1994)................... 12-13, 19

Mississippi State Bar v. Attorney L,

511 So.2d 119 (Miss. 1987).......0.00000..... )

Moore v. White,

137 So. 99, 100 (Miss. 1931)................. 17, 12

Prudential Ins. Co. v. Gleason,

187 So. 229 (Miss. 1939).................... 12

Varnell v. Green,

512 So. 2d 903 (Miss. 1987) ................ 18

Constitutional Amendments

Constitution of the United States Of America

Fifth Amendment ..................0 000-0 cue 2, 18, 19

Fourteenth Amendment ...................0005. 18, 19

United States Supreme Court Rules

gS” a 2

MEE nce ee occa ens st 0600s FEET VE Ls Z

Federal Statutes

y. EBS Oe ey re ye

PB USL. S2IOM]) .. wc ccc cece cc ene oe %

Federal Rule

Federal Rules of Evidence 20l(e) ............... 18

State Rules

Mississippi Rules Of Appellate Procedure

Rule 10.(f) Limit on authority to add or subtract

from the record............. 0.00 cee uuceueeus

Mississippi Rules Of Appellate Procedure

Rule 40. (a) Petition for Reheairng

Mississippi Rules Of Professional Conduct

Rule 3.4 (c) Fairness to opposing counsel

Rule 8.4 Misconduct (c)

Rules Of Discipline For The Mississippi Bar

Rule | Jurisdcition

Rule 8 Complaint Tribunal - Powers and Duites

ge Fee nrg be ee ee

Procedural Rule 9.1... ..

Procedural Rule 9.4

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

R. Cuares Ross, PETITIONER,

v.

Tue Mississipp1 BAR, RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SupREME Court OF MIssissIPP1

PETITION FOR WRIT OF CERTIORARI

The petitioner R. Charles Robb respectfully prays that a writ of

certiorari issue to review the Decision and Order Of Suspension of the

Supreme Court of Mississippi, the denial of a timely filed Motion For

Rehearing thereon having been entered in the above-entitled proceeding

on September 19, 1996.

Opinions BELow

The final Decision and Order of Suspension of the Supreme

Court of Mississippi is not reported. (App.,infra, la-17a) The Decision

and Order of Suspension became final on September 19, 1996, and is

evidenced by a letter from the Clerk of the Supreme Court of Mississip-

pi. (App.,infra, 27a-28a) The Opinion and Judgment of the Com-

plaint Tribunal of the Supreme Court of Mississippi, dated August 25,

1993, is not reported. (App.,infra, 19a-27a)

JURISDICTION

As grounds upon which this Court has jurisdiction, R. Charles

Robb would show that the final Decision and Order of Suspension of

the Supreme Court of Mississippi, dated June 20, 1996, was entered

without the requisite subject matter jurisdiction of that court to hear the

appeal of The Mississippi Bar and was a denial of Mr. Robb's proce-

dural due process rights afforded him by the Fifth and Fourteenth

Amendments of the Constitution of the United States of America.

The jurisdiction of this Honorable Court to review the judgment

of a state court of last resort is invoked under 28 U.S.C. §1257(a) and

2101(c) and is submitted for consideration pursuant to Rule 10.1(t) of

this Court where a state court of last resort has decided a federal law

question in a way that conflicts with the decision of a United States

Court of Appeals and pursuant to Rule 10.1(c) of this Court where a

state court of last resort has decided a federal law question in a way that

conflicts with applicable decisions of this Court.

CONSTITUTIONAL PROVISIONS

AND

Strate DiscirLINARY RULES

Fifth Amendment, The Constitution of the United States of

America:

"No person shall . . . be deprived of life, liberty, or property,

without due process of law... ."

Fourteenth Amendment, The Constitution of the United

States of America:

"{Nlor shall any State deprive any person of life, liberty, or

property without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws."

2

Rules of Discipline For The Mississippi Bar

Rule 9. Appeals

(a) Either the Bar or the accused attorney may, as a matter of

right, appeal any final disposition of the Tribunal to the Court. . . .

Procedure (9.1) Who May Take an Appeal. Either the Board or the

attorney may appeal a final disposition of the Tribunal. The Board of

Commissioners of the Bar shall determine whether General Counsel

shall take an appeal on behalf of the Bar. The Board of Bar Commis-

sioners may direct General Counsel to perfect an appeal when the

Board believes that the Tribunal's findings end decisions are arbitrary

and capricious, not supported by substantial evidence, manifestly

wrong, or in error as to a matter of law.

STATEMENT OF THE CASE

The issue before this court is the denial of due process in a de

novo review proceeding and denial of procedural due process by a state

court of last resort during the cou-se of any attorney disciplinary

appeal.

Primarily, this Honorable Court is asked to determine the effect

of the usurpation of jurisdiction by a state court of last resort upon the

procedural due process rights of any attorney in the bar's appeal of a

disciplinary case.

If this Honorable Court finds that urisdiction exists when a

state court of last resort has not asbided by its own rules, the motiva-

tion of the court for enhancing punishment through the de novo review

process should be reviewed with a higher level of scrutiny.

The petitioner, R. Charles Robb, [Mr. Robb], is a citizen of the

United States of America, was admitted to the practice of law in the

State of Mississippi in 1979, and at all times material herein has resided

in Warren County, Mississippi, while maintaining law offices in Vick-

sburg and Jackson, Mississippi.

Mr. Robb represented Dr. Westbrook (she was then in medical

school) in an property settlement contempt hearing against Mr. Bene-

field, who was represented by Mr. Prisock. Mr. Robb and Mr. Prisock

had agreed to the hearing date. Mr. Prisock and Mr. Benefield did not

appear at the hearing. The chancery court entered an Order Of Civil

Contempt against Mr. Benefield, with a provision to purge himself.

Mr. Robb prepared the Order and presented it to the court without

sending Mr. Prisock a copy for approval as to form only.

Mr. Benefield was arrested on the court's Order and paid

$10,000 to purge himself. Mr. Benefield filed a Motion to set aside the

contempt Order. The chancery court appointed a special master who,

after a hearing, issued a Special Master's Report. (App. 29a-32a)

The chancery court adopted the Report and issued an Order setting

aside the prior contempt Order. Neither the Report nor Order stated

a legal basis for setting aside the contempt order.

During the time for appeal of the Order setting aside the con-

tempt order, Dr. Westbrook discharged Mr. Robb and retained new

counsel. No appeal was taken of that Order.

On a complaint filed by Mr. Benefield, a Formal Complaint

ws filed against Mr. Robb by General Counsel for The Mississippi

ar [Bar] on August 19, 1992. (R. 1) The basis of the Formal Com-

plaint was that Mr. Robb did not send Mr. Prisock a copy of the pro-

posed order allegedly required by the Mississippi Uniform Chancery

Court Rules, "concealed" the existence of the contempt Order by not

disclosing its existence to Mr. Prisock during the next four (4) months,

and lured Mr. Benefield (with his counsel) to a deposition 1nd there

caused Mr. Benefield to be arrested. No claim was made nor has any

court found that the Order for Civil Contempt was invalid or

obtained in violation of any rule of court or rule of professional

responsibility.

The Formal Complaint charged that Mr. Robb violated certain

provisions of the Mississippi Rules Of Professional Conduct of The

Mississippi Bar. (R. 5 and App. 34a)

The Complaint Tribunal [Tribunal] rendered an Opinion and

Judgment. (App. 19a-27a) On August 25, 1993, the Tribunal's

Opinion and Judgment was timely filed with the Supreme Court of

Mississippi. The Judgment of the Tribunal was that Mr. Robb had vio-

lated some of the rules charged by the Bar, had not violated one, and

the violation of one, though technical, would not subject him to disci-

pline. The Tribunal disciplined Mr. Robb by public reprimand.

After the Bar filed a Notice of Appeal, Mr. Robb filed his No-

tice of Appeal. The Bar briefed the issues. Mr. Robb filed a Motion

To Strike the findings of the special master against Mr. Robb's actions

in the contempt case.

The court passed the Motion to strike until its decision on the

merits of the case. Mr. Robb argued in his Motion to Strike that as a

proximate result of his subsequent discharge as Dr. Westbrook's coun-

sel, he had no substantive nor procedural due process rights to confront

the Report and Order, each of which were entered without any conclu-

sions of law.

Mr. Robb filed his brief contemporaneously with the filing of

his Motion to Strike.

At oral argument, the court questioned whether Dr. Westbrook

had been harmed by Mr. Robb's suit against her. Such issue had not

been raised by the Bar before the Tribunal nor briefed to the court. No

evidence in support of or defense thereto had been admitted at the trial

level of the disciplinary proceedings. The court demanded that the

county court's file m Mr. Robb's suit against Dr. Westbrook be deliv-

ered to the court by a date certain. Mr. Robb submitted the requested

5

documents and filed a Motion For Leave To Respond To The

Court's Supplement To The Record. (App. 37a-39a) The Motion

set forth that addition of evidence to the record by the court is outside

the Mississippi Rules of Appellate Procedure and the Rules Of Disci-

pline for the Mississippi Bar. Mr. Robb argued that the fundamental

fairness doctrine should allow him to respond to the supplementation of

evidence for mitigation. (App. 38a) The Order of the court "summani-

ly denied" that Motion.

On June 20, 1996, the Mississippi Supreme Court rendered a

Decision. Without any evidence of record to support its findings, the

court found that Dr. Westbrook “lost her claim" for arrearage and fu-

ture property settlement payments "as a result of the lower court's find-

ing that Mr. Robb's effort to execute on the contempt order were

improper."

In its Decision, the court denied Mr. Robb's Motion to strike.

On June 20, 1996, the Mississippi Supreme Court, contrary to

its own Rules, entered an Order of Suspension for six (6) months ef-

fective eleven (11) days later. The time for filing a Petition for Re-

hearing did not run until eighteen (18) days after the Decision and

Order were rendered [holidays and weekends extended the 14-day rule].

In civil cases before the court, the filing of a petition for rehear-

ing stays the Order and issuance of a Mandate. Mr. Robb filed a Mo-

tion To Stay Order Of Suspension And The Issuance Of A Mandate

Pending A Decision On Petition For Rehearing. (App. 39a-45a). The

court denied that Motion, but never issued a Mandate.

Mr. Robb timely filed his Motion For Rehearing, which in-

cluded the issues of jurisdiction and denial of procedural due process

now brought before this Honorable Court. (App. 46a-5 la).

By letter dated September 19, 1996, from the Clerk of the Su-

preme Court of Mississippi, Mr. Robb was noticed that his Motion For

Rehearing was denied. (App. 28a-29a) The court never entered an

6

Order which denied a rehearing nor addressed the issues raised therein

and for which an appeal to this Honorable Court is made.

Mr. Robb files this appeal within ninety (90) days of said

clerk's letter. Mr. Robb suspended his practice of law July 1, 1996,

notwithstanding the pendency of his Motion For Rehearing. This Peti-

tion is directly from the state court decision.

Reasons For GRANTING THE Writ

The Mississippi Supreme Court has decided an important ques-

tion of federal law in a way that conflicts with applicable decisions of :

this Court and conflicts with a decision of the Fifth Circuit Court of Ap-

peals, In The Matter of Thalheim, 853 F.2d 383 (CAS 1988) concern-

ing violations of procedural due process. This departure from the

requirements that subject matter jurisdiction be established when called

upon by a party or the courtm implies that the Mississippi Supreme

Court considers its "exclusive and inherent" jurisdiction to be sufficient

to grant it subject matter jurisdiction, notwithstanding its disciplinary

rule to the contrary.

A decision by this Honorable Court to correct the administra-

tion of the law by one state court of last resort safeguards for all attor-

neys and bar associations, as well as other administrative agencies, a

definitive standard of jurisdiction in disciplinary matters.

This Honorable Court should exercise its power of supervision

and review where a state court of last resort departs from the accepted

and usual course of judicial proceedings by exercising jurisdiction out-

side its procedural rules and denying the attorney procedural due pro-

cess rights in de novo review of a disciplinary case.

The error concerns an important constitutional, jurisdictional

and procedural problem in similar jurisdictional situations which are y

likely to arise in attorney and other disciplinary matters. ()

7

The statutory jurisdictional ground is 28 U.S.C. §2101 (c) and

§2101 (c).

I.

Supreme Court Of Mississippi Usurped

Subject Matter Jurisdiction Of Bar Appeal

At issue is whether General Counsel had authority to effect an appeal

for the Bar. Without such authority, the court had no jurisdiction to

consider the Bar's appeal.

Insufficient Predicate For Jurisdiction

In his Motion for Rehearing to the Mississippi Supreme

Court, Mr. Robb raised for the first time that there had been no eviden-

tiary predicate laid by the Bar to establish that the court had jurisdiction

of the Bar's appeal. The question of jurisdiction may be raised at any

time. City of Gainesville v. Brown-Crummer In v. Co., 27 U.S. 54,

59, certiorari denied 280 U.S. 569 (1928); Matson Nav. Co. v. U.S.,

284 U.S. 352 (1932). The Mississippi Supreme Court has likewise

long recognized that the question of jurisdiction may be raised at any-

time. Green v. Creighton, 10 Smedes & M (18 Miss.) 159, 48

Am.Dec. 742 (1848) and Hunt v. Hunt, 629 So.2d 548, 551 on re-

hearing (Miss. 1993). The court may at any time, sua sponte, question

its jurisdiction to rule. Mansfield, Coldwater & Lake Michigan Rail-

way v. Swan, 111 U.S. 379, 382 (1884 ). See Also, Michael v. Mi-

chael, 650 So. 2d 469, 471 (Miss. 1995) (court requires that it note its

own lack of jurisdiction); May v. V.F.W. Post #2539, 577 So. 2d 372,

374 (Miss. 1991) (court is duty bound to take cognizance of its own

jurisdiction or lack thereof).

The court denied the Motion without comment.

The required predicate for the Bar to appeal is set forth in the

Rules of Discipline for the Mississippi State Bar [Disciplinary

Rules}. ' The Board of Commissioners is an agency established by the

8

oP

court and the state legislature for administering the court's disciplinary

jurisdiction and speaks through its minutes. (App. 35a and 36a- 37a)

The procedural rule first requires that before the Board makes a

decision to appeal, it must "believe" that the hearing tribunal's findings

and decision are arbitrary and capricious, or not supported by substan-

tial evidence, or manifestly wrong, or in error as to a matter of law.

To “believe” is to make a decision concerning a matter. To

make a decision, the Board must have a meeting and minutes thereof.

The brief of the Bar did not state that a decision concerning the

tribunal's findings and decision had been made by the Board. Neither )

did it attach to its Notice of Appeal minutes of the Board concerning

that matter.

After the Board makes a decision that the Tribunal's findings

and decisions do not meet the standard set forth by the procedural rule,

its General Counsel cannot take the appeal without the direction of the

Board. A determination by the Board is mandatory not discretionary.

The brief of the Bar did not state that a decision to appeal had

been made by the Board. Neither did it attach to its Notice of Appeal

minutes of the Board wherein a decision to appeal was made.

General Counsel serves at the behest of the Board of Commis-

sioners of the Bar. The Disciplinary Rules control General Counsel's

authority to file the appeal on behalf of the Board of Commissioners of

the Bar. The Mississippi Supreme Court instituted the Disciplinary

Rules and determined that "matters pertaining to attorney discipline . . .

and such proceedings shall be conducted in accordance with these rules"

(Rule 1). (App. 35a) See also, Mississippi State Bar v. Attorney L,

1

RULE 9. APPEALS ... Procedure (9.1). . . The Board of Commissioners of

the Bar shall determine whether General Counsel shall take an appeal on behalf of

the Bar. The Board of Bar Commissioners may direct General Counsel to perfect an

appeal when the Board believes that the Tribunal's findings and decisions are arbi-

trary and capricious, not supported by substantial evidence, manifestly wrong, or in

error as to a matter of law.

9

S11 So.2d 119, 122 (Miss. 1987). Further, the right of appeal is lim-

ited to the Board of Commissioners of the Bar, not General Counsel.

As counsel for his client, General Counsel may only take such actions

as the client may authorize. The court does not acquire jurisdiction of

an appellant [and likewise his cause] when an unauthorized person ap-

peals a decision for such appellant who has not consented thereto. City

of Natchez v. Craig, 3 So. 2d 837, 839 (Miss. 1941).

The purpose of General Counsel's authorization appears to be

self-evident. The decision making is by attorneys elected at large to the

Board (App. 35a-36a) and who are less likely to personalize the deci-

sion of the tribunal or against the attorney being or not being disci-

plined. Whereas General Counsel, who is more Closely associated with

the case, facts and personalities, potentially could allow personal rea-

sons to appeal or not. Whether intended to or not, the procedure com-

plies with the due process standards set forth by this Honorable Court

to avoid a potential for vindictiveness on the part of the prosecutor.

See North Carolina v. Pearce, 395 US. 71 1, 724-26 (1969) ; Col-

ten v. Commonwealth of Kentucky, 407 U.S. 104, 116-118 (1972):

Chaffin v. Stynchcombe, 412 U.S. 17, 25-27 (1973); Blackledge v.

Perry, 417 U.S. 21, 27-28 (1974).

General Counsel had adequate opportunity to produce the min-

utes of the Board establishing its compliance with the rule and proce-

dure of the court. Beside being able to present the minutes with either

the Notice of Appeal or with the Brief, he was allowed by the Missis-

sippi Rules of Appellate Procedure, Rule 40(a), to produce his re-

sponse to the Motion for Rehearing within seven (7) days of its filing

but did not respond. Though no provision of the Mississippi Rules of

Appellate Procedure provides for such action by the court, the court

sua sponte invited the Bar to respond out of time but by a time certain.

The Bar's response was outside the time allowed by the court

2

Mr. Robb filed a Motion for Rehearing on July 8, 1996. The Mississippi Bar

10

ae

However, the untimely Response failed to include the predicate evi-

dence relating to the Board's compliance with Proczdural Rule 9.1 of

the Disciplinary Rules nor evidence which "convey(s] a fair, accurate,

and complete account of what transpired [before the Board of Bar Com-

missioners] with respect to those issues that are the bases of appeal."

Mississippi Rules of Appellate Procedure, R.10(f). (App. 33a)

The Court struck the Bar's Response to the Motion For Re-

hearing and denied the Motion without opinion.

In a case strikingly similar to the case at bar is where the Fifth

Circuit Court of Appeals found that the United States District Court for

the Eastern District of Louisiana

violated procedural due process by failing to follow its

aed

own requirements concerning proper disciplinary pro-

cedure when it instituted proceedings with respect to al-

leged federal infractions despite the attorney's panel

recommendations.

In The Matter of Thalheim, 853 F.2d 383, 386 (CA5 1988).

Richard A. Thalheim, Jr. was disciplined by the Louisiana State

Bar Association with a three-months suspension for certain negligent

conduct. A panel of three attorneys was appointed by the federal dis-

trict court to investigate possible misconduct in its court by Thalheim.

The requisite predicate to a disciplinary proceeding before that district

court is a written recommendation therefor by the panel. Notwithstand-

ing that there was no evidence of a written recommendation or lack

thereof as to whether disciplinary proceedings were warranted, a disci-

plinary proceeding was instituted against the attorney. The hearing

judge recommended that the attorney be suspended for one-year. A

response was due July 15, 1996. On July 29, 1996, the court caused its court adminis-

trator to notice The Mississippi Bar that it had ten (10) days within which to file a re-

sponse to the Motion For Rehearing. See Appendix ??. Such response was due

August 8, 1996, but was not filed until August 9, 1996. ’

11

majority of the judges of the Eastern District increased the one-year sus-

pension to two years, without any factual findings or conclusions of

law.

As is in the Mississippi Disciplinary Rules, that district

court's regulatory scheme as it applied to those proceedings is in manda-

tory terms by use of the word "shall". Id. at 387. Because "{a]ttorney

disbarment and suspension cases are quasi-criminal in character" , [Id.

at 388, citing In re Ruffalo, 390 U.S. 544, 55 (1968); Charlton v.

Federal Trade Commission, 543. F.2d 903, 906 (CAD.C. 1976):

Matter of Abrams, 521 F.2d 1094, 1108 (CA3), cert. denied, 423 U.S.

1038 (1975)}],

the court's disciplinary rules are to be read strictly, re-

solving any ambiguity in favor of the person charged.

Moreover, the same principle of construction follows

from the fact that it. was the court that drafted these

rules. The court wrote its own rules; it must abide by

them.

Thalheim at 388. See also, The Mississippi Bar v. Attor-

ney G, 630 So.2d 344, 348 (Miss. 1994); and Prudential Ins. Co. v.

Gleason, 187 So. 229, 233 (Miss. 1939) (substantial compliance is

mandatory where jurisdiction is prescribed by statute).

[A] district court's inherent power to discipline attor-

neys who practice before it does not absolve the court

from the obligation to follow its own rules which it

created in order to implement its exercise of such

power.

Thalheim at 399, referencing United States v. Stoneberger, 805

F.2d 1391, 1292-93 (CA9 1986) and Abrams, 521 F.2d at 1103-05.

In a suspension proceeding appeal, the Mississippi Supreme Court

found the Bar did not comply with the disciplinary procedural rule to

produce a certified copy of the judgment of conviction for summary

12

suspension notwithstanding the attorney pled guilty in the lower court

proceedings. The court acknowledged that it

is bound by its own disciplinary rules. Since attorney

disbarment and suspension cases are quasi-criminal in

character, this Court must construe the rules strictly.

The Mississippi Bar v. Attorney G, 630 So.2d 344, 348 (Miss.

1994)

Also, the Mississippi Supreme Court found

[a]ttorney disbarment and suspension cases are quasi-

criminal in character. Accordingly, the court's disci-

plinary rules are to be read strictly, resolving any ambi-

guity in favor of the person charged. . . . When a court

undertakes to sanction an attorney for violating court

rules, it is incumbent upon the sanctioning court to ob-

serve scrupulously its own disciplinary procedures. ...

{A]ttorneys have the right to rely upon the rules.

Attorney G at 348 citing Thalheim at 388 and 390.

The Mississippi Supreme Court has denied Mr. Robb procedural

due process in not dismissing the Bar's appeal for lack of subject matter

jurisdiction on the ground that there was no evidence to establish that

the appeal was predicated upon mandatory actions by the Board of

Commissioners of the Bar.

II.

Unfettered De Novo Review Affords

No Cognizable Standard Of Review

This Honorable Court is not asked to review de novo a hearing

tribunal's opinion and judgment but rather to consider the de novo pro-

cedure of a state court of last resort of such opinion and judgment.

Unfettered review de novo by a state court of last resort in at-

torney disciplinary cases is repugnant to the Due Process Clause.

13

In order to assure the absence of [sic] a [retaliatory] mo-

tivation, we have concluded that whenever a judge imposes

a more severe sentence upon a defendant after a new trial,

the reasons for his doing so must affirmatively appear.

Those reasons must be based upon objective infermation

concerning identifiable conduct on the part of the defendant

occurring after the time of the original sentencing proce-

dure. And the factual data upon which the increased sen-

tence is based must be made a part of the record so that the

constitutional legitimacy of the increased sentence may be

fully reviewed on appeal.

North Carolina v. Pearce, 395 U.S. 711, 724-26 (1969).

Because attorney disciplinary cases are quasi-criminal,’ due

process protections are as rationally applicable to the de novo review

process of a state court of last resort as they are to a re-sentencing pro-

ceeding of a criminal after being convicted on a new trial or trial de

novo . See also North Carolina v. Pearce, 395 U.S. 711, 724-26

(1969); Colten vy Commonwealth of Kentucky, 407 U.S. 104,

116-118 (1972); Chaffin v. Stynchcombe, 412 U.S. 17, 25-27 (1973);

Blackledge v. Perry, 417 U.S. 21, 27-28 (1974).

Scrutiny

The Complaint Tribunal is an agency of the Mississippi Su-

preme Court (App. 35a) which holds the evidentiary hearing in attorney

disciplinary cases. Disciplinary Rule 2(a). "Hearings before Complaint

Tribunals shall be as cases in chancery." Disciplinary Rule 8(a). (App.

35a-36a) On appeal from tae hearing tribunal, the Mississippi Supreme

Court exercises inherent and exclusive jurisdiction over attorney disci-

plinary cases (App. 35a) (as do all state the courts) and reviews de

novo, without being

> In re Ruffalo, 390 U.S. 544, $51, 88 S.Ct. 1222, 1226, 20 L.Ed. 2d 117 (1968)

14

bound by the rule applicable to administrative agencies to

the effect that their orders must be affirmed, unless they are

arbitrary and capricious and are not supported by substan-

tial evidence, or the rule that, as in chancery, the chancellor

will not be reversed on the facts unless he is manifestly

wrong.

Disciplinary Procedural Rule 9.4 (App.36a)

This self-asserted position of a state court of last resort over the

disciplinary proceedings and its review, which is outside its standards of

review of lower court decisions and of administrative agency decisions,

should raise the constitutional level of scrutiny by this Honorable Court

of judicial motivation in cases of increased discipline.

At no time in the proceedings before the Mississippi Supreme

Court than when the court added an issue not before the hearing tribu-

nal was it more evident that de novo review fails procedural due pro-

cess standards. That issue was neither alleged by the Bar nor argued

before the hearing tribunal. The deficient nature of de novo review to

protect procedural due process rights without judicial scrutiny is evi-

denced by the court's denying Mr. Robb an opportunity to respond to

the new evidence.

Minimally, the due process protections afforded by this Honor-

able Court's ruling in Pearce, supra., should be applicable to any attor-

ney disciplinary case of enhanced punishment. When a state court of

last resort enhances discipline, the record should affirmatively show the

reasons therefor and the reasons should be based upon objective in-

formation concerning the attorney's conduct occurring after the original

disciplinary proceeding. See Pearce, 395 U.S. at 724-26.

No New Conduct

The Mississippi Supreme Court ruled that Mr. Robb 's "acts

following the arrest of Benefield ... must be considered in imposing

sanctions." The Facts show only matters occurring before the tribunal

15

—_--

hearing and the tribunal's imposition of discipline. The court did not

identify any conduct by Mr. Robb occurring after the disciplinary

hearing to support imposition of increased sanctions as required by

Pearce, supra.

To "substantiate . . . that Mr. Robb should be suspended from

the practice of law", the court stated as reasons therefor "his demeanor

and attitude before the Court, and his apparent disregard for the rights

of others"

There is neither objective information identified of record nor

facts stated in the Decision to support that Mr. Robb showed disre-

spect for the court or its proceedings. Neither is there any objective in-

formation concerning identifiable conduct on the part of Mr. Robb

occurring after the original disciplinary procedure and which showed

disregard for the rights of others. Pearce, 395 U.S. at 724-26.

Further, the court ruled that Mr. Robb 's "failure to furnish ob-

vious information to counsel opposite and his deceit in arranging the ar-

rest of Benefield merit a suspension from the practice of law." The

failure to provide Prisock with a copy of the proposed order of civil

contempt as required by the chancery court rule was before the tribunal

and addressed in its finding that Mr. Robb violated Miss.R. Prof. Con-

duct 3.4(c). Likewise, the hearing tribunal addressed Mr. Robb 's de-

ceit by finding that he violated Miss.R. Prof. Conduct 8.4(c). (App.

21la-22a and 25a)

In neither rule violation did the court cause its reasons for in-

creasing discipline to affirmatively appear nor did it state objective in-

formation concerning identifiable conduct on the part of Mr. Robb

occurring after the time of the original tribunal's sentencing procedure.

Pearce, 395 U.S. at 724-26.

Protective Standard

Without any cognizable standard of review, the Mississippi Su-

preme Court is unrestrained by de novo review of attorney disciplinary

16

cases. The application of the Due Process Clause by this Honorable

Court is the only check upon such unrestrained review. The application

of the principle requiring the reviewing court to identify post-discipline

conduct of the attorney to warrant enhancement of punishment is the

correct judicial response.

Accordingly, the Decision of the Mississippi Supreme Court

was based only upon facts which existed at the time of the tribunal

hearing and imposition of discipline. The court's reasons for increased

discipline were no different than that of the hearing tribunal. Mr. Robb

was denied due process as provided by this Honorable Court's opinion

in North Carolina v. Pearce, supra.

The above is sufficient for this Honorable Court to reverse the

Decision of the Mississippi Supreme Court and reinstate the Opinion

and Judgment of the Complaint Tribunal.

CUMULATIVE JUDICIAL ACTION

Mr. Robb also requests this Honorable Court to review the ac-

tual procedure followed by the Mississippi Supreme Court and deter-

mine whether a state court of last resort's procedure outside its own

rules in an attorney disciplinary case denies the attorney procedural due

process and bars enhancement of punishment. A review of the actual

procedures followed by a state court of last resort is also determinative

of motivation by the court in enhancing discipline. The standard of re-

view of the motivation of the sentencing authority is set forth in North

Carolina v. Pearce, 395 U.S. 711, 724-26 (1969, Colten v. Common-

wealth of Kentucky, 407 U.S. 104, 116-118 (1972), Chaffin v.

Stynchcombe, 412 U.S. 17, 25-27 (1973), and Blackledge v. Perry,

417 US. 21, 27-28 (1974).

17

oo

Jurisdiction

As previously shown, the Mississippi Supreme Court

(notwithstanding the Bar's opportunity and failure to produce the juris-

dictional predicate) exercised jurisdiction without addressing by written

opinion the issue raised by Mr. Robb as to the lack of jurisdictional

predicate required by the court's disciplinary rules and judicial prece-

dent. (App. 46a-51a) The Court usurped jurisdiction and increased the

discipline imposed by the hearing tribunal thereby denying Petitioner

due process of law.

Evidence

The court used evidence from two lower state court proceedings

to make factually incorrect statements, to draw legally erroneous con-

clusions, and to enhance punishment based upon the statements and

conclusions. (App. 7a) Erroneous facts are no facts. There must be

facts to support a conclusion of law. Moore v. White, 137 So. 99,

100 (Miss. 1931).

The admission of evidence of one proceeding violated Mr. Robb

's constitutional right to confront the witnesses upon which the evidence

was based. (R. 64-68) The evidence of the other proceeding addressed

an issue not before the hearing tribunal and was admitted outside the

rules of the court, the court's judicial precedent and the ABA disciplin-

ary standards. (App. 37a) It was not until oral argument, that the court

added the issue. The addition of issues not before the hearing tribunal is

violative of procedural due process where no right to call witnesses or

present rebuttal evidence is allowed. Willner v. Committee on Char-

acter and Fitness, 373 U.S. 96, 103-104 (1963) The court “summarily

denied" Mr. Robb 's request to respond to the added issue and evidence.

The court's erroneous findings of fact is the equivalent of taking

judicial notice of a fact or the employment of an incorrect legal stan-

dard. Judicial fairness and due process require that the parties who will

be affected by the taking of such judicial notice must be afforded notice

18

thereof. Varnell v. Green, 512 So. 2d 903, 904 (Miss. 1987); Eidt v.

City of Natchez, 421 So. 2d 1225, 1231 (Miss. 1982) See Federal

Rules of Evidence 201(c); Mississippi Rules of Evidence 201 (e).

Double Punishment

The court made findings of multiple rule violations which are

cumulative to the facts and create an enhanced punishment. The legal

principle of merger of the general violation into the more specific viola-

tion applies in disciplinary cases and bars enhanced punishment.

United States v. Scott, 987 F.2d 261 (CA5 1993), United States v.

Cheers, 439 F.2d 1097 (CA5 1971); and Miles v. State, 344 So.2d

133 (Miss. 1977).

This cumulative effect is equivalent to double punishment and

deprived Mr. Robb of due process afforded by the Fifth and Fourteenth

Amendments of the Constitution of the United States of America and

a denial of equal protection afforded him by the Fourteenth Amendment

of the Constitution of the United States of America. This issue was

raised by Mr. Robb in his motion for rehearing (App. 2a)

Suspension Before Finality Of Decision

The court ordered a Suspension to become effective within a

period shorter than allowed for a motion for rehearing and denied a mo-

tion to stay the suspension pending a decision on a motion for rehearing.

The suspension was enhanced from a public reprimand to six months,

requiring Mr. Robb to file a petition for reinstatement, thereby extend-

ing his suspension for a period in excess of six months until the bar in-

vestigates and the court rules on the petition. (App. 18a-19a)

The consistent denial of due process supports the existence ofa

retaliatory motive within the court and the need for this Honorable

Court to apply the safeguards of Pearce.

19

CONCLUSION

For the above reasons, this petition for certiorari should be

granted.

The privilege of practicing law ‘is not "a matter of

grace and favor" [Willner v. Committee on Charac-

ter and Fitness, 373 U.S. 96, 102 (1963)]; on the con-

trary ... ‘an attorney's license to practice [is] a "night"

which cannot lightly or capriciously be taken from

him.’ ... [T]he power to withdraw that right ‘ought al-

ways be exercised with great caution; and ought never

to be exercised except in clear cases of misconduct,

which affect the standing and character of the party as

an attorney.’ [Ex parte Wall, 107 U.S. 265, 288

(1883)]....

Thalheim at 389.

In the case before this Honorable Court, the Mississippi Su-

preme Court has abandoned the procedural due process restrictions

upon it as announced in Attorney G and Thalheim. The instant case is

contrary to the principles of law set by this Court in Willner and Wall,

a decision rendered by the Fifth Circuit Court of Appeals and the

protections afforded Mr. Robb by the Fifth and Fourteenth Amend-

ments of the Constitution of the United States of America.

The action of the Mississippi Supreme Court represents an ero-

sion of statutory and legal principle and an abuse of its exclusive and

inherent power over attorney disciplinary matters.

An attorney disciplinary case

is a quasi-criminal proceeding, wherein an experienced tri-

bunal, consisting of a Circuit Judge and two lawyers ap-

pointed by this Court, recommend{s a certain discipline}.

The tribunal who hear{s] [the] case [sees] the witnesses, ob-

serve[s] their demeanor, [sees] the defendant and his

20

demeanor, hear{s] and applie[s] the facts to the law and

ma|[kJe their decision based on it. [The court] does not.

With any other professional group involved in similar pro-

ceedings, [the court] ha{s] either affirmed or remanded for

further review by their original "tribunal" or hearing

agency. [Attorneys] are the only professional group that

does not enjoy that privilege. Our constitution requires due

process and trial by peers. See Miss. Const. art. Ill, 14 and

22. In view of the above [the tribunal should be affirmed].

Culpepper v. Mississippi State Bar, 588 So.2d 413, 422

(Miss. 1991), dissent of Justice McRae with Presiding Justice Lee

joining.

The remedy in this case where the court did not have subject

matter jurisdiction of the bar appeal is a reversal of the Decision and

Order of Suspension and remand for entry of the Opinion and Judg-

ment of the hearing tribunal. Ex parte Bradley, 7 Wall. (74 U.S) 364,

377 (1868); Ex Parte McCardle, 7 Wall. (74 U.S) 506, 514 (1868

Miss.); also 28 U.S.C. 2106.

Respectfully Submitted,

— 2 ee

| R. Charles Robb, Pro Se

21